Grueninger v. Director, Virginia Department of Corrections

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7072

ERIC ADAM GRUENINGER,

Petitioner - Appellant,

v.

DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:13-cv-00260-JAG)

Argued: October 27, 2015 Decided: February 9, 2016

Before MOTZ, GREGORY, and HARRIS, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published
opinion. Judge Harris wrote the opinion, in which Judge Motz
and Judge Gregory joined.

ARGUED: Michael Allen McIntosh, SKADDEN, ARPS, SLATE, MEAGHER &
FLOM, LLP, Washington, D.C., for Appellant. Steven Andrew
Witmer, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney
General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
PAMELA HARRIS, Circuit Judge:

In 2009, Virginia police arrested Eric Adam Grueninger for

sexually abusing his fourteen-year-old daughter. During his

first interview with the police investigator, Grueninger was

read his Miranda rights and said, “I need an attorney.” Three

days later, the investigator re-interviewed him without an

attorney present, and this time, Grueninger confessed to

performing various sexual acts with his daughter. Grueninger

ultimately was tried on sexual abuse and child pornography

charges. Grueninger’s attorney did not file a timely motion to

suppress the confession, and the Commonwealth of Virginia

(“Commonwealth”) relied on Grueninger’s confession in securing

his conviction.

On state collateral review, Grueninger argued that his

attorney’s failure to move to suppress his confession under

Edwards v. Arizona, 451 U.S. 477 (1981), which prohibits police

interrogation after an invocation of Miranda rights, constituted

ineffective assistance of counsel. A Virginia circuit court

rejected that claim, holding that Grueninger had not been

“interrogated” for Edwards purposes, and that his statements

therefore would not have been suppressed had counsel so moved.

We disagree, and conclude that the state court decision on this

point was objectively unreasonable under 28 U.S.C. § 2254(d).

2
We further find that had Grueninger’s statements been

suppressed, there is a reasonable probability that the outcome

of his trial would have been different as to the sexual abuse

charges, though not the child pornography charges. Accordingly,

we reverse in part and affirm in part the district court order

dismissing Grueninger’s federal habeas petition.

I.

A.

On March 13, 2009, the Department of Social Services in

Hanover County, Virginia, received a report that Grueninger was

having sexual intercourse and other sexual contact with his

fourteen-year-old daughter. The police arrested him that day,

and investigator David Klisz met with Grueninger in jail for a

first interview. Their interaction was captured on video, which

was available to the prosecutor and to Grueninger’s attorney,

Michael Clower. The video depicts Klisz administering Miranda

warnings to Grueninger and Grueninger saying in response, “These

are felonies, I need an [a]ttorney.” 1 J.A. 342. Grueninger

1 This version of Grueninger’s statement comes from an
affidavit submitted by Clower in 2011, in connection with
Grueninger’s state habeas petition. During a pretrial motions
hearing, the prosecutor appeared to recall a slightly different
formulation of the statement. Unlike Clower’s affidavit —
credited by the state habeas court in its analysis — the

3
claims, without disagreement from the Commonwealth, that Klisz

immediately ceased all questioning.

On that same day, Klisz searched Grueninger’s home with the

consent of Grueninger’s wife. Klisz found three thumb drives in

Grueninger’s top dresser drawer, one of which contained

photographs and videos of child pornography. He also discovered

a laptop in the home’s work room. Subsequent forensic analysis

revealed that the content on the thumb drive had been accessed

on the laptop.

Three days later, on March 16, 2009, Hanover County issued

a new arrest warrant with additional charges, and Klisz again

visited Grueninger in jail. After administering the Miranda

warnings a second time, Klisz asked Grueninger questions about

the charges against him. This time, Grueninger answered Klisz’s

questions and admitted to performing oral sex on his daughter,

ejaculating on her, shaving her pubic hair, inserting a yeast

infection suppository into her vagina, and bathing with her

naked. He also admitted that the computer he primarily used at

prosecutor’s statement was not sworn, and it is not clear what
the basis was for her recollection. The district court and both
parties have assumed that what Grueninger said was “These are
felonies, I need an attorney,” and we do so, as well.

4
home was the laptop on which child pornography had been stored

and accessed.

A grand jury charged Grueninger with two counts of indecent

liberties with a child under the age of fifteen, two counts of

aggravated sexual battery by a parent, one count of rape by

force or threat, three counts of forcible sodomy, and two counts

of sexual object penetration (the “sexual abuse charges”).

Grueninger also was charged with nine counts of possession of

child pornography and one count of distribution of child

pornography (the “child pornography charges”). On November 19,

2009, the Circuit Court of Hanover County (“Circuit Court” or

“Hanover Circuit Court”) held a bench trial.

Local rules required that a motion to suppress, like all

motions in limine, be filed in writing before trial. Clower,

Grueninger’s attorney, did not file a written motion to suppress

Grueninger’s confession. But on the first day of trial, Clower

belatedly took issue with the admissibility of the confession on

Edwards grounds. When the prosecutor argued that Clower’s

objection was untimely, Clower attempted to excuse his delay by

explaining that he had only recently become aware of the

relevant statements and the timeline; the prosecutor pointed out

that in fact, Clower had been afforded “open file discovery,”

including access to the video of Klisz’s interactions with

5
Grueninger. In any event, she argued, Grueninger’s request for

a lawyer was not unequivocal, as required to trigger Edwards

protections. The trial court overruled Clower’s objection

without reaching the merits because Clower had failed to file a

motion in limine. Instead, the court held that the matter

“ought to be dealt with as [it came] up” at trial. J.A. 74.

The confession “came up” at trial when the prosecutor

elicited testimony from Klisz regarding Grueninger’s inculpatory

statements. But Clower did not object. At the close of

evidence, the trial court noted the importance of Klisz’s

testimony about his second interview with Grueninger: “[I]f I

find that Detective Klisz’s testimony was incredible and that

the defendant did not make the statements . . . that have been

attributed to him, then the whole case shifts into a different

perspective.” J.A. 305. The court did find Klisz’s account of

Grueninger’s confession credible, and it convicted Grueninger on

all counts.

On February 2, 2010, the court sentenced Grueninger to a

total term of imprisonment of 235 years, with all but 88

suspended. On the sexual abuse charges, Grueninger was

sentenced to 180 years with all but 74 suspended, and on the

child pornography charges, to 55 years with all but 14

suspended. Grueninger appealed his convictions, arguing that

6
the evidence was not sufficient to sustain them. The Court of

Appeals of Virginia affirmed and the Supreme Court of Virginia

refused Grueninger’s petition for appeal.

B.

On July 25, 2011, Grueninger filed a pro se petition for a

writ of habeas corpus in the Hanover Circuit Court, before the

same judge who had presided over his trial. Grueninger alleged

that the admission of his uncounseled confession to Klisz was

unconstitutional under Edwards v. Arizona. He also argued,

among numerous ineffective assistance claims, that Clower was

ineffective for not moving to suppress his confession under

Edwards.

In opposing Grueninger’s petition, the Commonwealth

produced an affidavit from Clower (the “Clower Affidavit”) that

described the video of the first interaction between Klisz and

Grueninger on the day of Grueninger’s arrest. According to

Clower, “Detective Kliz [sic] did read the defendant his Miranda

warning, and Grueninger said ‘These are felonies, I need an

Attorney.’” J.A. 342. Clower also described the circumstances

that produced Grueninger’s confession during the second

interview with Klisz: “On a subsequent day Detective Kliz [sic]

returned with new warrants. At that time, upon being served,

7
Mr. Grueninger volunteered statements that were later used in

his conviction.” Id.

The Circuit Court held that Grueninger was not entitled to

relief on any of his claims and dismissed his petition. The

court determined that Grueninger procedurally defaulted his

substantive Edwards claim by failing to litigate it at trial or

on direct appeal. And the court rejected Grueninger’s argument

that this failure itself constituted ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668 (1984).

According to the court, Grueninger’s statements to Klisz were

spontaneous or “voluntary” rather than the product of

“interrogation”: “The mere serving of the[] warrants [by Klisz]

was not designed to provoke incriminating statements from the

petitioner and was not an interrogation.” J.A. 347. It

followed, the court held, that the statements would not have

been suppressed under Edwards — which applies only when a

suspect is interrogated — and therefore that Clower’s failure to

move for suppression was neither deficient performance nor

prejudicial under Strickland.

Grueninger appealed the dismissal of his state habeas

petition to the Supreme Court of Virginia. The Supreme Court

summarily found that “there [was] no reversible error in the

8
judgment complained of” and refused the petition for appeal.

J.A. 354.

C.

On June 12, 2013, Grueninger filed a federal habeas

petition under 28 U.S.C. § 2254 in the Eastern District of

Virginia, 2 alleging largely the same claims as in his state

habeas petition. The district court agreed with the Circuit

Court that Grueninger’s substantive Edwards claim was

procedurally defaulted. As to ineffective assistance in

connection with the Edwards claim, the district court also

agreed that trial counsel “reasonably eschewed moving to

suppress,” quoting Clower’s statement in his affidavit that any

such motion would have been “baseless.” J.A. 41. In the

alternative, the district court held, even if a motion to

suppress had been made and granted, the resulting exclusion of

Grueninger’s confession would not have led to a different

outcome at trial: “Even without Grueninger’s statement to

Detective Klisz, overwhelming direct and circumstantial evidence

of Grueninger’s guilt existed.” Id. The district court

rejected the remainder of Grueninger’s claims, dismissed

2
Grueninger originally petitioned for federal habeas relief
in the Western District of Virginia. The case was transferred
to the Eastern District of Virginia and Grueninger filed a new
habeas petition there.

9
Grueninger’s petition, and denied a certificate of

appealability.

Grueninger filed a timely appeal with this court. We

granted a partial certificate of appealability as to the

following issues: “(1) Whether trial counsel was ineffective in

failing to seek pretrial suppression of Grueninger’s

[inculpatory] statement under Edwards v. Arizona, 451 U.S. 477

(1981),” and “(2) if so, whether counsel’s ineffectiveness

demonstrates cause and prejudice to excuse Grueninger’s

procedural default of his claim that his statements were

unconstitutionally obtained in violation of Edwards.”

II.

We review the district court’s denial of a habeas petition

de novo. MacDonald v. Moose, 710 F.3d 154, 159 (4th Cir. 2013).

Our analysis is circumscribed, however, by the amendments to 28

U.S.C. § 2254 enacted as part of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”).

Under 28 U.S.C. § 2254(d), “the availability of federal

habeas relief is limited with respect to claims previously

‘adjudicated on the merits’ in state-court proceedings.”

Harrington v. Richter, 562 U.S. 86, 92 (2011). A federal habeas

court may not grant relief on such claims unless it concludes

10
that the state court’s merits determination “was contrary to, or

involved an unreasonable application of, clearly established

Federal law” as set forth by the Supreme Court, 28 U.S.C.

§ 2254(d)(1), or rested on “an unreasonable determination of the

facts” in light of the evidentiary record before the state

court, id. § 2254(d)(2). And a state court’s factual findings

must be presumed correct, absent rebuttal by the petitioner by

clear and convincing evidence. Id. § 2254(e).

As the Supreme Court has made clear, § 2254(d) permits

federal habeas relief where a state court “identifies the

correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts”

of the prisoner’s case. Wiggins v. Smith, 539 U.S. 510, 520

(2003) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)).

But that is a high threshold, and only an “objectively

unreasonable” determination by a state court will warrant

federal habeas relief. Id. at 520–21; see also Tice v. Johnson,

647 F.3d 87, 108 (4th Cir. 2011).

III.

A.

Grueninger’s primary argument is that his counsel was

ineffective for failing to move to suppress his confession. We

11
begin by setting out briefly the legal principles that govern

this claim.

In Edwards v. Arizona, the Supreme Court held that once a

suspect invokes his right to counsel under Miranda, he is “not

subject to further interrogation” by the police, unless — in an

exception not relevant here — the suspect himself initiates

renewed communication with the police. 451 U.S. at 484–85. If

the police do interrogate a suspect in custody after he asserts

his right to counsel, then any statements they elicit are per se

inadmissible, even if the suspect is again advised of his

Miranda rights. Id. at 487. To establish an Edwards violation,

a petitioner must show both that he clearly and “unambiguously”

invoked his right to counsel, Davis v. United States, 512 U.S.

452, 459 (1994); Edwards, 451 U.S. at 485 (police may not

interrogate a suspect who has “clearly asserted” his Miranda

right to counsel), and also that the police subsequently

“interrogated” him, Edwards, 451 U.S. at 484 (prohibiting

“further police-initiated custodial interrogation” after

invocation); see Rhode Island v. Innis, 446 U.S. 291, 300–01

(1980) (“Miranda safeguards come into play” when police engage

in “interrogation” of a suspect in custody).

Claims of ineffective assistance of counsel are evaluated

under the framework set out in Strickland v. Washington. To

12
prevail, a petitioner must show that his lawyer rendered

constitutionally deficient performance, meaning that “the

identified acts or omissions were outside the wide range of

professionally competent assistance.” Strickland, 466 U.S. at

690. Under Strickland, courts are to “take a highly deferential

look at counsel’s performance,” so that review of a state-court

finding on deficiency becomes “doubly deferential” under AEDPA.

Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (citations and

internal quotation marks omitted). And a petitioner also must

show prejudice from counsel’s deficiencies, meaning “that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694.

We have further refined the Strickland analysis as it

applies in cases, like this one, where an ineffectiveness claim

is based on counsel’s failure to file a motion to suppress.

Under the deficient performance prong of Strickland, it is

enough to call into question counsel’s performance that an

unfiled motion would have had “some substance.” Tice, 647 F.3d

at 104. And the prejudice prong in such cases has two distinct

components, with the petitioner required to show both (1) that

the motion was meritorious and likely would have been granted,

and (2) a reasonable probability that granting the motion would

13
have affected the outcome of his trial. Kimmelman v. Morrison,

477 U.S. 365, 375 (1986); Tice, 647 F.3d at 104, 107–08.

B.

In applying § 2254(d) in this case, we “look through” the

Supreme Court of Virginia’s summary refusal to hear Grueninger’s

appeal and evaluate the Circuit Court’s reasoned decision on

Grueninger’s claim. See Brumfield v. Cain, 135 S. Ct. 2269,

2276 (2015) (applying “look through” doctrine to evaluate state

trial court’s reasoned decision denying claim on the merits

where state supreme court summarily denied petition for review);

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (federal habeas

courts should presume that “[w]here there has been one reasoned

state judgment rejecting a federal claim, later unexplained

orders upholding that judgment or rejecting the same claim rest

upon the same ground”). In other words, the state-court

decision that we review for “objective reasonableness” under

AEDPA’s highly deferential standard is that of the Hanover

Circuit Court, applying the Edwards interrogation requirement to

deny Grueninger’s ineffective assistance claim.

The Commonwealth appears to argue for a different approach.

Under Harrington v. Richter, an unexplained state supreme court

judgment may be disturbed under § 2254(d) only if there is “no

reasonable basis for the state court to deny relief.” 562 U.S.

14
at 98 (emphasis added). So here, the Commonwealth suggests,

where the Supreme Court of Virginia summarily refused to hear

Grueninger’s appeal, Grueninger can prevail only by showing that

any hypothetical ground for denying his claim, whether or not

addressed by the Circuit Court, would be objectively

unreasonable. 3

We disagree. Richter addressed a situation in which a

state habeas petition was presented directly to a state supreme

court as an original petition and then denied by that court in a

one-sentence summary order, so that there was no reasoned

decision by any state court. 562 U.S. at 96–97. In those

circumstances, the Court held, where there is no indication of

the state court’s reasoning, a federal habeas petitioner must

show that there was “no reasonable basis for the state court to

deny relief,” id. at 98, and a federal habeas court must defer

under AEDPA to any reasonable “arguments or theories . . .

[that] could have supported[] the state court’s decision,” id.

at 102 (emphasis added).

3 To be sure, though this appears to be the premise of the
Commonwealth’s brief, the issue is not clearly addressed. Nor,
for that matter, does Grueninger plainly confront this issue in
his briefs. At oral argument, however, both parties clarified
their respective positions, and we address them here.

15
 But “[b]y its terms,” Richter is limited to cases “‘where a

state court’s decision is unaccompanied by an explanation.’”

Woolley v. Rednour, 702 F.3d 411, 422 (7th Cir. 2012)

(alteration omitted) (quoting Richter, 562 U.S. at 98). The

situation is different when there is a state-court decision

explaining the rejection of a claim. Id. When a state

appellate court summarily affirms a reasoned lower-court

decision, or refuses a petition for review, then under Ylst, a

federal habeas court is to “look through” the unexplained

affirmance to examine the “last reasoned decision” on the claim,

assuming that the summary appellate decision rests on the same

ground. 501 U.S. at 803–04, 806. “The maxim is that silence

implies consent, not the opposite — and courts generally behave

accordingly, affirming without further discussion when they

agree, not when they disagree, with the reasons given below.”

Id. at 804. So in our case, we may assume that the Supreme

Court of Virginia has endorsed the reasoning of the Circuit

Court in denying Grueninger’s claim, and it is that reasoning

that we are to evaluate against the deferential standards of

§ 2254(d).

We recognize that the relationship between Richter and Ylst

has generated some questions in the courts of appeals, though

many courts have continued to apply Ylst even after the later-

16
decided Richter, “looking through” summary state-court

affirmances and affording AEDPA deference only to the grounds on

which the last reasoned state-court decision rests. See Cannedy

v. Adams, 706 F.3d 1148, 1158 (9th Cir. 2013) (concluding that

if the Supreme Court had intended to disrupt “common practice”

under Ylst when it decided Richter, it would have made that

intention clear). 4 Our court has not passed directly on the

issue, though we have questioned whether Ylst, which was

concerned with determining whether a state court had refused

relief on state procedural grounds, applies “where a state

procedural bar is not at issue” and the last reasoned state-

court decision is on the merits. Tice, 647 F.3d at 106. 5

4 Other cases holding that Ylst survives Richter and
continuing to apply the “look through” doctrine to summary
appellate affirmances include Barton v. Warden, S. Ohio Corr.
Facility, 786 F.3d 450, 460, 462 (6th Cir. 2015); Lee v.
Corsini, 777 F.3d 46, 54 (1st Cir. 2015); Woodfox v. Cain, 772
F.3d 358, 369–70 (5th Cir. 2014); and Eichwedel v. Chandler, 696
F.3d 660, 671–72 (7th Cir. 2012). The Eleventh Circuit appears
to have taken a contrary view. Hittson v. GDCP Warden, 759 F.3d
1210, 1232 n.25 (11th Cir. 2014).

5 Cases applying Ylst where there is no procedural bar at
issue and the last reasoned state-court decision addresses a
claim’s merits include Cannedy, 706 F.3d at 1158; Clements v.
Clarke, 592 F.3d 45, 52 (1st Cir. 2010); Bond v. Beard, 539 F.3d
256, 289–90 (3d Cir. 2008); Mark v. Ault, 498 F.3d 775, 782–83
(8th Cir. 2007); and McFowler v. Jaimet, 349 F.3d 436, 446 (7th
Cir. 2003).

17
 But to the extent there has been any doubt about the scope

and continued vitality of Ylst after Richter, we think the

Supreme Court clarified the matter in its decision of this year

in Brumfield, when it applied Ylst on federal habeas review to

“look through” a state supreme court’s summary denial of a

petition for review to evaluate a state trial court’s reasoned

decision denying a petitioner’s claim on the merits. 135 S. Ct.

at 2276. Deference under 28 U.S.C. § 2254(d), the Court

explained, extended only to the points actually determined by

the state trial court in its reasoned decision; the Richter rule

requiring deference to “hypothetical reasons [a] state court

might have given for rejecting [a] federal claim” is limited to

cases in which no state court has issued an opinion giving

reasons for the denial of relief. Id. at 2282–83. 6

In light of Brumfield, it is clear that the decision we are

to evaluate under § 2254(d) is the determination of the Hanover

Circuit Court that Grueninger could not make out an Edwards

violation and that his counsel therefore was not ineffective for

6
On this point, the Supreme Court appears to have been
unanimous. While the dissent in Brumfield disagreed with the
majority’s assessment of the state trial court decision under
§ 2254(d), it did not take issue with application of the “look
through” doctrine, and itself applied § 2254(d) only to the
reasoned decision of the trial court. 135 S. Ct. at 2289–90
(Thomas, J., dissenting).

18
failing to move to suppress his confession. It is to that

determination that we now turn.

C.

In rejecting Grueninger’s ineffective assistance claim, the

Circuit Court reasoned as follows:

The Court finds reasonable counsel’s decision not to
file a suppression motion, where petitioner made
voluntary statements in response to being served with
warrants one day in jail. (Exhibit 1; Affidavit of
Michael Clower). The mere serving of these warrants
was not designed to provoke incriminating statements
from the petitioner and was not an interrogation, thus
counsel correctly determined that the statements would
not have been suppressed. The Court dismisses this
claim for failure to establish deficient performance
or prejudice. Strickland, 466 U.S. 668.

J.A. 347. With due respect to the state court, we find that

determination to be objectively unreasonable under § 2254(d).

First, there is no question (and indeed, the Commonwealth

does not dispute) that when Klisz visited Grueninger in jail on

March 16 to serve new arrest warrants, he questioned Grueninger

about the charges against him. Klisz’s trial testimony leaves

no room for doubt on this point: When the prosecutor asks,

“[A]fter you read him Miranda, did he answer any of your

questions?” Klisz replies, “He did. . . . I asked him questions

and he talked about — we talked about the case,” and then, just

a few moments later, elaborates, “I asked him about the charges,

they were all of a sexual nature.” J.A. 87–88 (emphasis added).

19
 Second, it is equally plain (and again, the Commonwealth

concedes) that the asking of questions about the substance of a

case constitutes “interrogation” for Edwards purposes. See

Innis, 446 U.S. at 300–01. The difficult issue when it comes to

defining “interrogation” is not whether “express questioning”

counts — it does — but whether police conduct short of direct

questioning might also be covered. In Innis, the Supreme Court

answered that question in the affirmative, holding that

“interrogation” includes not only “express questioning” but also

its “functional equivalent” — “words or actions on the part of

the police . . . that the police should know are reasonably

likely to elicit an incriminating response from the suspect.”

Id. (footnotes omitted). The Circuit Court appears to have held

that Klisz’s serving of a new arrest warrant on Grueninger did

not rise to the level of “interrogation” under this alternative

definition, as it was not “designed to provoke incriminating

statements from the petitioner.” J.A. 347. We need not quibble

here with the Circuit Court’s substitution of a subjective

standard (“designed to” elicit) for Innis’s objective standard

(“should know are reasonably likely to” elicit), and may assume

that the state court correctly, or at least not unreasonably

under § 2254(d), determined that confronting Grueninger with the

new arrest warrant did not itself constitute “interrogation.”

20
But that is beside the point, because under any reading of the

Supreme Court’s established precedent, Klisz’s “express

questioning” of Grueninger about the charges against him surely

does qualify as “interrogation” under Edwards. Innis, 446 U.S.

at 300–02.

The Circuit Court rejected Grueninger’s ineffective

assistance claim on the ground that because there was no

interrogation, Grueninger’s statements would not have been

suppressed even if his counsel had moved to exclude them under

Edwards. J.A. 347 (“[There] was not an interrogation, thus

counsel correctly determined that the statements would not have

been suppressed. The Court dismisses this claim for failure to

establish deficient performance or prejudice.”). The

Commonwealth does not defend that holding, and we believe the

Circuit Court’s decision “involved an unreasonable application

of[] clearly established Federal law, as determined by the

Supreme Court of the United States” under § 2254(d)(1). 7

7
Though we hesitate to read too far between the lines of
the Circuit Court decision, we recognize that it may have been
informed by the Clower Affidavit’s assertion that “upon being
served [with the new arrest warrant by Klisz], Mr. Grueninger
volunteered statements that were later used in his conviction,”
J.A. 342 (emphasis added). Given the context, we assume that
Clower was using “volunteered” to signify only that Grueninger’s
statements were uncoerced and came after Miranda warnings, not
that they were spontaneous utterances unrelated to questioning.
But to the extent the Circuit Court ruling rests on a factual

21
 D.

The Commonwealth urges us to affirm the dismissal of

Grueninger’s ineffective assistance claim on two alternative

grounds. First, the Commonwealth argues, the Circuit Court

determination that any Edwards motion to suppress would have

been denied turns out to be correct, not because there was no

interrogation, but because Grueninger did not unequivocally

invoke his Miranda right to counsel. Second, the Commonwealth

contends, the district court properly found that even had

Grueninger’s confession been suppressed, there was no reasonable

probability that the result of his trial would have been

different, and so no Strickland prejudice. Because the state

court did not reach these questions, we consider them de novo.

See Brumfield, 135 S. Ct. at 2282 (where state trial court does

not make finding on particular component of claim, there is “no

determination on that point to which a federal court must defer”

under § 2254(d)); Wiggins, 539 U.S. at 534 (no AEDPA deference

in evaluating prong of Strickland analysis that state court has

not reached); see also Early v. Packer, 537 U.S. 3, 8 (2002)

finding that Klisz did not question Grueninger, we conclude that
it is “based on an unreasonable determination of the facts,” 28
U.S.C. § 2254(d)(2), in light of Klisz’s pellucid trial
testimony.

22
(per curiam) (habeas relief may be granted if either “the

reasoning [or] the result of the state-court decision” is

objectively unreasonable under 2254(d)). 8

1.

The Commonwealth’s primary argument is that Grueninger can

establish neither deficient performance nor prejudice under

Strickland because any suppression motion would have been

denied. Relying on Clower’s representations in his affidavit,

the Commonwealth insists that Clower made a deliberate tactical

decision to forgo a suppression motion under Edwards, predicated

on his judgment that such a motion would be “baseless” because

Grueninger did not use “the terminology needed to evoke [sic]

his Miranda rights” when he said, “I need an [a]ttorney.”

Clower Affidavit, J.A. 342–43. We disagree.

8
We do not understand the Commonwealth to argue against
this application of Brumfield and Wiggins. Once it is
established that the state-court decision we review under
§ 2254(d) is that of the Circuit Court, it follows that
deference under § 2254(d) is owed only to the actual
determinations of that court and not those that it
hypothetically might have made; that is why Ylst’s “look
through” doctrine matters in the first place. See Brumfield,
135 S. Ct. at 2282–83 (contrasting Wiggins and Richter). And if
there were any question as to whether Wiggins survives Richter,
we think it was resolved by the Supreme Court’s recent decision
in Brumfield, applying Wiggins to review de novo one component
of a claim under Atkins v. Virginia, 536 U.S. 304 (2002),
because it was not addressed by the last reasoned state-court
decision. 135 S. Ct. at 2282.

23
 We recognize that review of counsel’s performance under

Strickland is deferential, respecting the “wide latitude counsel

must have in making tactical decisions.” Strickland, 466 U.S.

at 689. But on this record, it is hard to discern any tactics

at all. Clower did not, in fact, forgo an Edwards objection; he

raised the Edwards issue on the first day of trial. The only

thing forgone was the opportunity to make his Edwards argument

in a timely manner and in writing, as required by local rules —

or, once that opportunity was lost, to accept the invitation of

the trial judge to object at trial when the confession was

introduced. A strategic judgment that “baseless motions” should

be avoided, see Clower Affidavit, J.A. 343, may be well-founded,

but it cannot explain a decision to raise a “baseless” claim

only in an improper manner that ensures its denial. See Tice,

647 F.3d at 105–06 (finding deficient performance on habeas

review and declining “to engage in after-the-fact

rationalization of a litigation strategy that almost certainly

was never contemplated”); Richards v. Quarterman, 566 F.3d 553,

570 (5th Cir. 2009) (finding deficient performance on federal

habeas review where counsel’s “proffered explanations” for

failure to seek admission of evidence “ma[de] no sense” and

failed to “explain the basis” for her actions).

24
 Regardless, any determination by Clower that he could not

defend a suppression motion because he and the prosecutor

“agreed that [Grueninger] did not evoke [sic] his Miranda

rights,” Clower Affidavit, J.A. 342, appears to rest less on

informed legal judgment than on a legal misapprehension — which

of course will not excuse deficient performance, see Winston v.

Pearson, 683 F.3d 489, 504–05 (4th Cir. 2012). As noted above,

Edwards protections are triggered only if a suspect

“unambiguously” invokes his right to counsel under Miranda, by

“articulat[ing] his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an attorney.”

Davis, 512 U.S. at 459. We think that standard was met when

Grueninger, in response to being advised of his Miranda right to

counsel, said, “These are felonies, I need an [a]ttorney.” J.A.

342.

We of course acknowledge, as the Commonwealth argues, that

“merely mentioning an attorney” is not enough to invoke under

Davis. But Grueninger’s statement — “I need an attorney” —

contains none of the hedges or equivocations that might make it

unclear to a reasonable officer whether he was requesting

counsel. Cf., e.g., Mueller v. Angelone, 181 F.3d 557, 573–74

(4th Cir. 1999) (“Do you think I need an attorney here?” does

25
not unambiguously invoke); Johnson v. Harkleroad, 104 F. App’x

858, 867 (4th Cir. 2004) (unpublished) (“maybe I should stop

talking and get a lawyer” does not unambiguously invoke). Nor

is there anything about the context that might render

Grueninger’s statement ambiguous. This is not a case, for

instance, in which a suspect says “I need a lawyer” mid-

interview, and then immediately continues to answer questions,

cf. United States v. Eligwe, 456 F. App’x 196, 197–98 (4th Cir.

2011) (unpublished), so that it may be unclear whether he

desires legal assistance in connection with the questioning

itself. Here, by contrast, Grueninger said “I need an attorney”

in response to being read his Miranda rights, leaving no doubt

that he is referring to the Miranda right to have counsel

present during questioning. And indeed, that a “reasonable

police officer in the circumstances” would so understand

Grueninger’s statement, see Davis, 512 U.S. at 459, appears to

be confirmed by the fact that Klisz himself understood it that

way, asking no further questions once Grueninger announced his

need for a lawyer.

In considering whether counsel’s failure to move to

suppress a confession was deficient under Strickland, we ask

whether a motion to suppress would have had “some substance.”

Tice, 647 F.3d at 104. And in connection with Strickland’s

26
prejudice prong, we evaluate whether the underlying “claim is

meritorious,” Kimmelman, 477 U.S. at 375, so that a motion to

suppress likely would have been granted. 9 Because, as discussed

above, Grueninger was interrogated by the police after invoking

his Miranda right to counsel, we conclude that an Edwards motion

to suppress not only would have had “some substance,” but also

would have been meritorious and likely granted, but for

counsel’s deficient performance. 10

9 We note that courts have differed slightly in their
formulation of this standard. See, e.g., Ray v. United States,
721 F.3d 758, 763 (6th Cir. 2013) (must be “reasonably likely”
that a court would grant the motion to suppress); Styers v.
Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008) (petitioner must
show a “reasonable probability that the motion would have been
granted”); Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999)
(petitioner must show that “it is reasonable that the trial
court would have granted [the unfiled motion] as meritorious”).
In Tice, we had no occasion to parse the standard so finely,
concluding simply that “had the motion to suppress been made,
the trial court would have had little choice but to grant it.”
647 F.3d at 107. Here, too, the matter is clear enough that we
need not bear down on the precise formulation.
10 We cannot agree with the Commonwealth’s novel argument
that we should defer to the Circuit Court ruling that the
statements would not have been suppressed because the judge who
made that determination on collateral review is the same judge
who presided over Grueninger’s trial, making him “uniquely
qualified” to predict whether he himself would have granted an
Edwards motion. Response Br. at 7. The question under
Strickland and Kimmelman is whether an unfiled motion to
suppress would have been “meritorious” as an objective matter,
Kimmelman, 477 U.S. at 375, not whether a particular judge —
based on argument, we note, by putatively deficient counsel —
might nevertheless have denied it. Cf. Tice, 647 F.3d at 105–06

27
 2.

Finally, the Commonwealth argues that the district court

correctly held that even if a motion to suppress would have been

granted, there is no “reasonable probability” that exclusion of

Grueninger’s confession would have affected the trial’s outcome,

as is necessary to complete the prejudice showing under

Kimmelman and Strickland. See Kimmelman, 477 U.S. at 375. We

review the district court’s holding on this question de novo,

see Washington v. Murray, 4 F.3d 1285, 1288 (4th Cir. 1993)

(holdings about deficient performance and prejudice under

Strickland are mixed questions of law and fact subject to de

novo review); Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008)

(de novo review where district court habeas decision is based

exclusively on state-court record), and come to a different

conclusion.

As we have recognized, “a confession can have . . . a

devastating and pervasive effect” on the outcome of a trial.

United States v. Ince, 21 F.3d 576, 583 (4th Cir. 1994); see

also Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (“A

confession is like no other evidence.”). This is a case in

(performance and prejudice prongs of Strickland are not pure
questions of fact on which trial court is presumed correct).

28
point. Grueninger’s statements, introduced at trial by way of

Klisz’s testimony, were detailed and deeply disturbing. As

Klisz recounted:

I asked him about the charges, they were all of a
sexual nature. During that time, he admitted to
performing oral sex on [his daughter] on at least two
occasions. . . . [H]e said that [his daughter] had
come to him and wanted him to perform oral sex on her
because she was curious. He also said that
ejaculating on his daughter during those same
incidents was part of what was going on. He said he
had [his daughter] clean herself up — clean herself up
afterwards. He also said that he had shaved his
daughter’s pubic hair because she wanted him to. He
also said that he regularly bathed naked with [his
daughter], had been doing it for a long time since she
was little. I asked him if he had touched his
daughter’s vagina with his finger. He denied that he
had, but he said that he had helped her with a yeast
infection suppository because it kept slipping out of
her fingers, so he put it in her vagina for her.

J.A. 88. That testimony almost certainly would have left an

indelible impression on the court as it conducted its bench

trial. 11

The independent evidence against Grueninger, on the other

hand, while substantial, was not so overwhelming that we can be

confident Grueninger would have been convicted of sexual abuse

11
Our objective assessment of the likely prejudicial effect
of Grueninger’s confession is, we note, consistent with the
trial court’s own understanding of the confession’s importance.
As that court explained, summing up the evidence at the
conclusion of Grueninger’s trial, “the whole case shifts into a
different perspective” if Klisz’s testimony is credited and
Grueninger’s confession taken into account. J.A. 305.

29
even without his confession. In addition to the confession, the

Commonwealth relied at trial chiefly on the testimony of

Grueninger’s daughter, the only witness to provide direct

evidence on the abuse charges. Her testimony was damning,

charging Grueninger with “putting his parts all over” hers and

touching her in a sexual way “whenever he got the chance.” J.A.

112–13, 124. But the defense was able to raise questions about

the reliability of that testimony. On cross-examination, for

instance, Grueninger’s daughter admitted that she had denied

earlier that Grueninger had abused her and then accused him only

after they had a fight, and that she had vivid sexual fantasies

and found it “hard to tell what’s fantasy and what’s real,” J.A.

139. And the Commonwealth’s own expert in electronic evidence

contradicted the daughter’s account that Grueninger had shown

her pornography on her computer. 12

None of the Commonwealth’s other three witnesses could

testify directly that Grueninger had sexually abused his

daughter. Testimony of a nurse practitioner and a Child

Protective Services worker established that the daughter had

12
Though the trial court ultimately credited the daughter’s
testimony, it recognized that it was less than “airtight,” J.A.
306, and that the court was evaluating the testimony in light of
Grueninger’s confession, which was the “given on which to go
forward,” J.A. 305.

30
reported sexual abuse and showed physical evidence consistent

with sexual trauma, but did not tie Grueninger himself to any

abuse or trauma aside from his daughter’s statements to them.

Grueninger’s wife was able to testify to particular acts by

Grueninger, but that testimony was limited to having seen

Grueninger bathe with their daughter and shave her pubic hair.

Grueninger’s wife also read letters from Grueninger apologizing

for the harm he had caused their daughter and asking that they

recant, but the letters did not mention any specific acts, and

Grueninger claimed at trial that he had been apologizing for his

role in his daughter’s emotional breakdown and not for any

sexual abuse.

We do not mean to suggest that the Commonwealth’s

independent evidence was insubstantial, or that it could not

have supported a guilty verdict in the absence of Grueninger’s

confession. But that is not the standard we are to apply. See

Strickland, 466 U.S. at 693 (petitioner need not show that

counsel’s deficiency “more likely than not altered the outcome

in the case”). Instead, the question is whether there is a

“reasonable probability” of a different outcome at trial had

Grueninger’s confession been excluded. See id. at 694. Given

the centrality of the confession to this case, we cannot be

confident that there is no “reasonable probability” that

31
Grueninger’s confession affected the outcome of his trial on the

sexual abuse charges.

We reach a different judgment, however, with respect to the

child pornography charges on which Grueninger also was

convicted. As to these charges, Grueninger’s statements to

Klisz were of very limited relevance. The entirety of Klisz’s

testimony on this point was that when asked about his computer

use, Grueninger said “the main computer he used in the house was

the laptop.” J.A. 88. But whether or not Grueninger used the

laptop, the Commonwealth presented overwhelming evidence tying

him to a thumb drive that contained photographs and videos of

child pornography, found in Grueninger’s own dresser drawer

along with adult pornographic DVDs, a sex vibrator, and personal

lubricant. And even as to the laptop, with or without

Grueninger’s confession, the Commonwealth established at trial

that pornographic images of children were found on the laptop in

a folder under a partition labeled “Eric,” Grueninger’s first

name. In light of this compelling independent evidence and the

marginal relevance of Grueninger’s statement to Klisz, we see no

reasonable probability that admission of Grueninger’s confession

altered the outcome of his trial on the child pornography

charges.

32
 In sum, we find that with respect to his convictions on

sexual abuse charges, Grueninger has demonstrated ineffective

assistance of counsel under both the deficient performance and

prejudice prongs of Strickland, and we reverse the district

court’s dismissal of his habeas petition as to those

convictions. We remand with instructions that the district

court issue Grueninger a writ of habeas corpus as to the sexual

abuse charges unless the Commonwealth endeavors, within a

reasonable period of time, to prosecute him in a new trial on

those counts without utilizing the confession. With respect to

his convictions on the child pornography charges, we find that

Grueninger has not shown a reasonable probability that his

confession altered the outcome of his trial, as required to

demonstrate prejudice under Strickland, and we therefore affirm

the district court order in that respect. 13

13For the same reason, we hold that Grueninger cannot show
“prejudice” sufficient to excuse the procedural default of his
substantive Edwards claim as it pertains to the child
pornography charges. To obtain federal habeas review of a
procedurally defaulted claim, a petitioner must show both “cause
for the default and actual prejudice” from a violation of
federal law. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Though the “[c]onstitutionally deficient performance” of
Grueninger’s counsel may constitute “cause” under this standard,
see Reid v. True, 349 F.3d 788, 806 (4th Cir. 2003), Grueninger
cannot demonstrate the requisite “prejudice,” as discussed
above, and so his stand-alone Edwards claim does not provide an
alternative basis for reversing his child pornography
convictions. And because Grueninger prevails on his Strickland

33
 IV.

For the foregoing reasons the judgment of the district

court is

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED.

claim as to the sexual abuse charges, there is no need to
address those charges further.

34