Grueninger v. Dir., Va. Dep't of Corr.

• Decision Date: 09 February 2016
• Docket Number: No. 14–7072.,14–7072.
• Citation: 813 F.3d 517
• Parties: Eric Adam GRUENINGER, Petitioner–Appellant, v. DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

813 F.3d 517

Eric Adam GRUENINGER, Petitioner–Appellant,

v.DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.

No. 14–7072.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 27, 2015.

Decided: Feb. 9, 2016.

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.

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.

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, 101 S.Ct. 1880, 68 L.Ed.2d 378 (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). 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 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 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 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 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, 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 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...