Wake Forest Law Review

By M. Allie Clayton

Today, in the criminal case of United States v. Powell, a published opinion, the Fourth Circuit affirmed the District Court in holding that a juror’s statement of “everything would be alright” and that the father needed to give his son “a good kick in the butt” was too ambiguous to establish actual juror bias.  Because the statement was ambiguous, Powell’s counsel’s response was within the range of competent representation, and thus not a violation of Powell’s Sixth Amendment right.

Facts and Procedural History

In June 2005, Powell was convicted by a jury of numerous drug and firearms charges. The district court sentence of 300 months’ imprisonment was affirmed by the Fourth Circuit on direct appeal. The Supreme Court vacated the judgment and remanded for resentencing due to Kimbrough v. United States. On remand, the District Court resentenced Powell to the same term.  Powell again appealed the judgment, which was affirmed by the Fourth Circuit, and the Supreme Court denied certiorari.

In this case, Powell has filed a 28 U.S.C. § 2255 with 16 different challenges to his conviction and sentence, most of which allege ineffective assistance of counsel. The specific claim as to ineffective assistance of counsel in this case is that his trial counsel’s performance was deficient because she did not bring to the attention of the trial court the fact that a juror approached Powell’s father and told him “everything would be alright” and that “he needed to give his son ‘a good kick in the butt.’” Powell alleged that the statement by the juror demonstrated that the juror was biased against him and if his counsel had brought this to the attention of the court, the court would have inquired about the juror’s prejudgment, and possibly removed the juror and replaced her with an alternate.

The Issue

Is the juror’s statement of “everything would be alright” and that “[Powell’s father] needed to give his son ‘a good kick in the butt’” sufficient to demonstrate a juror’s actual bias—thus requiring Powell’s counsel to bring that to the court’s attention?

Sixth Amendment Right to Effective Assistance of Counsel

Under Strickland v. Washington, there are two requirements for a defendant to prove a violation of the Sixth Amendment right to effective assistance of counsel: (1) the counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.

Under the first prong, the defendant must meet a high bar. The defendant must prove that his counsel’s representation fell below an objective standard of reasonableness, and that counsel’s errors were “so serious that counsel was not functioning as ‘counsel.’” The court is required to give a great amount of deference to the counsel’s decision-making and must be careful to eliminate any hindsight distortion and evaluate the decision from the counsel’s perspective at a time.

Sixth Amendment Right to an Impartial Jury

There is a presumption that jurors are impartial, unless there are indications to the contrary.  To be impartial, under the Sixth Amendment, the jury must be able to decide the case based on the evidence before it.  The question regarding juror impartiality is whether a juror can lay aside her opinion and render a verdict based on the evidence presented in court.

Reasoning

As it relates to this specific case, the “question is whether the juror’s statement to Powell’s father indicated that the juror was biased and unable to decide the case solely on the evidence.” The next question is “whether counsel’s failure to bring the statement to the attention of the court amounted to constitutionally deficient representation.”

In this case, the statement’s meaning is not clear. A reasonable lawyer who was told of the statement could conclude that the juror’s statement was “so ambiguous that it could not be taken as indicating that the jury was actually incapable or unwilling to base a verdict solely on the evidence presented at trial.”  The actions of the lawyer in not bringing the matter up were reasonable not only due to the ambiguous content of the statement, but also the risk of alienating the juror based on the mere act of inquiring about the juror’s bias. A reasonable lawyer could have concluded that the client’s interests were best served by not bringing the statement to the attention of the court.

The record further established that the lawyer was reasonable in not bringing the matter up because of how unsure she was as to the significance, if any, of the statement.  Even Powell and his father only described the statement as “troubling” or “strange.”  Powell and his father never stated that they felt panicked when they realized the person who made the statement was a juror in Powell’s trial. Those facts alone indicate that even Powell and his father did not take the juror’s statement as demonstrating a “clear and unmistakable bias against Powell.”

Disposition

While it might have been more prudential to bring the matter to the attention to the court, the failure to pursue the issue with the court was not so problematic as to make defendant’s counsel’s performance constitutionally deficient.  Therefore, the district court’s order denying Powell’s § 2255 motion is affirmed.

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By Sarah Walton

On March 11, 2016, the Fourth Circuit issued a published opinion in the criminal case of United States v. Ragin. The Fourth Circuit vacated the district court’s decision, holding that Ragin was deprived of his Sixth Amendment right to counsel when his attorney slept for a substantial portion of his trial.

The District Court Holds That Ragin’s Sixth Amendment Rights Were Not Violated 

Defendant Nicholas Ragin (“Ragin”) was indicted on October 18, 2004 in connection with a drug conspiracy. Following the indictment, the district court appointed Nikita Mackey (“Mackey”) as Ragin’s counsel. Ragin pleaded not guilty and proceeded to trial, which took place from April 3, 2006 to April 21, 2006. The jury rendered a guilty verdict and Ragin was sentenced to 360 months in prison. After trial, Ragin sent a letter to the district court in which he complained that his counsel fell asleep multiple times during the trial. On October 1, 2010, Ragin filed a motion under 28 U.S.C. § 2255, contending that his conviction should be reversed for ineffective assistance of counsel. The district court held an evidentiary hearing pursuant to the motion in which several witnesses testified that they saw Ragin’s counsel sleeping during the trial.

Ultimately, the district court denied Ragin’s motion. The court reasoned that the standard that a defendant must meet to succeed on a § 2255 motion depends on the type of evidence involved. If a defendant cannot show that his or her attorney slept through a “substantial portion” of the trial, then he or she must show that the attorney’s actions prejudiced the defendant. The district court concluded that Ragin did not present enough evidence to show that his attorney slept through a substantial portion of the trial, reasoning that Ragin’s accusations were not credible. The court then decided that Ragin would need to show prejudice to succeed on the motion, but concluded that he had not met that burden.

The Fourth Circuit Holds That Mackey Slept Through a Substantial Portion of the Trial

The Fourth Circuit started its discussion by outlining the two-part structure for ineffective assistance of counsel claims, which originates from Strickland v. Washington. First, a defendant must show that the attorney performed below an “objective standard of reasonableness.” Next, a defendant must show that the attorney’s performance resulted in actual prejudice during trial. However, in certain situations, prejudice is presumed. The Fourth Circuit then concluded that prejudice is presumed if an attorney sleeps through a substantial portion of the trial. As a result, the Fourth Circuit held that an attorney violates a defendant’s Sixth Amendment right to counsel when the attorney sleeps through a substantial portion of the trial.

Further, the court held that the district court erred when it decided that Mackey did not sleep through a substantial portion of Ragin’s trial. The Fourth Circuit reasoned that every witness testified that Mackey was sleeping, which supported Ragin’s contentions. Further, Mackey himself did not dispute that he slept at the trial. As a result, the court found it “impossible to conclude” that Mackey did not sleep for a substantial part of the trial. Ultimately, this amounted to a violation of Ragin’s Sixth Amendment right to counsel.

The Fourth Circuit Reverses the District Court’s Holding and Remands for Further Proceedings

As a result, the Fourth Circuit reversed the district court’s holding, vacated Ragin’s judgment and sentence, and remanded the case to the district court for further proceedings.

 

 

By Blake Stafford

On February 9, 2016, the Fourth Circuit issued its published opinion in Grueninger v. Dir., Va. Dep’t of Corr., a criminal case reversing the dismissal of a prisoner’s federal habeas petition.  In this case, Eric Adam Grueninger was convicted of sexual abuse and possession of child pornography.  His conviction for sexual abuse rested largely on confessions he made to police in an interview that occurred after he was read his Miranda rights and after he requested an attorney.  Prior to trial, Grueninger’s attorney did not move to suppress this confession under Edwards v. Arizona.  Grueninger argued on state collateral review that this constituted ineffective assistance of counsel under Strickland v. Washington.  After being denied habeas relief by state courts and the federal district court, the Fourth Circuit reversed in part, holding that had Grueninger’s statements been suppressed, there is a reasonable probability that the outcome of the trial would have been different as to the sexual abuse charges.

Facts & Procedural History

Grueninger was arrested in 2009 for sexually abusing his daughter.  During his first interview with a police investigator, Grueninger was read his Miranda rights and responded, “These are felonies, I need an [a]ttorney.”  The investigator stopped questioning immediately.  That same day, police searched his home and found three thumb drives with videos of child pornography.  Three days later, police issued Grueninger a new arrest warrant with additional child pornography charges, and the investigator interviewed Grueninger again after reading him his Miranda rights a second time (and again, with no lawyer present).  This time, Grueninger answered the police investigator’s questions and admitted to, inter alia, performing oral sex on his daughter and ejaculating on her.  Grueninger was indicted by a grand jury for ten counts of sexual abuse charges of varying degrees as well as ten counts of child pornography charges (nine were possession, one was distribution).  A bench trial was held.

Local rules required that a motion to suppress be filed in writing before trial.  Grueninger’s attorney did not file a motion to suppress Grueninger’s confession.  However, on the first day of trial, his attorney did object under Edwards v. Arizona.  The trial court overruled the objection due to its belatedness.  The prosecutor then elicited testimony from the police investigator regarding Grueninger’s inculpatory statements.  At the close of trial, the court noted the importance of the investigator’s testimony in its decision, which was a conviction on all counts.  Grueninger was sentenced to a total term of 235 years, with all but 88 suspended.

Grueninger appealed his convictions, arguing that the evidence was insufficient to sustain them.  The Court of Appeals of Virginia affirmed, and the Supreme Court of Virginia denied Grueninger’s petition for appeal.  Grueninger then filed a pro se habeas petition in state court before the same judge who had presided over his trial.  He argued that the admission of his uncounseled confession was unconstitutional under Edwards v. Arizona and that his attorney’s failure to move to suppress the confession on those grounds warranted ineffective assistance of counsel.  The state court denied his relief, holding that his statements to the investigator had been “voluntary” rather than the product of “interrogation,” which is required for Edwards suppression.  Grueninger appealed to the Supreme Court of Virginia, which summarily found that there was no reversible error.  Grueninger filed a federal habeas petition under 28 U.S.C. § 2254 arguing the same ineffective assistance of counsel error.  The district court agreed with the state court and held that an Edwards motion to suppress would have been “baseless”; thus, the resulting exclusion of Grueninger’s confession would not have led to a different outcome at trial.  Grueninger appealed to the Fourth Circuit.

Preliminary Issue: Review of State Supreme Court’s Summary Order

As a preliminary matter, the Court addressed the appropriate standard for evaluating the state court’s “reasoned decision-making” for the purposes of federal habeas review under § 2254(d).  As noted above, the state supreme court summarily found there was no reversible error.  The Commonwealth argued that Harrington v. Richter applied, which held that a state supreme court judgment may be disturbed under § 2254(d) only if there is “no reasonable basis for the state court to deny relief,” a standard that requires the petitioner to show that any hypothetical ground for state supreme court denial would be objectively unreasonable.  However, the Fourth Circuit distinguished Richter, which involved a habeas petition that was presented directly to the state supreme court as an original petition and then denied by that court in a summary order.  Thus, the Court held that Richter is limited to cases where a state court’s decision is unaccompanied by an explanation by a lower court.  Instead, Ylst v. Nunnemaker is the appropriate framework, which requires a federal habeas court 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.

Analysis

There are two primary analyses that governed this case—the substantive suppression of Grueninger’s uncounseled confession and the corresponding ineffective assistance of counsel claim.

Suppression of Uncounseled Confessions.  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 the suspect himself initiates renewed communication with the police.  If the police do interrogate a suspect after he asserts his right to counsel, any statements elicited are per se inadmissible, even if the suspect is again advised of his Miranda rights.  For an Edwards violation, a petitioner must show (1) that he clearly and “unambiguously” invoked his right to counsel and (2) that the police subsequently “interrogated” him.

In this case, the Fourth Circuit found that Grueninger’s claim satisfied both elements.  First, he clearly and “unambiguously” invoked his right to counsel.  Grueninger, in response to his first Miranda warning, said, “These are felonies, I need an [a]ttorney.”  While merely mentioning an attorney is not enough, Grueninger’s statement was unequivocal and unambiguous such that a “reasonable police officer in the circumstances” would understand the statement to be a request for an attorney.  This is bolstered by the fact that the police investigator did in fact stop asking questions in the interview in which Grueninger requested an attorney.

Second, Grueninger was subsequently “interrogated” by the police.  The state court denied relief on this ground, holding that Grueninger’s statements to the investigator had been “voluntary” rather than the product of “interrogation.”  The Fourth Circuit disagreed with—and the Commonwealth did not defend—this determination, finding that it was objectively unreasonable under § 2254(d).  The asking of questions about the substance of a case constitutes “interrogation” for Edwards purposes.  Here, when Grueninger was visited in prison, he was questioned by the police.  The Court found no room for doubt on this point.  These questions constituted “express questioning” that squarely qualified as an “interrogation.”

Ineffective Assistance of Counsel.  The framework in Strickland v. Washington governs claims of ineffective assistance of counsel.  There are two prongs to this framework.  First, the 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.”  For a failure to file a motion to suppress, it is enough to call into question counsel’s performance that an unfiled motion would have had “some substance.”  Second, the petitioner must show prejudice resulting from counsel’s deficiencies, which requires “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  For a failure to file a motion to suppress, a petitioner must show both (1) that the motion was meritorious and likely would have been granted, and (2) a reasonable probability that granting the motion would have affected the outcome of his trial.

In this case, both prongs were satisfied for the sexual abuse charges.  First, the court held that the attorney’s performance was deficient, as an Edwards motion to suppress would have had “some substance” as described above.  Second, the court held that this failure produced sufficient prejudice to warrant ineffective assistance of counsel.  For the same reasons as the deficiency prong, the court held that the motion would have been meritorious and likely granted but for counsel’s deficient performance.  To complete the prejudice showing, the court evaluated whether there was a “reasonable probability that granting the motion would have affected the outcome of the trial.”  For the sexual abuse charges, the court found that the evidence independent of Grueninger’s confession was not so overwhelming such that there was no reasonable probability of a different outcome.  None of the other witnesses could testify directly as to Grueninger’s sexual abuse, and the confession relayed by the police investigator weighed heavily in the court’s analysis.  However, for the child pornography charges, the court concluded that Grueninger’s confession was of limited relevance in his conviction.

Disposition

With respect to his sexual abuse convictions, the Fourth Circuit reversed the district court, holding that Grueninger demonstrated ineffective assistance of counsel under both the deficient performance and prejudice prong.  Thus, the case was remanded with instructions to issue a writ of habeas corpus as to the sexual abuse charges unless Grueninger was to be prosecuted in a new trial on those counts without utilizing the confession.

With respect to his child pornography charges, the Fourth Circuit affirmed the district court, holding that Grueninger failed to show a reasonable probability of a different outcome as required by the prejudice prong.

By Dan Menken

Today, in the unpublished opinion of United States v. Hawkins, the Fourth Circuit affirmed the conviction of Collin Hawkins for being a felon in possession of a firearm.  Hawkins was sentenced to 63 months’ imprisonment and two years of supervised release.

Hawkins Participated in Carjacking

On November 22, 2006, the Defendant participated in the carjacking and robbery of a Baltimore taxi driver.  When the Defendant was arrested, the arresting officer witnessed the Defendant reach for his waistband and subsequently discovered a firearm.  The Defendant was initially convicted of (1) carjacking, (2) possessing and brandishing a firearm in furtherance of a crime of violence, and (3) being a felon in possession of a firearm.  He was sentenced to 360 months’ imprisonment.  On appeal, the Fourth Circuit reversed the Defendant’s convictions on the first two counts because they were improperly joined to the third count.  On remand, the government elected not to retry the first two counts, and the Defendant was eventually sentenced to 63 months’ imprisonment.

On appeal, Hawkins argued that the gun underpinning his conviction should have been suppressed because the search and seizure violated the Fourth Amendment.  Additionally, Hawkins argued that he had ineffective assistance of counsel.

Mandate Rule Bars Fourth Amendment Appeal 

The Fourth Circuit looked to whether the mandate rule precluded the Defendant from raising the Fourth Amendment claim.  The mandate rule generally bars litigation of issues that could have been, but were not, raised before remand.  Exceptions to the mandate rule include circumstances where (1) a litigant can demonstrate that the legal landscape has dramatically changed, (2) significant new evidence has come to light, or (3) a “blatant error in the prior decision will, if uncorrected, result in a serious injustice.”  United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993).

The Fourth Circuit concluded that the error here was not blatant.  The Fourth Circuit and other circuits have determined that grabbing, touching, or securing a waistband may be evidence of the possession of a firearm when considering the totality of the circumstances.  Because the Defendant waived his Fourth Amendment claim by not raising it on his first appeal and no exception applied, the Fourth Circuit concluded that the mandate rule barred his Fourth Amendment claim.

Ineffective Counsel Claim Fails

Additionally, the Defendant asserted that his appellate counsel was ineffective for failing to raise his Fourth Amendment claim previously.  To raise a cognizable ineffective assistance of counsel claim, a Defendant must demonstrate that (1) his appellate counsel was deficient and (2) he suffered prejudice as a direct result of this deficiency. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc).

The Court noted that the law presumes effective assistance.  In order to overcome that presumption, the Defendant must show that their appellate counsel ignored clearly strong arguments on appeal.  Based on the success of the Defendant’s counsel in reducing Defendant’s sentence on the previous appeal, the Fourth Circuit concluded that the Defendant’s ineffective counsel claim failed.

Affirmed

The Fourth Circuit affirmed the judgment of the district court and upheld Hawkins’ sentence.

By Dan Menken

Today, in United States v. Loftis, an unpublished opinion, the Fourth Circuit upheld Scottie Allen Loftis’ sentence of 120 months’ imprisonment for possession of stolen firearms.

Loftis Pled Guilty to Possession of Stolen Firearms

Loftis pled guilty to possession of stolen firearms, in violation of 18 U.S.C. § 922(j), and was sentenced to the agreed upon 120 months’ imprisonment.  Loftis filed a pro se supplemental brief, challenging his conviction and sentence and raising claims of ineffective assistance of counsel and prosecutorial misconduct.

Absent Failure to Comply with Federal Rule of Criminal Procedure 11, Loftis’ Sentence Not Appealable

Under plain error review, the Fourth Circuit found that the district court substantially complied with Federal Rule of Criminal Procedure 11 by ensuring that Loftis understood the import of his binding plea agreement.

The Court next turned to Rule 11(c)(1)(C), which states that subject to narrow exceptions, a defendant may not appeal an agreed upon sentence.  Because none of the exceptions were applicable and the sentence was not based on an incorrect application of the Sentencing Guidelines, the agreement between Loftis and the Government was appropriate.  Thus, the Fourth Circuit held that it did not have jurisdiction to review Loftis’ sentence.

Ineffective Assistance Claims Not Generally Addressed on Direct Appeal

Loftis further argued that his counsel rendered ineffective assistance by forcing him to plead guilty and by advising him to enter into the binding plea agreement.  The Fourth Circuit noted that unless an attorney’s ineffectiveness conclusively appears on the face of the record, a defendant would need to raise such a claim in a motion brought pursuant to 28 U.S.C. § 2255.  In Loftis’ case, the record did not conclusively establish ineffective assistance, and, therefore, the Fourth Circuit concluded that Loftis must address his claims in a § 2255 motion.

No Evidence of Prosecutorial Misconduct

The Fourth Circuit further held that the record did not support Loftis’ claim that the prosecutor conspired with counsel to force Loftis’ guilty plea.

Loftis’ Conviction Affirmed

Thus, after reviewing the entire record, the Fourth Circuit concluded that there was no meritorious grounds for appeal and affirmed Loftis’ conviction.