Tice v. Johnson
2011 U.S. App. LEXIS 8012, 2011 WL 1491063, 647 F.3d 87 (2011)
Rule of Law:
A state court's determination that a criminal defendant was not prejudiced by counsel's failure to move to suppress a confession obtained in violation of Miranda can be an "unreasonable application" of Strickland v. Washington's prejudice standard under 28 U.S.C. § 2254(d)(1) if, without the confession, there is a reasonable probability of a different outcome, and other prosecution evidence is significantly undermined.
Facts:
- In July 1997, William Bosko discovered his wife, Michelle Bosko, dead on the floor of their Norfolk apartment, having been strangled and stabbed several times.
- Police later linked DNA found at the crime scene to Omar Ballard, who subsequently confessed to Michelle Bosko's rape and murder and was sentenced to life in prison.
- Separately, Derek Tice provided a signed confession to Detective Robert G. Ford of the Norfolk Police Department, detailing his involvement in Michelle Bosko's gang rape and murder with several other men.
- During a polygraph examination administered by Detective Randy Crank, Tice stated "he decide[d] not to say any more," and that he "might decide to after he talks with a lawyer, or spends some time alone thinking about it."
- Detective Ford resumed questioning Tice thirteen minutes after Detective Crank finished, without re-issuing Miranda warnings, and Tice provided his signed confession four hours later.
- Joseph Dick, another individual implicated in the crime, gave evolving and inconsistent statements to police and later provided testimony at Tice's trial implicating Tice, himself, and others, despite prior denials and later recantations.
- Forensic evidence showed only Omar Ballard's DNA at the crime scene, and Tice and his alleged confederates were all flatly ruled out as donors of the tested samples.
Procedural Posture:
- Derek Tice was first convicted in the Circuit Court for the City of Norfolk of rape and murder.
- The Court of Appeals of Virginia overturned Tice's first conviction due to improper jury instructions.
- On retrial, a different jury in the Circuit Court for the City of Norfolk again found Tice guilty of rape and murder, sentencing him to concurrent terms of life imprisonment.
- A three-judge panel of the Court of Appeals of Virginia affirmed Tice's convictions.
- The Supreme Court of Virginia declined to hear Tice's appeal.
- Tice filed a petition for a writ of habeas corpus in the state trial court (Circuit Court for the City of Norfolk, Judge Everett A. Martin, Jr.).
- The Circuit Court for the City of Norfolk granted Tice's habeas petition, finding counsel ineffective for failing to move to suppress the confession, and that Tice was prejudiced by this deficient performance.
- The Director of the Virginia Department of Corrections (Respondent-Appellant) appealed the grant of the writ to the Supreme Court of Virginia.
- The Supreme Court of Virginia unanimously reversed the Circuit Court's grant of the writ, concluding that Tice had not shown sufficient prejudice under Strickland even if counsel's performance was deficient, and affirmed the denial of Tice's other claims.
- Tice filed an application for federal habeas corpus relief pursuant to 28 U.S.C. § 2254(a) in the United States District Court for the Eastern District of Virginia.
- The District Court for the Eastern District of Virginia dismissed two claims but granted the writ of habeas corpus on the ground of ineffective assistance of counsel for failure to suppress the confession, finding sufficient prejudice.
- The Director of the Virginia Department of Corrections (Respondent-Appellant) appealed the district court's grant of habeas relief to the United States Court of Appeals for the Fourth Circuit.
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Issue:
Does a state supreme court's determination that a criminal defendant was not prejudiced by counsel's failure to move to suppress a confession, despite the defendant's clear invocation of the right to remain silent and significant inconsistencies in other prosecution evidence, constitute an "unreasonable application" of the Strickland v. Washington prejudice standard under 28 U.S.C. § 2254(d)(1)?
Opinions:
Majority - King, Circuit Judge
Yes, a state supreme court's determination that a criminal defendant was not prejudiced by counsel's failure to move to suppress a confession, despite the defendant's clear invocation of the right to remain silent and significant inconsistencies in other prosecution evidence, constituted an "unreasonable application" of the Strickland v. Washington prejudice standard under 28 U.S.C. § 2254(d)(1). The court concluded that Tice's counsel rendered deficient performance by failing to move to suppress his confession and that the Supreme Court of Virginia's finding of no prejudice was an unreasonable application of federal law. First, counsel's performance was deficient under Strickland because a reasonable investigation would have revealed Detective Crank's notes indicating Tice's unambiguous invocation of his right to remain silent. The court rejected after-the-fact rationalizations for counsel's inaction, finding it far more probable that counsel overlooked the significance of these notes. Second, a motion to suppress Tice's confession would likely have been granted. Tice's statement that "he decide[d] not to say any more" was a clear and unambiguous invocation of his right to remain silent under Miranda v. Arizona and Berghuis v. Thompkins. The police failed to "scrupulously honor" this right as required by Michigan v. Mosley by resuming questioning on the same subject shortly thereafter without fresh Miranda warnings. Third, the Supreme Court of Virginia's prejudice analysis was an unreasonable application of Strickland. The state court misapprehended the Strickland standard by downplaying the extensive impeachment of Joseph Dick's testimony, which was highly inconsistent and evolved over time, and his motive to testify (avoiding a capital murder charge). The state court also mischaracterized the relevance of other evidence, such as alibis for co-defendants. The confession was the prosecution's strongest evidence, as evidenced by the prosecutor's closing arguments and the jury's question during deliberations regarding its evidentiary nature. Without the confession, there was a "reasonable probability" that the jury would have returned a different verdict, thereby undermining confidence in the outcome. The court emphasized that the Strickland prejudice standard is not a sufficiency of the evidence test for the untainted evidence but asks whether the absence of error would have given rise to a reasonable probability of acquittal.
Analysis:
This case significantly reinforces the rigorous application of the Strickland v. Washington prejudice prong in federal habeas review, particularly in situations involving allegedly coerced or improperly obtained confessions and unreliable co-conspirator testimony. It underscores that state court decisions applying federal law must not be "objectively unreasonable" under the Antiterrorism and Effective Death Penalty Act (AEDPA), even when federal courts afford them deference. The ruling highlights the critical importance of a defendant's Miranda rights, especially the right to remain silent, and places a high bar on police procedures once that right is invoked. It also serves as a strong reminder to defense counsel of their affirmative duty to conduct thorough investigations, including meticulously reviewing all discovery for potential constitutional violations, to avoid rendering constitutionally deficient performance.
