Rashaad Jones v. Harold Clarke , 783 F.3d 987 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6590
RASHAAD TIWANIA JONES,
Petitioner – Appellee,
v.
HAROLD W. CLARKE, Director, Virginia Department of
Corrections,
Respondent – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:13-cv-00001-RAJ-DEM)
Argued: January 29, 2015 Decided: April 22, 2015
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by published opinion. Judge Shedd wrote
the majority opinion, in which Judge Wilkinson joined. Judge
Gregory wrote a dissenting opinion.
ARGUED: Rosemary Virginia Bourne, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellant. Thomas Edward
Vanderbloemen, GALLIVAN, WHITE & BOYD, PA, Greenville, South
Carolina, for Appellee. ON BRIEF: Mark R. Herring, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellant.
SHEDD, Circuit Judge:
Harold W. Clarke, Director of the Virginia Department of
Corrections, appeals the federal habeas corpus order vacating
Rashaad Tiwania Jones’ state-court convictions and sentence. See
Jones v. Clarke, 7 F. Supp. 3d 626 (E.D.Va. 2014). For the
following reasons, we vacate that portion of the order granting
habeas relief and remand for dismissal of the petition. 1
I
Jones waived his jury trial right, and a Virginia state
judge convicted him on charges of grand larceny and breaking and
entering. Both charges arose from the theft of a television from
the home of Jereme Joseph. During trial, the Commonwealth
presented two witnesses, Joseph and police investigator Karen
Shuler. Jones did not testify or present evidence. The
incriminating evidence against Jones was (and is) essentially
unchallenged.
Joseph testified that in January 2010, while he was
temporarily relocated from his Williamsburg, Virginia, house
because it had flooded, someone broke a window in the back of
the house and stole a television and other items from the
bedroom. Approximately one month earlier, Jones had visited
1
The district court denied relief on several claims, but
Jones did not appeal, and those claims are not before us.
2
Joseph’s house with a mutual friend. During that visit, Jones
entered through the front door and remained in the family room.
After the theft occurred and Jones had been arrested, Jones
called Joseph on the telephone. In response, Joseph visited
Jones at jail and told him that his house had been broken into
and the police knew he committed the crimes “because they had
his fingerprints.” J.A. 29. Joseph asked Jones why he did it,
and Jones responded that “he made a mistake or whatever and
that’s what happened.” J.A. 22; see also J.A. 29 (Jones “just
said it happened basically like that”).
Investigator Shuler testified that she investigated the
break-in at Joseph’s house. She determined that the thief
entered the house through the broken window, and she lifted
several fingerprints from the window area. During her testimony,
the Commonwealth introduced into evidence a fingerprint analysis
certificate that indicated one of the fingerprints belonged to
Jones. Investigator Shuler did not analyze the fingerprint or
prepare the certificate, but Jones’ trial counsel did not object
to the admission of the certificate or her testimony.
In her closing argument, Jones’ trial counsel argued that
the case was “highly circumstantial” and that the fingerprint
was the only item that connected Jones to the crime. J.A. 42.
The trial judge acknowledged that the fingerprint evidence,
without more, was insufficient to convict Jones. However, the
3
judge explained that Jones’ statement to Joseph that he made a
mistake “is an admission of guilt that he admits that he was
there, that he was involved in it.” J.A. 43-44. Continuing, the
judge stated that he suspected that other people may have also
been involved in the crimes, but Jones “was certainly there and
a participant.” J.A. 44. The judge then noted that “when you
take the fingerprint and combine it with the recent visit and
you combine it with the statement,” the evidence is sufficient
to find Jones guilty beyond a reasonable doubt of breaking and
entering and grand larceny. J.A. 44. Jones’ counsel responded by
arguing that Jones’ “mistake” comment “could mean a number of
things,” J.A. 44, but the judge rejected her interpretation,
stating: “my interpretation is the fact was he acknowledged that
it was a mistake, that he participated in this. That’s . . . a
finding of fact. . . .” J.A. 44-45.
The trial judge sentenced Jones to two consecutive 15-year
imprisonment terms but suspended 20 years, resulting in a 10-
year sentence. The Virginia appellate courts denied Jones’
direct appeal, and the state supreme court denied his state
habeas petition.
Pursuant to 28 U.S.C. § 2254, Jones then filed this federal
habeas petition. Pertinent to this appeal, the district court
granted habeas relief on one claim. Specifically, the court
concluded that the Supreme Court of Virginia unreasonably
4
applied Strickland v. Washington, 466 U.S. 668 (1984), in
rejecting Jones’ ineffective assistance of counsel claim.
Generally speaking, the court determined that trial counsel’s
failure to object to the admission of the fingerprint evidence
constituted deficient performance that prejudiced Jones. See
generally Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)
(explaining Sixth Amendment confrontation right regarding
laboratory analyst). 2 Accordingly, the court vacated Jones’
convictions and sentence. We review the order granting habeas
relief de novo. Richardson v. Branker, 668 F.3d 128, 138 (4th
Cir. 2012).
II
“The essence of an ineffective-assistance claim is that
counsel’s unprofessional errors so upset the adversarial balance
between defense and prosecution that the trial was rendered
unfair and the verdict rendered suspect.” Kimmelman v. Morrison,
477 U.S. 365, 374 (1986). In Strickland, 466 U.S. at 687, the
Court identified two necessary components of an ineffective
assistance claim: “First, the defendant must show that counsel’s
2
Jones alleged several trial counsel errors in his
ineffective assistance claim, but the district court focused on
counsel’s failure to object to the admission of the fingerprint
evidence. See Jones, 7 F. Supp. 3d at 632 (“It is therefore
apparent to the Court that counsel’s decision not to object was
deficient performance under the first prong of Strickland.”).
5
performance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
The Supreme Court of Virginia adjudicated Jones’
ineffective assistance claim on the merits. The court noted that
Jones argued (1) the fingerprint evidence was inadmissible
without the testimony of the fingerprint analyst, (2) an
objection by his counsel to the admission of the fingerprint
evidence would have been sustained, and (3) the remaining
evidence against him would be insufficient to support the
conviction. However, the court rejected this claim, finding that
Jones “failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but
for counsel’s alleged errors, the result of the proceeding would
have been different.” J.A. 133-34.
Because the state supreme court adjudicated Jones’ claim on
the merits, a federal court may not grant habeas relief unless
the adjudication “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
6
States;” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
This “is a difficult to meet and highly deferential standard for
evaluating state-court rulings, which demands that state-court
decisions be given the benefit of the doubt.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal punctuation
and citations omitted).
For purposes of this appeal, the “pivotal question is
whether the state court’s application of the Strickland standard
was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101
(2011). Under § 2254(d), an unreasonable application of federal
law differs from an incorrect application of federal law, and a
state court “must be granted a deference and latitude that are
not in operation when the case involves review under the
Strickland standard itself.” Harrington, 562 U.S. at 101.
As noted, Strickland requires a defendant claiming
ineffective assistance to establish two components: deficient
performance and prejudice. However, the Strickland Court
explained that “there is no reason for a court deciding an
ineffective assistance claim to . . . address both components of
the inquiry if the defendant makes an insufficient showing on
one,” and “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, . . . that
7
course should be followed.” 466 U.S. at 697. Consistent with
this suggested approach, we will proceed directly to the
prejudice component.
To establish prejudice under Strickland, a defendant “must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
466 U.S. at 694. In the specific context of this case, Jones
must establish there is a reasonable probability that, absent
the alleged error, the trial judge “would have had a reasonable
doubt respecting guilt.” Id. at 695. Under Strickland, “[i]t is
not enough for [Jones] to show that the errors had some
conceivable effect on the outcome of the proceeding,” id. at
693, and “the question is not whether a court can be certain
counsel’s performance had no effect on the outcome or whether it
is possible a reasonable doubt might have been established if
counsel acted differently,” Harrington, 562 U.S. at 111. In
short, “Strickland asks whether it is ‘reasonably likely’ the
result would have been different,” and the “likelihood of a
different result must be substantial, not just conceivable.” Id.
at 111-12.
Because Jones was convicted by the trial judge in a bench
trial, we are privy to the factfinder’s view of the evidence
8
supporting his guilt. Based on the trial judge’s comments, as
well as our review of the evidence presented during trial, there
are five main facts bearing on Jones’ guilt: (1) Joseph’s house
window was broken; (2) the television was stolen from the house;
(3) Jones visited the house a few weeks before the theft
occurred; (4) Jones’ fingerprint was lifted from the broken
window area; and (5) Jones stated, in response to Joseph’s
question about why he committed the crime, that he “made a
mistake or whatever and that’s what happened.” J.A. 22. The
first two facts establish the corpus delicti of the charged
crimes, and the other facts incriminate Jones.
Pointing to the trial judge’s comments that the fingerprint
evidence – when combined with other evidence – was sufficient to
establish guilt, Jones argues that the fingerprint evidence was
essential to the guilty verdict, and without that evidence,
there is a reasonable probability that he would have been
acquitted. The district court viewed the record in similar
fashion. See Jones, 7 F. Supp. 3d at 633-34. However, when the
trial judge’s comments about the fingerprint evidence are
examined in context, it is clear that the judge was responding
to Jones’ trial counsel’s argument that the fingerprint was the
only evidence connecting Jones to the crimes. See J.A. 42-44.
The trial judge merely listed the incriminating facts to rebut
Jones’ argument.
9
Having made that point, we readily acknowledge that the
fingerprint evidence is strong evidence tending to establish
Jones’ guilt, and we do not doubt that the trial judge relied on
that evidence to reach his verdict. However, the mere fact of
the trial judge’s reliance on that evidence does not establish
Strickland prejudice. Rather, the determinative question for
Strickland purposes is whether there is a reasonable probability
that the trial judge would have had reasonable doubt respecting
Jones’ guilt if the fingerprint evidence had been excluded.
We believe the answer to that question is “no.” The trial
judge specifically found as a factual matter that Jones’
jailhouse statement was an “admission of guilt.” J.A. 43. This
factual finding is “presumed to be correct.” 28 U.S.C.
§ 2254(e)(1). Even if the fingerprint evidence is removed from
the equation, the admission of guilt, in conjunction with the
evidence establishing the corpus delicti and the evidence that
Jones had recently visited Joseph’s house, is sufficient to
establish Jones’ guilt of the charged crimes beyond a reasonable
doubt. Although it is “conceivable” that the trial judge may
have acquitted Jones without the fingerprint evidence, we do not
believe that there is a “substantial” likelihood that the judge
would have done so. More importantly, under these circumstances,
and in light of our deferential standard of review, we cannot
find that the state supreme court unreasonably concluded that
10
Jones failed to establish Strickland prejudice. 3 Therefore, the
district court erred in granting the habeas petition.
III
“As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103. We hold
that Jones has fallen well short of meeting this standard.
Therefore, we vacate the portion of the habeas order granting
relief, and we remand for the district court to dismiss the
habeas petition.
VACATED AND REMANDED
3
For analytical purposes only, we have assumed that a trial
objection to admission of the fingerprint evidence would have
resulted in its exclusion. However, that assumption is wholly
speculative, as the Commonwealth could have requested an
opportunity to procure the fingerprint analyst. Moreover, we
note that Jones has not proffered any evidence to undermine the
result of the fingerprint analysis.
11
GREGORY, Circuit Judge, dissenting:
In the summer of 2013, a television went missing from a
temporarily unoccupied home where workers were repairing flood
damage. Police investigated and lifted a number of fingerprints
from a rear window and sliding glass door. One print from the
window matched Rashaad Jones, an acquaintance of the home’s
occupant who had visited socially once before. The single print
led to Jones’s arrest and became the fulcrum of the government’s
case against him.
Despite fertile ground for investigation by defense
counsel, Jones’s attorney apparently did very little. The
record is bereft of details regarding her pretrial
investigation, apart from conclusory statements that such an
investigation took place. At trial, counsel called no
witnesses. She introduced no evidence. Her cross-examination
of the two government witnesses was largely perfunctory. Her
closing statement, read at a measured pace, lasted a little over
a minute. And when presented with an opportunity to challenge
the introduction of the central evidence in case – the
fingerprint lifted from the rear window – she did not object on
Confrontation Clause grounds, an objection that almost certainly
would have been sustained.
It bears repeating that a functioning adversarial system
requires actual adversaries, not placeholders. See United
12
States v. Cronic, 466 U.S. 648, 656 (1984) (“[T]he adversarial
process protected by the Sixth Amendment requires that the
accused have counsel acting the role of an advocate.” (internal
quotation marks omitted)). In this case, Jones’s counsel not
only refused to put up a fight. She went so far as to
unnecessarily surrender the very Sixth Amendment right that
helps animate the adversarial system – the right to confront
one’s accusers. Of course, defense counsel need not always
object to the introduction of hearsay contained in a forensics
certificate. There may be cases when not objecting is supported
by sound trial strategy, such as when counsel does not want to
draw additional attention to the evidence or provide the
opportunity for another government witness to testify. This is
not that case.
Nonetheless, the majority concludes that any deficient
performance was not prejudicial because Jones admitted to the
crime, and there was thus no reasonable probability of a
different result if the fingerprint evidence was excluded. Such
a conclusion, however, is at odds with the court’s express
rationale for a finding of guilt. As the trial judge reasoned:
“I think when you take the fingerprint and combine it with the
recent visit and you combine it with the statement I think
that’s sufficient beyond a reasonable doubt . . . .” J.A. 44
(emphasis added). In that light, there is a reasonable
13
probability that if the fingerprint evidence was excluded, Jones
would have been acquitted.
I thus respectfully dissent.
I.
A more fulsome description of the facts and proceedings in
this case is helpful in evaluating the performance of Jones’s
counsel. As the majority notes, the government’s case against
Jones consisted of two witnesses. The first, Jereme Joseph,
rented the home and owned the television set. He testified that
he was living elsewhere while workers repaired the flood damage,
and that his landlord received information from the workers that
a window had been broken and that there may have been missing
items. When Joseph reentered the house, he noticed that the
workers had placed all of his belongings in one bedroom. A
television set was missing. Valuable construction equipment,
however, was undisturbed.
Joseph further testified that Jones was an acquaintance who
had paid a social visit to the home a month before it flooded.
After the police arrested Jones for the theft (on the basis of
the fingerprint evidence), Joseph stated that he received “a
phone call from [Jones] or whatever” and visited him in jail to
have a conversation. J.A. 21. The pair engaged in a short and
14
enigmatic discussion lasting a “few seconds.” J.A. 21. Asked
what Jones told him, Joseph testified:
Basically he made a mistake or whatever and that’s
what happened. I mean it really wasn’t no
explanation, it was dumb.
J.A. 22. Apparently unsatisfied, the trial judge later asked
Joseph to elaborate on what Jones said, leading to this brief
exchange:
Joseph: I mean he really didn’t -- he just said it
happened basically like that. Like there
wasn’t really -- what happened, happened,
you know what I’m saying.
The Court: Did he say I’m sorry?
Joseph: Maybe he did.
The Court: Maybe he didn’t?
Joseph: Right, I don’t recall.
The Court: Well, he said it just happened?
Joseph: Right.
The Court: And that’s all he said?
Joseph: Right.
J.A. 29-30.
The second witness was James City County police
investigator Karen Shuler, who investigated the break-in at
Joseph’s house. Shuler’s investigation determined that somebody
had entered the home through a broken “rear window to the living
room/dining room.” J.A. 33. She also testified there was
damage to the front door and sliding glass backdoor. The
investigator lifted prints from the rear window and sliding
15
glass door, but did not submit the prints from the door for
analysis.
During Shuler’s testimony, the government introduced, and
the court admitted, a forensic Certificate of Analysis (“the
certificate”) stating that a single fingerprint found on the
rear window “matched” Jones. The other four prints did not
return matches. The government did not call the analyst who
prepared the report. Jones’s counsel did not object to its
admission on Confrontation Clause grounds. Regarding the
fingerprints in general, Shuler testified:
Shuler: I could not say which one [print] was
really good. I mean it looked - – by
my visual it looked good but I can’t
testify - -
Prosecutor: You’re not an expert to qualify those
prints, correct?
Shuler: Right.
J.A. 35.
Jones’s counsel called no witnesses and offered no
evidence. She argued briefly in closing that the government’s
evidence was “highly circumstantial,” observing that the
television was never found in Jones’s possession. Counsel also
curiously characterized the fingerprint on the window as
“damming” [sic], but maintained that such evidence alone was
simply not enough to find Jones guilty beyond a reasonable
doubt. J.A. 43.
16
The trial judge disagreed. He found that the fingerprint
certificate was enough to convict when combined with the
evidence that Jones had been in the house previously, and the
testimony about Jones’s “admission” to Joseph while in jail.
J.A. 44. The court convicted Jones of breaking and entering,
and grand larceny. At the close of the guilt phase, the judge
told Jones that “if [the victim] were to get his television back
I suspect that would be a long way to ameliorating the
situation” before sentencing. J.A. 45. The television was
apparently not returned, and the judge sentenced Jones to 30
years imprisonment, with 20 years suspended.
The Court of Appeals of Virginia denied Jones’s direct
appeal. The Supreme Court of Virginia did the same. Jones then
filed a state habeas petition in the Supreme Court of Virginia,
arguing in part that his counsel was ineffective because she
failed to conduct an adequate pretrial investigation into the
fingerprint evidence, failed to call the forensics analyst to
testify, and failed to object to the admission of the
certificate on Confrontation Clause grounds. The Virginia high
court disagreed and concluded that Jones’s claim did not satisfy
either the “performance” or “prejudice” prong of the test for
ineffective assistance of counsel established by Strickland v.
Washington, 466 U.S. 668 (1984).
17
In so holding, the Supreme Court of Virginia relied in part
on an affidavit from Jones’s trial counsel in which she
explained the circumstances surrounding her decision not to
question the fingerprint evidence. The relevant portion of the
affidavit provided in full:
Adequate pre-trial investigation was conducted and
the undersigned had no reason to question the
admissibility of the fingerprint evidence. Based
on the police reports and discovery materials,
counsel had reason to believe that the defendant’s
fingerprints would likely have been found on the
scene due to his presence there on a different
occasion. The undersigned is aware that counsel
can require the prosecution to present at trial
the testimony of the scientific expert who
conducted the analysis, but the undersigned made
the decision to not challenge the admission of the
certificate of analysis since no basis existed for
doing so and nothing appeared to be gained by
challenging to [sic] admission of the certificate
of analysis.
J.A. 87-88.
Jones then filed his federal habeas petition pursuant to 28
U.S.C. § 2254, arguing again that his counsel was ineffective
because:
(1) Counsel failed to conduct adequate pre-trial
investigation as regards the admissibility of
the fingerprint evidence;
(2) Counsel failed to call as witness at trial the
expert who conducted the fingerprint analysis;
and
(3) Counsel failed to object to the admission at
trial of the certificate of analysis on the
grounds that their admissions violated
petitioner’s rights under the Confrontation
Clause of the Sixth Amendment . . . .
18
J.A. 114.
The district court granted relief, ordering that Jones’s
sentence and convictions be vacated. Jones v. Clarke, 7 F.
Supp. 3d 626 (E.D. Va. 2014). The court first observed that
under the United States Supreme Court’s decision in Melendez-
Diaz v. Massachusetts, 557 U.S. 305 (2009), Jones could have
successfully challenged the admissibility of the certificate as
violating the Confrontation Clause because there was no in-court
testimony of the expert analyst. Further, the court found it
was unreasonable for Jones’s trial counsel to base her decision
not to challenge the evidence upon her belief that the
fingerprint may have been from Jones’s prior visit. The
location of the print on the outside of a rear windowpane
contradicted such an explanation, the court noted. Defense
counsel’s decision not to object could not be called strategic,
the court further observed, insofar as there was “no apparent
cost to objecting . . . and only a significant benefit to be
gained.” Jones, 7 F. Supp. 3d at 633. In that light, the court
concluded that the state supreme court unreasonably applied
Strickland when it held that counsel’s performance was not
objectively deficient.
As to the question whether the admission of the certificate
prejudiced Jones, the district court determined that the
fingerprint evidence was central to the state trial judge’s
19
decision to convict. Thus, “had trial counsel been able to
exclude or undermine the fingerprint analysis, it is likely to
have had a significant impact on the likelihood of Petitioner’s
conviction.” Id. at 634. The district court also rejected the
government’s argument that Jones could not prove prejudice
because he had failed to demonstrate that the analyst was
unavailable to testify, or would have been shown unreliable on
the stand, had his counsel challenged the certificate’s
admission. The court observed that the government had failed to
present any “evidence that the analyst would have been available
or prepared to testify,” and had even failed to say if it would
have called the analyst had Jones’s counsel objected. Id. In
such circumstances, the court concluded that Jones did not bear
the burden of actually proving the unreliability of the
certificate, or establishing the whereabouts of the analyst.
Imposing “[s]uch a high burden,” the court reasoned,
“contravenes Strickland” and “effectively ‘convert[s] the
prosecution’s duty under the Confrontation Clause into the
defendant’s privilege under state law.’” Id. (quoting Melendez-
Diaz, 557 U.S. at 324).
II.
The Sixth Amendment guarantees the right to effective
counsel as a condition of a fair trial. Strickland, 466 U.S. at
20
684-86. To establish a claim of constitutional ineffectiveness,
a defendant must demonstrate (1) that counsel’s performance
“fell below an objective standard of reasonableness” and (2)
that the “deficient performance prejudiced the defense.” Id. at
687-88. Under the first prong, the adequacy of counsel’s
performance is measured by the circumstances of the litigation
and prevailing professional norms. Id. at 688-89. Under the
second prong, prejudice requires that there be “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at
694. As we have held, “[i]n cases where a conviction has been
the result of a trial, the defendant must demonstrate that but
for counsel’s errors, there is a reasonable probability that he
would not have been convicted.” United States v. Luck, 611 F.3d
183, 186 (4th Cir. 2010).
As the majority recognizes, the merits of Jones’s habeas
petition pivot on the question of whether the state court’s
denial of relief involved an unreasonable application of those
well-established standards.
A.
Under Strickland’s first prong, the question here is
whether the Supreme Court of Virginia unreasonably applied the
standard for deficient performance in concluding that Jones’s
21
counsel performed adequately even though she failed to challenge
the admission of the fingerprint evidence.
As the district court recognized, a forensics certificate
of analysis is a testimonial statement that implicates the
Confrontation Clause. Melendez-Diaz, 557 U.S. at 310-11. Such
certificates are “functionally identical to live, in-court
testimony, doing precisely what a witness does on direct
examination.” Id. (internal quotation marks omitted). As such,
a defendant is entitled to confront the analyst who prepared the
certificate at trial, unless the analyst was “unavailable to
testify . . . and [a defendant] had a prior opportunity to
cross-examine [him or her].” Id. at 311 (emphasis in original);
see also Crawford v. Washington, 541 U.S. 36, 54 (2004).
In this case, Jones’s counsel failed to object to the
admission of the fingerprint certificate and never demanded that
the government produce the analyst to testify. 1 Even the
government appears to agree that had defense counsel objected,
the objection almost surely would have been sustained on
Confrontation Clause grounds. See Appellant’s Br. 20. As such,
Jones now argues that his counsel’s performance was clearly
1
Virginia state law includes a specific pretrial procedure
for criminal defendants to object to the admissibility of a
certificate of analysis and require the testimony of the
analyst. See Va. Code § 19.2-187.1.
22
deficient, and that the Supreme Court of Virginia unreasonably
applied Strickland in finding otherwise. The government,
however, contends that Jones’s counsel was not required to
object to the certificate’s introduction given (1) counsel’s
affidavit stating that she could find no reason to question the
validity of the results, (2) Jones’s failure to demonstrate that
the fingerprint certificate was somehow unreliable, and (3) the
existence of other hypothesized strategic advantages of not
objecting. Each of the government’s arguments is considered in
turn.
1.
Regarding counsel’s letter affidavit, it is true that we
owe a heavy deference to an attorney’s informed, strategic
choices. See Washington v. Murray, 4 F.3d 1285, 1288 (4th Cir.
1993) (“Strickland makes plain that a lawyer’s performance will
not be deemed deficient if it results from informed, strategic
choices about how to mount a defense.”). A “post hoc
rationalization of counsel’s conduct,” however, is no substitute
for “an accurate description” of what really occurred. Wiggins
v. Smith, 539 U.S. 510, 526-27 (2003). Moreover, strategic
decisions must nonetheless be reasonable in the first place to
command a court’s deference. See id. at 528 (quoting
Strickland, 466 U.S. at 690-91).
23
Here, all that we know about counsel’s relevant pretrial
investigation and strategic deliberations is contained in a
single paragraph in her letter affidavit. In the letter,
counsel briefly asserted that she conducted an “[a]dequate
pretrial investigation” that revealed no reason to question the
reliability of the fingerprint evidence. Counsel appeared to
base that conclusion on the fact that Jones’s fingerprints
should have naturally been at the scene because of his prior
social visit there.
The government’s reliance on the affidavit is unavailing
for two reasons. First, as the district court observed, there
is no reason why Jones would have left a single print on the
outside of a rear windowpane during his previous social visit.
At the very least, the record provides no such reason. Second,
and more fundamental, Jones’s counsel provided no actual details
concerning her pretrial investigation – an investigation that
Jones alleges was deficient. We thus have no way to say that
any choices she made were informed, much less strategic. As the
Supreme Court emphasized in Wiggins, “[c]ounsel has a duty to
make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” 539 U.S. at
24
521-22. 2 A conclusory assertion that an adequate investigation
was conducted, without more, cannot entitle counsel to a
presumption of reasonableness in these circumstances. See id.
at 527 (observing in a sentencing context that a “cursory
investigation” does not “automatically justif[y] a tactical
decision”). Indeed, attorneys have provided far more detail in
other contexts where the sufficiency of their investigations has
been challenged. See, e.g., id. at 523 (describing a mitigation
investigation conducted by counsel); Huffington v. Nuth, 140
F.3d 572, 579-80 (4th Cir. 1998) (deferring to defense counsel’s
tactical decision in light of detailed evidence regarding the
deliberations animating the decision); United States v. Fulks,
683 F.3d 512, 518-19 (4th Cir. 2012) (finding defense counsel’s
tactics reasonable after counsel provided a specific and
detailed explanation for his conduct – an explanation that the
court found was consistent with the record as a whole).
2
To determine the objective reasonableness of counsel’s
conduct, the Supreme Court has often referred to the American
Bar Association (ABA) guidelines. See Strickland, 466 U.S. at
688; Wiggins, 539 U.S. at 524. The ABA’s criminal guidelines
specifically state that defense investigations should “include
evaluation of the prosecution’s evidence (including possible re-
testing or re-evaluation of physical, forensic, and expert
evidence) and consideration of inconsistencies, potential
avenues of impeachment of prosecution witnesses, and other
possible suspects and alternative theories that the evidence may
raise.” ABA Criminal Justice Standards for the Defense Function
4-4.1(c) (4th ed. 2015) (approved and pending publication).
25
Here, the pressing need for a non-cursory pretrial
investigation into the fingerprint evidence was confirmed by
defense counsel’s own assessment of the importance of the
evidence. Counsel went so far as to argue in closing that the
“one item” that connected Jones to the house was “a fingerprint”
– a piece of evidence that she then called “damming” [sic].
J.A. 42-43. An attorney’s choice not to challenge the
admissibility of a piece of evidence can hardly be called
strategic when the evidence is central to the government’s case,
there are clear grounds that would support a challenge, the
challenge could yield immense benefit, and there is no
articulated downside. Indeed, the district court’s conclusion
that counsel’s decisionmaking was something less than strategic
is also amply supported by the trial transcript as a whole,
revealing a decided lack of thoroughness and zealous advocacy.
Even if counsel’s affidavit were enough to establish that
she adequately investigated the fingerprint evidence and
believed it was reliable, it still does not support her decision
not to challenge the evidence’s admissibility. Just because key
evidence may be reliable, a reasonable attorney should object to
its admission when the objection will almost certainly be
sustained. Here, the government sought to introduce a forensics
certificate – reliable or not – without the testimony of the
analyst. Yet counsel does not state any reasonable ground for
26
not objecting – such as knowledge that the analyst was available
to testify and would have testified upon an objection.
Counsel’s decision thus cannot be called strategic even if she
developed an informed belief that the evidence was facially
trustworthy.
2.
The government also argues that Jones himself provided no
evidence to the state court that “there was any factual basis to
challenge the accuracy of the fingerprint analysis or that
counsel failed to conduct a reasonable investigation.” Thus,
the argument follows, we cannot say that defense counsel was
deficient for failing to challenge the certificate’s admission.
As the government maintains, mere speculation that Jones might
have been able to undermine the fingerprint analysis had the
analyst testified should not be sufficient to sustain a claim of
deficiency under Strickland.
Such an argument fails for three reasons. First, as just
discussed, the question of whether the evidence was reliable is
independent from the question of whether it was admissible.
Thus even if Jones indeed had no way to undermine the evidence,
he certainly had a way to exclude it altogether.
Second, the government’s argument improperly presumes that
a certificate of analysis is reliable without the testimony of
the analyst – shifting the burden onto a defendant to prove
27
unreliability. But as Crawford made clear, the right of
confrontation is essential to establishing the reliability of
evidence in the first place. 541 U.S. at 61. As the Supreme
Court remarked:
Admitting statements deemed reliable by a judge is
fundamentally at odds with the right of confrontation.
To be sure, the Clause’s ultimate goal is to ensure
reliability of evidence, but it is a procedural rather
than a substantive guarantee. It commands, not that
evidence be reliable, but that reliability be assessed
in a particular manner: by testing in the crucible of
cross-examination.
Id. The district court here thus correctly determined that
Jones need not prove, without the benefit of confrontation, that
the certificate was fatally unreliable.
Third, the government has failed to even state whether it
would have called the analyst in the first place, or whether
he/she would have been available. As discussed in greater
detail below in the context of prejudice, a defendant certainly
does not bear the burden of divining a fact that is entirely
within the government’s control. Here, Jones clearly
established that a Confrontation Clause objection would have
been successful if made, and the fingerprint evidence would have
been excluded at the moment the objection was sustained. He
need do no more. Whether or not the government could have
pursued another route to admit the certificate – and whether the
28
attempt would have succeeded – amounts to speculation on this
record.
3.
In the absence of actual strategic rationales articulated
by Jones’s counsel, the government hypothesizes various reasons
why an attorney might not want to challenge a forensics
certificate. For instance, a challenge could cause the
government to put its forensics expert on the stand – an expert
who could be highly persuasive and credible. Similarly, counsel
may not wish to draw additional attention to unfavorable facts.
To be sure, assessing the objective reasonableness of a
decision by counsel may require a court to “affirmatively
entertain the range of possible reasons . . . counsel may have
had for proceeding as they did.” Cullen v. Pinholster, 131
S. Ct. 1388, 1407 (2011) (internal quotation marks omitted). But
we need not, and indeed should not, engage in such speculation
when counsel has actually provided a statement of her reasoning,
and the statement is devoid of valid strategic rationales.
Nowhere in her letter does counsel identify any risks associated
with objecting to the evidence. Instead, she merely states that
there was nothing to be gained, apparently because she believed
Jones’s print should have been in the house given his prior
social visit. On that dubious basis, counsel surrendered her
client’s right to confront his accuser and test the evidence
29
that was central to the government’s case against him. The
government would now have the court ignore counsel’s actual
statement and instead engage in precisely the kind of after-the-
fact rationalization that cannot displace a description of what
actually occurred. See Wiggins, 539 U.S. at 526-27.
As the Strickland Court itself observed, “[a] fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time.” 466 U.S. at 689. We thus defer to the informed
strategic judgment of counsel, even when that judgment proves
unwise in retrospect. We should not, however, afford the same
deference on this record, where counsel’s proffered
justifications suggest that she did not make an informed
strategic choice.
B.
Even if counsel performed deficiently, the majority holds
that Jones fails to establish that the Supreme Court of Virginia
unreasonably applied the prejudice prong of Strickland. The
majority argues succinctly that because Jones admitted guilt in
his brief conversation with Joseph, and because he had been to
the house previously, there is no reasonable probability that
the exclusion of the fingerprint evidence would have made a
30
difference in his case. Tellingly, nowhere does the government
make the argument upon which the majority relies. Instead, the
government maintains that Jones cannot show prejudice because he
has not established that the certificate would have actually
been excluded in the end even if counsel had objected. As the
government conjectures, an objection may have simply caused the
prosecution to call the analyst to the stand, thereby securing
admission of the certificate.
1.
The majority’s argument is belied by a stubborn fact,
namely, the trial court’s own statement as to why it concluded
Jones was guilty beyond a reasonable doubt. Looking at the
totality of the evidence presented, the judge never indicated
that any piece alone was enough to sustain a finding of guilt.
Instead, the court determined: “I think when you take the
fingerprint and combine it with the recent visit and you combine
it with the statement I think that’s sufficient beyond a
reasonable doubt . . . .” J.A. 44 (emphasis added).
In the face of that seemingly plain statement, the majority
speculates, and it must be termed speculation, that there is no
substantial likelihood that the judge would have acquitted Jones
if the fingerprint evidence was excluded. The majority’s
conclusion, however, ignores the centrality of that evidence to
the government’s case – a centrality illustrated by the
31
government’s focus on the fingerprint during Shuler’s testimony,
defense counsel’s closing argument that fixated on the print
(calling it “damming” [sic]), and the court’s express rationale
for finding guilt. It also ignores the dubious nature of the
“admission” itself. After Joseph testified on direct
examination regarding his fleeting conversation with Jones –
lasting a “few seconds” - the trial judge apparently was
underwhelmed and felt the need to inquire in greater detail.
After cross-examination, the court thus tried to elicit more
concrete details about the jailhouse conversation. Instead of
clarity, the court received largely the same answer, with an
added dose of uncertainty regarding whether or not Jones
apologized (“maybe he did”). The court then unambiguously based
its finding of guilt not on the admission alone, but instead on
the fingerprint evidence combined with Jones’s statement and the
fact of Jones’s recent visit to the house.
“A defendant need not show that counsel’s deficient conduct
more likely than not altered the outcome in the case.”
Strickland, 466 U.S. at 693. Instead, we look to whether
counsel’s error was “sufficient to undermine confidence in the
outcome.” Id. at 694. Without the fingerprint evidence, the
government’s case consisted of a missing television, a social
visit Jones made to the home a month before, and the puzzling
statement that Jones allegedly made to Joseph in jail.
32
Regardless of whether the court classified Jones’s jailhouse
statement as an “admission,” it is clear from the record that
that fingerprint evidence remained essential to the court’s
finding of guilt. Jones has thus met his burden to show
prejudice.
2.
The government independently contends that Jones cannot
show prejudice because he has not demonstrated that the
forensics analyst was unavailable, or would have been
unreliable, if defense counsel had objected to the evidence.
The government’s argument, however, fundamentally miscalibrates
a habeas petitioner’s burden in these circumstances. To
demonstrate prejudice, Jones must show that counsel’s objection
to the evidence would have been successful, and that the
exclusion of the objectionable evidence would have resulted in a
reasonable probability of a different outcome. He need not
surmount the additional burdens of establishing facts within the
government’s control, namely, whether the analyst would have
been called and been available to testify. Indeed, the
government has failed to even assert that it would have secured
the analyst’s testimony in the event of an objection. Shifting
that burden onto Jones would not only exceed Strickland’s
requirements, it would also be in tension with Melendez-Diaz’s
admonition that the government is singularly responsible for
33
presenting its witnesses, even where defense counsel may be able
to independently secure them. 557 U.S. at 324-25. As the
Melendez-Diaz Court noted:
More fundamentally, the Confrontation Clause imposes a
burden on the prosecution to present its witnesses,
not on the defendant to bring those adverse witnesses
into court. Its value to the defendant is not
replaced by a system in which the prosecution presents
its evidence via ex parte affidavits and waits for the
defendant to subpoena the affiants if he chooses.
Id.
Nor need Jones divine what the analyst would have actually
said if he/she had testified. As the Supreme Court emphasized
in Davis v. Alaska, 415 U.S. 308 (1974), a defendant whose
Confrontation Clause rights have been violated need not
speculate about the hypothetical testimony or credibility of a
key witness whom a petitioner could not effectively cross-
examine. Id. at 317-18. As the Court further remarked
regarding prejudice to a defendant, a deprivation of the right
of effective cross-examination constitutes “constitutional error
of the first magnitude and no amount of showing of want of
prejudice would cure it.” Id. at 318.
I thus believe that Jones has established that the state
supreme court unreasonably applied Strickland when it concluded
that any deficient performance by his counsel did not prejudice
him.
34
III.
In sum, I agree with the district court that habeas relief
is required here, “where there is a clear error and where the
record is equally clear that such an error made a difference.”
Jones, 7 F. Supp. 3d at 634. I would affirm the district court
judge, and I therefore respectfully dissent.
35