John Moss, III v. David Ballard

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:09-cv-01406 Copies to all parties and the district court/agency. [999164827].. [11-7354]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7354

JOHN MOSS, III,
Petitioner - Appellant,
v.
DAVID BALLARD, Warden,
Respondent - Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Joseph R. Goodwin,
Chief District Judge. (2:09-cv-01406)

Argued:

May 14, 2013

Decided:

August 2, 2013

Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, and WYNN and
DIAZ, Circuit Judges.

Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Associate Justice O’Connor and Judge Diaz concurred.

ARGUED: Stuart McCommas, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant.
Robert David Goldberg, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Appellee.
ON BRIEF:
Neal L. Walters, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Appellate Litigation Clinic, Charlottesville,
Virginia, for Appellant. Darrell V. McGraw, Jr., Attorney
General, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:
Petitioner
murdering
Despite

a

John

mother

Moss’s

Moss,
and

attempts

III

her

confessed

two

children

to

suppress

three
in

those

times

West

to

Virginia.

confessions

as

involuntary, the state trial court admitted them at trial, and a
jury convicted Moss of three counts of first-degree murder.

On

appeal, the Supreme Court of Appeals of West Virginia (“West
Virginia

Supreme

Court”)

reversed

multiple errors at trial.
before

us,

the

West

the

convictions

based

on

Of particular import to the appeal

Virginia

Supreme

Court

concluded

that

although all of the confessions were obtained in violation of
West Virginia’s juvenile prompt presentment statute, only the
third confession had been improperly admitted because it was the
only

confession

basis.

that

Thereafter,

Moss’s
Moss

was

counsel
retried

had
and

objected
again

to

on

that

convicted

of

three counts of first-degree murder.
After the denial of several state habeas petitions, Moss
filed a federal habeas petition.

The district court dismissed

Moss’s petition, declining to address whether counsel in his
first trial was ineffective and rejecting his argument that his
confessions were involuntary.

This Court granted Moss’s request

for a certificate of appealability to determine “(1) whether
Moss’[s]

first

trial

counsel

was

ineffective

in

failing

to

object to the admission of his [first two] confessions on the
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that

were

violation

they

taken

in

of

West

Virginia’s

juvenile presentment law,” and “(2) whether the district court
satisfied

the

independent

analysis

requirement

in

Miller

v.

Fenton, 474 U.S. 104 (1985), for determining the voluntariness
of Moss’[s] confession.”
we

affirm

the

district

Upon review of these issues on appeal,
court’s

dismissal

of

Moss’s

habeas

petition.

I.
In 1980, Moss confessed to murdering a mother and her two
children in West Virginia in 1979.

Specifically, on October 28,

1980, as two West Virginia State Troopers transported Moss from
an Ohio detention center to West Virginia, Moss indicated that
he would discuss the murders.

The troopers then brought Moss to

a West Virginia police detachment center where Moss signed a
Miranda waiver and orally confessed to the murders.

Later the

same night, Moss signed a second Miranda waiver and gave a taperecorded confession.

And, while being driven back to Ohio on

October 30, 1980, Moss confessed to the murders a third time.
Moss was seventeen years old at the time of the murders and
eighteen

years

old

when

he

1

confessed. 1

Following

his

See W. Va. Code § 49-5-1(a) (1978) (a defendant nineteen
or under charged with committing an offense while under eighteen
must be remanded to the trial court’s juvenile jurisdiction).

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confessions, Moss was charged with three counts of first-degree
murder.
Before trial, Moss moved to suppress his confessions.

Moss

initially challenged only his first two confessions, arguing in
part that they were involuntary because the officers coerced him
and

disregarded

his

request

for

an

attorney.

After

a

suppression hearing, the court rejected Moss’s arguments, denied
his motion to suppress, and admitted the first two confessions.
Later, Moss also moved to suppress his third confession.

At

that hearing, Moss’s counsel again argued that the confession
was involuntary, but additionally argued that Moss was not taken
before

a

neutral

judicial

officer

in

violation

Virginia’s juvenile prompt presentment statute.

of

West

That statute

required that a juvenile be immediately taken before a neutral
judicial officer when taken into custody.
8(d) (1978).

W. Va. Code § 49-5-

Despite this additional argument, the court also

admitted Moss’s October 30 confession.
In April 1984, a jury convicted Moss of three counts of
first-degree

murder,

and

the

court

sentenced

him

to

three

consecutive terms of life imprisonment without mercy.
One

year

after

Moss’s

trial,

the

West

Virginia

Supreme

Court ruled that any confession obtained in violation of West
Virginia’s juvenile prompt presentment statute must be excluded
from evidence if it appeared that the primary purpose of the
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presentment delay was to obtain a confession from the juvenile.
State v. Ellsworth, 331 S.E.2d 503, 508 (W. Va. 1985).
years

after

Moss’s

that,

the

West

on

appeal

convictions

Virginia
and

Supreme

remanded

Court

for

a

Three

reversed

new

trial

because of multiple trial errors, including failure to poll the
jury, improper prosecutorial remarks, and improper admission of
evidence.

State v. Moss, 376 S.E.2d 569, 572 (W. Va. 1988).

The court further held that although Moss’s confessions were
voluntary, see id. at 577-80, they were taken in violation of
West Virginia’s juvenile prompt presentment statute because he
was never presented to a neutral judicial officer, id. at 581.
But because the court held that Ellsworth’s exclusionary rule
did not apply retroactively unless a presentment objection was
made at trial, it determined that only Moss’s third confession
was inadmissible.

Id.

Before Moss’s second trial, the trial court conducted a
suppression hearing regarding the admissibility of Moss’s first
two confessions.
independent
Supreme

The court admitted the confessions for two

reasons:

Court’s

(1)

ruling

it

that

believed
the

that

October

28

the

West

Virginia

confessions

were

admissible was the “law of the case”; and (2) irrespective of
that ruling, it determined that the confessions did not violate
West

Virginia’s

juvenile

prompt

Appendix 1-3.
6

presentment

statute.

Supp.

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Following his second trial, the jury again convicted Moss
of

three

counts

of

first-degree

murder,

and

the

court

again

sentenced him to three sentences of life imprisonment without
mercy.

The West Virginia Supreme Court subsequently denied his

petition for appeal.
Between 1994 and 2007, Moss filed four habeas petitions in
West Virginia circuit courts.

The courts denied each petition,

rejecting

to

Moss’s

challenges

the

voluntariness

of

his

confessions and his arguments that counsel in his first trial
was

ineffective

objection

to

in

his

failing

first

two

to

raise

a

prompt

confessions.

presentment

Further,

the

West

Virginia Supreme Court denied Moss’s habeas petition filed in
that court.
In 2009, Moss filed a federal habeas petition, arguing in
part that counsel in his first trial was ineffective in failing
to object to the first two confessions on presentment grounds
and that his confessions were involuntary.
summary judgment.
state’s

motion

The state moved for

The magistrate judge recommended granting the

and

dismissing

the

habeas

district court adopted that recommendation.

petition,

and

the

Specifically, the

district court concluded that it was “not charged with reviewing
the

conduct

where

his

of

the

petitioner’s

convictions

were

counsel

ultimately

at

his

vacated.”

first
J.A.

trial,
2957.

Further, it concluded that Moss did not sufficiently show that
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courts’

voluntariness

of

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factual
his

determinations

confessions

regarding
incorrect

“were

the
or

unreasonable” or “that the state courts’ decisions concerning
the voluntariness of his confessions were contrary to, or an
unreasonable application of, clearly established federal law.”
J.A. 2945.
Moss appealed and asked this Court for a certificate of
appealability.
issues:

(1)

We,

in

whether

turn,

Moss’s

allowed

counsel

Moss

at

to

his

present

first

these

trial

was

ineffective in failing to object to the admission of his first
two confessions on the ground that they were taken in violation
of West Virginia’s juvenile presentment law, and (2) whether the
district

court

independently

determined

the

voluntariness

of

Moss’s confession as required by Miller v. Fenton, 474 U.S. 104
(1985).

II.
A.
As

an

initial

matter,

while

the

parties

agree

that

the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs

Moss’s

dispute

the

habeas

proper

petition,

standard

assistance of counsel claim.

of

see

28

review

U.S.C.
for

§

his

2254,

they

ineffective

Under AEDPA, federal courts cannot

grant a state prisoner’s habeas petition for any claim the state
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adjudicated

decision

“was

on

the

contrary

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merits
to,

unless

or

the

involved

state

an

court’s

unreasonable

application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or “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).

Moss contends that the state court did not adjudicate the
merits

of

his

ineffective

assistance

of

counsel

claim.

Accordingly, he argues that we should not apply AEDPA deference,
but

must

instead

review

his

claim

de

novo.

See

Weeks

v.

Angelone, 176 F.3d 249, 258 (4th Cir. 1999) (reviewing de novo
“[w]hen a petitioner has properly presented a claim to the state
court but the state court has not adjudicated the claim on the
merits”).

The state, by contrast, asserts that both the state

habeas court and the West Virginia Supreme Court adjudicated the
merits

of

Moss’s

ineffective

assistance

of

counsel

claim,

thereby triggering AEDPA’s deferential standard of review. 2
We
assuming

find

it

arguendo

unnecessary
that

de

to

resolve

novo

review

2

this
is

issue.

appropriate,

Even
we

The state also argues that Moss waived appellate review of
the proper standard because he did not seek de novo review
before the district court. But “the correct standard of review
under AEDPA is not waivable.” Gardner v. Galetka, 568 F.3d 862,
879 (10th Cir. 2009); see also Brown v. Smith, 551 F.3d 424, 428
n.2 (6th Cir. 2008); Eze v. Senkowski, 321 F.3d 110, 120-21 (2d
Cir. 2003).

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nevertheless conclude that Moss has failed to demonstrate that
his counsel was ineffective.

B.
To establish ineffective assistance of counsel, Moss must
demonstrate that (1) his counsel’s performance fell below an
objective

standard

of

reasonableness

and

(2)

the

deficient

performance prejudiced him, meaning that there was “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”

Strickland

v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Turning

to

Strickland’s

first

prong,

Moss

argues

that

because the juvenile prompt presentment statute was well-settled
at

the

time

of

his

first

trial,

his

attorney

performed

deficiently by failing to object to Moss’s first two confessions
on

that

cannot

basis.
be

Conversely,

deemed

the

ineffective

Ellsworth’s exclusionary rule.

state
for

asserts

failing

that
to

counsel

anticipate

We must agree with the state.

It is well established that an attorney cannot be labeled
ineffective for failing to anticipate a future change in the
law.

See United States v. McNamara, 74 F.3d 514, 516-17 (4th

Cir. 1996); Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir.
1983).

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Although Moss correctly notes that West Virginia’s juvenile
prompt

presentment

statute

existed

at

the

time

of

his

first

trial, Ellsworth was not decided until one year after Moss’s
first

trial.

violation

Ellsworth

of

the

held

juvenile

that

prompt

confessions
presentment

obtained
statute

in
are

inadmissible if the primary purpose of the presentment delay was
to obtain a confession.

Ellsworth, 331 S.E.2d at 508.

In

short, failure to comply with the juvenile prompt presentment
statute did not alone render a confession inadmissible at the
time of Moss’s first trial.

Moss, 376 S.E.2d at 580.

Rather,

prompt presentment was analyzed as one part of the voluntariness
inquiry.

Id.; cf. State v. Guthrie, 315 S.E.2d 397, 399 (W. Va.

1984) (stating that for purposes of West Virginia’s adult prompt
presentment statute, “[t]he delay in taking a defendant to a
magistrate

may

be

a

critical

circumstances

making

a

inadmissible”)

(quotation

factor

confession
marks

and

in

the

totality

involuntary
citation

of

and

hence

omitted).

Only

after Ellsworth did West Virginia courts analyze compliance with
the

juvenile

prompt

presentment

voluntariness inquiry.
West

Virginia

exclusionary

Supreme
rule

“is

statute

separately

Moss, 376 S.E.2d at 581.
Court
not

later

to

be

clarified
applied

that

from

the

Further, the
Ellsworth’s

retroactively

to

a

confession which was obtained prior to the date of that decision

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where no prompt presentment objection was made at trial.”

Id.

(citations and quotation marks omitted) (emphasis omitted).
Here, although Moss’s counsel at his first trial did not
object to Moss’s first two confessions on prompt presentment
grounds, he argued that they were involuntary for several other
reasons.
juvenile

While Moss’s counsel should have been aware of the
prompt

presentment

requirement,

he

cannot

be

deemed

ineffective for failing to anticipate that the statute would
later become an independent basis to exclude a confession and
that he needed to specifically object on presentment grounds to
preserve

that

Accordingly,

issue.

Moss

cannot

See

Honeycutt,

show

that

F.2d

at

217.

counsel’s

performance

fell below an objective standard of reasonableness.

Strickland,

466 U.S. at 687-88.

his

698

Therefore, Moss’s ineffective assistance of

counsel claim must fail.

C.
Finally, Moss contends that the district court failed to
independently determine whether his confession was voluntary as
required by Miller v. Fenton, 474 U.S. 104 (1985).
In

Miller,

the

Supreme

Court

held

that

in

the

federal

habeas context, whether a confession was voluntary is a legal
question requiring “independent federal determination.”
112.

Id. at

While Miller predated the enactment of AEDPA, courts have
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incorporated Miller’s independent determination requirement into
AEDPA’s deferential standard of review.
courts

must

independently

apply

Thus, federal habeas

federal

law

to

ultimately

determine whether the state court’s voluntariness determination
was contrary to, or an unreasonable application of, that law.
See Williams v. Taylor, 529 U.S. 362, 402-04, 412-13 (2000);
Land v. Allen, 573 F.3d 1211, 1217 (11th Cir. 2009); Lam v.
Kelchner, 304 F.3d 256, 264 (3d Cir. 2002).
In his habeas petition, Moss challenged the state courts’
findings that his October 28 confessions were voluntary as an
unreasonable

applicable

Accordingly,

the

of

clearly

district

established

court

reviewed

federal

the

law.

conflicting

testimony from Moss and the officers who took his confessions
and the state courts’ ultimate decision to believe the officers.
Applying

AEDPA

deference,

the

district

court

concluded

that

“[t]he Petitioner has not demonstrated, by clear and convincing
evidence,

that

the

state

courts’

factual

determinations

were

incorrect or unreasonable.

Moreover, the petitioner has not

demonstrated

that

the

state

courts’

voluntariness

of

his

confessions

decisions

were

concerning

contrary

to,

or

the
an

unreasonable application of, clearly established federal law.”
J.A. 2945.
Moss

argues

that

because

the

district

court

did

not

“mention[] and explain[] the applicable federal law,” Reply Br.
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at 19, it failed to conduct the independent review required by
Miller.

But Moss does not cite, nor did we find, a case holding

that post-AEDPA, Miller requires courts to specifically identify
or

explain

2254(d)(1)

the

applicable

merely

federal

requires

a

law.

federal

Rather,
habeas

Section

court

to

independently determine whether a state court’s adjudication on
the merits resulted in a decision that “was contrary to clearly
established Federal law, as determined by the Supreme Court of
the United States, or (2) involved an unreasonable application
of clearly established Federal law, as determined by the Supreme
Court

of

(quotation

the

United

marks

court has done.

and

States.”
citation

Williams,
omitted).

529

U.S.

This,

the

at

412

district

Accordingly, we reject Moss’s voluntariness

challenge.

III.
For the foregoing reasons, we affirm the district court’s
order dismissing Moss’s habeas petition.
AFFIRMED

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