Rashaad Jones v. Harold Clarke
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cv-00001-RAJ-DEM. [999569447]. [14-6590]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6590
RASHAAD TIWANIA JONES,
Petitioner – Appellee,
v.
HAROLD
W.
CLARKE,
Corrections,
Director,
Virginia
Department
of
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.
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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
temporarily
relocated
that
from
in
his
January
2010,
Williamsburg,
while
he
Virginia,
was
house
because it had flooded, someone broke a window in the back of
the
house
bedroom.
and
stole
Approximately
a
television
one
month
1
and
other
earlier,
items
Jones
had
from
the
visited
The district court denied relief on several claims, but
Jones did not appeal, and those claims are not before us.
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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
break-in
entered
at
the
Shuler
Joseph’s
house
testified
house.
through
She
the
that
she
determined
broken
window,
investigated
that
and
the
the
thief
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
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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 10year
sentence.
direct
appeal,
The
and
Virginia
the
state
appellate
supreme
courts
court
denied
denied
his
Jones’
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
concluded
that
relief
the
on
one
Supreme
claim.
Court
4
Specifically,
of
Virginia
the
court
unreasonably
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applied
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Strickland
rejecting
Jones’
v.
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Washington,
ineffective
466
U.S.
assistance
668
of
(1984),
counsel
in
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
analyst). 2
laboratory
confrontation
Accordingly,
the
right
court
regarding
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
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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
without
the
(1)
the
testimony
fingerprint
of
the
evidence
fingerprint
was
inadmissible
analyst,
(2)
an
objection by his counsel to the admission of the fingerprint
evidence
would
have
evidence
against
him
been
sustained,
would
be
and
(3)
insufficient
the
to
remaining
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
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States;”
or
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“resulted
in
a
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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,
ineffective
performance
explained
Strickland
assistance
and
that
to
establish
prejudice.
“there
is
requires
no
a
However,
reason
claiming
components:
two
defendant
deficient
the
for
a
Strickland
court
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
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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
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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
occurred;
window
(4)
area;
question
mistake
first
visited
Jones’
and
about
or
two
the
whatever
facts
a
few
fingerprint
(5)
why
house
Jones
he
was
stated,
committed
and
that’s
establish
weeks
before
lifted
in
the
from
response
crime,
the
what
happened.”
delicti
theft
broken
to
Joseph’s
he
“made
that
corpus
the
the
J.A.
of
22.
the
a
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
there
a
is
acquitted.
the
guilty
reasonable
The
district
verdict,
probability
court
and
without
that
viewed
he
the
that
would
record
evidence,
have
in
been
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.
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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
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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
comprehended
that
in
there
was
existing
an
law
error
beyond
well
any
understood
and
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.
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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.
window
matched
Rashaad
Jones,
an
One print from the
acquaintance
occupant who had visited socially once before.
of
the
home’s
The single print
led to Jones’s arrest and became the fulcrum of the government’s
case against him.
Despite
counsel,
record
fertile
Jones’s
is
attorney
bereft
investigation,
apart
investigation
took
witnesses.
ground
of
for
investigation
apparently
details
did
very
regarding
from
conclusory
place.
At
She introduced no evidence.
defense
little.
her
statements
trial,
by
pretrial
that
counsel
The
such
called
an
no
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.
the
And when presented with an opportunity to challenge
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
12
placeholders.
See
United
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States v. Cronic, 466 U.S. 648, 656 (1984) (“[T]he adversarial
process
protected
by
the
Sixth
Amendment
requires
that
accused have counsel acting the role of an advocate.”
quotation marks omitted)).
only
refused
to
unnecessarily
put
up
surrender
the
(internal
In this case, Jones’s counsel not
a
fight.
the
very
She
Sixth
went
so
far
Amendment
as
right
to
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
opportunity for another government witness to testify.
the
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
different result if the fingerprint evidence was excluded.
a
conclusion,
however,
is
at
odds
rationale for a finding of guilt.
with
the
court’s
of
a
Such
express
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
that’s sufficient beyond a reasonable doubt . . . .”
(emphasis
added).
In
that
light,
13
there
is
a
I
think
J.A. 44
reasonable
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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.
television set was missing.
A
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
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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
investigator
witness
Karen
Joseph’s house.
Shuler,
was
who
James
City
investigated
County
the
police
break-in
at
Shuler’s investigation determined that somebody
had entered the home through a broken “rear window to the living
room/dining
damage
to
room.”
the
investigator
front
lifted
J.A.
door
prints
33.
She
and
from
15
also
sliding
the
testified
glass
rear
there
backdoor.
window
and
was
The
sliding
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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.
return matches.
The government did not call the analyst who
prepared the report.
admission
on
The other four prints did not
Jones’s counsel did not object to its
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
evidence.
evidence
counsel
called
no
witnesses
and
offered
no
She argued briefly in closing that the government’s
was
“highly
circumstantial,”
observing
television was never found in Jones’s possession.
curiously
characterized
the
fingerprint
on
that
the
Counsel also
the
window
as
“damming” [sic], but maintained that such evidence alone was
simply
not
enough
doubt.
to
find
Jones
J.A. 43.
16
guilty
beyond
a
reasonable
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The trial judge disagreed.
certificate
was
enough
to
He found that the fingerprint
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
situation”
that
would
before
be
a
long
sentencing.
way
J.A.
to
45.
ameliorating
The
television
the
was
apparently not returned, and the judge sentenced Jones to 30
years imprisonment, with 20 years suspended.
The
appeal.
Court
of
Appeals
of
Virginia
denied
Jones’s
The Supreme Court of Virginia did the same.
direct
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
certificate on Confrontation Clause grounds.
admission
of
the
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).
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In so holding, the Supreme Court of Virginia relied in part
on
an
affidavit
explained
the
from
Jones’s
circumstances
trial
surrounding
question the fingerprint evidence.
counsel
her
in
which
decision
not
she
to
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
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J.A. 114.
The district court granted relief, ordering that Jones’s
sentence and convictions be vacated.
Supp. 3d 626 (E.D. Va. 2014).
Jones v. Clarke, 7 F.
The court first observed that
under the United States Supreme Court’s decision in MelendezDiaz 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
fingerprint
location
may
of
have
the
contradicted
the
been
print
such
an
evidence
on
from
the
upon
her
Jones’s
outside
explanation,
the
belief
prior
of
a
court
that
visit.
rear
the
The
windowpane
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.”
concluded
Jones, 7 F. Supp. 3d at 633.
that
Strickland
when
the
state
it
held
supreme
that
In that light, the court
court
counsel’s
unreasonably
performance
applied
was
not
objectively deficient.
As to the question whether the admission of the certificate
prejudiced
Jones,
the
fingerprint
evidence
was
district
central
19
court
to
the
determined
state
that
trial
the
judge’s
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decision to convict.
Pg: 20 of 35
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.
government’s
argument
because
he
had
failed
The district court also rejected the
that
Jones
to
could
demonstrate
not
that
prove
the
prejudice
analyst
was
unavailable to testify, or would have been shown unreliable on
the
stand,
admission.
had
his
counsel
challenged
the
certificate’s
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
certificate,
Imposing
of
actually
or
establishing
“[s]uch
a
proving
the
high
the
unreliability
whereabouts
burden,”
the
“contravenes
Strickland”
and
“effectively
prosecution’s
duty
the
Confrontation
under
defendant’s privilege under state law.’”
of
the
court
of
the
analyst.
reasoned,
‘convert[s]
the
Clause
the
into
Id. (quoting Melendez-
Diaz, 557 U.S. at 324).
II.
The
Sixth
Amendment
guarantees
counsel as a condition of a fair trial.
20
the
right
to
effective
Strickland, 466 U.S. at
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684-86.
a
Filed: 04/22/2015
Pg: 21 of 35
To establish a claim of constitutional ineffectiveness,
defendant
must
demonstrate
(1)
that
counsel’s
performance
“fell below an objective standard of reasonableness” and (2)
that the “deficient performance prejudiced the defense.”
687-88.
Under
the
first
prong,
the
adequacy
of
Id. at
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.”
694.
Id. at
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
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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
Confrontation Clause.
certificates
testimony,
are
doing
examination.”
statement
that
implicates
Melendez-Diaz, 557 U.S. at 310-11.
“functionally
precisely
identical
what
a
to
witness
live,
does
the
Such
in-court
on
Id. (internal quotation marks omitted).
direct
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]
cross-examine [him or her].”
had
a
prior
opportunity
to
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
Confrontation Clause grounds.
Jones
now
argues
that
his
would
have
been
sustained
See Appellant’s Br. 20.
counsel’s
1
performance
was
on
As such,
clearly
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
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deficient, and that the Supreme Court of Virginia unreasonably
applied
Strickland
however,
contends
object
to
the
in
finding
otherwise.
that
Jones’s
counsel
certificate’s
The
was
introduction
not
given
government,
required
(1)
to
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
objecting.
other
hypothesized
strategic
advantages
of
not
Each of the government’s arguments is considered in
turn.
1.
Regarding counsel’s letter affidavit, it is true that we
owe
a
heavy
choices.
deference
to
an
attorney’s
informed,
strategic
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.
v.
Smith,
539
U.S.
510,
526-27
(2003).
Moreover,
Wiggins
strategic
decisions must nonetheless be reasonable in the first place to
command
a
court’s
deference.
Strickland, 466 U.S. at 690-91).
23
See
id.
at
528
(quoting
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Here, all that we know about counsel’s relevant pretrial
investigation
single
counsel
and
paragraph
briefly
strategic
in
her
asserted
deliberations
letter
that
is
affidavit.
she
conducted
contained
In
an
the
in
a
letter,
“[a]dequate
pretrial investigation” that revealed no reason to question the
reliability of the fingerprint evidence.
base
that
conclusion
on
the
fact
that
Counsel appeared to
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.”
24
539 U.S. at
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521-22. 2
was
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A conclusory assertion that an adequate investigation
conducted,
without
more,
cannot
entitle
counsel
presumption of reasonableness in these circumstances.
at
527
(observing
investigation”
decision”).
does
in
a
not
sentencing
context
“automatically
to
a
See id.
that
a
“cursory
justif[y]
a
tactical
Indeed, attorneys have provided far more detail in
other contexts where the sufficiency of their investigations has
been challenged.
investigation
See, e.g., id. at 523 (describing a mitigation
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 retesting 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
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Here,
the
investigation
defense
Filed: 04/22/2015
pressing
into
need
for
the
fingerprint
own
counsel’s
evidence.
Pg: 26 of 35
assessment
a
non-cursory
evidence
of
was
the
pretrial
confirmed
importance
of
by
the
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
admissibility
of
attorney’s
a
piece
of
choice
not
evidence
to
can
challenge
hardly
be
the
called
strategic when the evidence is central to the government’s case,
there
are
challenge
clear
grounds
could
yield
articulated downside.
that
would
immense
support
benefit,
a
challenge,
and
there
is
the
no
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
sustained.
when
the
objection
will
almost
certainly
be
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
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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
counsel failed to conduct a reasonable investigation.”
or
that
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
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unreliability.
But
as
Pg: 28 of 35
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
established
government’s
that
a
control.
Confrontation
Clause
Here,
Jones
objection
clearly
would
have
been successful if made, and the fingerprint evidence would have
been excluded at the moment the objection was sustained.
need do no more.
He
Whether or not the government could have
pursued another route to admit the certificate – and whether the
28
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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
certificate.
might
For
not
instance,
want
a
to
challenge
challenge
a
could
forensics
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
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that was central to the government’s case against him.
government
would
now
have
the
court
ignore
counsel’s
The
actual
statement and instead engage in precisely the kind of after-thefact rationalization that cannot displace a description of what
actually occurred.
As
the
See Wiggins, 539 U.S. at 526-27.
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.
deference
on
justifications
this
suggest
We should not, however, afford the same
record,
that
she
where
did
counsel’s
not
make
proffered
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
30
evidence
would
have
made
a
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difference in his case.
Pg: 31 of 35
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
reasonable doubt . . . .”
think
that’s
sufficient
beyond
a
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
31
illustrated
by
the
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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.
examination
regarding
lasting
a
“few
After
his
seconds”
Joseph
fleeting
-
the
testified
conversation
trial
judge
on
with
direct
Jones
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
apologized (“maybe he did”).
regarding
whether
or
not
Jones
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
Strickland,
than
466
not
U.S.
altered
at
693.
the
outcome
Instead,
we
in
the
look
to
case.”
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
32
made
to
Joseph
in
jail.
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Regardless
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of
whether
the
Pg: 33 of 35
court
classified
Jones’s
jailhouse
statement as an “admission,” it is clear from the record that
that
fingerprint
finding
of
evidence
guilt.
remained
Jones
has
essential
thus
met
to
his
the
court’s
burden
to
show
prejudice.
2.
The
show
government
prejudice
forensics
independently
because
analyst
he
was
has
contends
not
unavailable,
that
Jones
demonstrated
or
would
cannot
that
have
the
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
been
called
control,
and
namely,
been
whether
available
to
the
analyst
have
Indeed,
testify.
would
the
government has failed to even assert that it would have secured
the analyst’s testimony in the event of an objection.
that
burden
onto
Jones
would
not
only
exceed
Shifting
Strickland’s
requirements, it would also be in tension with Melendez-Diaz’s
admonition
that
the
government
33
is
singularly
responsible
for
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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
308
Davis
v.
Alaska,
Confrontation
Clause
415
U.S.
rights
(1974),
have
been
a
defendant
violated
whose
need
not
speculate about the hypothetical testimony or credibility of a
key
witness
examine.
whom
Id.
at
a
petitioner
317-18.
As
could
the
not
Court
effectively
further
cross-
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
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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
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