CA6: A rare § 2254 reversal: defense counsel ineffective for not pursuing a clearly winnable Fourth Amendment claim; state court findings unreasonable under AEDPA

In a rare § 2254 reversal, the Sixth Circuit finds defense counsel ineffective for not pursuing a clearly winnable Fourth Amendment claim, and the state court findings were unreasonable under AEDPA. Grumbley v. Burt, 2015 U.S. App. LEXIS 1429 (6th Cir. January 27, 2015):

We turn now to the question of whether the state court unreasonably applied Strickland in finding that Grumbley’s trial counsel was constitutionally effective despite his failure to move to suppress the physical evidence obtained from the search of Grumbley’s home. We find that Grumbley has met his burden under the doubly deferential standards of AEDPA and Strickland.

The state court concluded that “the facts in the record do not support defendant’s contention that a motion to suppress the evidence based on the constitutionality of the arrest and/or search would have been meritorious or that such a motion would have been outcome determinative.” People v. Grumbley, 2006 WL 3751427, at *2. The state court predicated this conclusion on its finding that, “[e]ven if the arrest was illegal, … [Grumbley]’s consent to search the home allows for the admission of the seized evidence.” Id. at *3. For the reasons discussed, the state court’s analysis is incorrect because voluntary consent alone is insufficient to purge the taint of an illegal seizure. Voluntariness is only the “threshold” condition of the Fourth Amendment analysis required by Supreme Court precedent. Dunaway v. New York, 442 U.S. 200, 219 (1979). In failing to conduct the attenuation analysis, the state court unreasonably applied clearly established federal law. The district court, in relying entirely on the state court’s consent analysis to determine that Grumbley’s ineffective assistance of counsel claim “lack[ed] merit,” also erred. Grumbley v. Heynes, 2012 WL 6621153, at *8.

Under the first prong of the Strickland test, Grumbley has satisfied his burden of showing his trial counsel’s performance fell below an objective standard of reasonableness when he failed to move to suppress evidence tainted by illegality. Because Grumbley’s pro se Ginther motion was untimely, we cannot know what Grumbley’s trial counsel’s reasons were for not filing a motion to suppress. Even so, it is difficult to conceive of a legitimate trial strategy or tactical advantage to be gained by not filing a motion to suppress. The warrantless and nonconsensual entry into Grumbley’s home in order to make a routine felony arrest is a clear violation of Payton. That violation is not obviated by exigent circumstances and, under Wong Sun and its progeny, is not obviated by valid consent.

Under the second prong of the Strickland test, Grumbley has satisfied his burden of showing he was prejudiced by his counsel’s failure to file a motion to suppress. Conceptually, the seven charges brought against Grumbley can be divided into three categories: (1) charges related to Misty’s allegations (extortion, attempt to prepare child sexually abusive material, and child sexually abusive activity as to Misty and Chad); (2) charges related to Dory (child sexually abusive activity, of which Grumbley was acquitted); and (3) charges related to the firearms and pornographic material found during the illegal search (possession of child sexually abusive material, [*30] being felon in possession of a firearm, and felony-firearm possession). The charges in the first category were not related to any of the effects found during the search. We can therefore safely presume that other evidence presented at trial was sufficient to convict Grumbley of the extortion and attempt to prepare child sexually abusive material charges. See Strickland, 466 U.S. at 695 (noting that courts assess the totality of the evidence in the record in evaluating whether an error prejudiced the defendant). The charges in the third category, however, depend largely on the effects found during the unlawful search. In other words, the critical components of the prosecution’s case against Grumbley for three of the five convictions rest on evidence that should have been suppressed. If the trial court had suppressed the firearms, the State would not have had physical evidence to support Grumbley’s convictions for felony firearm possession and being a felon in possession of a firearm. If the trial court had suppressed the CD, magazine, and photographs, the State would not have had physical evidence to support Grumbley’s conviction for possession of child sexually abusive material. Without this evidence, the State would have lost a significant evidentiary portion of its case-in-chief against Grumbley, as well as the opportunity to further prejudice the jury against him.

The State avers that, even if this Court determines that trial counsel’s performance fell outside the range of reasonable professional assistance, Grumbley’s claim still fails because he cannot show a substantial likelihood that the outcome of trial would have been different absent counsel’s alleged error. Scant record evidence supports this contention. The State cites to extensive trial testimony by Misty and others regarding what Grumbley attempted to pressure Misty into doing. Citation to this testimony is a red herring, however, because the charges related to Grumbley’s conduct toward Misty are distinct from the charges related to the effects found during the illegal search.