PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-7072

ERIC ADAM GRUENINGER,

Petitioner - Appellant,

v.

DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. John A. Gibney, Jr.,

District Judge. (3:13-cv-00260-JAG)

Argued: October 27, 2015 Decided: February 9, 2016

Before MOTZ, GREGORY, and HARRIS, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published 

opinion. Judge Harris wrote the opinion, in which Judge Motz 

and Judge Gregory joined. 

ARGUED: Michael Allen McIntosh, SKADDEN, ARPS, SLATE, MEAGHER & 

FLOM, LLP, Washington, D.C., for Appellant. Steven Andrew

Witmer, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, 

Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney 

General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia, for Appellee.
2

PAMELA HARRIS, Circuit Judge:

In 2009, Virginia police arrested Eric Adam Grueninger for 

sexually abusing his fourteen-year-old daughter. During his 

first interview with the police investigator, Grueninger was 

read his Miranda rights and said, “I need an attorney.” Three 

days later, the investigator re-interviewed him without an 

attorney present, and this time, Grueninger confessed to 

performing various sexual acts with his daughter. Grueninger 

ultimately was tried on sexual abuse and child pornography 

charges. Grueninger’s attorney did not file a timely motion to 

suppress the confession, and the Commonwealth of Virginia 

(“Commonwealth”) relied on Grueninger’s confession in securing 

his conviction.

On state collateral review, Grueninger argued that his 

attorney’s failure to move to suppress his confession under 

Edwards v. Arizona, 451 U.S. 477 (1981), which prohibits police 

interrogation after an invocation of Miranda rights, constituted 

ineffective assistance of counsel. A Virginia circuit court 

rejected that claim, holding that Grueninger had not been 

“interrogated” for Edwards purposes, and that his statements 

therefore would not have been suppressed had counsel so moved. 

We disagree, and conclude that the state court decision on this 

point was objectively unreasonable under 28 U.S.C. § 2254(d). 
3

We further find that had Grueninger’s statements been 

suppressed, there is a reasonable probability that the outcome 

of his trial would have been different as to the sexual abuse 

charges, though not the child pornography charges. Accordingly, 

we reverse in part and affirm in part the district court order 

dismissing Grueninger’s federal habeas petition.

I.

A.

On March 13, 2009, the Department of Social Services in 

Hanover County, Virginia, received a report that Grueninger was 

having sexual intercourse and other sexual contact with his 

fourteen-year-old daughter. The police arrested him that day,

and investigator David Klisz met with Grueninger in jail for a 

first interview. Their interaction was captured on video, which 

was available to the prosecutor and to Grueninger’s attorney, 

Michael Clower. The video depicts Klisz administering Miranda

warnings to Grueninger and Grueninger saying in response, “These 

are felonies, I need an [a]ttorney.”1 J.A. 342. Grueninger

 1 This version of Grueninger’s statement comes from an 

affidavit submitted by Clower in 2011, in connection with 

Grueninger’s state habeas petition. During a pretrial motions 

hearing, the prosecutor appeared to recall a slightly different 

formulation of the statement. Unlike Clower’s affidavit —

credited by the state habeas court in its analysis — the 
4

claims, without disagreement from the Commonwealth, that Klisz 

immediately ceased all questioning.

On that same day, Klisz searched Grueninger’s home with the 

consent of Grueninger’s wife. Klisz found three thumb drives in 

Grueninger’s top dresser drawer, one of which contained 

photographs and videos of child pornography. He also discovered 

a laptop in the home’s work room. Subsequent forensic analysis 

revealed that the content on the thumb drive had been accessed 

on the laptop.

Three days later, on March 16, 2009, Hanover County issued 

a new arrest warrant with additional charges, and Klisz again 

visited Grueninger in jail. After administering the Miranda

warnings a second time, Klisz asked Grueninger questions about 

the charges against him. This time, Grueninger answered Klisz’s 

questions and admitted to performing oral sex on his daughter, 

ejaculating on her, shaving her pubic hair, inserting a yeast 

infection suppository into her vagina, and bathing with her 

naked. He also admitted that the computer he primarily used at 

 

prosecutor’s statement was not sworn, and it is not clear what 

the basis was for her recollection. The district court and both 

parties have assumed that what Grueninger said was “These are 

felonies, I need an attorney,” and we do so, as well. 
5

home was the laptop on which child pornography had been stored

and accessed.

A grand jury charged Grueninger with two counts of indecent 

liberties with a child under the age of fifteen, two counts of 

aggravated sexual battery by a parent, one count of rape by 

force or threat, three counts of forcible sodomy, and two counts 

of sexual object penetration (the “sexual abuse charges”). 

Grueninger also was charged with nine counts of possession of

child pornography and one count of distribution of child 

pornography (the “child pornography charges”). On November 19, 

2009, the Circuit Court of Hanover County (“Circuit Court” or 

“Hanover Circuit Court”) held a bench trial. 

Local rules required that a motion to suppress, like all 

motions in limine, be filed in writing before trial. Clower, 

Grueninger’s attorney, did not file a written motion to suppress 

Grueninger’s confession. But on the first day of trial, Clower 

belatedly took issue with the admissibility of the confession on 

Edwards grounds. When the prosecutor argued that Clower’s 

objection was untimely, Clower attempted to excuse his delay by 

explaining that he had only recently become aware of the 

relevant statements and the timeline; the prosecutor pointed out 

that in fact, Clower had been afforded “open file discovery,” 

including access to the video of Klisz’s interactions with 
6

Grueninger. In any event, she argued, Grueninger’s request for

a lawyer was not unequivocal, as required to trigger Edwards

protections. The trial court overruled Clower’s objection 

without reaching the merits because Clower had failed to file a 

motion in limine. Instead, the court held that the matter 

“ought to be dealt with as [it came] up” at trial. J.A. 74.

The confession “came up” at trial when the prosecutor 

elicited testimony from Klisz regarding Grueninger’s inculpatory 

statements. But Clower did not object. At the close of 

evidence, the trial court noted the importance of Klisz’s 

testimony about his second interview with Grueninger: “[I]f I 

find that Detective Klisz’s testimony was incredible and that 

the defendant did not make the statements . . . that have been 

attributed to him, then the whole case shifts into a different 

perspective.” J.A. 305. The court did find Klisz’s account of 

Grueninger’s confession credible, and it convicted Grueninger on 

all counts. 

On February 2, 2010, the court sentenced Grueninger to a 

total term of imprisonment of 235 years, with all but 88 

suspended. On the sexual abuse charges, Grueninger was 

sentenced to 180 years with all but 74 suspended, and on the 

child pornography charges, to 55 years with all but 14 

suspended. Grueninger appealed his convictions, arguing that 
7

the evidence was not sufficient to sustain them. The Court of 

Appeals of Virginia affirmed and the Supreme Court of Virginia 

refused Grueninger’s petition for appeal.

B.

On July 25, 2011, Grueninger filed a pro se petition for a

writ of habeas corpus in the Hanover Circuit Court, before the 

same judge who had presided over his trial. Grueninger alleged 

that the admission of his uncounseled confession to Klisz was 

unconstitutional under Edwards v. Arizona. He also argued, 

among numerous ineffective assistance claims, that Clower was 

ineffective for not moving to suppress his confession under 

Edwards.

In opposing Grueninger’s petition, the Commonwealth 

produced an affidavit from Clower (the “Clower Affidavit”) that 

described the video of the first interaction between Klisz and 

Grueninger on the day of Grueninger’s arrest. According to 

Clower, “Detective Kliz [sic] did read the defendant his Miranda 

warning, and Grueninger said ‘These are felonies, I need an 

Attorney.’” J.A. 342. Clower also described the circumstances 

that produced Grueninger’s confession during the second 

interview with Klisz: “On a subsequent day Detective Kliz [sic] 

returned with new warrants. At that time, upon being served, 
8

Mr. Grueninger volunteered statements that were later used in 

his conviction.” Id.

The Circuit Court held that Grueninger was not entitled to 

relief on any of his claims and dismissed his petition. The 

court determined that Grueninger procedurally defaulted his 

substantive Edwards claim by failing to litigate it at trial or 

on direct appeal. And the court rejected Grueninger’s argument 

that this failure itself constituted ineffective assistance of 

counsel under Strickland v. Washington, 466 U.S. 668 (1984). 

According to the court, Grueninger’s statements to Klisz were 

spontaneous or “voluntary” rather than the product of 

“interrogation”: “The mere serving of the[] warrants [by Klisz] 

was not designed to provoke incriminating statements from the 

petitioner and was not an interrogation.” J.A. 347. It 

followed, the court held, that the statements would not have 

been suppressed under Edwards — which applies only when a 

suspect is interrogated — and therefore that Clower’s failure to 

move for suppression was neither deficient performance nor 

prejudicial under Strickland.

Grueninger appealed the dismissal of his state habeas 

petition to the Supreme Court of Virginia. The Supreme Court 

summarily found that “there [was] no reversible error in the 
9

judgment complained of” and refused the petition for appeal. 

J.A. 354.

C.

On June 12, 2013, Grueninger filed a federal habeas 

petition under 28 U.S.C. § 2254 in the Eastern District of 

Virginia,2 alleging largely the same claims as in his state

habeas petition. The district court agreed with the Circuit 

Court that Grueninger’s substantive Edwards claim was 

procedurally defaulted. As to ineffective assistance in 

connection with the Edwards claim, the district court also 

agreed that trial counsel “reasonably eschewed moving to 

suppress,” quoting Clower’s statement in his affidavit that any 

such motion would have been “baseless.” J.A. 41. In the 

alternative, the district court held, even if a motion to 

suppress had been made and granted, the resulting exclusion of

Grueninger’s confession would not have led to a different 

outcome at trial: “Even without Grueninger’s statement to 

Detective Klisz, overwhelming direct and circumstantial evidence 

of Grueninger’s guilt existed.” Id. The district court 

rejected the remainder of Grueninger’s claims, dismissed 

 2 Grueninger originally petitioned for federal habeas relief 

in the Western District of Virginia. The case was transferred 

to the Eastern District of Virginia and Grueninger filed a new 

habeas petition there.
10

Grueninger’s petition, and denied a certificate of 

appealability.

Grueninger filed a timely appeal with this court. We 

granted a partial certificate of appealability as to the 

following issues: “(1) Whether trial counsel was ineffective in 

failing to seek pretrial suppression of Grueninger’s 

[inculpatory] statement under Edwards v. Arizona, 451 U.S. 477 

(1981),” and “(2) if so, whether counsel’s ineffectiveness 

demonstrates cause and prejudice to excuse Grueninger’s 

procedural default of his claim that his statements were 

unconstitutionally obtained in violation of Edwards.”

II.

We review the district court’s denial of a habeas petition 

de novo. MacDonald v. Moose, 710 F.3d 154, 159 (4th Cir. 2013). 

Our analysis is circumscribed, however, by the amendments to 28 

U.S.C. § 2254 enacted as part of the Antiterrorism and Effective 

Death Penalty Act of 1996 (“AEDPA”).

Under 28 U.S.C. § 2254(d), “the availability of federal 

habeas relief is limited with respect to claims previously 

‘adjudicated on the merits’ in state-court proceedings.” 

Harrington v. Richter, 562 U.S. 86, 92 (2011). A federal habeas 

court may not grant relief on such claims unless it concludes 
11

that the state court’s merits determination “was contrary to, or 

involved an unreasonable application of, clearly established 

Federal law” as set forth by the Supreme Court, 28 U.S.C. 

§ 2254(d)(1), or rested on “an unreasonable determination of the 

facts” in light of the evidentiary record before the state 

court, id. § 2254(d)(2). And a state court’s factual findings 

must be presumed correct, absent rebuttal by the petitioner by 

clear and convincing evidence. Id. § 2254(e). 

As the Supreme Court has made clear, § 2254(d) permits 

federal habeas relief where a state court “identifies the 

correct governing legal principle from [the Supreme] Court’s 

decisions but unreasonably applies that principle to the facts” 

of the prisoner’s case. Wiggins v. Smith, 539 U.S. 510, 520 

(2003) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). 

But that is a high threshold, and only an “objectively 

unreasonable” determination by a state court will warrant 

federal habeas relief. Id. at 520–21; see also Tice v. Johnson, 

647 F.3d 87, 108 (4th Cir. 2011).

III.

A.

Grueninger’s primary argument is that his counsel was 

ineffective for failing to move to suppress his confession. We 
12

begin by setting out briefly the legal principles that govern 

this claim.

In Edwards v. Arizona, the Supreme Court held that once a 

suspect invokes his right to counsel under Miranda, he is “not 

subject to further interrogation” by the police, unless — in an 

exception not relevant here — the suspect himself initiates 

renewed communication with the police. 451 U.S. at 484–85. If 

the police do interrogate a suspect in custody after he asserts 

his right to counsel, then any statements they elicit are per se 

inadmissible, even if the suspect is again advised of his 

Miranda rights. Id. at 487. To establish an Edwards violation, 

a petitioner must show both that he clearly and “unambiguously” 

invoked his right to counsel, Davis v. United States, 512 U.S. 

452, 459 (1994); Edwards, 451 U.S. at 485 (police may not 

interrogate a suspect who has “clearly asserted” his Miranda

right to counsel), and also that the police subsequently 

“interrogated” him, Edwards, 451 U.S. at 484 (prohibiting 

“further police-initiated custodial interrogation” after 

invocation); see Rhode Island v. Innis, 446 U.S. 291, 300–01 

(1980) (“Miranda safeguards come into play” when police engage 

in “interrogation” of a suspect in custody).

Claims of ineffective assistance of counsel are evaluated 

under the framework set out in Strickland v. Washington. To 
13

prevail, a petitioner must show that his lawyer rendered 

constitutionally deficient performance, meaning that “the 

identified acts or omissions were outside the wide range of 

professionally competent assistance.” Strickland, 466 U.S. at 

690. Under Strickland, courts are to “take a highly deferential 

look at counsel’s performance,” so that review of a state-court 

finding on deficiency becomes “doubly deferential” under AEDPA. 

Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (citations and 

internal quotation marks omitted). And a petitioner also must

show prejudice from counsel’s deficiencies, meaning “that there 

is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694.

We have further refined the Strickland analysis as it 

applies in cases, like this one, where an ineffectiveness claim 

is based on counsel’s failure to file a motion to suppress. 

Under the deficient performance prong of Strickland, it is 

enough to call into question counsel’s performance that an 

unfiled motion would have had “some substance.” Tice, 647 F.3d 

at 104. And the prejudice prong in such cases has two distinct 

components, with the petitioner required to show both (1) that 

the motion was meritorious and likely would have been granted, 

and (2) a reasonable probability that granting the motion would 
14

have affected the outcome of his trial. Kimmelman v. Morrison, 

477 U.S. 365, 375 (1986); Tice, 647 F.3d at 104, 107–08.

B.

In applying § 2254(d) in this case, we “look through” the 

Supreme Court of Virginia’s summary refusal to hear Grueninger’s 

appeal and evaluate the Circuit Court’s reasoned decision on 

Grueninger’s claim. See Brumfield v. Cain, 135 S. Ct. 2269, 

2276 (2015) (applying “look through” doctrine to evaluate state 

trial court’s reasoned decision denying claim on the merits 

where state supreme court summarily denied petition for review); 

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (federal habeas 

courts should presume that “[w]here there has been one reasoned 

state judgment rejecting a federal claim, later unexplained 

orders upholding that judgment or rejecting the same claim rest 

upon the same ground”). In other words, the state-court 

decision that we review for “objective reasonableness” under 

AEDPA’s highly deferential standard is that of the Hanover 

Circuit Court, applying the Edwards interrogation requirement to 

deny Grueninger’s ineffective assistance claim.

The Commonwealth appears to argue for a different approach. 

Under Harrington v. Richter, an unexplained state supreme court

judgment may be disturbed under § 2254(d) only if there is “no

reasonable basis for the state court to deny relief.” 562 U.S. 
15

at 98 (emphasis added). So here, the Commonwealth suggests, 

where the Supreme Court of Virginia summarily refused to hear 

Grueninger’s appeal, Grueninger can prevail only by showing that 

any hypothetical ground for denying his claim, whether or not 

addressed by the Circuit Court, would be objectively 

unreasonable.3

We disagree. Richter addressed a situation in which a 

state habeas petition was presented directly to a state supreme 

court as an original petition and then denied by that court in a 

one-sentence summary order, so that there was no reasoned 

decision by any state court. 562 U.S. at 96–97. In those 

circumstances, the Court held, where there is no indication of 

the state court’s reasoning, a federal habeas petitioner must 

show that there was “no reasonable basis for the state court to 

deny relief,” id. at 98, and a federal habeas court must defer 

under AEDPA to any reasonable “arguments or theories . . . 

[that] could have supported[] the state court’s decision,” id.

at 102 (emphasis added). 

 3 To be sure, though this appears to be the premise of the 

Commonwealth’s brief, the issue is not clearly addressed. Nor, 

for that matter, does Grueninger plainly confront this issue in 

his briefs. At oral argument, however, both parties clarified 

their respective positions, and we address them here.
16

But “[b]y its terms,” Richter is limited to cases “‘where a 

state court’s decision is unaccompanied by an explanation.’” 

Woolley v. Rednour, 702 F.3d 411, 422 (7th Cir. 2012)

(alteration omitted) (quoting Richter, 562 U.S. at 98). The 

situation is different when there is a state-court decision 

explaining the rejection of a claim. Id. When a state 

appellate court summarily affirms a reasoned lower-court 

decision, or refuses a petition for review, then under Ylst, a 

federal habeas court is to “look through” the unexplained 

affirmance to examine the “last reasoned decision” on the claim, 

assuming that the summary appellate decision rests on the same 

ground. 501 U.S. at 803–04, 806. “The maxim is that silence 

implies consent, not the opposite — and courts generally behave 

accordingly, affirming without further discussion when they 

agree, not when they disagree, with the reasons given below.” 

Id. at 804. So in our case, we may assume that the Supreme 

Court of Virginia has endorsed the reasoning of the Circuit 

Court in denying Grueninger’s claim, and it is that reasoning 

that we are to evaluate against the deferential standards of 

§ 2254(d). 

We recognize that the relationship between Richter and Ylst

has generated some questions in the courts of appeals, though 

many courts have continued to apply Ylst even after the later-
17

decided Richter, “looking through” summary state-court 

affirmances and affording AEDPA deference only to the grounds on 

which the last reasoned state-court decision rests. See Cannedy 

v. Adams, 706 F.3d 1148, 1158 (9th Cir. 2013) (concluding that 

if the Supreme Court had intended to disrupt “common practice”

under Ylst when it decided Richter, it would have made that 

intention clear).4 Our court has not passed directly on the 

issue, though we have questioned whether Ylst, which was 

concerned with determining whether a state court had refused 

relief on state procedural grounds, applies “where a state 

procedural bar is not at issue” and the last reasoned statecourt decision is on the merits. Tice, 647 F.3d at 106.5 

 4 Other cases holding that Ylst survives Richter and 

continuing to apply the “look through” doctrine to summary 

appellate affirmances include Barton v. Warden, S. Ohio Corr. 

Facility, 786 F.3d 450, 460, 462 (6th Cir. 2015); Lee v. 

Corsini, 777 F.3d 46, 54 (1st Cir. 2015); Woodfox v. Cain, 772 

F.3d 358, 369–70 (5th Cir. 2014); and Eichwedel v. Chandler, 696 

F.3d 660, 671–72 (7th Cir. 2012). The Eleventh Circuit appears 

to have taken a contrary view. Hittson v. GDCP Warden, 759 F.3d 

1210, 1232 n.25 (11th Cir. 2014).

5 Cases applying Ylst where there is no procedural bar at 

issue and the last reasoned state-court decision addresses a 

claim’s merits include Cannedy, 706 F.3d at 1158; Clements v. 

Clarke, 592 F.3d 45, 52 (1st Cir. 2010); Bond v. Beard, 539 F.3d 

256, 289–90 (3d Cir. 2008); Mark v. Ault, 498 F.3d 775, 782–83 

(8th Cir. 2007); and McFowler v. Jaimet, 349 F.3d 436, 446 (7th 

Cir. 2003). 
18

But to the extent there has been any doubt about the scope 

and continued vitality of Ylst after Richter, we think the 

Supreme Court clarified the matter in its decision of this year 

in Brumfield, when it applied Ylst on federal habeas review to 

“look through” a state supreme court’s summary denial of a 

petition for review to evaluate a state trial court’s reasoned 

decision denying a petitioner’s claim on the merits. 135 S. Ct. 

at 2276. Deference under 28 U.S.C. § 2254(d), the Court 

explained, extended only to the points actually determined by 

the state trial court in its reasoned decision; the Richter rule 

requiring deference to “hypothetical reasons [a] state court 

might have given for rejecting [a] federal claim” is limited to 

cases in which no state court has issued an opinion giving 

reasons for the denial of relief. Id. at 2282–83.6

In light of Brumfield, it is clear that the decision we are 

to evaluate under § 2254(d) is the determination of the Hanover 

Circuit Court that Grueninger could not make out an Edwards

violation and that his counsel therefore was not ineffective for 

 6 On this point, the Supreme Court appears to have been 

unanimous. While the dissent in Brumfield disagreed with the 

majority’s assessment of the state trial court decision under 

§ 2254(d), it did not take issue with application of the “look 

through” doctrine, and itself applied § 2254(d) only to the 

reasoned decision of the trial court. 135 S. Ct. at 2289–90 

(Thomas, J., dissenting). 
19

failing to move to suppress his confession. It is to that 

determination that we now turn.

C.

In rejecting Grueninger’s ineffective assistance claim, the 

Circuit Court reasoned as follows:

The Court finds reasonable counsel’s decision not to 

file a suppression motion, where petitioner made 

voluntary statements in response to being served with 

warrants one day in jail. (Exhibit 1; Affidavit of 

Michael Clower). The mere serving of these warrants 

was not designed to provoke incriminating statements 

from the petitioner and was not an interrogation, thus 

counsel correctly determined that the statements would 

not have been suppressed. The Court dismisses this 

claim for failure to establish deficient performance 

or prejudice. Strickland, 466 U.S. 668.

J.A. 347. With due respect to the state court, we find that 

determination to be objectively unreasonable under § 2254(d).

First, there is no question (and indeed, the Commonwealth 

does not dispute) that when Klisz visited Grueninger in jail on 

March 16 to serve new arrest warrants, he questioned Grueninger 

about the charges against him. Klisz’s trial testimony leaves 

no room for doubt on this point: When the prosecutor asks, 

“[A]fter you read him Miranda, did he answer any of your 

questions?” Klisz replies, “He did. . . . I asked him questions 

and he talked about — we talked about the case,” and then, just 

a few moments later, elaborates, “I asked him about the charges, 

they were all of a sexual nature.” J.A. 87–88 (emphasis added). 
20

Second, it is equally plain (and again, the Commonwealth 

concedes) that the asking of questions about the substance of a 

case constitutes “interrogation” for Edwards purposes. See

Innis, 446 U.S. at 300–01. The difficult issue when it comes to 

defining “interrogation” is not whether “express questioning” 

counts — it does — but whether police conduct short of direct 

questioning might also be covered. In Innis, the Supreme Court 

answered that question in the affirmative, holding that 

“interrogation” includes not only “express questioning” but also 

its “functional equivalent” — “words or actions on the part of 

the police . . . that the police should know are reasonably 

likely to elicit an incriminating response from the suspect.” 

Id. (footnotes omitted). The Circuit Court appears to have held 

that Klisz’s serving of a new arrest warrant on Grueninger did 

not rise to the level of “interrogation” under this alternative 

definition, as it was not “designed to provoke incriminating 

statements from the petitioner.” J.A. 347. We need not quibble 

here with the Circuit Court’s substitution of a subjective 

standard (“designed to” elicit) for Innis’s objective standard 

(“should know are reasonably likely to” elicit), and may assume 

that the state court correctly, or at least not unreasonably 

under § 2254(d), determined that confronting Grueninger with the 

new arrest warrant did not itself constitute “interrogation.” 
21

But that is beside the point, because under any reading of the 

Supreme Court’s established precedent, Klisz’s “express 

questioning” of Grueninger about the charges against him surely 

does qualify as “interrogation” under Edwards. Innis, 446 U.S. 

at 300–02. 

The Circuit Court rejected Grueninger’s ineffective 

assistance claim on the ground that because there was no 

interrogation, Grueninger’s statements would not have been 

suppressed even if his counsel had moved to exclude them under 

Edwards. J.A. 347 (“[There] was not an interrogation, thus 

counsel correctly determined that the statements would not have 

been suppressed. The Court dismisses this claim for failure to 

establish deficient performance or prejudice.”). The 

Commonwealth does not defend that holding, and we believe the 

Circuit Court’s decision “involved an unreasonable application 

of[] clearly established Federal law, as determined by the 

Supreme Court of the United States” under § 2254(d)(1).7

 7 Though we hesitate to read too far between the lines of 

the Circuit Court decision, we recognize that it may have been 

informed by the Clower Affidavit’s assertion that “upon being 

served [with the new arrest warrant by Klisz], Mr. Grueninger 

volunteered statements that were later used in his conviction,”

J.A. 342 (emphasis added). Given the context, we assume that 

Clower was using “volunteered” to signify only that Grueninger’s 

statements were uncoerced and came after Miranda warnings, not 

that they were spontaneous utterances unrelated to questioning. 

But to the extent the Circuit Court ruling rests on a factual 
22

D.

The Commonwealth urges us to affirm the dismissal of 

Grueninger’s ineffective assistance claim on two alternative 

grounds. First, the Commonwealth argues, the Circuit Court 

determination that any Edwards motion to suppress would have 

been denied turns out to be correct, not because there was no 

interrogation, but because Grueninger did not unequivocally 

invoke his Miranda right to counsel. Second, the Commonwealth 

contends, the district court properly found that even had 

Grueninger’s confession been suppressed, there was no reasonable 

probability that the result of his trial would have been 

different, and so no Strickland prejudice. Because the state 

court did not reach these questions, we consider them de novo. 

See Brumfield, 135 S. Ct. at 2282 (where state trial court does 

not make finding on particular component of claim, there is “no 

determination on that point to which a federal court must defer” 

under § 2254(d)); Wiggins, 539 U.S. at 534 (no AEDPA deference 

in evaluating prong of Strickland analysis that state court has 

not reached); see also Early v. Packer, 537 U.S. 3, 8 (2002) 

 

finding that Klisz did not question Grueninger, we conclude that 

it is “based on an unreasonable determination of the facts,” 28 

U.S.C. § 2254(d)(2), in light of Klisz’s pellucid trial 

testimony.
23

(per curiam) (habeas relief may be granted if either “the 

reasoning [or] the result of the state-court decision” is 

objectively unreasonable under 2254(d)).8 

1.

The Commonwealth’s primary argument is that Grueninger can 

establish neither deficient performance nor prejudice under 

Strickland because any suppression motion would have been 

denied. Relying on Clower’s representations in his affidavit, 

the Commonwealth insists that Clower made a deliberate tactical 

decision to forgo a suppression motion under Edwards, predicated

on his judgment that such a motion would be “baseless” because 

Grueninger did not use “the terminology needed to evoke [sic] 

his Miranda rights” when he said, “I need an [a]ttorney.”

Clower Affidavit, J.A. 342–43. We disagree.

 8 We do not understand the Commonwealth to argue against 

this application of Brumfield and Wiggins. Once it is 

established that the state-court decision we review under 

§ 2254(d) is that of the Circuit Court, it follows that 

deference under § 2254(d) is owed only to the actual 

determinations of that court and not those that it 

hypothetically might have made; that is why Ylst’s “look 

through” doctrine matters in the first place. See Brumfield, 

135 S. Ct. at 2282–83 (contrasting Wiggins and Richter). And if 

there were any question as to whether Wiggins survives Richter, 

we think it was resolved by the Supreme Court’s recent decision 

in Brumfield, applying Wiggins to review de novo one component 

of a claim under Atkins v. Virginia, 536 U.S. 304 (2002),

because it was not addressed by the last reasoned state-court 

decision. 135 S. Ct. at 2282.
24

We recognize that review of counsel’s performance under 

Strickland is deferential, respecting the “wide latitude counsel 

must have in making tactical decisions.” Strickland, 466 U.S. 

at 689. But on this record, it is hard to discern any tactics 

at all. Clower did not, in fact, forgo an Edwards objection; he 

raised the Edwards issue on the first day of trial. The only 

thing forgone was the opportunity to make his Edwards argument 

in a timely manner and in writing, as required by local rules —

or, once that opportunity was lost, to accept the invitation of 

the trial judge to object at trial when the confession was 

introduced. A strategic judgment that “baseless motions” should 

be avoided, see Clower Affidavit, J.A. 343, may be well-founded, 

but it cannot explain a decision to raise a “baseless” claim 

only in an improper manner that ensures its denial. See Tice, 

647 F.3d at 105–06 (finding deficient performance on habeas 

review and declining “to engage in after-the-fact

rationalization of a litigation strategy that almost certainly 

was never contemplated”); Richards v. Quarterman, 566 F.3d 553, 

570 (5th Cir. 2009) (finding deficient performance on federal 

habeas review where counsel’s “proffered explanations” for 

failure to seek admission of evidence “ma[de] no sense” and 

failed to “explain the basis” for her actions).
25

Regardless, any determination by Clower that he could not 

defend a suppression motion because he and the prosecutor 

“agreed that [Grueninger] did not evoke [sic] his Miranda 

rights,” Clower Affidavit, J.A. 342, appears to rest less on 

informed legal judgment than on a legal misapprehension — which 

of course will not excuse deficient performance, see Winston v. 

Pearson, 683 F.3d 489, 504–05 (4th Cir. 2012). As noted above, 

Edwards protections are triggered only if a suspect 

“unambiguously” invokes his right to counsel under Miranda, by 

“articulat[ing] his desire to have counsel present sufficiently 

clearly that a reasonable police officer in the circumstances 

would understand the statement to be a request for an attorney.” 

Davis, 512 U.S. at 459. We think that standard was met when 

Grueninger, in response to being advised of his Miranda right to 

counsel, said, “These are felonies, I need an [a]ttorney.” J.A. 

342.

We of course acknowledge, as the Commonwealth argues, that 

“merely mentioning an attorney” is not enough to invoke under 

Davis. But Grueninger’s statement — “I need an attorney” —

contains none of the hedges or equivocations that might make it 

unclear to a reasonable officer whether he was requesting 

counsel. Cf., e.g., Mueller v. Angelone, 181 F.3d 557, 573–74 

(4th Cir. 1999) (“Do you think I need an attorney here?” does 
26

not unambiguously invoke); Johnson v. Harkleroad, 104 F. App’x 

858, 867 (4th Cir. 2004) (unpublished) (“maybe I should stop 

talking and get a lawyer” does not unambiguously invoke). Nor 

is there anything about the context that might render 

Grueninger’s statement ambiguous. This is not a case, for 

instance, in which a suspect says “I need a lawyer” midinterview, and then immediately continues to answer questions, 

cf. United States v. Eligwe, 456 F. App’x 196, 197–98 (4th Cir. 

2011) (unpublished), so that it may be unclear whether he 

desires legal assistance in connection with the questioning 

itself. Here, by contrast, Grueninger said “I need an attorney” 

in response to being read his Miranda rights, leaving no doubt 

that he is referring to the Miranda right to have counsel 

present during questioning. And indeed, that a “reasonable 

police officer in the circumstances” would so understand 

Grueninger’s statement, see Davis, 512 U.S. at 459, appears to 

be confirmed by the fact that Klisz himself understood it that 

way, asking no further questions once Grueninger announced his 

need for a lawyer.

In considering whether counsel’s failure to move to 

suppress a confession was deficient under Strickland, we ask 

whether a motion to suppress would have had “some substance.” 

Tice, 647 F.3d at 104. And in connection with Strickland’s 
27

prejudice prong, we evaluate whether the underlying “claim is 

meritorious,” Kimmelman, 477 U.S. at 375, so that a motion to 

suppress likely would have been granted.9 Because, as discussed 

above, Grueninger was interrogated by the police after invoking 

his Miranda right to counsel, we conclude that an Edwards motion 

to suppress not only would have had “some substance,” but also 

would have been meritorious and likely granted, but for 

counsel’s deficient performance.10 

 9 We note that courts have differed slightly in their 

formulation of this standard. See, e.g., Ray v. United States, 

721 F.3d 758, 763 (6th Cir. 2013) (must be “reasonably likely” 

that a court would grant the motion to suppress); Styers v. 

Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008) (petitioner must 

show a “reasonable probability that the motion would have been 

granted”); Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) 

(petitioner must show that “it is reasonable that the trial 

court would have granted [the unfiled motion] as meritorious”). 

In Tice, we had no occasion to parse the standard so finely, 

concluding simply that “had the motion to suppress been made, 

the trial court would have had little choice but to grant it.” 

647 F.3d at 107. Here, too, the matter is clear enough that we 

need not bear down on the precise formulation. 

10 We cannot agree with the Commonwealth’s novel argument 

that we should defer to the Circuit Court ruling that the 

statements would not have been suppressed because the judge who 

made that determination on collateral review is the same judge 

who presided over Grueninger’s trial, making him “uniquely 

qualified” to predict whether he himself would have granted an 

Edwards motion. Response Br. at 7. The question under 

Strickland and Kimmelman is whether an unfiled motion to 

suppress would have been “meritorious” as an objective matter, 

Kimmelman, 477 U.S. at 375, not whether a particular judge —

based on argument, we note, by putatively deficient counsel —

might nevertheless have denied it. Cf. Tice, 647 F.3d at 105–06 
28

2.

Finally, the Commonwealth argues that the district court 

correctly held that even if a motion to suppress would have been 

granted, there is no “reasonable probability” that exclusion of 

Grueninger’s confession would have affected the trial’s outcome,

as is necessary to complete the prejudice showing under 

Kimmelman and Strickland. See Kimmelman, 477 U.S. at 375. We 

review the district court’s holding on this question de novo, 

see Washington v. Murray, 4 F.3d 1285, 1288 (4th Cir. 1993) 

(holdings about deficient performance and prejudice under 

Strickland are mixed questions of law and fact subject to de 

novo review); Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) 

(de novo review where district court habeas decision is based 

exclusively on state-court record), and come to a different 

conclusion.

As we have recognized, “a confession can have . . . a

devastating and pervasive effect” on the outcome of a trial. 

United States v. Ince, 21 F.3d 576, 583 (4th Cir. 1994); see 

also Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (“A 

confession is like no other evidence.”). This is a case in 

 

(performance and prejudice prongs of Strickland are not pure

questions of fact on which trial court is presumed correct). 
29

point. Grueninger’s statements, introduced at trial by way of 

Klisz’s testimony, were detailed and deeply disturbing. As 

Klisz recounted: 

I asked him about the charges, they were all of a 

sexual nature. During that time, he admitted to 

performing oral sex on [his daughter] on at least two 

occasions. . . . [H]e said that [his daughter] had 

come to him and wanted him to perform oral sex on her 

because she was curious. He also said that 

ejaculating on his daughter during those same 

incidents was part of what was going on. He said he 

had [his daughter] clean herself up — clean herself up 

afterwards. He also said that he had shaved his 

daughter’s pubic hair because she wanted him to. He 

also said that he regularly bathed naked with [his 

daughter], had been doing it for a long time since she 

was little. I asked him if he had touched his 

daughter’s vagina with his finger. He denied that he 

had, but he said that he had helped her with a yeast 

infection suppository because it kept slipping out of 

her fingers, so he put it in her vagina for her. 

J.A. 88. That testimony almost certainly would have left an 

indelible impression on the court as it conducted its bench 

trial.11

The independent evidence against Grueninger, on the other 

hand, while substantial, was not so overwhelming that we can be 

confident Grueninger would have been convicted of sexual abuse 

 11 Our objective assessment of the likely prejudicial effect 

of Grueninger’s confession is, we note, consistent with the 

trial court’s own understanding of the confession’s importance. 

As that court explained, summing up the evidence at the 

conclusion of Grueninger’s trial, “the whole case shifts into a 

different perspective” if Klisz’s testimony is credited and 

Grueninger’s confession taken into account. J.A. 305. 
30

even without his confession. In addition to the confession, the 

Commonwealth relied at trial chiefly on the testimony of 

Grueninger’s daughter, the only witness to provide direct 

evidence on the abuse charges. Her testimony was damning, 

charging Grueninger with “putting his parts all over” hers and 

touching her in a sexual way “whenever he got the chance.” J.A. 

112–13, 124. But the defense was able to raise questions about 

the reliability of that testimony. On cross-examination, for 

instance, Grueninger’s daughter admitted that she had denied 

earlier that Grueninger had abused her and then accused him only 

after they had a fight, and that she had vivid sexual fantasies 

and found it “hard to tell what’s fantasy and what’s real,” J.A. 

139. And the Commonwealth’s own expert in electronic evidence 

contradicted the daughter’s account that Grueninger had shown 

her pornography on her computer.12 

None of the Commonwealth’s other three witnesses could 

testify directly that Grueninger had sexually abused his 

daughter. Testimony of a nurse practitioner and a Child 

Protective Services worker established that the daughter had 

 12 Though the trial court ultimately credited the daughter’s 

testimony, it recognized that it was less than “airtight,” J.A. 

306, and that the court was evaluating the testimony in light of 

Grueninger’s confession, which was the “given on which to go 

forward,” J.A. 305.
31

reported sexual abuse and showed physical evidence consistent 

with sexual trauma, but did not tie Grueninger himself to any 

abuse or trauma aside from his daughter’s statements to them. 

Grueninger’s wife was able to testify to particular acts by 

Grueninger, but that testimony was limited to having seen 

Grueninger bathe with their daughter and shave her pubic hair. 

Grueninger’s wife also read letters from Grueninger apologizing 

for the harm he had caused their daughter and asking that they 

recant, but the letters did not mention any specific acts, and 

Grueninger claimed at trial that he had been apologizing for his 

role in his daughter’s emotional breakdown and not for any 

sexual abuse. 

We do not mean to suggest that the Commonwealth’s 

independent evidence was insubstantial, or that it could not 

have supported a guilty verdict in the absence of Grueninger’s 

confession. But that is not the standard we are to apply. See

Strickland, 466 U.S. at 693 (petitioner need not show that 

counsel’s deficiency “more likely than not altered the outcome 

in the case”). Instead, the question is whether there is a 

“reasonable probability” of a different outcome at trial had 

Grueninger’s confession been excluded. See id. at 694. Given 

the centrality of the confession to this case, we cannot be 

confident that there is no “reasonable probability” that 
32

Grueninger’s confession affected the outcome of his trial on the 

sexual abuse charges. 

We reach a different judgment, however, with respect to the 

child pornography charges on which Grueninger also was 

convicted. As to these charges, Grueninger’s statements to 

Klisz were of very limited relevance. The entirety of Klisz’s 

testimony on this point was that when asked about his computer 

use, Grueninger said “the main computer he used in the house was 

the laptop.” J.A. 88. But whether or not Grueninger used the 

laptop, the Commonwealth presented overwhelming evidence tying 

him to a thumb drive that contained photographs and videos of 

child pornography, found in Grueninger’s own dresser drawer 

along with adult pornographic DVDs, a sex vibrator, and personal 

lubricant. And even as to the laptop, with or without 

Grueninger’s confession, the Commonwealth established at trial 

that pornographic images of children were found on the laptop in 

a folder under a partition labeled “Eric,” Grueninger’s first 

name. In light of this compelling independent evidence and the 

marginal relevance of Grueninger’s statement to Klisz, we see no 

reasonable probability that admission of Grueninger’s confession 

altered the outcome of his trial on the child pornography 

charges.
33

In sum, we find that with respect to his convictions on 

sexual abuse charges, Grueninger has demonstrated ineffective 

assistance of counsel under both the deficient performance and 

prejudice prongs of Strickland, and we reverse the district 

court’s dismissal of his habeas petition as to those 

convictions. We remand with instructions that the district 

court issue Grueninger a writ of habeas corpus as to the sexual 

abuse charges unless the Commonwealth endeavors, within a 

reasonable period of time, to prosecute him in a new trial on 

those counts without utilizing the confession. With respect to 

his convictions on the child pornography charges, we find that 

Grueninger has not shown a reasonable probability that his 

confession altered the outcome of his trial, as required to 

demonstrate prejudice under Strickland, and we therefore affirm 

the district court order in that respect.13

 13 For the same reason, we hold that Grueninger cannot show 

“prejudice” sufficient to excuse the procedural default of his 

substantive Edwards claim as it pertains to the child 

pornography charges. To obtain federal habeas review of a 

procedurally defaulted claim, a petitioner must show both “cause 

for the default and actual prejudice” from a violation of 

federal law. Coleman v. Thompson, 501 U.S. 722, 750 (1991). 

Though the “[c]onstitutionally deficient performance” of 

Grueninger’s counsel may constitute “cause” under this standard, 

see Reid v. True, 349 F.3d 788, 806 (4th Cir. 2003), Grueninger 

cannot demonstrate the requisite “prejudice,” as discussed 

above, and so his stand-alone Edwards claim does not provide an 

alternative basis for reversing his child pornography 

convictions. And because Grueninger prevails on his Strickland
34

IV.

For the foregoing reasons the judgment of the district 

court is

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED.

 

claim as to the sexual abuse charges, there is no need to 

address those charges further.