**UN PUBLISHED**  UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 11**  **- 7354** 

JOHN MOSS, III , Petitioner

- Appellant ,
v. DAVID BALLARD, Warden , Respondent

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

- cv - 01406 )
Argued : May 14, 2013 Decided: August 2, 2013

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

Affirmed by un published opinion
. Judge W ynn wrote the opinion, in which Associate Justice O’C onnor and Judge D iaz concur red
.
**ARGUED** : Stuart McCommas, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant. Robert David Goldberg, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee. **ON BRIEF** : Neal L. Walters, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Lit igation Clinic, Charlottesville, Virginia, for Appellant. Darrell V. McGraw, Jr., Attorney General, Charleston, West Virginia, for Appellee.2 Unpublished opinions are not binding precedent in this circuit.3 WYNN, Circuit Judge: Petitioner J ohn Moss, III confessed three times to murdering a mother and her two children in West Virginia
. Despite Moss’s attempts to suppress those confessions as involuntary, the state trial court admitted them at trial , and a jury convicted Moss of three counts of first

- degre e murder. On appeal , t he Supreme Court of Appeals of West Virginia (“ West Virginia Supreme Court ”) reversed the convictions based on multiple errors at trial. Of particular import to the appeal before us, the West Virginia Supreme Court concluded that al though all of the confessions were obtained in violation of West Virginia’s juvenile prompt presentment statute , only the third confession had been improperly admitted because it was the only confession that Moss’s counsel had objected to on that basis. T hereafter, Moss was retried and again convicted of three counts of first

- degree murder. After the denial of several state habeas petitions, Moss filed a federal habeas petition. T he district court dismissed Moss’s petition, declining to address whether counsel in his first trial was ineffective and rejecting his argument that his confessions were involuntary. This Court g ranted Moss’s request for a certificate of appealability to determine “(1) w hether
Moss’ [ s ] first trial counsel was ineffectiv e in failing to object to the admission of his [first two] confessions on the4 ground that they were taken in violation of West Virginia’s juvenile presentment law,” and “(2) w hether the district court satisfied the independent analysis requirement in Mille r v. Fenton , 474 U.S. 104 (1985), for determining the voluntariness of Moss’ [ s ] confession.” Upon review of these issues on appeal,

w e affirm the dist rict c ourt’s dismissal of Moss’s habeas petition
.

I.
In 1980 , Moss confessed to murdering a mother and her two children in West Virginia in 1979. Specifically, on October 28, 1980, as two West Virginia State Troopers transported Moss from an Ohio detention center to West Virginia, Moss indicated that he would disc uss the murders. The troopers then brought Moss to a West Virginia police detachment center where Moss signed a Miranda waiver and orally confessed to the murders. Later the same night, Moss signed a second Miranda waiver and gave a tape

recorded confess ion. And, while being driven back to Ohio o n October 30, 1980, Moss confessed to the murders a third time
. Moss was seventeen years old at the time of the murders and eighteen years old when he confessed. 1 Following his

1 See W. Va. Code § 49

- 5

- 1(a) (1978) (a defendant nineteen or under charged with committing an offense while under eighteen must be remanded to the trial court’s juvenile jurisdiction).5 confessions, Moss was charged wit h three counts of first

- degree murder. Before t rial , Moss moved to suppress his confessions
. Moss initially challenged only his first two confessions , arguing in part that they were i nvoluntary because the officers coerced him and disregarded his request for an attorney. A fter a suppression hearing, t he court rejected Moss ’s arguments, denied his motion to suppress, and admitted the first two confessions. Later, Moss also moved to suppress his third confession. At that hearing, Moss ’s counsel again argued that the confession was involuntary, but additionally argued that Moss was not taken before a neutral judicial officer in violation of West Virginia’s juven ile prompt presentment statute
. That statute required that a juvenile be immediately taken before a neutral judicial officer when taken into custody. W. Va. Code § 49

- 5

- 8(d) (1978). Despite this additional argument, the court also admitted Moss ’s October 30 confession
. In April 1984, a jury convicted Moss of three counts of fi rst

- degree murder, and the court sentenced him to three consecutive terms of life imprisonm ent without mercy
. O ne year after Moss ’s trial, the West Virginia Supreme Court ruled that any confession obtained in violation of West Virginia’s juvenile prompt presentment statute must be excluded from evidence if it appear ed that the primary purpose of the6 presentment delay was to obtain a confession from the juvenile
. State v. Ellsworth , 331 S.E.2d 503, 508 ( W. Va. 1985)
. Three years after that, t he West Virg inia Supreme Court reversed
Moss ’s convictions on appeal and remanded for a new trial because of multiple trial errors , including failure to poll the jury, improper prosecutorial remarks , and improper admission of evidence
. State v. Moss , 376 S.E.2d 569, 572 ( W. Va. 1988).
T he court further held that although Moss ’s confessions were voluntary, see id. at 577

- 80, they were taken in violation of West Virginia’s juvenile prompt presentment statute because he was never presented to a neutral judicial officer , i d. at 581
. But because the court held that Ellsworth ’s exclusionary rule did not apply retroactively unless a presentment objection was made at trial, it determined that only Moss ’s third confession was inadmissible. Id
. Before Moss ’s second trial , the trial court c onducted a suppression hearing regarding the admissibility of Moss ’s first two confession s. The c ourt admitted the confessions for two independent reasons: (1) it believed that the West Virginia Supreme Court ’s ruling that the October 28 confessions were admissible wa s the “law of the case” ; and (2) irrespective of that ruling, it determined that the confessions did not violate West Virginia’s juvenile prompt presentment statute. Supp.
A pp endi x 1

- 3.7 Following his second trial, the jury again convicted Moss of three counts of first

- degree murder, and the court again sentenced him to three sentences of life imprisonment without
mercy. The West Virginia Supreme Court subsequently denied his petition for appeal. Between 1994 and 2007, Moss filed four habeas petitions in
W est Virginia circuit court s . The court s denied each petition ,
re ject ing Moss ’s challenges to the voluntariness of his confessions and his argument s that c ounsel in his first trial was ineffective in failing to raise a prompt presentment objection to his first two confessions
. Further, the West Virginia Supreme Court denied Moss ’s habeas petition filed in that court. In 2009, Moss filed a federal habeas petition, ar guing in part that counsel in his first trial was ineffective in failing
to object to the first two confessions on presentment grounds and that his confessions were invo luntary. The state moved for summary judgment. The magistrate judge recommend ed grant ing the
state’s motion a nd dismiss ing the habeas petition , and t he district court adopted th at recommendation
. Specifically, t he district court concluded that it was “ not charged with reviewing the conduct of the petitioner’s counsel at his first trial, where his convictions were u ltimately vacated.” J.A. 2957
. Further, it concluded that Moss did not sufficiently show that8 the state courts’ factual determinations regarding the voluntariness of his confessions “ were incorrect or unreasonable” or “that th e state courts’ decisions concerning the voluntariness of his confessions were contrary to, or an unreasonable application of, clearly established federal law.” J.A. 2945.
Moss appealed and asked this Court for a certificate of appealability . We , in tu rn, allowed Moss to present these issues : (1) whether Moss ’s counsel at his first trial was ineffective in failing to object to the admission of his first
two confessions on the ground that they were taken in violation of West Virginia’s juvenile presentme nt law, and (2) whether the district court independent ly determined the voluntariness of
Moss ’s confession as required by Miller v. Fenton , 474 U.S. 104 (1985)
.

II. A. As an initial matter, while the parties agree that the Antiterrorism and Effective Death Penalty Act of 1996 ( “ AEDPA ” )
governs Moss’s habeas petition, see 28 U.S.C. § 2254 , they di spute the proper standard of review for his ineffective assistance of counsel claim. Under AE DP A, federal courts cannot grant a state prisoner’s habeas petiti on for any claim the state9 court adjudicate d on the merits unless the state court’s decision “ was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States ” or “ was bas ed on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. ” 28 U.S.C. § 2254(d). Moss contends that the state court did not adjudicate the merits of his ineffective assistance of counsel claim
. Ac cordingly, he argues that we should not apply AEDPA deference , but must instead r eview his claim de novo
. See Weeks v. Angelone , 176 F.3d 249, 258 (4th Cir. 1999) ( reviewing de novo “[w] hen a petitioner has properly presented a claim to the state
court but the state court has not adjudicated the claim on the merits ”)
. T he state , by contrast , asserts that both the state habeas court and the West Virginia Supreme Court adjudicated the merits of Moss’s ineffective assistance of counsel claim , thereby trigg ering AEDPA’s deferential standard of review. 2
W e find it unnecessary to resolve th is issue. E ven assuming arguendo that de novo review is appropriate , we

2 The state also argues that Moss waive d appellate review of the proper sta ndard because he did not seek de novo review before the district court. But “the correct standard of review under AEDPA is not waivable.” Gardner v. Galetka , 568 F.3d 862, 879 (10th Cir. 2009); see also Brown v. Smith , 551 F.3d 424, 428 n.2 (6th Cir. 200 8); Eze v. Senkowski , 321 F.3d 110, 120

- 21 (2d Cir. 2003).10 nevertheless conclude that Moss has failed to demonstrate that his counsel was ineffective.

B. To establish ineffective assistance of counsel, Moss must demonstrate that (1) his counsel’s performance fell below an objective standard of reasonableness and (2) the deficient performance prejudiced him, meaning that there was “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington , 466 U.S. 668, 687

- 88, 694 (19 84). Turning to Strickland ’s first prong, Moss argues that because the juvenile prompt presentment statute was well

- settled at the time of his first trial, his attorney performed deficiently by failing to object to Moss ’s first two confessions

on that ba sis. Conversely, t he state asserts that counsel cannot be deemed ineffective for failing to anticipate Ellsworth ’s exclusionary rule . We must agree with the state. It is well established that a n attorney can not b e labeled ineffective for failing to antic ipate a future change in the law
. See United States v. McNamara , 74 F.3d 514, 516

- 17 (4th Cir. 1996) ; Honeycutt v. Mahoney , 698 F.2d 213, 217 (4th Cir. 1983)
.11 Although Moss correctly notes that West Virginia’s juvenile prompt presentment statute existed at the time of his first trial , Ellsworth was not decided until one year after Moss’s first trial. Ellsworth held that confessions obtained in violation of the juvenile prompt presentment statute are inadmissible if the primary purpose of the presentment delay was to obtain a confession
. Ellsworth , 3 31 S.E.2d at 508
. In short , failure to comply with the juvenile prompt presentment statute did not alone render a confession inadmissible at the time of Moss’s first trial
. Moss , 376 S.E.2d at 580
. Rather, prompt presentment was analyzed as one part of the voluntariness inquiry. Id. ; cf. State v. Guthrie , 315 S.E.2d 397, 399 ( W. Va. 1984) (stating that for purposes of West Virginia’s adult prompt presentment statute, “[t] he delay in taking a defendant to a magistrate may be a critical factor in the totality of circumstances making a confession inv oluntary and hence inadmissible ” ) (quotation marks and citation omitte d). O nly after Ellsworth did West Virginia courts analyze compliance with the juvenile prompt presentment statute separately from the voluntariness inquiry
. Moss , 376 S.E.2d at 581
. Further, the West Virginia Supreme Court later clarif ied that Ellsworth ’s exclusionary rule “is not to be applied retroactively to a confession which was obtained prior to the date of that decision12 where no prompt presentment objection was made at trial.” Id. (citations and quotation marks omitted) (emphasis omitted)
. Here, although Moss ’s counsel at his first t rial did not object to Moss ’s first two confessions on prompt presentment grounds, he argued that they were involuntary for several other

reasons . While Moss ’s counsel should have been aware of the juvenile prompt presentment requirement , he cannot be deemed ineffective for failing to anticipate that the statute would later become an independent basis to exclude a confession and that he needed to specifically object on presentment ground s to preserve th at iss ue . Se e Honeycutt , 698 F.2d at 217
. Accordingly, Moss cannot show that his counsel’s performance fell below an objective standard of reasonableness
. Strickland , 466 U.S. at 687

- 88. Therefore, Moss ’s ineffective assistance of counsel claim must fail
.

C . Finally, Moss contends that the district court failed to independently determine whether his confession was voluntar y as required by Miller v. Fenton , 474 U.S. 104 (1985).
In Miller , t he Supreme Court held that in the federal habeas context, whether a co nfession was voluntary is a legal question requiring “ independent federal determination. ” Id. at 11 2
. While Miller predated the enactment of AEDPA, courts have13 incorporated Miller ’s independent determination requirement into AEDPA’s deferential standard of review. Thus, federal habeas
courts must independently apply federal law to ultimately determin e whether the state court ’ s voluntariness determination was contrary to, or an unreasonable application of, that law. See Williams v. Taylor , 529 U.S. 362, 402

- 0 4 , 412

- 13 ( 2000) ; Land v. Allen , 573 F.3d 1211, 1217 (11th Cir. 2009) ; Lam v. Kelchner , 304 F.3d 256, 264 (3d Cir. 2002)
. In his habeas petition, Moss challenged the state courts’ findings that his October 28 confessions were voluntary as an

unreasona ble applicable of clearly established federal law. Accordingly, t he district court reviewed the conflicting testimony from Moss and the officers who took his confessions and the state courts’ ultimate decision to believe the officers. Applying AEDPA defe rence, t he district court concluded that

“ [t]he Petitioner has not demonstrated, by clear and convincing evidence, that the state courts’ factual determinations were incorrect or unreasonable. Moreover, t he petitioner has not demonstrated that the state c ourts’ decisions concerning the voluntariness of his confessions were contrary to, or an unreasonable application of, cl early established federal law.” J.A. 2945.
Moss a rgues that because the district court did not “mention[] and explain[] the applicable federal law,” Reply Br.14 at 19, it failed to conduct the independent review required by Miller
. But Moss does not cite, nor did we find, a case holding that post

- AEDPA, Miller requires courts to specifically identify or explain the applicable federal law. Rather, Section 2254(d)(1) merely requires a federal habeas court to independently determine whether a state court’s adjudication on the merits resulted in a decision t hat “was contrary to clearly established Federal law, as determined by the Supreme Court of the United States, or (2) involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States .” Willia ms , 529 U.S. at 412 (quotation marks and citation omitted)
. This, the district court has done. Accordingly , we reject Moss ’s voluntariness challenge
.

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