                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-7354


JOHN MOSS, III,

                  Petitioner - Appellant,

           v.

DAVID BALLARD, Warden,

                  Respondent - Appellee.



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


Argued:   May 14, 2013                      Decided:   August 2, 2013


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


Affirmed by unpublished opinion.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


ARGUED: Stuart McCommas, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant.    Robert David Goldberg, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Appellee.   ON BRIEF:   Neal L. Walters, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Appellate Litigation Clinic, Charlottesville,
Virginia, for Appellant. Darrell V. McGraw, Jr., Attorney
General, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
WYNN, Circuit Judge:

       Petitioner      John     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-degree murder.                                 On

appeal, the 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

although all of the confessions were obtained in violation of

West Virginia’s juvenile prompt presentment statute, only the

third confession had been improperly admitted because it was the

only   confession      that    Moss’s        counsel    had       objected     to    on   that

basis.      Thereafter,        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.                    The district court dismissed

Moss’s petition, declining to address whether counsel in his

first trial was ineffective and rejecting his argument that his

confessions were involuntary.                This Court granted Moss’s request

for a certificate of appealability to determine “(1) whether

Moss’[s]    first      trial    counsel       was    ineffective         in    failing      to

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

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ground   that    they    were    taken    in   violation      of    West   Virginia’s

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

satisfied     the     independent      analysis    requirement       in    Miller   v.

Fenton, 474 U.S. 104 (1985), for determining the voluntariness

of Moss’[s] confession.”          Upon review of these issues on appeal,

we   affirm     the    district     court’s     dismissal      of    Moss’s   habeas

petition.



                                          I.

     In 1980, Moss confessed to murdering a mother and her two

children in West Virginia in 1979.                Specifically, on October 28,

1980, as two West Virginia State Troopers transported Moss from

an Ohio detention center to West Virginia, Moss indicated that

he would discuss the murders.             The troopers then brought Moss to

a West Virginia police detachment center where Moss signed a

Miranda waiver and orally confessed to the murders.                        Later the

same night, Moss signed a second Miranda waiver and gave a tape-

recorded confession.            And, while being driven back to Ohio on

October 30, 1980, Moss confessed to the murders a third time.

Moss was seventeen years old at the time of the murders and

eighteen      years     old     when     he    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).


                                          4
confessions, Moss was charged with three counts of first-degree

murder.

      Before trial, Moss moved to suppress his confessions.                             Moss

initially challenged only his first two confessions, arguing in

part that they were involuntary because the officers coerced him

and   disregarded          his     request        for   an         attorney.       After    a

suppression hearing, the court rejected Moss’s arguments, denied

his motion to suppress, and admitted the first two confessions.

Later, Moss also moved to suppress his third confession.                                   At

that hearing, Moss’s counsel again argued that the confession

was involuntary, but additionally argued that Moss was not taken

before      a    neutral         judicial     officer         in     violation     of   West

Virginia’s juvenile 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

first-degree           murder,    and   the    court      sentenced        him    to    three

consecutive terms of life imprisonment without mercy.

      One       year    after     Moss’s    trial,      the    West     Virginia    Supreme

Court ruled that any confession obtained in violation of West

Virginia’s juvenile prompt presentment statute must be excluded

from evidence if it appeared that the primary purpose of the

                                              5
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,    the    West     Virginia    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).

The court further held that although Moss’s confessions were

voluntary, see id. at 577-80, they were taken in violation of

West Virginia’s juvenile prompt presentment statute because he

was never presented to a neutral judicial officer, id. at 581.

But because the court held that Ellsworth’s exclusionary rule

did not apply retroactively unless a presentment objection was

made at trial, it determined that only Moss’s third confession

was inadmissible.         Id.

       Before Moss’s second trial, the trial court conducted a

suppression hearing regarding the admissibility of Moss’s first

two confessions.          The court 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 was the “law of the case”; and (2) irrespective of

that ruling, it determined that the confessions did not violate

West    Virginia’s    juvenile        prompt     presentment     statute.        Supp.

Appendix 1-3.

                                            6
        Following his second trial, the jury again convicted Moss

of    three    counts      of   first-degree       murder,        and    the    court       again

sentenced him to three sentences of life imprisonment without

mercy.     The West Virginia Supreme Court subsequently denied his

petition for appeal.

        Between 1994 and 2007, Moss filed four habeas petitions in

West Virginia circuit courts.                 The courts denied each petition,

rejecting       Moss’s         challenges     to        the   voluntariness            of    his

confessions and his arguments that counsel 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, arguing in

part that counsel in his first trial was ineffective in failing

to object to the first two confessions on presentment grounds

and that his confessions were involuntary.                         The state moved for

summary judgment.           The magistrate judge recommended granting the

state’s       motion     and    dismissing        the    habeas        petition,   and       the

district court adopted that recommendation.                             Specifically, the

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     ultimately        vacated.”         J.A.        2957.

Further, it concluded that Moss did not sufficiently show that

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the   state       courts’     factual         determinations             regarding       the

voluntariness        of     his       confessions           “were        incorrect        or

unreasonable” or “that the state courts’ decisions concerning

the voluntariness of his confessions were contrary to, or an

unreasonable application of, clearly established federal law.”

J.A. 2945.

      Moss appealed and asked this Court for a certificate of

appealability.        We,    in   turn,    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 presentment law, and (2) whether the

district    court    independently        determined         the    voluntariness         of

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

(1985).



                                         II.

                                          A.

      As   an    initial    matter,    while     the    parties          agree    that   the

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

governs    Moss’s    habeas    petition,       see     28     U.S.C.      §   2254,      they

dispute    the    proper     standard     of    review        for    his      ineffective

assistance of counsel claim.            Under AEDPA, federal courts cannot

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

                                          8
court      adjudicated          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 based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”                            28 U.S.C. § 2254(d).

      Moss contends that the state court did not adjudicate the

merits      of      his       ineffective          assistance          of     counsel       claim.

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

but   must       instead       review    his       claim      de     novo.        See     Weeks   v.

Angelone, 176 F.3d 249, 258 (4th Cir. 1999) (reviewing de novo

“[w]hen a petitioner has properly presented a claim to the state

court but the state court has not adjudicated the claim on the

merits”).         The state, by contrast, asserts that both the state

habeas court and the West Virginia Supreme Court adjudicated the

merits      of    Moss’s        ineffective            assistance       of    counsel       claim,

thereby triggering AEDPA’s deferential standard of review. 2

      We     find       it    unnecessary          to       resolve    this       issue.      Even

assuming      arguendo          that    de     novo         review     is     appropriate,        we

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



                                                   9
nevertheless conclude that Moss has failed to demonstrate that

his counsel was ineffective.



                                           B.

       To establish ineffective assistance of counsel, Moss must

demonstrate that (1) his counsel’s performance fell below an

objective         standard    of   reasonableness       and     (2)     the    deficient

performance prejudiced him, meaning that there was “a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”                          Strickland

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

       Turning       to     Strickland’s   first       prong,    Moss      argues   that

because the juvenile prompt presentment statute was well-settled

at     the   time      of    his   first   trial,       his     attorney       performed

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

on   that     basis.         Conversely,   the    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 an attorney cannot be labeled

ineffective for failing to anticipate a future change in the

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

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

1983).



                                           10
       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, 331 S.E.2d at 508.                            In

short, failure to comply with the juvenile prompt presentment

statute did not alone render a confession inadmissible at the

time of Moss’s first trial.                Moss, 376 S.E.2d at 580.                      Rather,

prompt presentment was analyzed as one part of the voluntariness

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

1984) (stating that for purposes of West Virginia’s adult prompt

presentment statute, “[t]he delay in taking a defendant to a

magistrate     may     be     a   critical           factor      in     the    totality          of

circumstances        making       a     confession            involuntary          and    hence

inadmissible”)       (quotation         marks      and    citation       omitted).          Only

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         clarified      that       Ellsworth’s

exclusionary       rule     “is   not    to     be    applied         retroactively         to    a

confession which was obtained prior to the date of that decision



                                              11
where no prompt presentment objection was made at trial.”                        Id.

(citations and quotation marks omitted) (emphasis omitted).

       Here, although Moss’s counsel at his first trial did not

object to Moss’s first two confessions on prompt presentment

grounds, he argued that they were involuntary for several other

reasons.      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 grounds to

preserve     that     issue.     See     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 voluntary as

required by Miller v. Fenton, 474 U.S. 104 (1985).

       In   Miller,   the   Supreme    Court    held   that   in   the     federal

habeas context, whether a confession was voluntary is a legal

question requiring “independent federal determination.”                       Id. at

112.    While Miller predated the enactment of AEDPA, courts have

                                        12
incorporated Miller’s independent determination requirement into

AEDPA’s deferential standard of review.                      Thus, federal habeas

courts     must   independently         apply     federal      law     to     ultimately

determine whether the state court’s voluntariness determination

was contrary to, or an unreasonable application of, that law.

See Williams v. Taylor, 529 U.S. 362, 402-04, 412-13 (2000);

Land v. Allen, 573 F.3d 1211, 1217 (11th Cir. 2009); Lam v.

Kelchner, 304 F.3d 256, 264 (3d Cir. 2002).

     In his habeas petition, Moss challenged the state courts’

findings that his October 28 confessions were voluntary as an

unreasonable      applicable     of     clearly        established         federal       law.

Accordingly,      the      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    deference,       the   district         court    concluded          that

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

evidence,    that    the    state   courts’       factual      determinations            were

incorrect or unreasonable.               Moreover, the petitioner has not

demonstrated      that   the    state    courts’        decisions     concerning          the

voluntariness       of   his    confessions           were   contrary       to,     or    an

unreasonable application of, clearly established federal law.”

J.A. 2945.

     Moss    argues      that    because        the     district      court       did    not

“mention[] and explain[] the applicable federal law,” Reply Br.

                                          13
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 that “was contrary to clearly

established Federal law, as determined by the Supreme Court of

the United States, or (2) involved an unreasonable application

of clearly established Federal law, as determined by the Supreme

Court   of    the   United     States.”        Williams,    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




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