                              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.
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).


                                                     2
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


                                       3
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.



                                   4
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


                                            5
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


                                                  6
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,




                                               7
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




                                           8
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.



                                                  9
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


                                                  10
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


                                              11
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


                                             12
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


                                                13
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.


                                            14
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.



                                            15
     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-


                                               16
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 state-

court 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).



                                        17
       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).



                                               18
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).


                                    19
       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.”


                                       20
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


                                            21
                                          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.



                                          22
(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.



                                             23
      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).




                                            24
       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


                                         25
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”         mid-

interview, 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


                                                26
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


                                      27
                                           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).



                                           28
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.



                                      29
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.



                                                 30
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


                                                31
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.




                                              32
     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


     13For 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


                                               33
                                  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.



                                   34
