                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-6590


RASHAAD TIWANIA JONES,

                Petitioner – Appellee,

           v.

HAROLD   W.  CLARKE,     Director,   Virginia   Department    of
Corrections,

                Respondent – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:13-cv-00001-RAJ-DEM)


Argued:   January 29, 2015                 Decided:   April 22, 2015


Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by published opinion.  Judge Shedd wrote
the majority opinion, in which Judge Wilkinson joined.  Judge
Gregory wrote a dissenting opinion.


ARGUED: Rosemary Virginia Bourne, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellant.    Thomas Edward
Vanderbloemen, GALLIVAN, WHITE & BOYD, PA, Greenville, South
Carolina, for Appellee.    ON BRIEF: Mark R. Herring, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellant.
SHEDD, Circuit Judge:

      Harold W. Clarke, Director of the Virginia Department of

Corrections, appeals the federal habeas corpus order vacating

Rashaad Tiwania Jones’ state-court convictions and sentence. See

Jones     v.    Clarke,       7   F.Supp.3d         626    (E.D.Va.       2014).     For     the

following reasons, we vacate that portion of the order granting

habeas relief and remand for dismissal of the petition. 1

                                                I

      Jones waived his jury trial right, and a Virginia state

judge convicted him on charges of grand larceny and breaking and

entering. Both charges arose from the theft of a television from

the   home      of     Jereme     Joseph.       During      trial,       the   Commonwealth

presented two witnesses, Joseph and police investigator Karen

Shuler.        Jones    did       not     testify     or        present    evidence.        The

incriminating evidence against Jones was (and is) essentially

unchallenged.

      Joseph         testified         that   in    January       2010,    while      he     was

temporarily       relocated        from       his   Williamsburg,         Virginia,        house

because it had flooded, someone broke a window in the back of

the   house      and    stole      a    television        and    other    items      from    the

bedroom.       Approximately           one    month   earlier,       Jones     had    visited


      1
       The district court denied relief on several claims, but
Jones did not appeal, and those claims are not before us.



                                                2
Joseph’s house with a mutual friend. During that visit, Jones

entered through the front door and remained in the family room.

      After the theft occurred and Jones had been arrested, Jones

called    Joseph     on    the   telephone.       In     response,    Joseph      visited

Jones at jail and told him that his house had been broken into

and the police knew he committed the crimes “because they had

his fingerprints.” J.A. 29. Joseph asked Jones why he did it,

and Jones responded that “he made a mistake or whatever and

that’s what happened.” J.A. 22; see also J.A. 29 (Jones “just

said it happened basically like that”).

      Investigator         Shuler   testified       that     she    investigated     the

break-in      at   Joseph’s      house.     She    determined        that   the    thief

entered    the     house    through   the       broken    window,    and    she lifted

several fingerprints from the window area. During her testimony,

the Commonwealth introduced into evidence a fingerprint analysis

certificate that indicated one of the fingerprints belonged to

Jones. Investigator Shuler did not analyze the fingerprint or

prepare the certificate, but Jones’ trial counsel did not object

to the admission of the certificate or her testimony.

      In her closing argument, Jones’ trial counsel argued that

the case was “highly circumstantial” and that the fingerprint

was the only item that connected Jones to the crime. J.A. 42.

The   trial      judge     acknowledged     that       the   fingerprint     evidence,

without more, was insufficient to convict Jones. However, the

                                            3
judge explained that Jones’ statement to Joseph that he made a

mistake “is an admission of guilt that he admits that he was

there, that he was involved in it.” J.A. 43-44. Continuing, the

judge stated that he suspected that other people may have also

been involved in the crimes, but Jones “was certainly there and

a participant.” J.A. 44. The judge then noted that “when you

take the fingerprint and combine it with the recent visit and

you combine it with the statement,” the evidence is sufficient

to find Jones guilty beyond a reasonable doubt of breaking and

entering and grand larceny. J.A. 44. Jones’ counsel responded by

arguing that Jones’ “mistake” comment “could mean a number of

things,” J.A. 44, but the judge rejected her interpretation,

stating: “my interpretation is the fact was he acknowledged that

it was a mistake, that he participated in this. That’s . . . a

finding of fact. . . .” J.A. 44-45.

       The trial judge sentenced Jones to two consecutive 15-year

imprisonment terms but suspended 20 years, resulting in a 10-

year   sentence.    The    Virginia        appellate      courts    denied     Jones’

direct    appeal,   and   the    state     supreme      court   denied   his   state

habeas petition.

       Pursuant to 28 U.S.C. § 2254, Jones then filed this federal

habeas petition. Pertinent to this appeal, the district court

granted    habeas   relief      on   one    claim.   Specifically,       the    court

concluded    that   the    Supreme         Court   of    Virginia     unreasonably

                                           4
applied     Strickland       v.    Washington,     466     U.S.     668     (1984),    in

rejecting     Jones’     ineffective          assistance       of    counsel      claim.

Generally speaking, the court determined that trial counsel’s

failure to object to the admission of the fingerprint evidence

constituted    deficient          performance     that    prejudiced        Jones.    See

generally Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)

(explaining     Sixth        Amendment        confrontation         right       regarding

laboratory     analyst). 2        Accordingly,     the     court     vacated       Jones’

convictions and sentence. We review the order granting habeas

relief de novo. Richardson v. Branker, 668 F.3d 128, 138 (4th

Cir. 2012).

                                           II

     “The    essence     of       an   ineffective-assistance          claim     is   that

counsel’s unprofessional errors so upset the adversarial balance

between   defense      and    prosecution       that     the   trial      was   rendered

unfair and the verdict rendered suspect.” Kimmelman v. Morrison,

477 U.S. 365, 374 (1986). In Strickland, 466 U.S. at 687, the

Court    identified     two       necessary     components     of    an     ineffective

assistance claim: “First, the defendant must show that counsel’s


     2
        Jones alleged several trial counsel errors in his
ineffective assistance claim, but the district court focused on
counsel’s failure to object to the admission of the fingerprint
evidence. See Jones, 7 F.Supp.3d at 632 (“It is therefore
apparent to the Court that counsel’s decision not to object was
deficient performance under the first prong of Strickland.”).



                                            5
performance was deficient. This requires showing that counsel

made errors so serious that counsel was not functioning as the

‘counsel’     guaranteed        the    defendant      by     the   Sixth         Amendment.

Second, the defendant must show that the deficient performance

prejudiced    the    defense.         This   requires      showing     that       counsel’s

errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.”

     The     Supreme       Court        of        Virginia     adjudicated           Jones’

ineffective assistance claim on the merits. The court noted that

Jones   argued      (1)    the    fingerprint         evidence     was      inadmissible

without     the   testimony       of     the      fingerprint      analyst,        (2)   an

objection by his counsel to the admission of the fingerprint

evidence    would    have       been    sustained,      and     (3)        the    remaining

evidence     against      him    would       be   insufficient        to    support      the

conviction. However, the court rejected this claim, finding that

Jones   “failed     to    demonstrate         that    counsel’s       performance        was

deficient or that there is a reasonable probability that, but

for counsel’s alleged errors, the result of the proceeding would

have been different.” J.A. 133-34.

     Because the state supreme court adjudicated Jones’ claim on

the merits, a federal court may not grant habeas relief unless

the adjudication “resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

                                              6
States;”    or     “resulted     in    a     decision       that         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).

This “is a difficult to meet and highly deferential standard for

evaluating state-court rulings, which demands that state-court

decisions     be    given      the    benefit        of     the         doubt.”     Cullen     v.

Pinholster, 131 S.Ct. 1388, 1398 (2011) (internal punctuation

and citations omitted).

      For   purposes      of    this       appeal,    the           “pivotal      question     is

whether the state court’s application of the Strickland standard

was   unreasonable.”        Harrington        v.     Richter,            562   U.S.    86,    101

(2011). Under § 2254(d), an unreasonable application of federal

law differs from an incorrect application of federal law, and a

state court “must be granted a deference and latitude that are

not   in    operation     when       the    case     involves            review     under     the

Strickland standard itself.” Harrington, 562 U.S. at 101.

      As    noted,       Strickland         requires            a       defendant      claiming

ineffective      assistance      to    establish          two       components:       deficient

performance        and   prejudice.          However,           the       Strickland        Court

explained    that    “there      is    no    reason       for       a    court    deciding     an

ineffective assistance claim to . . . address both components of

the inquiry if the defendant makes an insufficient showing on

one,” and “[i]f it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, . . . that

                                             7
course should be followed.” 466 U.S. at 697. Consistent with

this     suggested       approach,    we       will    proceed      directly     to        the

prejudice component.

       To establish prejudice under Strickland, a defendant “must

show    that     there    is   a   reasonable         probability     that,      but       for

counsel’s unprofessional errors, the result of the proceeding

would     have    been     different.      A     reasonable        probability        is    a

probability sufficient to undermine confidence in the outcome.”

466 U.S. at 694. In the specific context of this case, Jones

must establish there is a reasonable probability that, absent

the alleged error, the trial judge “would have had a reasonable

doubt respecting guilt.” Id. at 695. Under Strickland, “[i]t is

not    enough     for    [Jones]     to    show       that   the    errors      had    some

conceivable effect on the outcome of the proceeding,” id. at

693, and “the question is not whether a court can be certain

counsel’s performance had no effect on the outcome or whether it

is possible a reasonable doubt might have been established if

counsel    acted     differently,”        Harrington,        562    U.S.   at    111.       In

short, “Strickland asks whether it is ‘reasonably likely’ the

result    would    have    been    different,”         and   the   “likelihood         of    a

different result must be substantial, not just conceivable.” Id.

at 111-12.

       Because Jones was convicted by the trial judge in a bench

trial, we are privy to the factfinder’s view of the evidence

                                            8
supporting his guilt. Based on the trial judge’s comments, as

well as our review of the evidence presented during trial, there

are five main facts bearing on Jones’ guilt: (1) Joseph’s house

window was broken; (2) the television was stolen from the house;

(3)   Jones         visited     the      house    a     few       weeks    before     the     theft

occurred;       (4)       Jones’     fingerprint        was       lifted     from     the    broken

window    area;       and     (5)     Jones      stated,       in    response       to     Joseph’s

question       about      why   he    committed         the       crime,    that     he     “made    a

mistake    or       whatever       and    that’s       what       happened.”    J.A.        22.    The

first    two    facts       establish       the       corpus       delicti    of     the    charged

crimes, and the other facts incriminate Jones.

        Pointing to the trial judge’s comments that the fingerprint

evidence – when combined with other evidence – was sufficient to

establish guilt, Jones argues that the fingerprint evidence was

essential       to    the     guilty      verdict,          and    without     that       evidence,

there    is     a    reasonable          probability          that    he     would    have        been

acquitted.          The    district       court       viewed       the     record    in     similar

fashion. See Jones, 7 F.Supp.3d at 633-34. However, when the

trial     judge’s         comments       about        the     fingerprint          evidence        are

examined in context, it is clear that the judge was responding

to Jones’ trial counsel’s argument that the fingerprint was the

only evidence connecting Jones to the crimes. See J.A. 42-44.

The trial judge merely listed the incriminating facts to rebut

Jones’ argument.

                                                  9
     Having made that point, we readily acknowledge that the

fingerprint    evidence     is   strong        evidence   tending     to    establish

Jones’ guilt, and we do not doubt that the trial judge relied on

that evidence to reach his verdict. However, the mere fact of

the trial judge’s reliance on that evidence does not establish

Strickland    prejudice.     Rather,      the       determinative   question       for

Strickland purposes is whether there is a reasonable probability

that the trial judge would have had reasonable doubt respecting

Jones’ guilt if the fingerprint evidence had been excluded.

     We believe the answer to that question is “no.” The trial

judge     specifically     found     as   a     factual    matter     that      Jones’

jailhouse statement was an “admission of guilt.” J.A. 43. This

factual     finding   is    “presumed          to    be   correct.”        28   U.S.C.

§ 2254(e)(1). Even if the fingerprint evidence is removed from

the equation, the admission of guilt, in conjunction with the

evidence establishing the corpus delicti and the evidence that

Jones   had   recently     visited    Joseph’s        house,   is   sufficient      to

establish Jones’ guilt of the charged crimes beyond a reasonable

doubt. Although it is “conceivable” that the trial judge may

have acquitted Jones without the fingerprint evidence, we do not

believe that there is a “substantial” likelihood that the judge

would have done so. More importantly, under these circumstances,

and in light of our deferential standard of review, we cannot

find that the state supreme court unreasonably concluded that

                                          10
Jones failed to establish Strickland prejudice. 3 Therefore, the

district court erred in granting the habeas petition.

                                           III

       “As a condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state court’s ruling

on the claim being presented in federal court was so lacking in

justification        that   there    was       an   error   well     understood   and

comprehended        in    existing       law     beyond     any     possibility   for

fairminded disagreement.” Harrington, 562 U.S. at 103. We hold

that       Jones   has   fallen   well    short     of    meeting    this   standard.

Therefore, we vacate the portion of the habeas order granting

relief, and we remand for the district court to dismiss the

habeas petition.

                                                             VACATED AND REMANDED




       3
       For analytical purposes only, we have assumed that a trial
objection to admission of the fingerprint evidence would have
resulted in its exclusion. However, that assumption is wholly
speculative, as the Commonwealth could have requested an
opportunity to procure the fingerprint analyst. Moreover, we
note that Jones has not proffered any evidence to undermine the
result of the fingerprint analysis.



                                           11
GREGORY, Circuit Judge, dissenting:

      In the summer of 2013, a television went missing from a

temporarily unoccupied home where workers were repairing flood

damage.    Police investigated and lifted a number of fingerprints

from a rear window and sliding glass door.                     One print from the

window    matched    Rashaad       Jones,    an    acquaintance        of    the    home’s

occupant who had visited socially once before.                    The single print

led to Jones’s arrest and became the fulcrum of the government’s

case against him.

      Despite     fertile         ground     for    investigation           by     defense

counsel,    Jones’s    attorney          apparently    did    very     little.            The

record     is     bereft         of      details      regarding        her         pretrial

investigation,      apart       from     conclusory    statements       that       such    an

investigation       took        place.       At    trial,     counsel         called       no

witnesses.      She introduced no evidence.                  Her cross-examination

of the two government witnesses was largely perfunctory.                                  Her

closing statement, read at a measured pace, lasted a little over

a minute.       And when presented with an opportunity to challenge

the   introduction         of    the     central    evidence      in        case    –     the

fingerprint lifted from the rear window – she did not object on

Confrontation Clause grounds, an objection that almost certainly

would have been sustained.

      It bears repeating that a functioning adversarial system

requires    actual    adversaries,          not    placeholders.             See    United

                                            12
States v. Cronic, 466 U.S. 648, 656 (1984) (“[T]he adversarial

process    protected       by    the       Sixth       Amendment       requires       that        the

accused have counsel acting the role of an advocate.”                                 (internal

quotation marks omitted)).                  In this case, Jones’s counsel not

only    refused    to     put    up    a    fight.          She    went       so     far     as    to

unnecessarily      surrender          the    very       Sixth     Amendment          right    that

helps animate the adversarial system – the right to confront

one’s    accusers.        Of    course,          defense    counsel       need       not    always

object to the introduction of hearsay contained in a forensics

certificate.       There may be cases when not objecting is supported

by sound trial strategy, such as when counsel does not want to

draw     additional       attention         to     the     evidence       or       provide        the

opportunity for another government witness to testify.                                     This is

not that case.

       Nonetheless,       the    majority             concludes       that     any    deficient

performance was not prejudicial because Jones admitted to the

crime,    and     there    was       thus    no        reasonable       probability          of     a

different result if the fingerprint evidence was excluded.                                    Such

a   conclusion,     however,         is     at    odds     with    the       court’s       express

rationale for a finding of guilt.                       As the trial judge reasoned:

“I think when you take the fingerprint and combine it with the

recent    visit    and    you    combine          it    with    the    statement        I    think

that’s sufficient beyond a reasonable doubt . . . .”                                       J.A. 44

(emphasis       added).         In    that        light,       there     is    a     reasonable

                                                 13
probability that if the fingerprint evidence was excluded, Jones

would have been acquitted.

     I thus respectfully dissent.



                                  I.

     A more fulsome description of the facts and proceedings in

this case is helpful in evaluating the performance of Jones’s

counsel.    As the majority notes, the government’s case against

Jones consisted of two witnesses.        The first, Jereme Joseph,

rented the home and owned the television set.     He testified that

he was living elsewhere while workers repaired the flood damage,

and that his landlord received information from the workers that

a window had been broken and that there may have been missing

items.     When Joseph reentered the house, he noticed that the

workers had placed all of his belongings in one bedroom.          A

television set was missing.       Valuable construction equipment,

however, was undisturbed.

     Joseph further testified that Jones was an acquaintance who

had paid a social visit to the home a month before it flooded.

After the police arrested Jones for the theft (on the basis of

the fingerprint evidence), Joseph stated that he received “a

phone call from [Jones] or whatever” and visited him in jail to

have a conversation.   J.A. 21.     The pair engaged in a short and



                                  14
enigmatic discussion lasting a “few seconds.”                        J.A. 21.      Asked

what Jones told him, Joseph testified:

     Basically he made a mistake or whatever and that’s
     what   happened.     I  mean it really  wasn’t  no
     explanation, it was dumb.

J.A. 22.      Apparently unsatisfied, the trial judge later asked

Joseph to elaborate on what Jones said, leading to this brief

exchange:

     Joseph:           I mean he really didn’t -- he just said it
                       happened basically like that.   Like there
                       wasn’t really -- what happened, happened,
                       you know what I’m saying.
     The Court:        Did he say I’m sorry?
     Joseph:           Maybe he did.
     The Court:        Maybe he didn’t?
     Joseph:           Right, I don’t recall.
     The Court:        Well, he said it just happened?
     Joseph:           Right.
     The Court:        And that’s all he said?
     Joseph:           Right.

J.A. 29-30.

     The      second     witness      was        James        City    County      police

investigator     Karen    Shuler,     who       investigated         the   break-in    at

Joseph’s house.        Shuler’s investigation determined that somebody

had entered the home through a broken “rear window to the living

room/dining    room.”       J.A.     33.        She    also    testified     there    was

damage   to   the   front    door     and       sliding   glass       backdoor.       The

investigator    lifted      prints    from       the   rear     window     and   sliding



                                           15
glass door, but did not submit the prints from the door for

analysis.

     During Shuler’s testimony, the government introduced, and

the court admitted, a forensic Certificate of Analysis (“the

certificate”) stating that a single fingerprint found on the

rear window “matched” Jones.               The other four prints did not

return matches.         The government did not call the analyst who

prepared the report.           Jones’s counsel did not object to its

admission      on   Confrontation       Clause    grounds.         Regarding        the

fingerprints in general, Shuler testified:

         Shuler:         I could not say which one [print] was
                         really good. I mean it looked - – by
                         my visual it looked good but I can’t
                         testify - -
         Prosecutor:     You’re not an expert to qualify those
                         prints, correct?
         Shuler:         Right.
J.A. 35.

     Jones’s        counsel    called     no     witnesses      and       offered    no

evidence.      She argued briefly in closing that the government’s

evidence    was      “highly    circumstantial,”          observing        that     the

television was never found in Jones’s possession.                      Counsel also

curiously      characterized      the    fingerprint       on    the       window   as

“damming” [sic], but maintained that such evidence alone was

simply   not    enough   to    find     Jones    guilty   beyond      a    reasonable

doubt.    J.A. 43.



                                         16
     The trial judge disagreed.                      He found that the fingerprint

certificate     was     enough       to    convict          when     combined       with   the

evidence that Jones had been in the house previously, and the

testimony about Jones’s “admission” to Joseph while in jail.

J.A. 44.      The court convicted Jones of breaking and entering,

and grand larceny.          At the close of the guilt phase, the judge

told Jones that “if [the victim] were to get his television back

I   suspect    that     would    be       a     long        way    to    ameliorating      the

situation”     before      sentencing.              J.A.    45.      The   television      was

apparently not returned, and the judge sentenced Jones to 30

years imprisonment, with 20 years suspended.

     The   Court      of   Appeals        of    Virginia          denied   Jones’s     direct

appeal.    The Supreme Court of Virginia did the same.                          Jones then

filed a state habeas petition in the Supreme Court of Virginia,

arguing in part that his counsel was ineffective because she

failed to conduct an adequate pretrial investigation into the

fingerprint evidence, failed to call the forensics analyst to

testify,      and   failed      to    object           to     the       admission    of    the

certificate on Confrontation Clause grounds.                             The Virginia high

court disagreed and concluded that Jones’s claim did not satisfy

either the “performance” or “prejudice” prong of the test for

ineffective assistance of counsel established by Strickland v.

Washington, 466 U.S. 668 (1984).



                                               17
     In so holding, the Supreme Court of Virginia relied in part

on   an    affidavit   from   Jones’s    trial   counsel   in   which    she

explained    the   circumstances   surrounding    her   decision   not    to

question the fingerprint evidence.         The relevant portion of the

affidavit provided in full:

          Adequate pre-trial investigation was conducted and
          the undersigned had no reason to question the
          admissibility of the fingerprint evidence.    Based
          on the police reports and discovery materials,
          counsel had reason to believe that the defendant’s
          fingerprints would likely have been found on the
          scene due to his presence there on a different
          occasion.   The undersigned is aware that counsel
          can require the prosecution to present at trial
          the   testimony  of  the   scientific  expert   who
          conducted the analysis, but the undersigned made
          the decision to not challenge the admission of the
          certificate of analysis since no basis existed for
          doing so and nothing appeared to be gained by
          challenging to [sic] admission of the certificate
          of analysis.

J.A. 87-88.

     Jones then filed his federal habeas petition pursuant to 28

U.S.C. § 2254, arguing again that his counsel was ineffective

because:

          (1) Counsel failed to conduct adequate pre-trial
              investigation as regards the admissibility of
              the fingerprint evidence;
          (2) Counsel failed to call as witness at trial the
              expert who conducted the fingerprint analysis;
              and
          (3) Counsel failed to object to the admission at
              trial of the certificate of analysis on the
              grounds   that   their    admissions  violated
              petitioner’s rights under the Confrontation
              Clause of the Sixth Amendment . . . .

                                    18
J.A. 114.

      The district court granted relief, ordering that Jones’s

sentence and convictions be vacated.                            Jones v. Clarke, 7 F.

Supp. 3d 626 (E.D. Va. 2014).                         The court first observed that

under the United States Supreme Court’s decision in Melendez-

Diaz v. Massachusetts, 557 U.S. 305 (2009), Jones could have

successfully challenged the admissibility of the certificate as

violating the Confrontation Clause because there was no in-court

testimony of the expert analyst.                        Further, the court found it

was unreasonable for Jones’s trial counsel to base her decision

not   to    challenge         the      evidence         upon     her       belief   that    the

fingerprint       may    have       been    from        Jones’s       prior    visit.       The

location    of    the     print      on    the        outside    of    a    rear    windowpane

contradicted      such     an    explanation,            the    court      noted.       Defense

counsel’s decision not to object could not be called strategic,

the court further observed, insofar as there was “no apparent

cost to objecting . . . and only a significant benefit to be

gained.”     Jones, 7 F. Supp. 3d at 633.                      In that light, the court

concluded    that       the     state      supreme       court     unreasonably       applied

Strickland       when    it     held      that    counsel’s        performance        was   not

objectively deficient.

      As to the question whether the admission of the certificate

prejudiced       Jones,       the      district         court      determined       that    the

fingerprint      evidence       was       central       to   the    state     trial     judge’s

                                                 19
decision to convict.              Thus, “had trial counsel been able to

exclude or undermine the fingerprint analysis, it is likely to

have had a significant impact on the likelihood of Petitioner’s

conviction.”       Id. at 634.           The district court also rejected the

government’s      argument        that    Jones        could    not     prove      prejudice

because     he   had    failed     to     demonstrate          that    the    analyst     was

unavailable to testify, or would have been shown unreliable on

the   stand,      had       his   counsel           challenged        the    certificate’s

admission.       The court observed that the government had failed to

present any “evidence that the analyst would have been available

or prepared to testify,” and had even failed to say if it would

have called the analyst had Jones’s counsel objected.                               Id.   In

such circumstances, the court concluded that Jones did not bear

the   burden      of    actually        proving        the     unreliability        of    the

certificate,      or    establishing          the     whereabouts       of   the    analyst.

Imposing     “[s]uch         a    high         burden,”        the     court       reasoned,

“contravenes       Strickland”           and        “effectively       ‘convert[s]        the

prosecution’s        duty    under      the     Confrontation          Clause      into   the

defendant’s privilege under state law.’”                       Id. (quoting Melendez-

Diaz, 557 U.S. at 324).



                                              II.

      The    Sixth      Amendment       guarantees        the    right       to    effective

counsel as a condition of a fair trial.                      Strickland, 466 U.S. at

                                               20
684-86.    To establish a claim of constitutional ineffectiveness,

a   defendant    must       demonstrate    (1)       that    counsel’s    performance

“fell below an objective standard of reasonableness” and (2)

that the “deficient performance prejudiced the defense.”                          Id. at

687-88.        Under    the   first   prong,         the    adequacy    of   counsel’s

performance is measured by the circumstances of the litigation

and prevailing professional norms.                   Id. at 688-89.          Under the

second prong, prejudice requires that there be “a reasonable

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

result of the proceeding would have been different.”                             Id. at

694.    As we have held, “[i]n cases where a conviction has been

the result of a trial, the defendant must demonstrate that but

for counsel’s errors, there is a reasonable probability that he

would not have been convicted.”                 United States v. Luck, 611 F.3d

183, 186 (4th Cir. 2010).

       As the majority recognizes, the merits of Jones’s habeas

petition   pivot       on   the   question      of   whether      the   state    court’s

denial of relief involved an unreasonable application of those

well-established standards.

                                           A.

       Under    Strickland’s       first     prong,         the   question      here   is

whether the Supreme Court of Virginia unreasonably applied the

standard for deficient performance in concluding that Jones’s



                                           21
counsel performed adequately even though she failed to challenge

the admission of the fingerprint evidence.

       As the district court recognized, a forensics certificate

of    analysis      is     a    testimonial      statement          that     implicates         the

Confrontation Clause.                 Melendez-Diaz, 557 U.S. at 310-11.                        Such

certificates         are       “functionally          identical       to     live,        in-court

testimony,       doing         precisely       what     a    witness        does     on     direct

examination.”         Id. (internal quotation marks omitted).                             As such,

a defendant is entitled to confront the analyst who prepared the

certificate at trial, unless the analyst was “unavailable to

testify      . . .    and       [a    defendant]       had    a   prior      opportunity          to

cross-examine [him or her].”                   Id. at 311 (emphasis in original);

see also Crawford v. Washington, 541 U.S. 36, 54 (2004).

       In    this    case,       Jones’s      counsel        failed    to    object        to    the

admission of the fingerprint certificate and never demanded that

the    government        produce        the    analyst       to   testify. 1          Even       the

government appears to agree that had defense counsel objected,

the     objection        almost       surely     would       have     been     sustained          on

Confrontation Clause grounds.                   See Appellant’s Br. 20.                   As such,

Jones      now   argues        that    his    counsel’s       performance          was     clearly


       1
       Virginia state law includes a specific pretrial procedure
for criminal defendants to object to the admissibility of a
certificate of analysis and require the testimony of the
analyst. See Va. Code § 19.2-187.1.



                                                22
deficient, and that the Supreme Court of Virginia unreasonably

applied     Strickland          in    finding        otherwise.         The       government,

however,        contends       that   Jones’s        counsel    was     not       required    to

object     to    the    certificate’s          introduction      given        (1)    counsel’s

affidavit stating that she could find no reason to question the

validity of the results, (2) Jones’s failure to demonstrate that

the fingerprint certificate was somehow unreliable, and (3) the

existence       of     other    hypothesized         strategic        advantages       of    not

objecting.        Each of the government’s arguments is considered in

turn.

                                                1.

       Regarding counsel’s letter affidavit, it is true that we

owe    a   heavy       deference      to   an    attorney’s          informed,       strategic

choices.        See Washington v. Murray, 4 F.3d 1285, 1288 (4th Cir.

1993) (“Strickland makes plain that a lawyer’s performance will

not be deemed deficient if it results from informed, strategic

choices     about       how     to     mount     a    defense.”).             A     “post    hoc

rationalization of counsel’s conduct,” however, is no substitute

for “an accurate description” of what really occurred.                                 Wiggins

v.    Smith,     539    U.S.    510,    526-27       (2003).         Moreover,       strategic

decisions must nonetheless be reasonable in the first place to

command     a     court’s        deference.            See     id.     at     528     (quoting

Strickland, 466 U.S. at 690-91).



                                                23
       Here, all that we know about counsel’s relevant pretrial

investigation    and    strategic       deliberations      is   contained    in   a

single    paragraph    in   her   letter      affidavit.        In   the   letter,

counsel    briefly     asserted   that       she   conducted    an   “[a]dequate

pretrial investigation” that revealed no reason to question the

reliability of the fingerprint evidence.                  Counsel appeared to

base   that   conclusion    on    the    fact      that   Jones’s    fingerprints

should have naturally been at the scene because of his prior

social visit there.

       The government’s reliance on the affidavit is unavailing

for two reasons.        First, as the district court observed, there

is no reason why Jones would have left a single print on the

outside of a rear windowpane during his previous social visit.

At the very least, the record provides no such reason.                     Second,

and more fundamental, Jones’s counsel provided no actual details

concerning her pretrial investigation – an investigation that

Jones alleges was deficient.             We thus have no way to say that

any choices she made were informed, much less strategic.                    As the

Supreme Court emphasized in Wiggins, “[c]ounsel has a duty to

make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.”                   539 U.S. at




                                        24
521-22. 2    A conclusory assertion that an adequate investigation

was    conducted,    without        more,    cannot    entitle     counsel      to     a

presumption of reasonableness in these circumstances.                         See id.

at    527   (observing     in   a    sentencing    context    that      a    “cursory

investigation”      does    not     “automatically       justif[y]      a    tactical

decision”).     Indeed, attorneys have provided far more detail in

other contexts where the sufficiency of their investigations has

been challenged.      See, e.g., id. at 523 (describing a mitigation

investigation    conducted        by   counsel);      Huffington   v.       Nuth,    140

F.3d 572, 579-80 (4th Cir. 1998) (deferring to defense counsel’s

tactical decision in light of detailed evidence regarding the

deliberations animating the decision); United States v. Fulks,

683 F.3d 512, 518-19 (4th Cir. 2012) (finding defense counsel’s

tactics     reasonable     after       counsel    provided    a    specific          and

detailed explanation for his conduct – an explanation that the

court found was consistent with the record as a whole).


       2
       To determine the objective reasonableness of counsel’s
conduct, the Supreme Court has often referred to the American
Bar Association (ABA) guidelines.    See Strickland, 466 U.S. at
688; Wiggins, 539 U.S. at 524.     The ABA’s criminal guidelines
specifically state that defense investigations should “include
evaluation of the prosecution’s evidence (including possible re-
testing or re-evaluation of physical, forensic, and expert
evidence)   and  consideration   of   inconsistencies,  potential
avenues of impeachment of prosecution witnesses, and other
possible suspects and alternative theories that the evidence may
raise.” ABA Criminal Justice Standards for the Defense Function
4-4.1(c) (4th ed. 2015) (approved and pending publication).



                                            25
       Here,     the    pressing           need      for      a     non-cursory        pretrial

investigation      into         the     fingerprint        evidence      was    confirmed     by

defense    counsel’s            own     assessment       of   the       importance      of   the

evidence.      Counsel went so far as to argue in closing that the

“one item” that connected Jones to the house was “a fingerprint”

– a piece of evidence that she then called “damming” [sic].

J.A.    42-43.         An       attorney’s         choice         not   to     challenge     the

admissibility      of       a    piece     of     evidence        can    hardly    be    called

strategic when the evidence is central to the government’s case,

there    are   clear     grounds         that     would     support      a    challenge,     the

challenge      could        yield        immense        benefit,        and    there    is   no

articulated downside.                 Indeed, the district court’s conclusion

that counsel’s decisionmaking was something less than strategic

is also amply supported by the trial transcript as a whole,

revealing a decided lack of thoroughness and zealous advocacy.

       Even if counsel’s affidavit were enough to establish that

she     adequately       investigated             the      fingerprint         evidence      and

believed it was reliable, it still does not support her decision

not to challenge the evidence’s admissibility.                               Just because key

evidence may be reliable, a reasonable attorney should object to

its    admission       when       the    objection         will     almost      certainly    be

sustained.       Here, the government sought to introduce a forensics

certificate – reliable or not – without the testimony of the

analyst.       Yet counsel does not state any reasonable ground for

                                                26
not objecting – such as knowledge that the analyst was available

to   testify     and   would     have      testified      upon    an     objection.

Counsel’s decision thus cannot be called strategic even if she

developed   an    informed     belief   that     the   evidence        was   facially

trustworthy.

                                        2.

     The government also argues that Jones himself provided no

evidence to the state court that “there was any factual basis to

challenge   the    accuracy     of   the     fingerprint    analysis         or   that

counsel failed to conduct a reasonable investigation.”                            Thus,

the argument follows, we cannot say that defense counsel was

deficient for failing to challenge the certificate’s admission.

As the government maintains, mere speculation that Jones might

have been able to undermine the fingerprint analysis had the

analyst testified should not be sufficient to sustain a claim of

deficiency under Strickland.

     Such an argument fails for three reasons.                    First, as just

discussed, the question of whether the evidence was reliable is

independent    from    the   question      of   whether    it    was    admissible.

Thus even if Jones indeed had no way to undermine the evidence,

he certainly had a way to exclude it altogether.

     Second, the government’s argument improperly presumes that

a certificate of analysis is reliable without the testimony of

the analyst – shifting the burden onto a defendant to prove

                                        27
unreliability.          But    as   Crawford        made   clear,    the    right    of

confrontation is essential to establishing the reliability of

evidence in the first place.                541 U.S. at 61.          As the Supreme

Court remarked:

      Admitting statements deemed reliable by a judge is
      fundamentally at odds with the right of confrontation.
      To be sure, the Clause’s ultimate goal is to ensure
      reliability of evidence, but it is a procedural rather
      than a substantive guarantee.   It commands, not that
      evidence be reliable, but that reliability be assessed
      in a particular manner: by testing in the crucible of
      cross-examination.

Id.      The   district     court    here    thus    correctly      determined     that

Jones need not prove, without the benefit of confrontation, that

the certificate was fatally unreliable.

      Third, the government has failed to even state whether it

would have called the analyst in the first place, or whether

he/she    would   have      been    available.        As   discussed       in   greater

detail below in the context of prejudice, a defendant certainly

does not bear the burden of divining a fact that is entirely

within     the    government’s         control.            Here,    Jones       clearly

established      that   a     Confrontation      Clause     objection      would    have

been successful if made, and the fingerprint evidence would have

been excluded at the moment the objection was sustained.                             He

need do no more.              Whether or not the government could have

pursued another route to admit the certificate – and whether the




                                            28
attempt would have succeeded – amounts to speculation on this

record.

                                          3.

      In the absence of actual strategic rationales articulated

by Jones’s counsel, the government hypothesizes various reasons

why   an    attorney    might       not   want     to    challenge      a     forensics

certificate.       For     instance,       a     challenge      could       cause   the

government to put its forensics expert on the stand – an expert

who could be highly persuasive and credible.                    Similarly, counsel

may not wish to draw additional attention to unfavorable facts.

      To be sure, assessing the objective reasonableness of a

decision    by   counsel      may    require      a     court   to   “affirmatively

entertain the range of possible reasons . . . counsel may have

had for proceeding as they did.”                      Cullen v. Pinholster, 131

S.Ct. 1388, 1407 (2011) (internal quotation marks omitted).                         But

we need not, and indeed should not, engage in such speculation

when counsel has actually provided a statement of her reasoning,

and   the   statement    is     devoid    of     valid     strategic        rationales.

Nowhere in her letter does counsel identify any risks associated

with objecting to the evidence.                Instead, she merely states that

there was nothing to be gained, apparently because she believed

Jones’s print should have been in the house given his prior

social visit.      On that dubious basis, counsel surrendered her

client’s right to confront his accuser and test the evidence

                                          29
that was central to the government’s case against him.                                 The

government     would       now   have     the    court    ignore    counsel’s       actual

statement and instead engage in precisely the kind of after-the-

fact rationalization that cannot displace a description of what

actually occurred.          See Wiggins, 539 U.S. at 526-27.

       As    the    Strickland          Court     itself    observed,        “[a]      fair

assessment of attorney performance requires that every effort be

made    to   eliminate       the    distorting       effects       of     hindsight,      to

reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the

time.”       466    U.S.    at     689.     We    thus     defer    to     the    informed

strategic judgment of counsel, even when that judgment proves

unwise in retrospect.              We should not, however, afford the same

deference      on        this      record,        where      counsel’s           proffered

justifications       suggest        that    she    did     not     make    an     informed

strategic choice.

                                            B.

       Even if counsel performed deficiently, the majority holds

that Jones fails to establish that the Supreme Court of Virginia

unreasonably applied the prejudice prong of Strickland.                                The

majority argues succinctly that because Jones admitted guilt in

his brief conversation with Joseph, and because he had been to

the house previously, there is no reasonable probability that

the    exclusion    of     the   fingerprint       evidence      would     have    made    a

                                            30
difference in his case.            Tellingly, nowhere does the government

make the argument upon which the majority relies.                         Instead, the

government maintains that Jones cannot show prejudice because he

has not established that the certificate would have actually

been excluded in the end even if counsel had objected.                             As the

government conjectures, an objection may have simply caused the

prosecution to call the analyst to the stand, thereby securing

admission of the certificate.

                                             1.

      The    majority’s       argument       is    belied   by    a     stubborn      fact,

namely, the trial court’s own statement as to why it concluded

Jones was guilty beyond a reasonable doubt.                           Looking at the

totality of the evidence presented, the judge never indicated

that any piece alone was enough to sustain a finding of guilt.

Instead,     the    court    determined:           “I   think    when    you    take    the

fingerprint and combine it with the recent visit and you combine

it    with    the   statement      I     think     that’s   sufficient         beyond    a

reasonable doubt . . . .”              J.A. 44 (emphasis added).

      In the face of that seemingly plain statement, the majority

speculates, and it must be termed speculation, that there is no

substantial likelihood that the judge would have acquitted Jones

if    the    fingerprint      evidence       was    excluded.           The    majority’s

conclusion, however, ignores the centrality of that evidence to

the    government’s         case   –     a   centrality         illustrated      by     the

                                             31
government’s focus on the fingerprint during Shuler’s testimony,

defense counsel’s closing argument that fixated on the print

(calling it “damming” [sic]), and the court’s express rationale

for finding guilt.           It also ignores the dubious nature of the

“admission”        itself.           After        Joseph     testified       on         direct

examination       regarding     his    fleeting       conversation         with    Jones     –

lasting     a    “few   seconds”       -   the      trial    judge    apparently           was

underwhelmed and felt the need to inquire in greater detail.

After cross-examination, the court thus tried to elicit more

concrete details about the jailhouse conversation.                            Instead of

clarity, the court received largely the same answer, with an

added     dose    of    uncertainty        regarding        whether    or     not       Jones

apologized (“maybe he did”).               The court then unambiguously based

its finding of guilt not on the admission alone, but instead on

the fingerprint evidence combined with Jones’s statement and the

fact of Jones’s recent visit to the house.

       “A defendant need not show that counsel’s deficient conduct

more    likely      than   not       altered       the     outcome    in     the       case.”

Strickland,       466   U.S.    at    693.        Instead,     we    look    to        whether

counsel’s error was “sufficient to undermine confidence in the

outcome.”        Id. at 694.         Without the fingerprint evidence, the

government’s case consisted of a missing television, a social

visit Jones made to the home a month before, and the puzzling

statement        that   Jones    allegedly          made     to     Joseph        in    jail.

                                             32
Regardless        of    whether       the       court       classified     Jones’s       jailhouse

statement as an “admission,” it is clear from the record that

that   fingerprint            evidence      remained           essential       to   the     court’s

finding      of    guilt.          Jones        has     thus      met    his   burden       to   show

prejudice.

                                                  2.

       The    government           independently            contends      that      Jones     cannot

show    prejudice            because       he     has       not    demonstrated          that     the

forensics         analyst          was     unavailable,             or     would       have      been

unreliable, if defense counsel had objected to the evidence.

The government’s argument, however, fundamentally miscalibrates

a    habeas       petitioner’s           burden        in     these      circumstances.           To

demonstrate prejudice, Jones must show that counsel’s objection

to   the     evidence         would      have      been        successful,       and     that     the

exclusion of the objectionable evidence would have resulted in a

reasonable        probability         of    a    different         outcome.         He    need    not

surmount the additional burdens of establishing facts within the

government’s        control,         namely,          whether      the    analyst      would     have

been    called         and    been       available          to    testify.          Indeed,       the

government has failed to even assert that it would have secured

the analyst’s testimony in the event of an objection.                                     Shifting

that    burden         onto    Jones       would        not      only    exceed     Strickland’s

requirements, it would also be in tension with Melendez-Diaz’s

admonition        that       the   government          is     singularly       responsible        for

                                                  33
presenting its witnesses, even where defense counsel may be able

to independently secure them.                       557 U.S. at 324-25.              As the

Melendez-Diaz Court noted:

       More fundamentally, the Confrontation Clause imposes a
       burden on the prosecution to present its witnesses,
       not on the defendant to bring those adverse witnesses
       into court.     Its value to the defendant is not
       replaced by a system in which the prosecution presents
       its evidence via ex parte affidavits and waits for the
       defendant to subpoena the affiants if he chooses.

Id.

       Nor need Jones divine what the analyst would have actually

said if he/she had testified.                   As the Supreme Court emphasized

in    Davis   v.   Alaska,        415   U.S.    308    (1974),      a    defendant       whose

Confrontation          Clause      rights      have     been      violated        need    not

speculate about the hypothetical testimony or credibility of a

key    witness     whom      a    petitioner        could   not     effectively      cross-

examine.         Id.    at       317-18.       As    the    Court       further    remarked

regarding prejudice to a defendant, a deprivation of the right

of effective cross-examination constitutes “constitutional error

of the first magnitude and no amount of showing of want of

prejudice would cure it.”               Id. at 318.

       I thus believe that Jones has established that the state

supreme court unreasonably applied Strickland when it concluded

that any deficient performance by his counsel did not prejudice

him.




                                               34
                               III.

     In sum, I agree with the district court that habeas relief

is required here, “where there is a clear error and where the

record is equally clear that such an error made a difference.”

Jones, 7 F. Supp. 3d at 634.   I would affirm the district court

judge, and I therefore respectfully dissent.




                                35
