                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6969


ANTHONY MAURICE BONE,

                Petitioner - Appellant,

           v.

MARVIN L. POLK, Warden,

                Respondent - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.     James A. Beaty, Jr.,
Chief District Judge. (1:04-cv-01074-JAB-WWD)


Argued:   May 13, 2011                    Decided:   July 29, 2011


Before WILKINSON, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: James Donald Cowan, Jr., ELLIS & WINTERS, LLP, Cary,
North Carolina, for Appellant.      Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee.    ON BRIEF: Heather Howell Wright, Sophia Liao
Harvey, ELLIS & WINTERS, LLP, Greensboro, North Carolina, for
Appellant.   Roy Cooper, Attorney General, Mary Carla Hollis,
Assistant Attorney    General,   NORTH  CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Contending he did not knowingly and intelligently waive his

Miranda 1 rights and that his trial counsel was ineffective in

failing    to   raise   the   issue   during   his   criminal   proceeding,

Anthony Maurice Bone appeals the denial of his 28 U.S.C. § 2254

habeas petition. Because Bone knowingly and intelligently waived

his rights, we affirm.



                                      I

     The facts underlying this petition are well known to the

parties and set forth in the district court’s memorandum order,

Bone v. Polk, 2010 WL 2733333, *2-10 (M.D.N.C. July 9, 2010). We

therefore present only a brief synopsis here.

     After an anonymous tip pointed police to Bone as a suspect

in an ongoing murder investigation, Detective Robin Saul of the

Greensboro Police Department located Bone and escorted him to

the police station to be interviewed. When questioned and read

his Miranda rights, Bone refused to sign a Miranda waiver or to

turn over his “Chuck Taylor” shoes, which were of particular

interest to police given shoeprint evidence taken from the crime

scene. During his initial interview, which lasted roughly an

hour and a half, Bone denied involvement in the burglary and

     1
         Miranda v. Arizona, 384 U.S. 436 (1966).



                                      2
murder. Detective Saul then ended the interview, placed Bone

under    arrest,        and    arranged   for     Bone   to    be    taken   before   a

magistrate so that an arrest warrant could be issued.

       After Bone was served with the arrest warrant, he told a

uniformed officer that he wanted to speak with Detective Saul

again. At Bone’s request, Detective Saul escorted Bone to the

interview       room,    where     Saul   again   read   the    Miranda      rights   to

Bone. As he read each provision on the “Statement of Rights”

form, Detective Saul asked Bone if he understood that provision.

After Bone verbally indicated that he understood, Detective Saul

checked off each provision. Bone then signed the Statement of

Rights and a written Waiver of Rights, which provided above his

signature:

       I have read the above statement of my rights and also
       had my rights explained to me by a police officer.
       Knowing these rights, I do not want a lawyer at this
       time. I waive these rights knowingly and willingly and
       agree to answer questions and/or make a statement.

J.A.    2347.    After        signing   the   form,   Bone    told    Detective   Saul

“[s]ome people need to be in prison,” and made a statement which

was written down by Detective Saul and signed by Bone. J.A.

2493. The statement read as follows:

       This statement is given freely and I told Det. Saul I
       wanted to talk to him after the warrant for murder had
       been read to me. On Saturday 8-23-97 sometime after
       dark I broke into an apartment. The reason I did this
       was because I had been smoking crack. I was out of
       money and needed some more to buy some more crack. I
       was in Smith Homes during this time. I was walking

                                              3
behind some apts on Rockett St when I noticed a window
opened. I cut the screen with a pocket knife, then I
crawled in through the window. This led into the
kitchen. After I got in I looked around in the living
room and didn’t see anything. Then I saw a radio in
the kitchen on the counter. I laid it on the floor.
Then I walked into the bedroom and saw this white lady
in bed asleep. Right when I walked in the bedroom she
woke up and said what are you doing in here. I said I
just want money I'm not going to hurt you. She keep
saying what are you doing in here, I was afraid she
was going to start yelling so I ripped the curtain off
the wall and rolled her over on her stomach and tied
her hands behind her back then tied her feet. I had to
take the curtain rod out of the curtain before I did
this. She was still trying to get up and still I was
afraid someone was going to hear her so I put my hands
on her neck to try to hold her head down to keep her
quiet and so she would not look at me. Then I tied a
piece around her mouth for a gag. Then I saw her
pocketbook in the bedroom. I took it along with a
flashlight she had lying on her dresser into the
living room. I dumped out the pocketbook on the floor
and didn’t find anything. While I was doing this she
had been making funny noises. I went in and looked at
her and she was bleeding. Then I noticed that the
bedroom window could be looked through from the
outside. I took a white blanket off her bed and hung
up over the window so nobody could see in. When I left
I unplugged the phone and left out the back door
taking only her flashlight, I decided not to take the
radio. After I left there I went down to another apt.
The screen was already cut so I raised the window and
climbed in. This was in a bathroom. When I walked
around the apt I saw an old black man sleeping in a
chair in the living room. On a chair was a pair of
pants and inside the pants pocket was a wallet, I took
this into the bedroom and dumped everything out. There
was about 8 or 9 dollars and I took it and went out
the window I came in through. I walked through the
path to the Center and then all the way to
Shamberger’s Store on Eugene St. Then I bought a $5.00
rock and smoked it. Last month I told Paul Blackmon
that I might have killed somebody. Paul just looked at
me and didn’t say anything. In closing I would like to
say that I am deeply sorry and I know I’ve brought a
lot of grief on the family but I was on drugs when

                          4
     this happened and I wish I didn’t abuse the drugs like
     I do. I’m not a bad person. In time I hope you can
     find forgiveness. Signed Anthony Bone, R.W. Saul,
     10/8/97 at 1500 hours.

J.A. 2732-33.

     A jury in Guilford County, North Carolina convicted Bone of

the first-degree murder of Ethel McCracken and two counts of

first-degree burglary. Bone received a sentence of death plus

two consecutive terms of 146-185 months’ imprisonment, which was

later converted to a sentence of life after the North Carolina

courts   determined    Bone   was     mentally    retarded       under   North

Carolina law. Bone also filed a motion for appropriate relief

(“MAR”) contending, among other things, that his trial counsel

failed adequately to investigate and present evidence that his

confession   was   obtained   in    violation    of    his    Fifth   Amendment

rights. Bone’s MAR, and a subsequent petition for review to the

state court of appeals, were denied.

     In October 2004, Bone filed a § 2254 habeas petition in the

Middle   District     of   North     Carolina.        After    conducting   an

evidentiary hearing, the district court denied Bone’s petition

and issued a certificate of appealability as to Bone’s claim

“that he did not knowingly and intelligently waive his Miranda

rights and that his trial counsel was ineffective in failing to

raise this issue in state court.” Bone appealed, and we have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1).


                                      5
                                           II

       Where (as here) a petitioner’s claims are adjudicated on

the merits in state court, we may grant habeas relief only if

the state court 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 States.” 28 U.S.C. § 2254(d); Cummings v. Polk, 475

F.3d 230, 237 (4th Cir. 2007). But even if we so find, we may

only     grant   relief      after        “review[ing]     [the]    state      court

judgment[] independently to determine whether issuance of a writ

is    warranted.”    Rose   v.     Lee,    252   F.3d   676,   689-90   (4th   Cir.

2001).

       In resolving Bone’s petition, we assume without deciding

that the state court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law. .

. .”     28 U.S.C. § 2254(d); see also Golphin v. Branker, 519 F.3d

168, 189-90 (4th Cir. 2008) (finding unnecessary to consider

whether the state court unreasonably applied federal law because

any    error   did   not    have    a   prejudicial      effect);   Bauberger     v.

Haynes, 632 F.3d 100, 103 (4th Cir. 2011) (same; noting that by

doing so “we avoid wasting the parties’ and the courts’ limited

resources on ‘questions that have no effect on the outcome of

the case.’”) (quoting Pearson v. Callahan, 555 U.S. 223, 129 S.

Ct. 808, 818 (2009)). We therefore review the record de novo to

                                           6
determine whether issuance of the writ is warranted; that is,

whether      Bone   knowingly     and    intelligently      waived    his    Miranda

rights.      See Rose, 252 F.3d at 689-90.



                                          III

       To be valid, a waiver of Miranda rights must have been (i)

“voluntary in the sense that it was the product of free and

deliberate      choice    rather        than     intimidation,       coercion,      or

deception”; and (ii) “made with a full awareness of both the

nature of the right being abandoned and the consequences of the

decision to abandon it.” 2 Moran v. Burbine, 475 U.S. 412, 421

(1986). “Only if the ‘totality of the circumstances surrounding

the    interrogation’     reveal        both    an   uncoerced    choice    and     the

requisite level of comprehension may a court properly conclude

that   the    Miranda    rights    have    been      waived.”    United    States    v.




       2
       The district court’s certificate of appealability applies
only to Bone’s claims “that he did not knowingly and
intelligently waive his Miranda rights and that his trial
counsel was ineffective in failing to raise this issue in state
court.” We therefore limit our discussion to those issues, and
do not address whether Bone’s waiver was voluntary. See Appleby
v. Warden, 595 F.3d 532, 535 n.3 (4th Cir. 2010) (“[B]ecause
this court is empowered to consider only the specific issue or
issues set forth in the certificate of appealability, we will
not consider [additional] issues.”) (quoting United States v.
Linder, 561 F.3d 339, 344 n.6 (4th Cir. 2009) (internal
quotations omitted)).



                                           7
Cristobal, 293 F.3d 134, 140 (4th Cir. 2002) (quoting Moran, 475

U.S. at 421).

        When evaluating the totality of the circumstances for the

purposes of determining the validity of a Miranda waiver, we

consider        factors     such     as     a       defendant’s     “intelligence       and

education,” his “age and familiarity with the criminal justice

system, the proximity of the waiver to the giving of the Miranda

warnings,”       and     whether     he     “reopened        the    dialogue    with    the

authorities.” Poyner v. Murray, 964 F.2d 1404, 1413 (4th Cir.

1992) (citations omitted). “In cases involving defendants with

low intellectual ability, the knowingness of the waiver often

turns     on    whether     the     defendant          expressed     an    inability     to

understand the rights as they were recited.” United States v.

Robinson,        404     F.3d    850,       861       (4th   Cir.     2005).     In    such

circumstances, a defendant’s “below average I.Q. does not make

him per se incapable of intelligently waiving his rights.”                            Id.



                                                A

        Bone argues he was incapable of knowingly and intelligently

waiving        his     Miranda     rights       due     to   his    diminished        mental

capacity. In support of his argument, Bone points out that he

has an I.Q. of 69; has established that he is mentally retarded

under North Carolina law; and that the state MAR court found

that     he     had    “difficulties        []       comprehending        and   expressing

                                                8
information    including      [an]    inability      to    give   directions,     [a]

need    to   have    things    explained       to   him    repeatedly,     []   poor

understanding       of    others,   and   []    limited    reading   and    writing

skills.” J.A. 49. Additionally, Bone presents the affidavit of

Dr. Olley, previously submitted to the MAR court, which avers

Bone “demonstrated a very limited understanding of his Miranda

rights” when he was tested roughly four years after his waiver;

Bone’s confession was “written at a reading level at which Mr.

Bone would have difficulty understanding”; and “there are many

indicators that Mr. Bone in fact did not understand the waiver

of rights that was presented to him and that he signed.” J.A.

125, 127, 130.

        The evidence presented by Bone, however, is eclipsed by the

evidence contemporaneous to his confession which indicates that

he knowingly and intelligently waived his Miranda rights. Bone

indicated he understood that he did not have to speak to police

when,    during     his    first    interaction     with    Detective     Saul,   he

denied involvement in the crime and refused to sign a waiver. He

initiated——without prompting——the second interview by asking an

officer if he could again speak with Detective Saul. Bone then

demonstrated        his   understanding        of   the    consequences    of     the

decision to abandon his Miranda rights when he began the second

interview by saying “[s]ome people need to be in prison.” J.A.

2493. And, as Saul reviewed the Miranda rights with Bone prior

                                          9
to questioning him, Bone acknowledged that he understood each

provision     as     it     was    read    to     him    and     then    signed    an

acknowledgement       and    waiver   of    his   rights       before   confessing. 3

Given     these    circumstances,     Bone’s      I.Q.    does    not   preclude    a

determination that his Miranda waiver was valid. See Cornell v.

Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995) (finding waiver

knowing, voluntary, and intelligent where a defendant with an

I.Q. of 68 had previous experiences with law enforcement and

received numerous Miranda warnings); Robinson, 404 F.3d at 861

(“Although Robinson admittedly has a low I.Q. [70] and several

mental disorders, nothing in the record indicates that Robinson

could not understand the rights as Agent Hicks provided them.

To the contrary . . . Robinson was ‘street smart’ and understood

his Miranda rights.”).

      It is thus clear from the record that Bone understood “that

he may choose not to talk . . ., to talk only with counsel

present, or to discontinue talking at any time.” Colorado v.

Spring, 479 U.S. 564, 574 (1987). In light of the totality of

the   circumstances,        Bone   understood     these    fundamental      concepts


      3
       In addition, Bone (1) had “familiarity with the criminal
justice system,” Poyner, 964 F.2d at 1413, demonstrated by his
two previous arrests and guilty pleas, J.A. 2773; and (2)
signaled his prior experience with the criminal justice system
when he refused to surrender his shoes to Detective Saul during
earlier questioning.



                                           10
when he waived his Miranda rights; hence, his decision to waive

those rights was made both knowingly and intelligently.



                                                B

       To establish ineffective assistance of counsel under the

familiar      standard      of    Strickland          v.    Washington,      466    U.S.   668

(1984),    a     criminal        defendant       must       show    that    his     counsel’s

representation          “‘fell         below         an      objective       standard       of

reasonableness,’         and     .     .    .   that       ‘the    deficient      performance

prejudiced the defense.’” United States v. Cooper, 617 F.3d 307,

312 (4th Cir. 2010) (citing Strickland, 466 U.S. at 687–88).

Where, as here, a Sixth Amendment claim rests on trial counsel’s

failure     to    move    to      suppress           evidence,      establishing       actual

prejudice        requires        the       petitioner        to     establish      that    the

underlying claim is meritorious and that there is a reasonable

probability that the verdict would have been different absent

the excludable evidence. See, e.g., United States v. Cieslowski,

410    F.3d      353,    360      (7th       Cir.     2005)       (“When    the    claim   of

ineffective assistance is based on counsel’s failure to present

a motion to suppress, we have required that a defendant prove

the motion was meritorious.”); Kimmelman v. Morrison, 477 U.S.

365, 375 (1986) (“Where defense counsel’s failure to litigate a

Fourth Amendment claim competently is the principal allegation

of    ineffectiveness,           the       defendant       must    also    prove    that   his

                                                11
Fourth      Amendment     claim     is   meritorious       and   that    there     is   a

reasonable        probability       that    the     verdict      would     have    been

different absent the excludable evidence.”).

       Bone cannot establish prejudice under Strickland because,

as explained above, the Miranda issue which he contends should

have   been      presented     at   trial   is    without    merit.      Because   Bone

fails to establish prejudice, it is not necessary for us to

analyze whether his trial counsel’s performance fell below an

objective standard of reasonableness. McHone v. Polk, 392 F.3d

691,       704   (4th   Cir.   2004)     (“If     McHone    fails   to    demonstrate

sufficient prejudice from certain acts or omissions, we need not

decide whether counsel’s performance in those respects was, in

fact, deficient under Strickland.” (citing Strickland, 466 U.S.

at 694)).



                                            IV

       For the foregoing reasons, we affirm the judgment of the

district court. 4

                                                                             AFFIRMED




       4
       The Court wishes to express its appreciation to Mr. James
Donald Cowan for the very fine argument he gave on behalf of
appellant in this case.



                                            12
