     Case: 09-50328     Document: 00511255260          Page: 1    Date Filed: 10/06/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 6, 2010

                                       No. 09-50328                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

MACE MCGREW, also known as Mace Lee McGrew,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:07-CV-259


Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Mace McGrew was convicted under 18 U.S.C. § 922(g)(1) of being a felon
in possession of a firearm. He timely appealed and his conviction was affirmed.
The district court denied McGrew’s 28 U.S.C. § 2255 motion for post-conviction
relief and this court granted McGrew a certificate of appealability. For the
following reasons, the district court’s judgment is AFFIRMED as to McGrew’s
ineffective assistance of appellate counsel claim and REVERSED as to McGrew’s
Fifth Amendment and ineffective assistance of trial counsel claims. This case is

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-50328       Document: 00511255260         Page: 2     Date Filed: 10/06/2010

                                       No. 09-50328

REMANDED for an evidentiary hearing on McGrew’s Fifth Amendment and
ineffective assistance of trial counsel claims.
                           FACTS AND PROCEEDINGS
       A jury convicted McGrew of being a felon in possession of a firearm, and
the district court sentenced him to a fifty-one-month prison term to be followed
by three years of supervised release. His codefendant, William Tutt, was
acquitted of the same charge. Because the rifle was found in a bedroom of a
house that McGrew often shared with his girlfriend, Renee Chapman, the key
issue at McGrew’s trial was whether he constructively possessed the rifle,
specifically whether he knew that the rifle was in the bedroom and whether he
had access to it. United States v. McGrew, 165 F. App’x 308, 311 (5th Cir. 2006);
see also United States v. Hinojosa, 349 F.3d 200, 203-04 (5th Cir. 2003).1
McGrew’s defense was that he had allowed his friend, Tutt, who did not live at
the house, to store some items in Chapman’s bedroom, but that McGrew did not
know that one of the items was a rifle. Tutt testified at trial that he told McGrew
that he had a rifle that he wanted to get rid of and that McGrew said that he
would take the rifle. Tutt testified that McGrew told him to put the rifle under
Chapman’s bed because McGrew did not want Chapman to know it was in the
house.
       Witnesses at trial testified regarding the search for and the discovery of
the rifle. Chapman stated that she consented to a search of her home by two


       1
         “Ordinarily, constructive possession may be found if the defendant had (1) ownership,
dominion or control over the item itself or (2) dominion or control over the premises in which
the item is found.” McGrew, 165 F. App’x at 311 (citing United States v. De Leon, 170 F.3d
494, 496 (5th Cir. 1999); Hinojosa, 349 F.3d at 203). Where two or more persons jointly occupy
the premises where a firearm is found, mere control or dominion over the premises is
insufficient to establish constructive possession; the evidence must support at least a
“plausible inference that the defendant had knowledge of and access to the weapon or
contraband.” McGrew, 165 F. App’x at 311 (quoting United States v. Mergerson, 4 F.3d 337,
349 (5th Cir. 1993)).


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police officers and two probation officers. Chapman testified that she lived at the
house and that McGrew stayed there several nights a week. During the search,
while McGrew tended to the couple’s child in the living room, a police officer was
stationed at the door to ensure that no one entered or left the house. Probation
officers found a rifle, body armor, and a lock box under the bed where Chapman
and McGrew slept. They also recovered marijuana and some ammunition from
the bedroom. McGrew admitted that the marijuana was his and volunteered to
call Tutt, who McGrew said had a key to the lockbox. Tutt came to the house
with a key and opened the box, which contained money, a cell phone, and
ammunition. One of the police officers questioned McGrew about the ownership
of the rifle. McGrew denied that the rifle belonged to him. The officer testified,
however, that McGrew admitted that he knew the rifle was under the bed.
McGrew was arrested for possessing the rifle and the marijuana. There was no
testimony at the trial indicating that McGrew received warnings as required by
Miranda v. Arizona, 384 U.S. 436 (1966), at any time.
      In his § 2255 motion for post-conviction relief, McGrew asserted numerous
claims including: (1) that he was unlawfully arrested; (2) that he was convicted
based on incriminating statements he made during a custodial interrogation
without receiving Miranda warnings; (3) that he received ineffective assistance
of trial counsel when his lawyer failed to file a motion to suppress these
statements; and (4) that his appellate counsel was ineffective for failing to argue
the Miranda violation on appeal.
      The district court denied McGrew’s § 2255 motion without an evidentiary
hearing. It held that McGrew did not undergo a custodial interrogation and that
trial counsel was not ineffective for failing to file a motion to suppress McGrew’s
statements. The district court reasoned that McGrew had failed to show that his
counsel’s decision not to file a motion to suppress was not a sound trial strategy
and that he suffered prejudice from that decision. The trial court also denied

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McGrew’s claim that appellate counsel was ineffective. The court dismissed
McGrew’s unlawful arrest claim, reasoning that it had been procedurally
defaulted and that Stone v. Powell, 428 U.S. 465 (1976), barred the court from
reviewing McGrew’s Fourth Amendment claims.
            STANDARD OF REVIEW AND APPLICABLE LAW
      In the context of a motion for relief pursuant to 28 U.S.C. § 2255, the court
of appeals reviews a district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008)
(citing United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006)). The review
of a district court’s refusal to grant an evidentiary hearing on a § 2255 motion
is for abuse of discretion; the district court should conduct an evidentiary
hearing only if the appellant produced “independent indicia of the likely merit
of [his] allegations.”      Edwards, 442 F.3d at 264 (quoting United States v.
Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)); see also United States v. Auten,
632 F.2d 478, 480 (5th Cir. 1980) (holding that mere conclusory allegations are
not sufficient to support a request for an evidentiary hearing). Once such
independent evidence is presented, “‘[a] motion brought under 28 U.S.C. § 2255
can be denied without a hearing only if the motion, files, and records of the case
conclusively show that the prisoner is entitled to no relief.’” Cavitt, 550 F.3d at
442 (quoting United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992))
(alteration in original).
                                   DISCUSSION
      This court granted McGrew a certificate of appealability (“COA”) as to the
following issues: (1) whether the district court erred in determining that Stone
bars McGrew’s claim that he was convicted based on incriminating statements
he made during a custodial interrogation without receiving Miranda warnings
in violation of his Fifth Amendment right against self-incrimination; (2) whether
McGrew procedurally defaulted his Miranda claim; (3) if McGrew’s Miranda

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claim is not procedurally defaulted, whether he established a Fifth Amendment
violation; (4) whether trial and appellate counsel were ineffective for failing to
raise the alleged Fifth Amendment violation; and (5) whether the district court
should have granted McGrew an evidentiary hearing on the Miranda claim.
Each issue is addressed in turn.
      A. Stone v. Powell
      In Stone, the Supreme Court held that a state prisoner cannot raise a
Fourth Amendment challenge in a collateral attack if the prisoner had a full and
fair opportunity to litigate that issue in the state courts. 458 U.S. at 494-95 &
n.37; see also United States v. Ishmael, 343 F.3d 741, 742 (5th Cir. 2003)
(extending the Stone rule to federal prisoners bringing § 2255 claims). The
Supreme Court has refused to apply Stone to bar collateral attacks based on
Miranda violations. Withrow v. Williams, 507 U.S. 680, 688 (1993).
      In his § 2255 motion, McGrew grouped two claims—his Miranda claim and
his claim that he was illegally arrested—under the heading of “unlawful arrest.”
In denying relief for “unlawful arrest,” the district court explained that “because
defendants in federal court have an opportunity to litigate Fourth Amendment
claims, collateral review of those claims is . . . barred by Stone v. Powell.”
(emphasis added). The district court, therefore, did not hold that Stone barred
McGrew’s Fifth Amendment claim.
      B. Procedural Default
      The government’s brief before the district court did not address McGrew’s
claim that the statements he made without receiving Miranda warnings were
erroneously introduced at trial, much less argue that this claim was procedurally
defaulted. Instead, the district court sua sponte held that McGrew’s Miranda
claim was procedurally defaulted. Although a district court may raise the issue
of procedural default sua sponte, it must afford the movant notice and an
opportunity to respond. Fisher v. State of Texas, 169 F.3d 295, 301-02 (5th Cir.

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1999). The district court failed to give such notice and failed to provide the
opportunity to respond.
      In appropriate circumstances, this court may apply the procedural bar sua
sponte. See Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000); see also
United States v. Willis, 273 F.3d 592, 596 (5th Cir. 2001). The relevant concerns
are whether the petitioner has been given notice and an opportunity to respond
and whether the government has waived the defense intentionally. Smith, 216
F.3d at 524; Willis, 273 F.3d at 596. This court’s grant of a COA on the
procedural bar issue provided McGrew with notice and an opportunity to
respond. The record does not reflect that the government intentionally waived
the procedural default defense because it did not even address McGrew’s
Miranda claim in its briefing before the district court. See Willis, 273 F.3d at
596-97. Accordingly, this court will consider whether McGrew defaulted his
Miranda claim.
      A § 2255 motion is not a substitute for a direct appeal. A prisoner may not
raise a claim for the first time in a collateral attack unless he shows cause for his
procedural default and actual prejudice resulting from the error. United States
v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (en banc); see also United States
v. Frady, 456 U.S. 152, 167 (1982). Although McGrew does not directly address
why his procedural default should be excused, he does argue that his trial and
appellate counsel were ineffective for failing to raise the Miranda issue. A
petitioner can establish cause and prejudice by showing that counsel rendered
constitutionally-ineffective assistance. See United States v. Patten, 40 F.3d 774,
776 (5th Cir. 1994). Because the analysis of whether McGrew’s counsel was
ineffective for failing to raise his Fifth Amendment claim is intertwined with the
merits of that claim, McGrew’s Fifth Amendment claim is addressed first.
      C. Alleged Fifth Amendment Violation



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      McGrew argues that his counsel rendered ineffective assistance by failing
to raise his Miranda claim at trial. He maintains that the claim would have been
successful and that counsel’s failure to raise it was prejudicial. Incriminating
statements made during a custodial interrogation by a suspect who has not first
received Miranda warnings are generally inadmissible. Missouri v. Seibert, 542
U.S. 600, 608 (2004). A suspect is “in custody” when he is placed under arrest
or when a reasonable person in the position of the suspect would understand
that the restriction on his freedom of movement is tantamount to a formal
arrest. United States v. Stevens, 487 F.3d 232, 241 (5th Cir. 2007). This court has
considered a number of factors in determining whether a suspect is “in custody,”
including how long the questioning lasts, at what point the incriminating
information is provided, the location of the questioning, whether the questioning
takes place in public, and the number of questioners. See United States v.
Harrell, 894 F.2d 120, 124 (5th Cir. 1990). An “interrogation” occurs where “a
person in custody is subjected to either express questioning or its functional
equivalent,” i.e., words or actions “that the police should know are reasonably
likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291,
300-01 (1980)). Voluntary statements made by a suspect are admissible,
regardless of whether the suspect has been advised of his Miranda rights. See
id. at 299-300.
      McGrew states in his sworn declaration that he was subjected to custodial
interrogation when, over the course of an hour and without receiving Miranda
warnings, he was questioned about the rifle. He further explains that an officer
stationed at the door would not let him leave, that he was not free to leave
because the officers decided to arrest him when they found the rifle, and that at
some point during the interrogation he was handcuffed.
      If the district court were to find the allegations in McGrew’s declaration
credible, McGrew may be able to demonstrate that he was in custody at the time

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the incriminating statements were made.           Evidence presented at trial
corroborates some of McGrew’s allegations. For example, a police officer testified
that he was stationed at the door during the search to prevent anyone from
leaving. It is not clear on this record whether, at the time of the search, a
reasonable person in McGrew’s position would have understood that the officers
would not have allowed him to leave. McGrew alleges in his sworn declaration
that he was “ordered to sit down and remain seated” and that he was placed in
handcuffs while he was being questioned, although he does not specify on appeal
whether he made any incriminating statements while handcuffed. Even if
McGrew was not in custody at the beginning of the search, it is arguable that a
reasonable person in McGrew’s position would not believe that he was free to
leave once he admitted to possessing the marijuana. See United States v.
Bengivenga, 845 F.2d 593, 597 & n.16 (5th Cir. 1988) (en banc). McGrew’s
allegation that he was questioned for “at least a[n] hour” “raises considerable
suspicion” that a custodial interrogation has occurred, although it does not
conclusively establish that he was in custody. See Harrell, 894 F.2d at 124 & n.1.
McGrew does not state when he admitted that he knew that the gun was under
the bed.
      Certainly, several factors also support the inference that McGrew may not
have been “in custody.” McGrew was questioned in his girlfriend’s home, where
he lived at least some of the time. See id. at 125 (“A reasonable person,
questioned within his own home, would not suffer ‘a restraint on freedom of
movement of the degree which the law associates with formal arrest.’”). The
presence of only two police officers and two probation officers also suggests that
the questioning was not police dominated. See Bengivenga, 845 F.2d at 598.
      McGrew’s sworn declaration and the record also suggest that he might be
able to establish that he underwent interrogation. The trial record shows that
a police officer asked him whether he owned the rifle, why it was in the room,


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and why it was under the bed—statements that the police may have known were
likely to elicit an incriminating answer. In fact, a police officer testified at trial
that, as soon as the rifle was found, he suspected McGrew of possessing it.
      It is possible that McGrew’s sworn statements, if credited and considered
along with the evidence presented at trial, could establish that McGrew was
subject to a custodial interrogation. McGrew has produced “independent indicia
of the likely merit of [his] allegations,” see Edwards, 442 F.3d at 264, and “the
motion, files, and records of the case [do not] conclusively show that [he] is
entitled to no relief,’” Cavitt, 550 F.3d at 442 (citation omitted). Before
determining whether the district court abused its discretion in denying McGrew
an evidentiary hearing with respect to his Fifth Amendment claim, this court
must consider the district court’s holding that his counsel did not render
ineffective assistance.
      D. Alleged Ineffective Assistance of Counsel
      A federal habeas petitioner who alleges ineffective assistance of counsel
must show that his counsel’s performance was deficient and that this deficient
performance resulted in actual prejudice. Strickland v. Washington, 466 U.S.
668, 687 (1984). To establish deficient performance, a petitioner must “show that
counsel’s representation fell below an objective standard of reasonableness.” Id.
at 688. Judicial scrutiny of counsel’s performance must be “highly deferential,”
and the court must make every effort “to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s alleged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Id. at 689. The
court must “indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. (quoting Michael v. Louisiana, 350
U.S. 91, 101 (1985)) (internal quotation marks omitted). If a tactical decision

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is “‘conscious and informed . . . [it] cannot be the basis for constitutionally
ineffective assistance of counsel unless it is so ill chosen that it permeates the
entire trial with obvious unfairness.’” Cavitt, 550 F.3d at 440 (quoting Crane v.
Johnson, 178 F.3d 309, 314 (5th Cir. 1999)) (alteration in original).
       i. Deficient Performance
       McGrew argues that counsel was deficient in failing to file a motion to
suppress statements illegally obtained during an alleged custodial interrogation.
The district court held that McGrew’s trial counsel’s failure to file a motion to
suppress was sound trial strategy because McGrew made statements that were
helpful to his defense during McGrew’s conversation with the officers. Namely,
McGrew stated that, although Tutt brought over some items to the house, he did
not know what the items were. McGrew also volunteered that he possessed the
marijuana; his counsel argued at trial that this demonstrated that his other
statements to the police were also true. However, those statements are mildly
helpful at best2 and do not outweigh McGrew’s incriminating statement that he
knew the rifle was under the bed. See McGrew, 165 F. App’x at 312-13. There is
no sworn testimony by McGrew’s counsel explaining the strategy behind the
decision not to file a motion to suppress. Given the devastating impact of that
statement, it is impossible to conclude without further factual development that
McGrew’s trial counsel’s decision not to file a motion to suppress was “strategic,
conscious, and informed.” See Strickland, 466 U.S. at 689.
       ii. Prejudice
           It is also possible that McGrew suffered prejudice under Strickland due
to trial counsel’s failure to file a motion to suppress McGrew’s statement to the
police that he knew that the rifle was under the bed. McGrew’s admission was

       2
         Assuming that McGrew’s statement that the marijuana was his supports the veracity
of his other statements to the police, by the same logic, it would also support the government’s
contention that McGrew was telling the truth when he said that he knew the rifle was under
the bed.

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certainly probative evidence of his guilt. See McGrew, 165 F. App’x at 311-12;
see also United States v. Avants, 278 F.3d 510, 522 (5th Cir. 2002) (explaining
that the defendant’s confession was “powerful evidence of guilt, the admission
or exclusion of which would be highly likely to affect the outcome of the trial”);
Pyles v. Johnson, 136 F.3d 986, 996 (5th Cir. 1998) (explaining that a
defendant’s confession is “probably the most probative and damaging evidence”
against him). Although the government introduced other evidence at trial
supporting the inference that McGrew had knowledge of the rifle, no evidence
was as damaging as McGrew’s admission. Tutt testified that he told McGrew
that he wanted to get rid of a firearm and that McGrew expressed interest in the
firearm. Tutt also testified that when he came to Chapman’s house, McGrew was
in the bedroom. Tutt testified that he showed McGrew the rifle and that McGrew
instructed Tutt to put the rifle underneath the bed so that Chapman would not
know that it was in the house. However, Tutt’s trial testimony was somewhat
contradictory because he also acknowledged that McGrew told him that he could
store certain items at Chapman’s house, so long as the items were not illegal.
Tutt presumably knew that it was illegal for McGrew to possess a firearm: Tutt
testified that Tutt was a convicted felon, that Tutt knew that it was illegal for
him to possess a firearm, and that he knew that McGrew was also a convicted
felon. The jury may have viewed Tutt’s testimony, as McGrew’s co-defendant
and a convicted felon, to be not credible. Additionally, the police told Tutt that
McGrew was the primary target of the prosecution, which could lead a rational
juror to question whether Tutt’s testimony was calculated to direct the blame to
McGrew. Assuming that a motion to suppress would have been successful, “there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” United States v.
Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1993) (internal quotation marks



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omitted).3    Because “the motion, files, and records of the case [do not]
conclusively show that the prisoner is entitled to no relief,” Cavitt, 550 F.3d at
442, the district court abused its discretion in denying McGrew an evidentiary
hearing with respect to his Fifth Amendment claim and his claim that his trial
counsel was ineffective for failing to file a motion based on his Fifth Amendment
claim. The district court’s denial of McGrew’s Fifth Amendment claim and his
ineffective assistance of trial counsel claim is reversed and remanded for an
evidentiary hearing.
       However, McGrew has not shown that his appellate counsel was
ineffective. Appellate counsel could not have established that, on the record
before the district court, the decision to admit the testimony was plainly
erroneous. Assuming that this court would have applied a plain-error standard
on direct appeal because McGrew did not raise the issue at trial, United States
v. Baker, 538 F.3d 324, 328-29 & n.1 (5th Cir. 2008), an appeal would have not
been successful and the judgment of the district court as to this claim is
affirmed.
                                    CONCLUSION
       For the foregoing reasons, the district court’s judgment on McGrew’s
ineffective assistance of appellate counsel claim is AFFIRMED. The district



       3
          McGrew argues that his statement to the police officer that he lived with Chapman
at the house was obtained in violation of Miranda. Although McGrew presented this
argument in his briefing before the district court, the court’s opinion did not address it.
However, McGrew is not entitled to relief on this claim because McGrew cannot show
prejudice. The overwhelming evidence introduced at trial supports that McGrew had
domination or control over the premises. See McGrew, 165 F. App’x at 311-12. Chapman
testified at trial that McGrew stayed at the residence at least a few nights per week, and
testimony by a probation officer revealed that McGrew had been staying there more often at
the time of the search. Id. at 312. The presence of McGrew’s marijuana and clothing in the
closet supports the conclusion that he was more than a casual visitor. Id. “Moreover, the fact
that McGrew allowed another person [Tutt] to keep items at the house without Chapman’s
knowledge or permission indiciates that he indeed had control over the residence.” Id.


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court’s judgment on McGrew’s Fifth Amendment and ineffective assistance of
trial counsel claims is REVERSED and this case is REMANDED to the district
court for an evidentiary hearing on these claims.




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