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

                                                                            FILED
                                                                          March 31, 2014

                                       No. 12-50469                        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 DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Mace McGrew appeals the district court’s denial of his 28 U.S.C. § 2255
motion, in which he attacked his conviction and sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We AFFIRM.
                           FACTS AND PROCEEDINGS
       McGrew was present at his girlfriend Renee Chapman’s house when two
probation officers and two sheriff’s deputies arrived to conduct a probation
compliance check on Chapman. On their arrival, Chapman consented to a


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-50469

search of the house, at which McGrew spent several nights each week. During
their search of the bedroom Chapman shared with McGrew, the probation
officers found an AK-47-style rifle in a blue sheath concealed under their bed, as
well as a loaded ammunition magazine, a locked lockbox, and a bulletproof vest.
Elsewhere in the bedroom, the officers found a box of .40 caliber handgun
ammunition, an empty shoulder holster, a night vision device, and a shoebox
containing marijuana. Chapman denied that the rifle was hers and told the
officers that another man, later identified as William Tutt, had brought some
“stuff” over to the house.
      McGrew was sitting on a couch in the living room while the officers
conducted this search. As the officers brought the discovered items into the
living room, McGrew admitted that the marijuana was his but denied ownership
of the rifle. Considering the possibility that there was a handgun elsewhere in
the house because of the discovery of the empty holster and box of handgun
ammunition, the officers continued to search the house and attempted to open
the lockbox discovered in the bedroom. Chapman and McGrew both told the
officers that the lockbox was not theirs, that they did not have a key, and that
it belonged to Tutt. McGrew then called Tutt and asked him to bring the key,
Tutt arrived with the key, the officers opened the lockbox, and in it they
discovered money and another ammunition magazine. The officers allowed Tutt
to leave the house with the money but arrested McGrew for possession of the
marijuana and the rifle.
      McGrew and Tutt were both indicted for possessing the rifle as felons, in
violation of 18 U.S.C. § 922(g)(1), and tried. Because McGrew was being
prosecuted under a constructive possession theory, the key issue at trial was


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whether McGrew had known about the rifle being under the bed. McGrew’s
primary defense was that, while he had allowed Tutt to store a number of items
in the bedroom, he had not known what they were and had not known about the
rifle. To this end, Chapman testified that, on the night that Tutt had brought
the items, including the rifle, to the house, McGrew had drunk approximately
five beers while on prescription pain medication, and that by the time Tutt came
over McGrew was semiconscious or unconscious.
      The Government presented testimony from all four officers. One of the
officers, Sheriff’s Deputy Robert Gallegos, testified that McGrew, on being
questioned after the search, initially denied that the rifle was his but eventually
admitted that he had known that the rifle was under the bed. Tutt took the
stand in his own defense and inculpated McGrew, testifying that, trying to
dispose of the rifle, he had contacted McGrew who had agreed to accept
possession of it.
      At the conclusion of trial, the jury found McGrew guilty and Tutt not
guilty, and the district court sentenced McGrew to 51 months’ imprisonment.
McGrew appealed, asserting claims of evidentiary insufficiency, of a due process
violation resulting from a discovery error on the part of the Government, and of
a Sixth Amendment Confrontation Clause violation. We affirmed the judgment
of the district court. United States v. McGrew, 165 F. App’x 308 (5th Cir. 2006).
      Over a year later, McGrew filed a 28 U.S.C. § 2255 motion for post-
conviction relief, alleging ineffective assistance of appellate counsel and a Fifth
Amendment claim. The Fifth Amendment claim was based on the officers’
having questioned McGrew about the rifle without first informing him of his
Miranda rights. The district court denied this motion without holding an


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evidentiary hearing, but we granted a certificate of appealability and reversed
the district court in part, remanding for an evidentiary hearing into the Fifth
Amendment claim. United States v. McGrew, 397 F. App’x 87, 95 (5th Cir. 2010).
      At the evidentiary hearing, Deputy Gallegos admitted that McGrew was
not free to leave after he admitted to possession of the marijuana. Gallegos also
admitted that he questioned McGrew about the rifle hoping that McGrew would
incriminate himself. Gallegos further conceded that he had not given McGrew
Miranda warnings prior to questioning him. McGrew argued, and the district
court held, that the admission of Gallegos’s testimony regarding McGrew’s
statements that he knew about the rifle violated McGrew’s Fifth Amendment
rights. However, because McGrew did not raise this issue prior to his § 2255
motion, the district court held it to be procedurally defaulted.
      McGrew contended that he could establish cause to overcome the
procedural default because his trial counsel, Edward Bravenec, had provided
ineffective assistance by not bringing a motion to suppress Gallegos’s testimony
about McGrew’s statements. McGrew asserted that Bravenec had access to
Gallegos’s police report prior to trial and that it indicated that Gallegos would
testify that McGrew had said that he knew about the rifle. At the evidentiary
hearing, Bravenec testified that he had believed, having read a number of the
police reports including Gallegos’s and having spoken to McGrew, that Gallegos’s
testimony would be that McGrew had known there were items under the bed but
had not known that they included a rifle. Bravenec thought this testimony
would be favorable to the defense and therefore did not move to suppress.
      In light of Bravenec’s explanation, the district court held that Bravenec’s
failure to suppress Gallegos’s testimony about McGrew’s statements was “sound


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trial strategy” and did not amount to ineffective assistance. Therefore, McGrew
had failed to demonstrate cause to excuse the procedural default of his Fifth
Amendment claim.        The district court granted McGrew a certificate of
appealability on this issue, though, and McGrew now appeals.
                           STANDARD OF REVIEW
      In considering a district court’s denial of a § 2255 motion, we review
factual findings for clear error and conclusions of law de novo. United States v.
Underwood, 597 F.3d 661, 665 (5th Cir. 2010). “A movant is barred from raising
jurisdictional and constitutional claims for the first time on collateral review
unless he demonstrates cause for failing to raise the issue on direct appeal and
actual prejudice resulting from the error.” United States v. Patten, 40 F.3d 774,
776 (5th Cir. 1994) (per curiam). “Ineffective assistance of counsel . . . is cause
for a procedural default.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To
demonstrate ineffective assistance of counsel, a defendant must show (1) that his
“counsel’s representation fell below an objective standard of reasonableness,”
and (2) that this ineffectiveness was “prejudicial to the defense.” Strickland v.
Washington, 466 U.S. 668, 688-92 (1984). “There is a strong presumption in
favor of competency.” Martinez v. Dretke, 404 F.3d 878, 885 (5th Cir. 2005). “A
conscious and informed decision on trial tactics and strategy 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.” Id. (quoting United States
v. Jones, 287 F.3d 325, 331 (5th Cir. 2002)).
                                  DISCUSSION
      McGrew advances two arguments for why Bravenec was constitutionally
ineffective. First, he argues that the record indicates that Bravenec failed to


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recognize at the time of trial that a motion to suppress was warranted or would
have been successful. Second, he asserts that, because of Gallegos’s police
report, Bravenec knew or should have known that Gallegos would testify that
McGrew had stated that he knew about the rifle, and that Bravenec’s failure to
move to suppress in light of that knowledge was not a sound trial strategy or
otherwise effective assistance.
      1. Failure to recognize suppressibility
      McGrew points to the transcript of a hearing before the district court after
trial but before sentencing in which he successfully moved to have Bravenec
dismissed as his counsel. McGrew claims that Bravenec’s testimony at this
hearing show that he was unaware that a motion to suppress McGrew’s
statements was even a possibility. Specifically, McGrew points to Bravenec’s
explanation that: “The motion to suppress, the reason I did not file it is because
in my view, after reviewing the facts, that it would be in fact a frivolous motion.
They had a clear right to search, they had a warrant to search the residence.”
McGrew contends that this comment allows the inference that Bravenec was
unaware that there was a possibility of suppressing any testimony about
McGrew’s statements, as Bravenec focuses solely on the possibility of
suppressing items recovered in the officers’ search.
      However, McGrew’s characterization of this testimony does not fairly
reflect the full context of the hearing. At the hearing, Bravenec was responding
specifically to a complaint raised by McGrew that he had failed to file a motion
to suppress the evidence discovered in the search of the house. In explaining his
disagreements with Bravenec, McGrew had stated that “I would have prevented
any evidence from being used that was gained illegally,” repeatedly argued that


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his arrest was without probable cause, invalidating any search incident to his
arrest, and later clarified that “[a]s far as them searching Ms. Chapman’s home,
I don’t understand how she can sign a consent to search her home and then
contraband found by her probation office and I get arrested for it.”
        Because Bravenec’s statement that a motion to suppress the physical
evidence seized in the search would not have been warranted was in response
to McGrew’s argument on that issue, it is not reasonable to infer from it that
Bravenec was unaware of an entirely different evidentiary issue, especially in
light of Bravenec’s later testimony at the § 2255 evidentiary hearing, which
indicates that he was in fact cognizant of the possibility of filing a motion to
suppress McGrew’s statements.
        2. Sound trial strategy
        McGrew’s second argument is that Bravenec’s failure to move to suppress
any testimony about McGrew’s statements constituted ineffective assistance, as
Bravenec knew or should have known that Gallegos would testify that McGrew
said that he knew about the rifle. McGrew bases this argument on Gallegos’s
police report, which was turned over to Bravenec during discovery. McGrew
contends that this report unequivocally established that Gallegos would testify
to the effect that McGrew had told him that he knew about the rifle under the
bed.
        The relevant portion of Gallegos’s report reads:
        [I] took all the evidence into the living room and as [McGrew] saw
        what I had he stated that the marijuana was his. As for the
        weapon, he stated that a male he slightly knew [Tutt] had brought
        over a small safe and the weapon inside a blue sleeve. He stated
        that he had given permission to [Tutt] to place the property under



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      the bed. [McGrew] stated that he had not asked [Tutt] what he had
      but gave his permission to bring it over and leave it at his residence.
      At the § 2255 evidentiary hearing, Bravenec was confronted with
Gallegos’s report and explained his decision not to file a motion to suppress at
some length. Bravenec testified that he was unwilling to put McGrew on the
stand because of his criminal history and pending state criminal charges against
him. His theory of the case was that McGrew had known that Tutt had placed
items under the bed, but that McGrew had not known what those items were.
Bravenec wanted to make this argument to the jury and believed that the
officers, including Gallegos, would make it for him if they were allowed to testify
about what McGrew had told them.
      Specifically, at the evidentiary hearing Bravenec testified that:
      Mr. McGrew told me . . . that he had told the police that . . . [Tutt]
      had come over and put something underneath his bed. . . . [A]nd our
      whole story [was] that Mr. McGrew didn’t know what . . . was placed
      underneath his bed[,] that he didn’t know it was a rifle. And
      because of Mr. McGrew’s background, I thought it was impossible
      to put him on the witness stand.
      ...
      Mr. McGrew told me and [one of the other police reports] indicated
      that [the officers] would say that Mr. McGrew said that [Tutt] put
      “something” under his bed or some things under his bed. Nowhere
      did I see the statement that Mr. McGrew said, oh, yes, he put that
      gun underneath my bed.
As a result, Bravenec testified that his expectation that the officers’ testimony
about McGrew’s statements would be favorable in the context of his defense
theory, so he made no motion to suppress.
      Bravenec’s view of what the officers, including Gallegos, were likely to say
is not squarely contradicted by Gallegos’s report. The report says that McGrew


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told Gallegos that Tutt “had brought over a small safe and the weapon inside a
blue sleeve,” but this reference to “the weapon” does not necessarily indicate
prior knowledge of the rifle as, at the point that McGrew was speaking to
Gallegos, the rifle had already been discovered by the officers and was visible to
McGrew as he spoke. The ambiguous reference to “the property” in the next
sentence of the report, coupled with McGrew’s insistence that he had not asked
Tutt what he would be bringing over, also cast doubt on whether McGrew knew
there was a weapon underneath his bed before the rifle was produced by the
officers.
      Furthermore, while Gallegos did testify on direct examination at trial that
McGrew had admitted that “[h]e knew it was there . . . but . . . said it wasn’t his,”
on cross-examination Bravenec was able to get Gallegos to make admissions
about McGrew’s statements that favored the defense. Gallegos admitted that
McGrew had actually said words to the effect of “oh, that must have been what
Mr. Tutt brought over but I didn’t know what that was.” Gallegos also clarified
definitively on cross-examination that the officers had not questioned McGrew
about the rifle before showing it to him and conceded that “[o]nly after he had
seen the gun did he say, oh, that must be Mr. Tutt’s.”
       Bravenec’s strategy of relying on the officers to testify in support of his
theory of the case may have been risky, but our review of an attorney’s
performance under Strickland is “highly deferential.” Strickland, 466 U.S. at
689. “Given the almost infinite variety of possible trial techniques and tactics
available to counsel, this Circuit is careful not to second guess legitimate
strategic choices.” Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993). Bravenec
faced a very difficult challenge in convincing a jury that his client did not know


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about a sizable weapon found underneath the bed he admitted to having slept
in the night before. Compounding this quandary was a co-defendant who, in his
own testimony and through other witnesses, aggressively sought to inculpate
McGrew. Based on Bravenec’s explanation at the § 2255 hearing, his decision
to allow testimony about McGrew’s statements to the officers in the not-
unreasoned—and not entirely unrealized—hope that it would end up helping
McGrew’s case was not “so ill chosen that it permeate[d] the entire trial with
obvious unfairness.” Dretke, 404 F.3d at 885 (quoting Jones, 287 F.3d at 331).
As a result, the decision not to file a motion to suppress did not constitute
ineffective assistance under Strickland, and it cannot amount to cause to excuse
McGrew’s procedural default of his Fifth Amendment claim.
                               CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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JAMES L. DENNIS, Circuit Judge, dissenting:
      The majority concludes that appellant-defendant Mace McGrew received
constitutionally sufficient assistance of counsel when his criminal defense
attorney declined to seek to suppress an inculpatory statement procured in
violation of the Fifth Amendment. McGrew’s trial counsel, Edward Bravenec,
failed to investigate the factual or legal basis for suppression, and instead
blindly relied upon an illogical assumption that a police officer testifying for the
prosecution’s case-in-chief would testify in accordance with the theory of defense.
The police officer’s testimony regarding McGrew’s unconstitutionally elicited
statement established an essential element of the offense of conviction, being a
felon in possession of a firearm under 18 U.S.C § 922(g)(1). After a jury trial,
McGrew was convicted and sentenced to fifty-one months of imprisonment.
      The majority credits Bravenec’s assertion that the decision to decline to
seek suppression of McGrew’s statement was strategic and thus does not amount
to ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984). Because I disagree with the majority’s contention that a defendant’s
Sixth Amendment right is adequately protected when counsel fails to move to
suppress incriminating testimony against his client without prior legal and
factual investigation into the likelihood of success of the motion and its
potential benefits to his client’s defense, I respectfully dissent.
                                        I.
      The crux of McGrew’s argument on appeal is that his self-incriminating
statement to the police during a custodial interrogation should have been
suppressed because the officers did not read him his Miranda warnings. See
Miranda v. Arizona, 384 U.S. 436 (1966). As noted by the majority, because he


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did not raise this issue on direct appeal, he is procedurally barred from bringing
it in this collateral habeas petition unless he shows cause for the procedural
default and actual prejudice resulting from the error. United States v. Frady,
456 U.S. 152, 167-68 (1982); United States v. Pierce, 959 F.2d 1297, 1301 (5th
Cir. 1992). A petitioner may satisfy the cause-and-actual-prejudice standard by
showing that trial counsel rendered unconstitutionally ineffective assistance of
counsel. Pierce, 959 F.2d at 1301; see also United States v. Patten, 40 F.3d 774,
776 (5th Cir. 1994). In other words, in order to overcome the procedural default,
McGrew must demonstrate cause and prejudice by showing that his trial counsel
was ineffective. In my view, McGrew has sufficiently established that trial
counsel’s performance violated his Sixth Amendment right to effective assistance
of counsel, has overcome the procedural default, and is thus entitled to relief.
                                      II.
      McGrew was at the home of his girlfriend, Renee Chapman, who was on
probation at the time, when two probation officers and two sheriffs, including
Officer Gallegos, went to the home to check on Chapman. Chapman’s probation
officer initiated the check after being falsely notified that narcotics were being
manufactured in and sold from the premises. Chapman consented to the search
of the home. Neither McGrew nor Chapman were allowed to leave the house
once the search began. McGrew remained in the living room, surrounded by
multiple officers, throughout the entirety of the approximately two-and-a-half
hour occurrence.
      During the search of Chapman’s home, the probation officers found an AK-
47 assault rifle in a blue sleeve, a safe, and a bullet-proof vest, under the bed in
the master bedroom that McGrew and Chapman shared. Officers also found


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ammunition, an empty pistol holder, and some marijuana. When the officers
brought these items into the living room, McGrew voluntarily admitted that the
marijuana was his but initially stated that the rifle was not. As for the safe,
McGrew and Chapman told the officers that it belonged to their friend, William
Tutt. Tutt was called and thereafter came over to Chapman’s house with the
key and opened the safe for the officers. Inside the safe was cash, a rifle
magazine, ammunition, and some plastic bags.
       Without reading McGrew his Miranda rights, and while McGrew was not
free to leave the premises, Gallegos questioned McGrew for the purpose of
procuring an incriminating statement regarding the firearm—that is, a
confession from McGrew that he knowingly possessed the firearm.1                          This
custodial interrogation lasted approximately one hour. Later, during McGrew’s
trial for being a felon in possession of a firearm, Gallegos testified that during
the interrogation, McGrew denied ownership of the gun, denied knowledge of the
contents of the safe, but admitted to Gallegos that he knew the firearm was
under his bed.        The prosecution’s theory of the case was that McGrew
constructively possessed the firearm because he knew it was stored under his



       1
          An officer is required to administer Miranda warnings when a person is in custody
and subject to interrogation. Whether a person is in custody is determined by an objective
analysis of whether, under the circumstances, a reasonable person would have felt he or she
was at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99,
112 (1995). “Volunteered statements of any kind are not barred by the Fifth Amendment . . . .
[T]he special procedural safeguards outlined in Miranda are required not where a suspect is
simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”
Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Because McGrew was surrounded by multiple
officers, was not permitted to leave, and was asked questions by Officer Gallegos for the
purpose of eliciting incriminating statements regarding the firearm, he was subject to a
custodial interrogation and should have been provided Miranda warnings before Gallegos
began questioning him.

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bed. Gallegos’s testimony thus established an essential element of being a felon
in possession of a firearm.
      Bravenec, McGrew’s defense attorney, did not move to suppress McGrew’s
statement to the police regarding the firearm under his bed, despite Bravenec’s
possession of Gallegos’s police report indicating that McGrew made
incriminating statements to the officers with regard to the firearm. Bravenec
knew or should have known that McGrew had been interrogated without
having been given his Miranda rights warnings and he does not contend
otherwise.   Nonetheless, Bravenec made no attempt at any stage of the
proceedings to exclude the statement—he failed to file a pretrial motion to
suppress and likewise did not move to strike Gallegos’s testimony regarding the
statement after it was elicited on direct examination.
                                       III.
      The Supreme Court in Strickland announced a high, but not
insurmountable, standard for establishing an ineffective-assistance-of-counsel
claim. There is a two-step process for assessing such a claim:
      First, the defendant must show that counsel’s 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.

466 U.S. at 687.    To establish deficiency, the defendant “must show that
counsel’s representation fell below an objective standard of reasonableness.” Id.

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at 688. “[A] 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. (internal
quotation marks omitted). “[C]ounsel’s failure to move to suppress evidence,
when the evidence would have been suppressed if objected to, can constitute
deficient performance.” Ward v. Dretke, 420 F.3d 479, 488 (5th Cir. 2005)
(internal quotation marks omitted). In assessing whether counsel’s performance
with respect to his decision not to file a motion to suppress was objectively
reasonable, the court must first determine if the decision “could be construed as
‘sound trial strategy,’” and, if it concludes “that the decision was strategic,
conscious, and informed, then [the court] should ask whether it rendered the
proceedings obviously unfair.” United States v. Cavitt, 550 F.3d 430, 440 (5th
Cir. 2008). If the court concludes that the decision was not a “sound trial
strategy,” but rather falls below an objectively reasonable standard of
representation, then the court moves to the second prong of the Strickland
analysis to determine whether the defendant was prejudiced by counsel’s
deficient performance. See Strickland, 466 U.S. at 687; Day v. Quarterman, 566
F.3d 527, 536 (5th Cir. 2009).
                                       A.
      Without investigation or research, Bravenec’s decision to abstain from
attempting to suppress McGrew’s custodial statement—a statement that
established an essential element of the charge and was made in violation of
Miranda—was not “sound” trial strategy or within the objective standard of
reasonableness and thus amounts to deficient representation under Strickland.


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See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 387 (1986) (concluding that
counsel’s decision to decline to seek suppression after failing to request
discovery—and thus without any knowledge of the State’s case—constituted
deficient performance).
      Despite his protestations to the contrary, Bravenec’s failure to seek
suppression of McGrew’s inculpatory statement was not a tactical, sound trial
decision.   During the evidentiary hearing regarding McGrew’s ineffective-
assistance-of-counsel claim, Bravenec insisted that his decision was part of his
trial strategy, asserting that he believed that Officer Gallegos’s testimony would
be that McGrew was unaware that a rifle was under his bed, yet knew that Tutt
had placed some unknown property there. Bravenec’s defense theory was that
McGrew lacked knowledge of what exactly Tutt stored under the bed, had no
actual knowledge of the rifle, and therefore did not have constructive possession
of the weapon. Bravenec’s only basis for believing that Gallegos would testify in
accord with this theory was Gallegos’s report—which was essentially a single
paragraph with just two sentences dedicated to an hour-long custodial
interrogation. Bravenec had no other written record or transcript of what was
said during that hour, nor any indication of how Gallegos may have interpreted
McGrew’s statements. Thus, Bravanec had no reliable indication of what
transpired during the interrogation and no reasonable or informed basis to
conclude that suppression was not warranted. Moreover, Bravanec’s trial file
revealed that he did not interview any of the officers involved, nor did his file
contain any evidence of research into Fifth Amendment law, and further, it
lacked any indication that he discussed the issue of suppression with McGrew.
The record therefore suggests that, rather than conduct an investigation,




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Bravenec guessed that Gallegos would testify for the prosecution in a way that
did not help the prosecution, but helped the defense.
                                       1.
      To reach the assumption that Bravenec reached—that Gallegos’s
testimony regarding McGrew’s statement would be favorable—one has to choose
between the least likely of two possible interpretations of Officer Gallegos’s
report. Gallegos’s report states, in pertinent part:
      [I] took all the evidence into the living room and as [McGrew] saw
      what I had he stated that the marijuana was his. As for the weapon,
      he stated that a male he slightly knew [Tutt] had brought over a
      small safe and the weapon inside a blue sleeve. He stated that he
      had given permission to [Tutt] to place the property under the bed.
      [McGrew] stated that he had not asked [Tutt] what he had but gave
      him permission to bring it over and leave it at the residence.

During the evidentiary hearing, Bravenec admitted that there are two possible
readings of this passage. One, that McGrew admitted he gave Tutt permission
to keep the safe and weapon under his bed and thus inevitably knew and
consented to storing the firearm in the house. In this interpretation, the words
“the property,” refer back to the “safe and the weapon inside the blue
sleeve”—i.e., “He stated that he had given permission to [Tutt] to place the [safe
and the weapon inside a blue sleeve] under the bed.” Under this interpretation,
McGrew’s statement is highly inculpatory in that it establishes his knowledge
and constructive possession of the weapon. And, of course, this inclupatory
interpretation was the one presented at trial. A second interpretation is that
McGrew gave Tutt permission to store unspecified items under the bed and
never knew what Tutt placed there until officers confronted him about it during


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                                      No. 12-50469

the search. Under this interpretation, one must assume that “the property” does
not refer to the safe and the weapon, but instead indicates only that McGrew
knew that something would be placed under the bed and thus McGrew did not
have actual knowledge of the weapon—in other words, “He stated that he had
given permission to [Tutt] to place [some unknown objects] under the bed.”
       Bravenec was unable to explain why he relied on the second, exculpatory
interpretation. Bravenec’s file and testimony reflect that he never spoke with
or attempted to interview Gallegos to determine the substance of Gallegos’s
intended testimony regarding McGrew’s custodial statements.                     Moreover,
Gallegos was a Sheriff’s Deputy testifying for the prosecution. The prosecution’s
theory of the case was that McGrew constructively possessed the firearm
because he knew that it was stored under his bed. Thus, it is objectively
unreasonable to conclude that Gallegos would testify for the prosecution’s case-
in-chief that, in fact, McGrew did not know the firearm was under his bed,
particularly given the other, more likely interpretation of the report. Bravenec
unreasonably used this scant, vague police report as the primary basis with
which he decided to squander the opportunity to preclude McGrew’s inculpatory
statements that were obtained in violation of his Fifth Amendment right against
self-incrimination and which could have been suppressed had Bravenec
attempted to do so.2


       2
         The record does not clearly establish whether Bravenec had actual knowledge that
the statements were taken in violation of McGrew’s Fifth Amendment rights. However, if
Bravenec had interviewed the officers involved, or even discussed with McGrew what occurred
immediately prior to the interrogation, he would have discovered that (as established by the
trial and evidentiary hearing) McGrew was in custody and was asked questions by Gallegos
for the purpose of eliciting incriminating statements without first being provided Miranda
warnings. Thus, with minimal investigation—interviewing his client and the officers
involved—Bravenec could have determined that the statements were subject to exclusion. See
Miranda, 384 U.S. at 471-77.

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                                 No. 12-50469

                                       2.
      The majority asserts that, in addition to Gallegos’s report, Bravenec also
properly relied upon other police reports to make the purportedly strategic
decision to decline to move to suppress the incriminating statement. During the
evidentiary hearing, Bravenec pointed to Probation Officer Brady’s report,
suggesting that this report indicated that McGrew denied knowledge of the
firearm, consistent with the theory of defense. However, it is doubtful that
Brady was even present for the relevant interrogation. At trial, Brady testified
that he was not the best person to ask regarding what McGrew and Tutt told the
police officers. Rather, Brady’s focus was on Chapman, the subject of his
probation compliance check. Brady testified that he went to the back of the
house to speak with Chapman while McGrew remained in the living room with
the police officers. Thus, Brady’s report may have only reflected McGrew’s
initial, voluntary statement, in which he admitted the marijuana was his but
denied ownership of the rifle, without any indication as to further statements
McGrew made during the hour-long interrogation with the other officers.
Bravenec had no sound or informed basis for assuming that Brady’s report
provided any insight into Gallegos’s testimony regarding the hour-long custodial
interrogation for which Brady was not present.
      Bravenec also testified that his assumptions regarding the meaning of
Gallegos’s report comported with McGrew’s own assertions that he did not know
the rifle was under the bed and that he never told the police he had knowledge
of the gun. However, the facts McGrew provided to his attorney as he best
recalled them, without further investigation, do not provide a sufficient
foundation upon which counsel could reasonably discern what Gallegos’s report
meant; what McGrew might have said while in the custodial interrogation; how
Gallegos might have interpreted McGrew’s custodial statements; or the nature

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                                   No. 12-50469

of Gallegos’s impending testimony. I fail to see how without any investigation
and based upon a faulty assumption that a police officer would testify for the
prosecution in accordance with his client’s asserted version of events, Bravenec’s
failure to move to suppress McGrew’s inculpatory statement is in any way a
reasonable or “tactical” trial strategy.
                                           3.
      Support for the conclusion that Bravanec’s performance fell below the
objective standard of reasonable representation is found in the American Bar
Association’s (“ABA”) Standards for Criminal Justice.               See Richards v.
Quarterman, 566 F.3d 553, 564 (5th Cir. 2009) (“In evaluating counsel’s
performance, the Supreme Court has long referred to the [ABA] Standards for
Criminal Justice as ‘guides to determining what is reasonable.’” (citing Rompilla
v. Beard, 545 U.S. 374, 387 (2005)); see also Wiggins v. Smith, 539 U.S. 510, 524
(2003); Strickland, 466 U.S. at 688. The relevant ABA Standards note:
        [A] well-founded basis for suppression of evidence may lead to
        a disposition favorable to the client. The basis for evaluation of
        th[is] possibilit[y] will be determined by the lawyer’s factual
        investigation for which the accused’s own conclusions are not a
        substitute. . . . [A]n essential function of the advocate is to make
        a detached professional appraisal independent of the client’s
        belief that he or she is or is not guilty.

ABA STANDARDS      FOR   CRIMINAL JUSTICE, DUTY       TO   INVESTIGATE § 4-4.1 (3d ed.
1993). Bravenec’s reliance on an ambiguous police report, which he interpreted
in light of his client’s assertions that he was not guilty and had not made any
statements indicating guilt to the police, fall far below the duty owed to his client,
as outlined in the ABA Standards above.

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                                 No. 12-50469

      Moreover, a pretrial suppression hearing is the defense counsel’s first
opportunity to use the adversarial system to test what is often the prosecution’s
most damaging evidence of guilt.       Even where counsel is uncertain of the
likelihood of success of his suppression motion, a suppression hearing provides the
defense attorney with an opportunity to preview the relevant witnesses’
testimony, which allows for better trial preparation and competent, zealous
advocacy. If counsel successfully suppresses the evidence, particularly, like here,
when the evidence establishes an essential element of the crime, suppression can
vastly change the outcome for the defendant. For example, after suppression, the
prosecution may decline to prosecute, may offer a favorable plea deal, or even if
a trial will follow, the prosecution may have a weaker case against the defendant.
To abandon the opportunity to suppress the evidence or hold a suppression
hearing thus has substantial and often outcome-determinative consequences for
the client. To provide reasonably adequate representation then, defense counsel
must conduct an investigation into the relevant facts and legal basis for
suppression before declining to move to suppress. See NATIONAL LEGAL AID &
DEFENDER ASSOCIATION [“NLADA”], PERFORMANCE GUIDELINES                     FOR   CRIMINAL
DEFENSE REPRESENTATION, GUIDELINE 5.1 THE DECISION                    TO   FILE PRETRIAL
M   O    T   I   O   N   S   ,       a    v   a    i   l     a    b    l    e        a    t
http://www.nlada.org/Defender/Defender_Standards/Performance_Guidelines (last
visited Nov. 13, 2013) (“The decision to file pretrial motions should be made after
thorough investigation, and after considering the applicable law in light of the
circumstances of each case.”) (emphasis added); see also House v. Balkcom, 725
F.2d 608, 618 (11th Cir. 1984) (“Pretrial investigation . . . is, perhaps, the most
critical stage of lawyer’s preparation.”). As the Supreme Court explained, “counsel


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                                 No. 12-50469

has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690-
91. Thus, defense counsel’s significant opportunity to obtain a favorable outcome
for his client in the pretrial motion to suppress compels recognition that, in this
context, “[a] reasonable attorney has an obligation to research relevant facts and
law, or make an informed decision that certain avenues will not prove fruitful.”
United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (emphasis added).
As the Sixth Circuit has persuasively noted, “[c]onstitutionally effective counsel
must develop trial strategy in the true sense—not what bears a false label of
‘strategy’—based on what investigation reveals witnesses will actually testify to,
not based on what counsel guesses they might say in the absence of a full
investigation.” Ramonez v. Berghuis, 490 F.3d 482, 489 (6th Cir. 2007) (emphasis
added). In light of the ABA and NLADA Standards, as well as Supreme Court
and circuit case law emphasizing the importance of an attorney’s duty to
investigate, Bravenec’s decision to decline to suppress an unconstitutionally
obtained statement on an assumption that a police officer called by the
prosecution would testify in the defense’s favor cannot reasonably be interpreted
as a “strategic, conscious, [or] informed” decision. Cavitt, 550 F.3d at 440.
                                        4.
      Despite the lack of investigation or research, the majority contends that
Bravenec’s decision was strategic and that any resulting harm caused by his
merely “risky” strategy, see Maj. Op. ante at 9, was mitigated by Bravenec’s cross-
examination of Officer Gallegos and thus was not “so ill chosen that it permeate[d]
the entire trial with obvious unfairness.” Dretke, 404 F.3d at 885 (quoting Jones,
287 F.3d at 331). The majority reasons that on cross-examination, Bravenec


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                                  No. 12-50469

elicited testimony from Gallegos that “the officers had not questioned McGrew
about the rifle before showing it to him and conceded that ‘[o]nly after he had seen
the gun did he say, oh, that must be Mr. Tutt’s.’” See Maj. Op. ante at 9. In
isolation, this statement arguably supports the theory of defense; however, the
majority fails to explain that Gallegos never backtracked from his initial
testimony on direct examination that McGrew admitted that he knew the gun was
there. A close review of the cross-examination in its entirety reveals that the
cross-examination cannot fairly be read as a cure to Bravenec’s failure to suppress
the statement and in fact allowed Gallegos to further highlight and reaffirm
McGrew’s inculpatory, unconstitutionally procured statement. To demonstrate,
the following testimony from Bravenec’s cross-examination of Gallegos cannot
reasonably be interpreted as favorable to the defense:

       Q: [McGrew] also told you that he didn’t know what Mr. Tutt had
       brought over.

       A: In the safe. He acknowledged him knowing bringing over the
       weapon and that the weapon was under the bed. He just said he
       didn’t know what was in the safe.

       ...

       Q: . . . [Y]ou don’t know what Mr. McGrew did or did not see and
       what he did or did not see when it was brought over, if it was
       brought over on the 29th? Right?

       A: That is correct.



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                                   No. 12-50469

      Q: So, what you are just going on is based on your examination of
      the scene and based on your common experiences as a police officer.
      Right?

      A: And, what Mr. McGrew told me.

      Q: Okay. And, by his own admittance here he says, “oh, that must
      have been what Mr. Tutt brought over but I didn’t know what that
      was.” Correct?

      A: Yes, sir . . . Part of the answer, yes, sir.

(Emphasis added). As Gallegos implied on cross-examination, the statement that
the majority points to is only part of McGrew’s statement and does not necessarily
negate McGrew’s actual knowledge of the firearm. Further, on redirect, Gallegos
again testified that McGrew stated that Tutt brought over a small safe and the
weapon inside a blue sleeve, implying that McGrew had knowledge of what was
being brought to the home and merely did not know the contents of the safe.
                                          5.
      In our adversarial system, a pretrial suppression hearing may be the best
opportunity for the defense to test the prosecution’s case. Thus, before declining
to seek suppression of incriminating evidence, reasonably effective counsel must
conduct an investigation into the facts and legal bases for suppression, and may
not reasonably rely on an assumption or guess. Otherwise, “[s]uch a complete
lack of pretrial preparation puts at risk both the defendant’s right to an ample
opportunity to meet the case of the prosecution, and the reliability of the
adversarial testing process.” Kimmelman, 477 U.S. at 385 (quotation marks and


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                                  No. 12-50469

citations omitted). Bravenec’s abandonment of the opportunity to suppress
incriminating, unconstitutionally procured evidence without investigation or
research, and based instead on an illogical assumption, fell far below the objective
standard of reasonableness and constitutes deficient representation under the
first Strickland prong.
                                         B.
      Under Strickland’s second-prong, McGrew must establish “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.” 466 U.S. at 687. Specifically, McGrew “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.” Id. at 694.
      A review of the record indicates that, but for counsel’s objectively
unreasonable    failure   to   move    to     suppress   McGrew’s    incriminating,
unconstitutionally elicited statement, there is a reasonable probability that there
would have been a different outcome, thus undermining confidence in the
conviction. The result of Bravenec’s deficiency was that Officer Gallegos was able
to testify that McGrew explicitly admitted what was essentially the only element
of the crime in dispute. In McGrew’s appeal of the district court’s initial denial of
his motion for relief pursuant to 28 U.S.C. § 2255, a unanimous panel described
McGrew’s statement as having a “devastating impact” on the case and reasoned
that, “[a]lthough 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.” United States v. McGrew, 397 F. App’x 87, 94 (5th Cir.


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                                    No. 12-50469

2010) (unpublished) (remanding the case for the evidentiary hearing regarding
McGrew’s Fifth Amendment and ineffective-assistance-of-trial-counsel claim).
That panel noted that “McGrew’s admission was certainly probative evidence of
his guilt,” and recognized the inherently damaging nature of a defendant’s
admission, citing United States v. Avants, 278 F.3d 510, 522 (5th Cir. 2002) (the
defendant's confession is “powerful evidence of guilt, the admission or exclusion
of which would be highly likely to affect the outcome of the trial”), and Pyles v.
Johnson, 136 F.3d 986, 996 (5th Cir. 1998) (a confession is “probably the most
probative and damaging evidence” against the defendant). Significantly, the
panel stated that, “[a]ssuming that a motion to suppress would have been
successful,” which after an evidentiary hearing, we now know it would have been,
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” McGrew, 397 F. App’x at 94
(quoting United States v. Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1994)). As a
panel of this court has already indicated, McGrew’s trial was prejudiced by
counsel’s deficient failure to move to suppress his unconstitutionally obtained,
incriminating, inadmissible statement, and consequently McGrew was
“deprive[d] . . . of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S.
at 687.
                                           IV.
      Because McGrew has established both the deficiency and prejudice prongs
of the Strickland standard, he has overcome the procedural default. Accordingly,
I respectfully dissent.




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