                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-3273
                                     _____________

                                    JAY BOYER, JR.

                                             v.

                        SUPERINTENDENT HOUTZDALE SCI;
                            PA ATTORNEY GENERAL

                        SUPERINTENDENT HOUTZDALE SCI,
                                                   Appellant
                                 _____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                   (No. 1-08-cv-01079)
                           District Judge: Hon. Sylvia Rambo

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 13, 2015

           Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges.

                                  (Filed: August 4, 2015)
                                       ____________

                                        OPINION*
                                      ____________

CHAGARES, Circuit Judge.




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       The Commonwealth of Pennsylvania appeals the District Court’s grant of Jay

Boyer, Jr.’s habeas petition on the ground that his trial counsel was ineffective for failing

to argue for suppression of Boyer’s confession because his interrogation violated the

requirements of Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny. For the

reasons that follow, we will affirm.

                                              I.

       Boyer was arrested in December of 2001 in connection with an October 2001

home-invasion robbery in Northumberland County during which three perpetrators – one

carrying a gun – assaulted two homeowners and stole a safe containing their coin

collection. When Boyer was taken to the police station for questioning, one officer,

Trooper Reeves, read him a warning pursuant to Miranda. Boyer responded, “I don’t

want to talk to you.” Trooper Reeves then left the interrogation room and told another

officer, Trooper Watson, that Boyer would not speak to him. (Appendix (“App.”) 40;

46).1 Trooper Watson offered to try to interrogate Boyer, walked into the interrogation

room and, without administering renewed Miranda warnings, began interrogating Boyer.

During this interrogation, Boyer allegedly confessed to the robbery as well as to a

different crime in another Pennsylvania county, Union County. The police did not record




1
  Boyer claims that “Trooper Reeves never even told Trooper Watson that Mr. Boyer
invoked his right to remain silent and also never told him that he did not desire to talk.”
Boyer Br. 17. The trial transcript contradicts this assertion. Trooper Reeves testified that
he “made a comment to Trooper Watson like I read him his Miranda rights, but he’s not
going to talk to me.” App. 40–41. Trooper Watson testified that Trooper Reeves told
him that Trooper Reeves “was unable to get anything out of him.” App. 46.
                                              2
the interview or the confession. The interrogation thus gave rise to two separate criminal

prosecutions; only the Northumberland County prosecution is before us.

       Boyer was charged in an Information with robbery and related counts in the

Northumberland County Court of Common Pleas. Boyer’s trial counsel sought to

suppress the confession through an omnibus pre-trial motion on the ground that the

confession was involuntary, but he neither submitted a brief arguing that the interrogation

violated Miranda, nor did he make any Miranda-based arguments at the suppression

hearing. The trial court denied the omnibus motion. In addressing Boyer’s

involuntariness argument, the court reasoned, “[t]he uncontradicted testimony of the

arresting officer was that the Defendant was read his Miranda warnings. Therefore, this

Court determines that Defendant’s Fifth Amendment privilege against self-incrimination

was not violated.” Commonwealth v. Boyer, No. CR-02-141, at 1 n.1 (Northumberland

Ct. Common Pleas May 28, 2002).

       The prosecution thus introduced Boyer’s confession at trial, along with the

testimony of Brian Shiffer, a co-defendant, who said he was only in the house for a short

period and did not see the victims at all. (App. 133–34). Shiffer also admitted that he

had lied about his identity to the police when he was initially arrested. (App. 173–74).

None of the victims identified Boyer as the perpetrator.

       Boyer was convicted of all counts, and on September 3, 2003, he was sentenced to

19–55 years in a state correctional facility. Boyer unsuccessfully appealed this

conviction through his trial counsel. The Pennsylvania Superior Court affirmed the trial



                                             3
court’s denial of the suppression motion, and, like the trial court, it considered whether

the troopers had complied with Miranda’s commands:

                      Trooper Reeves read Appellant his Miranda rights
              prior to questioning; however, Appellant, who disliked
              Trooper Reeves because of a prior encounter, refused to
              speak with him.

                      ...

                     There is no evidence to suggest that Appellant was not
              fully apprised of his rights or that he was coerced or
              intimidated into waiving those rights. Indeed, Appellant
              exercised those rights when he refused to speak with Trooper
              Reeves. Although Appellant confessed to Troopers Watson
              and Davis, he refused to make a written statement, further
              indication that his will had not been overcome. Moreover, he
              did not request an attorney during questioning, he was not
              threatened with incarceration, and he suffered no mental or
              physical infirmity that would impede his ability to understand
              the consequences of confessing to participation in a crime.

Commonwealth v. Boyer, No. 1581 MDA 2003, at 4–5 (Pa. Super. Ct., June 9, 2004)

(emphasis omitted).

       Boyer, represented by new counsel, then filed a petition under the Post Conviction

Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541, et seq., on the ground that trial counsel

was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), for failing to

litigate the Miranda claim. The court of common pleas reviewing Boyer’s PCRA

petition2 found that the Strickland claim was merely another way of arguing that the



2
 The Pennsylvania Courts of Common Pleas have original jurisdiction over PCRA
petitions. 42 Pa. Cons. Stat. § 9545(a). PCRA dispositions from the Courts of Common
Pleas are appealable to the Pennsylvania Superior Courts. See, e.g., Commonwealth v.
Bennett, 930 A.2d 1264 (Pa. 2007). We refer herein to the Court of Common Pleas that
                                             4
confession was improperly admitted under Miranda, an issue the Superior Court had

already determined on the merits.3 The PCRA trial court thus concluded that this issue

was not cognizable under the PCRA’s previously litigated rule, 42 Pa. Cons. Stat. §

9543(a)(3), which prevents PCRA courts from considering “allegation[s] of error” that

have been “previously litigated.” A claim has been “previously litigated” under the

PCRA if “the highest appellate court in which the petitioner could have had review as a

matter of right has ruled on the merits of the issue.” Id. at § 9544(a)(2). The PCRA trial

court also noted that the Miranda argument would have failed on the merits:

“defendant’s assertion of his right to not speak with Trooper Reeves was scrupulously

honored. He did not question the defendant any further.” Commonwealth v. Boyer, CP-

49-CR-2002-141, at 2 n.1 (Northumberland Ct. Common Pleas, April 10, 2006). The

PCRA appellate court agreed that the issue was previously litigated and so not cognizable




heard Boyer’s PCRA petition as the “PCRA trial court” and the Pennsylvania Superior
Court that considered that petition on appeal as the “PCRA appellate court.”
3
  This determination – that a claim of ineffective assistance of counsel based on the
failure to raise an underlying claim is the same as the underlying claim – is a state-court
determination of state law to which we defer. See Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (“a state court’s interpretation of state law . . . binds a federal court sitting in
habeas corpus”); Commonwealth v. Marshall, 812 A.2d 539, 544 (Pa. 2002) (holding that
a claim that counsel was ineffective for failing to seek suppression “constitutes a veiled
attempt to relitigate the same suppression issue that he previously raised on his direct
appeal”), overruled on other grounds by Commonwealth v. Tharp, 101 A.3d 736 (Pa.
2014). Moreover, the finding that the previously litigated rule bars a PCRA court from
hearing a claim of ineffective assistance of counsel based on a failure to raise a Miranda
argument where the highest state appellate court has already found the Miranda claim
meritless is consistent with the federal ineffectiveness standard, for counsel cannot be
ineffective for failing to raise a meritless argument. See Ross v. District Att’y of the
Cnty. of Allegheny, 672 F.3d 198, 211 n.9 (3d Cir. 2012) (“Counsel cannot be deemed
ineffective for failing to raise a meritless claim.”) (quotation marks omitted).
                                             5
in the PCRA context. See Commonwealth v. Boyer, No. 748 MDA 2006, at 14–15 (Pa.

Super. Ct., May 10, 2007).

       In the Union County case that arose from the same confession, however, the

PCRA appellate court held that the interrogation did violate Miranda. Boyer’s Union

County conviction was thus vacated and the case was remanded for a new suppression

hearing. See Commonwealth v. Boyer, 962 A.2d 1213, 1219, 1221 (Pa. Super. Ct.

2008).4

       Boyer’s first habeas petition under 28 U.S.C. § 2254 for the Northumberland

County robbery was stayed on the ground that he should renew his request for review in

the state court in light of the Union County decision, but when he did, the state court

refused to revisit the merits of Boyer’s Miranda claim. (App. 14).

       The District Court then reopened Boyer’s habeas petition and conducted an

evidentiary hearing on the ineffective assistance of counsel claim based on the failure to

raise the Miranda argument. During that hearing, Boyer’s habeas counsel asked trial

counsel why he had failed to argue for suppression under Miranda. Boyer’s trial counsel

responded, “I probably did not think of that at the time. . . . This case was, actually I got it

during the first year, within the first year of my employment with the county. And to be

honest with you, I didn’t probably think of it at that time.” App. 85–86. When Boyer’s

habeas counsel asked, “Did you have any strategic reason for not raising a Miranda



4
 Oddly, one judge sat on both the panel finding the interrogation unconstitutional in the
Union County case and the panel finding the same interrogation constitutional in the
Northumberland County case. She offered no explanation for her change of heart.
                                               6
violation?” Boyer’s trial counsel responded: “I had no strategic reason for doing that.”

App. 83.

       After the hearing, Magistrate Judge Carlson recommended that the District Court

grant the petition and order remand to the Northumberland County Court of Common

Pleas for a suppression hearing.5 The District Court reviewed the Miranda claim de

novo, rather than affording deference to the state court as required by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1), on the

ground that “[t]he Superior Court decision . . . failed to address the merits of this specific

Miranda claim, concluding instead that the trial court had found that this issue had been

previously litigated.” Report and Recommendation (“R&R”) at 5. The District Court

thus concluded that “Boyer’s Northumberland County PCRA was disposed of on

procedural grounds, leaving us bereft of any state court findings.” Id. at 25. The District

Court granted “limited post-conviction relief,” directing the state court to consider

Boyer’s Miranda claim and implicitly vacating the conviction. App. 4.

                                              II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 2254, and we have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). The District Court held an

evidentiary hearing, and so we review any findings of fact from that hearing for clear

error, but we review the District Court’s legal conclusions de novo. Morris v. Beard, 633

F.3d 185, 193 (3d Cir. 2011).

5
 The District Court adopted the Magistrate Judge’s Report and Recommendation.
Hereinafter, references to and quotations of findings by the District Court include the
Magistrate Judge’s findings it adopted.
                                              7
       Under AEDPA, a federal court may not grant relief for a claim adjudicated on the

merits in state court unless the state court proceeding:

             (1) 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; or

             (2) resulted in a decision that was based on an unreasonable
             determination of the facts in light of the evidence presented in the
             State court proceeding.

28 U.S.C. § 2254(d).

       The District Court found that though AEDPA’s

              highly deferential standard of review applies in the typical
              case, this is not a typical case. Indeed, with respect to the
              specific Miranda issue which lies at the heart of this habeas
              corpus petition, the only controlling, precedential, substantive
              assessment of this issue by the state courts is found in the
              Superior Court opinion in Boyer’s companion case, a ruling
              which found that Boyer was entitled to post-conviction relief
              on this Miranda claim.

R&R at 19 (citing Commonwealth v. Boyer, 962 A.2d 1213, 1218-19 (Pa. Super. Ct.

2008)). The District Court concluded that the state courts “declined to address the merits

of this particular claim” and so “the [Commonwealth] may not avail [itself] of the doubly

deferential standard of review that typically accrues to [its] benefit in federal habeas

corpus litigation.” Id. at 19–20. The Commonwealth does not challenge this standard of

review, see Commw. Br. 4; 10–11, but because AEDPA serves as a limit on our

authority based on concerns of comity and finality, the strictures of § 2254(d) are not

subject to waiver by the Commonwealth. See, e.g., Williams v. Taylor, 529 U.S. 362,

412 (2000) (AEDPA “places a new constraint on the power of a federal habeas court to


                                              8
grant a state prisoner’s application for a writ of habeas corpus with respect to claims

adjudicated on the merits in state court.”).

       The District Court was incorrect that the Union County case was the only state

court decision entitled to deference; indeed, that case was not before the District Court

and is not before us. The state trial court in the Northumberland County case considered

whether Miranda required suppression, as did the state appellate court on direct review.

During PCRA proceedings, the PCRA courts concluded that the ineffective assistance of

counsel argument was a mere restatement of the Miranda argument and not cognizable

under the PCRA’s “previously litigated” rule. That resolution constituted an adjudication

on the merits, and the District Court should have reviewed it according to § 2254(d)(1).

See Boyd, 579 F.3d at 370 (Hardiman, J., dissenting in part) (“When a PCRA court

invokes the ‘previously litigated’ rule, it does so . . . because [the petitioner] has already

presented those claims at least once before and received a decision on the merits.”).6

                                               III.

       Nevertheless, because the state court denial of Boyer’s habeas petition was an

unreasonable application of clearly established federal law, we will affirm. See, e.g.,

Williams v. Taylor, 529 U.S. 362, 391 (2000).

       Under § 2254(d)(1), “clearly established Federal law” is “the governing legal

principle or principles set forth by the Supreme Court at the time the state court renders

6
  Though Judge Hardiman made this observation in a dissent, the conclusion that the
PCRA courts’ invocation of the previously-litigated rule constitutes a decision on the
merits garnered majority support from our Court. See also Boyd, 579 F.3d at 333
(agreeing with Judge Hardiman’s conclusion that an invocation of the PCRA’s
previously-litigated rule is a decision on the merits) (Scirica, J., concurring).
                                                9
its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). A state court decision

constitutes an “unreasonable application of . . . Federal law” if it “identifies the correct

governing legal rule from [the United States Supreme Court’s] cases but unreasonably

applies it to the facts of the particular state prisoner’s case,” Williams, 529 U.S. at 407–

08.

       Our review concerns the argument that trial counsel was ineffective under

Strickland for failing to litigate the Miranda claim, which Boyer made before the PCRA

court. Because counsel cannot be ineffective for failing to raise a meritless claim, we

first consider whether the state courts’ conclusion that Boyer’s interrogation did not

violate Miranda was an unreasonable application of clearly established federal law, and it

seems plain that the state court’s Miranda conclusion was questionable enough that a

Miranda claim would have had a great deal of merit.

       The Supreme Court in Miranda established a procedure for custodial interrogation

designed to protect a detainee’s Fifth Amendment right against self-incrimination.

According to that procedure, an individual in custody and subject to interrogation must

“be warned prior to any questioning that he has the right to remain silent, that anything he

says can be used against him in a court of law,” and be given the “[o]pportunity to

exercise these rights . . . throughout the interrogation.” Miranda, 384 U.S. at 479.

Though “[a]fter such warnings have been given, and such opportunity afforded him, the

individual may knowingly and intelligently waive these rights and agree to answer

questions or make a statement,” if instead the individual “indicates in any manner, at any

time prior to or during questioning, that he wishes to remain silent, the interrogation must

                                              10
cease.” Id. at 479, 473–74. As the Supreme Court later explained in Michigan v.

Mosley, 423 U.S. 96 (1975), “the admissibility of statements obtained after the person in

custody has decided to remain silent depends under Miranda on whether his right to cut

off questioning was scrupulously honored.” Id. at 104 (emphasis in original). In Mosley,

the Supreme Court

              identified four factors that help decide whether a suspect’s
              right to cease questioning was scrupulously honored: (1)
              whether a significant amount of time lapsed between the
              suspect’s invocation of the right to remain silent and further
              questioning; (2) whether the same officer conducts the
              interrogation where the suspect invokes the right and the
              subsequent interrogation; (3) whether the suspect is given a
              fresh set of Miranda warnings before the subsequent
              interrogation; and (4) whether the subsequent interrogation
              concerns the same crime as the interrogation previously cut
              off by the suspect.

United States v. Lafferty, 503 F.3d 293, 303 (3d Cir. 2007) (citing Mosley, 423 U.S. at

105–06).7

       The PCRA appellate court considering this interrogation in the Union County case

concluded that “the suppression transcript indicates that, almost immediately after

[Boyer] invoked his right not to speak with [Trooper Reeves] and [Trooper Reeves] left

the room, [Trooper Watson] entered that same room and engaged [Boyer] in the

interview that [Trooper Reeves] had failed to obtain.” Commonwealth v. Boyer, 962


7
  The right to remain silent has not been scrupulously honored if “the sole purpose for
resuming questioning was to persuade the defendant to abandon his right to remain
silent” on the other. Vujosevic v. Rafferty, 844 F.2d 1023, 1029 (3d Cir. 1988). Though
Vujosevic informs our understanding of Mosley, it is not binding on the Pennsylvania
courts for purposes of § 2254(d)(1), which concerns only “Federal Law, as determined by
the Supreme Court of the United States.”
                                            11
A.2d 1213, 1217–18 (Pa. Super. Ct. 2008). That court applied the Pennsylvania law

concerning Miranda, which mirrors the Mosley test:

               The question of whether the police have “scrupulously
               honored” the defendant’s right to remain silent focuses on . . .
               (1) whether the defendant was advised of [the] Miranda rights
               before both interrogations; (2) whether the officer conducting
               the first interrogation immediately ceased the questioning
               when the defendant expressed [the] desire to remain silent;
               and (3) whether the second interrogation occurred after a
               significant time lapse, and whether it was conducted in
               another location by another officer.

Commonwealth v. Russell, 938 A.2d 1082, 1090–91 (Pa. Super. Ct. 2007). The PCRA

appellate court in the Union County case observed that Trooper Watson did not

administer a second set of Miranda warnings and that the second interrogation occurred

immediately after the first in the same location, and so it concluded that the argument that

the second interrogation violated Boyer’s rights under Miranda had merit, and Boyer’s

counsel was thus ineffective for failing to try to suppress the confession on this ground.

The PCRA appellate court vacated the Union County conviction and judgment of

sentence and remanded for further proceedings.8 This analysis is correct.

         The Pennsylvania courts found in the Northumberland County case, and the

Commonwealth argues here, that Boyer waived his right to remain silent by speaking to

Trooper Watson. We determine whether a suspect has implicitly waived his right to

remain silent “on the particular facts and circumstances surrounding [each] case,

including the background, experience and conduct of the accused.” Lafferty, 503 F.3d at

302 (alteration in original) (quotation marks omitted). According to the Pennsylvania

8
    The Union County case was ultimately resolved through a plea agreement.
                                             12
courts and the Commonwealth, when Boyer said, “I don’t want to talk to you,” he

emphasized “you,” meaning he did not wish to speak to Trooper Reeves because “there

was a personal issue between Trooper Reeves and [Boyer].” Commw. Br. 5. See also

Commonwealth v. Boyer, No. 1581 MDA 2003, at 4–5 (Pa. Super. Ct., June 9, 2004).

He then waived his right, the argument goes, by speaking to Trooper Watson. See id.

       The conclusion that Boyer emphasized “you” was unreasonable in light of the

evidence before the state court, because it lacks any foundation in the record. The

interview was not recorded, so there is no direct evidence that Boyer emphasized “you”

when he spoke. Moreover, Trooper Reeves’s statement to Trooper Watson that Boyer

was not interested in speaking to the police suggests that at the time of the interrogation,

Trooper Reeves did not believe Boyer’s reticence was limited to Trooper Reeves.9

       The Commonwealth does not elaborate on the nature or source of the alleged

conflict between Trooper Reeves and Boyer, except to say that there was a “personal

conflict in prior contacts that Boyer had had with the trooper.” Commw. Br. at 7. The

Commonwealth contends that though Boyer would not speak to Trooper Reeves about

the crime, he spoke to Trooper Watson about it, and so he was willing to speak freely

about it with others. His confession to Trooper Watson is thus, the Commonwealth

contends, the result of a waiver and therefore admissible.

       This argument puts the cart before the horse; for a waiver to be knowing and

voluntary, it cannot be given under coercive conditions, and so the police must have

9
  The PCRA appellate court in the Union County case also rejected the argument that
Boyer’s statement reflected a personal gripe with Trooper Reeves on the ground that it
lacked evidentiary support. See Boyer, 962 A.2d at 1218.
                                             13
scrupulously honored a suspect’s invocation of the right to remain silent. Scrupulous

honoring of that right is therefore a threshold to waiver and admissibility. See Mosley,

423 U.S. at 104. Here, interrogation regarding the same crime resumed immediately after

Boyer explicitly said, “I don’t want to talk to you.” App. 39–40. Though a different

officer conducted the second interview, Boyer was not given a new set of Miranda

warnings, and he was questioned regarding the same crime. The PCRA trial court’s

observation that Boyer’s right not to speak to Trooper Reeves was honored misses the

mark. The Fifth Amendment gives Boyer the right to cut off questioning entirely. See

Miranda, 384 U.S. at 473–74. It is clear that that right was not scrupulously honored, as

Miranda and Mosely require, and it was unreasonable for the Pennsylvania courts to

conclude otherwise. Because the police did not scrupulously honor Boyer’s invocation of

his right, there can be no waiver. See Mosely, 423 U.S. at 104.

       There was clearly evidentiary support for the argument that Boyer’s Fifth

Amendment right to silence was not scrupulously honored, as Miranda and Mosely

require, and that there was, therefore, no waiver. See Mosely, 423 U.S. at 104. Having

concluded that the determination that the interrogation did not violate Miranda is open to

serious question as being an unreasonable application of clearly established federal law,

we next consider Boyer’s claim that his counsel was ineffective for failing to advance this

argument. Boyer raised this argument for the first time before the PCRA court.

       It appears that the PCRA courts considered the merits of Boyer’s ineffective

assistance of counsel claim. The PCRA trial court explained that the standard for

ineffective assistance of counsel in Pennsylvania is set forth in Commonwealth v.

                                            14
Thompson, 674 A.2d 217, 219 (Pa. 1996), and the PCRA trial court rejected the claim as

previously litigated. Though the PCRA courts did not discuss the merits of the

ineffectiveness claim based on the failure to raise the Miranda argument independent of

the merits of the Miranda argument itself, in the AEDPA context, we presume the state

court has addressed claims on the merits in the absence of any indication to the contrary.

See Harrington v. Richter, 562 U.S. 86, 99 (2011).

       We thus review the ineffectiveness claim under the deference afforded by §

2254(d)(1). In doing so, we are to “determine what arguments or theories supported or,

as here, could have supported, the state court’s decision,” and we then “ask whether it is

possible fairminded jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of” the Supreme Court. Harrington, 562

U.S. at 102.

       We next consider whether the Pennsylvania courts in this case unreasonably

applied the ineffective assistance of counsel test set forth in Strickland. Under that two-

part test, we first look to whether counsel’s performance was deficient; that is, did he

make “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.’” Strickland, 466 U.S. at 687. We next consider

whether that deficiency prejudiced the defendant – whether “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. In assessing deficiency, “a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

                                             15
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. at 689.

       Here, as the District Court correctly noted, Miranda had been in place for several

decades at the time of Boyer’s trial, and the consequence of obtaining a confession in

violation of Miranda – suppression – was also long-established. See, e.g., Mosley, 423

U.S. at 104; United States v. Lafferty, 503 F.3d 293, 299 (3d Cir. 2007). It was thus

objectively reasonable to expect defense counsel to be familiar with Miranda and its

progeny, and, when an interrogation apparently failed to scrupulously honor the

invocation of the right to remain silent, as this one appears to have done, to raise a

challenge to the admissibility of the resulting confession. The Commonwealth contends

that Boyer’s trial counsel did argue for suppression in an omnibus motion, but by his own

admission, he did so only on the ground of voluntariness. Counsel did not make a

Miranda argument in briefing or during the hearing on the suppression motion.

       Though we presume that failing to do so was sound trial strategy, that presumption

is overcome here, where counsel himself testified that he had no strategic reason for

failing to litigate the Miranda issue. Under these circumstances, it was an unreasonable

application of Strickland not to find that counsel’s performance was deficient.

       We next consider the prejudice prong. As both the Pennsylvania Supreme Court

and federal courts have recognized, a defendant’s confession is uniquely damaging. See

Skilling v. United States, 516 U.S. 358, 383 (2010) (“The defendant’s own confession is

probably the most probative and damaging evidence that can be admitted against him.”)

                                             16
(quotation marks and alternations omitted); see also Commonwealth v. Ardestani, 736

A.2d 552, 557 (Pa. 1999). The confession was likely particularly central to the

conviction in this case, where the sole other evidence against Boyer was the testimony of

his co-defendant, who had serious credibility issues. These circumstances compel the

conclusion that, but for trial counsel’s failure to challenge the admissibility of the

confession under Miranda, there is a reasonable probability that the outcome of the trial

would have been different. Counsel was thus ineffective for failing to argue for

suppression under Miranda, and to conclude otherwise is an unreasonable application of

Strickland.

                                               IV.

       For the foregoing reasons, we will affirm the judgment of the District Court

granting habeas, vacating the conviction, and remanding for a new suppression hearing

on Boyer’s Miranda claim. Like the District Court and the Pennsylvania Superior Court

in the Union County case, we note that our ruling here does not constitute a

pronouncement about the ultimate validity of Boyer’s suppression argument under

Miranda; we conclude only that the argument was sufficiently meritorious that it was

ineffective for counsel to fail to raise it.




                                               17
