PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-6222

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES RODREIQUAS PRESSLEY, a/k/a Bubba,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:12-cr-00284-BO-1; 5:17-cv-00396-BO)

Argued: December 9, 2020 Decided: March 11, 2021

Before KEENAN and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Vacated and remanded, with instructions by published opinion. Judge Keenan wrote the opinion, in which Judge Richardson and Senior Judge Traxler joined.

ARGUED: Samuel F. Callahan, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellant. Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Allon Kedem, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Evan M. Rikhye, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. BARBARA MILANO KEENAN, Circuit Judge:

James Pressley was convicted by a jury of thirteen counts resulting from his

participation in a cocaine distribution conspiracy and related financial crimes. In his

present motion brought under

, Pressley alleges that he repeatedly asked

his trial counsel to file a motion to suppress certain incriminating statements he made to

law enforcement officers before his arrest, and that counsel rendered ineffective assistance

by failing to do so. According to Pressley, the officers subjected him to custodial

interrogation without providing him the warnings required by Miranda v. Arizona,

(1966), and the government relied heavily on his confession in its presentation to

the jury. The district court denied Pressley’s motion without an evidentiary hearing.

Upon our review, we conclude that the record is unclear regarding what facts

counsel knew before trial, and whether his decision not to file a suppression motion was

an objectively reasonable choice based on trial strategy. The record also contains disputed

facts on the issue whether Pressley was subject to custodial interrogation, thereby

triggering the protections of Miranda. We therefore remand this case to the district court

to hold an evidentiary hearing, including testimony by trial counsel.

I.

In the summer of 2012, Pressley, Larry Taylor, and others were the subjects of a

narcotics investigation conducted by a Bureau of Alcohol, Tobacco and Firearms task

force. After informants had completed multiple controlled purchases of drugs from

Pressley, task force members Harnett County Lieutenant Joshua Christensen and Internal

2 Revenue Service Special Agent Thomas Beers sought to induce Pressley to cooperate in

their investigation of Taylor.

Christensen and Beers interrogated Pressley in Christensen’s vehicle, prompting

Pressley to make the incriminating statements at issue in this case. Describing the

interrogation at trial, Christensen testified that he and Beers approached Pressley as

Pressley was walking from his home toward his car. Christensen lowered the window of

his vehicle and displayed his credentials. Christensen informed Pressley that he was not

under arrest, but asked him to follow the officers in Pressley’s own vehicle. Pressley

agreed, and followed the officers to a church parking lot. According to Christensen, he

chose the secluded location to ensure that the interaction would not be observed by others

and compromise Pressley’s potential cooperation.

Christensen testified that upon arrival at the church, Pressley got out of his vehicle.

Christensen reintroduced himself, reiterated that Pressley was not under arrest, and stated

that no warrants against him were outstanding and that the officers needed to talk to him.

Agent Beers sat in the back seat of the officers’ vehicle, Christensen sat in the driver’s seat,

and Pressley sat in the front passenger’s seat. Neither officer gave Pressley Miranda

warnings during the one hour and forty-five-minute interview.

To encourage Pressley’s cooperation, Christensen told Pressley that law

enforcement officers could obtain search warrants for his home and that Pressley was

facing serious federal charges. After the officers shared the evidence they had against

Pressley and their hope that he would cooperate, Pressley made numerous inculpatory

3 statements regarding his involvement in drug distribution activities, his co-conspirators,

and the purchases he made with drug proceeds.

In his Section 2255 motion and accompanying affidavit, Pressley disputes the

version of events that Christensen related at trial regarding this interview. Notably,

Pressley claims that when Christensen first spoke to him, Christensen told Pressley not to

use his cell phone, and stated that, if Pressley did not proceed to the church parking lot as

instructed, he would be intercepted by an undercover officer. Pressley also avers that

several unmarked police vehicles followed him to the church and surrounded his vehicle

in the parking lot. According to Pressley, Christensen displayed his weapon during the

interview, and Beers threatened to “turn . . . inside out” the homes of Pressley’s family

members if he did not cooperate. Pressley maintains that, given these facts and

circumstances, he did not feel free to terminate the interview and leave.

During the jury trial, Christensen relayed Pressley’s confession in detail, and

Pressley did not testify in his own defense. The government also relied extensively on

Pressley’s admissions as a centerpiece of its presentation to the jury. The jury returned a

verdict of guilty on all thirteen counts, including conspiracy to distribute and possess crack

cocaine, distribution of crack cocaine, conspiracy to launder money, and other financial

crimes. The district court imposed a sentence of life imprisonment, and, on direct appeal,

we affirmed Pressley’s convictions and sentence. United States v. Pressley,

(4th Cir. 2016).

In the present Section 2255 motion, Pressley contends that trial counsel rendered

ineffective assistance by failing to file a motion to suppress Pressley’s incriminating

4 statements, which Pressley contends were obtained in violation of Miranda. Pressley

claims that he asked counsel on multiple occasions before trial to file such a motion, but

counsel never complied with his request. The district court denied Pressley’s motion

without holding an evidentiary hearing. The court entered summary judgment in favor of

the government, concluding that: (1) Pressley admitted that he made the incriminating

statements after the government offered potential benefits in exchange for Pressley’s

cooperation; (2) Pressley was told that he was not under arrest; and (3) Pressley voluntarily

got into the car with the officers. Pressley appealed from the denial of his Section 2255

motion, and we granted him a certificate of appealability.

II.

We review de novo the district court’s denial of a Section 2255 motion. United

States v. Palacios,

(4th Cir. 2020). When the district court denies such

a motion without an evidentiary hearing, we construe the facts in the light most favorable

to the movant. United States v. Poindexter,

(4th Cir. 2007).

A.

We begin by outlining the legal principles governing our review of Pressley’s

ineffective assistance of counsel claim. In evaluating this claim, we apply the familiar

standard set forth in Strickland v. Washington,

(1984). Under Strickland, a

criminal defendant must show that his counsel provided constitutionally deficient

performance, “meaning that the identified acts or omissions were outside the wide range

of professionally competent assistance” (the performance prong). Grueninger v. Dir., Va.

5 Dep’t of Corr.,

(4th Cir. 2016) (quoting Strickland,

)

(internal quotation marks omitted). We accord broad deference to counsel’s choices in

recognition of the “wide latitude counsel must have in making tactical decisions.”

at

529 (quoting Strickland,

). To succeed on an ineffective assistance claim,

the defendant also must show that he was prejudiced by counsel’s deficient performance,

namely, that there is a reasonable probability that the outcome of the trial would have been

different absent counsel’s error (the prejudice prong). Id. at 524.

When a person claims ineffective assistance based on counsel’s failure to file a

suppression motion, we apply a “refined” version of the Strickland analysis. Id. With

respect to the performance prong, we ask whether the “unfiled motion would have had

‘some substance.’” Id. at 524-25 (citing Tice v. Johnson,

(4th Cir. 2011)).

If the motion would have had some substance, then we ask whether reasonable strategic

reasons warranted not filing the motion. See id. at 529; Tice,

. To satisfy

the prejudice prong, the defendant must show that: (1) “the [suppression] motion was

meritorious and likely would have been granted, and (2) a reasonable probability that

granting the motion would have affected the outcome of his trial.” Grueninger,

.

A defendant is entitled to suppression of his incriminating statements if law

enforcement officers failed to provide Miranda warnings during a “custodial

interrogation.” See United States v. Giddins,

(4th Cir. 2017). There is

no dispute in the present case that Pressley was interrogated. Accordingly, our analysis is

limited to whether Pressley was “in custody” at the time of his interrogation.

6 A person “is in custody when, under the totality of the circumstances, [his] freedom

from action is curtailed to a degree associated with formal arrest,” even if he is not formally

placed under arrest. United States v. Colonna,

(4th Cir. 2007) (internal

quotation marks and citation omitted). We apply an objective inquiry to the issue of

custody, asking “whether a reasonable person would have felt he or she was not at liberty

to terminate the interrogation and leave.” United States v. Hashime,

(4th Cir. 2013) (citation, internal quotation marks, and alterations omitted). Relevant

factors include “the time, place and purpose of the encounter, the words used by the officer,

the officer’s tone of voice and general demeanor, the presence of multiple officers, the

potential display of a weapon by an officer, and whether there was any physical contact

between the officer and the defendant.”

(citation omitted). Isolation and

separation from family members, as well as physical restrictions, also may be relevant and

weigh in favor of a finding of custody.

With these legal principles in mind, we turn to

consider Pressley’s arguments.

B.

As noted above, Pressley argues that his trial counsel provided ineffective assistance

by failing to file a motion to suppress Pressley’s statements, despite his multiple requests

that counsel do so. Relying on a version of facts that contradicts Christensen’s trial

testimony, Pressley asserts that he was in custody at the time of his interrogation but did

not receive the required Miranda warnings. Thus, in Pressley’s view, a suppression motion

had “some substance” and counsel was obligated to file the motion.

7 In response, the government contends that counsel “made a conscious and entirely

reasonable” decision not to seek suppression of Pressley’s statements, given the

information Pressley provided to counsel at the time and the risks Pressley faced by

testifying at a suppression hearing. In the government’s view, the record is “undisputed”

regarding the strategic nature of counsel’s decision and, thus, counsel’s performance is

“virtually unchallengeable.” We disagree with the government’s argument.

As discussed above, counsel can be held deficient for failing to file a suppression

motion only if such a motion had “some substance.” Grueninger,

(citation

omitted). Accepting Pressley’s allegations in his Section 2255 motion as true, as we must

in the absence of an evidentiary hearing, see Poindexter,

, a suppression

motion based on such facts plainly would have had “some substance.”

Most notably, Pressley claims that officers threatened to intercept him if he did not

proceed to the secluded parking lot as instructed, and multiple officers followed him in

their vehicles. Once at the parking lot, Pressley asserts that: (1) several unmarked vehicles

surrounded him; (2) the officers searched him and his vehicle; (3) Christensen displayed

his firearm; and (4) Beers threatened to ransack the homes of Pressley’s family members

if he did not cooperate. These circumstances, if true, suggest that a reasonable person

would not have felt free to leave the encounter. See Hashime,

.

The record before us, however, does not reveal whether Pressley relayed to counsel

the key facts on which he now relies in his Section 2255 motion. Christensen described an

encounter that did not involve the hallmarks of a custodial interrogation, instead suggesting

a more casual and voluntary interaction between Pressley and the two officers. Given the

8 significant disparities in the factual accounts offered by Pressley and Christensen,

counsel’s assessment of the merits of a potential suppression motion would depend on

which facts were known to him at the time. In the absence of this evidence in the record,

we cannot determine whether, viewed objectively, counsel acted reasonably under the

circumstances.

Moreover, contrary to the government’s suggestion, the record is devoid of

information regarding counsel’s reasons, strategic or otherwise, for declining to file a

motion to suppress. See United States v. Runyon,

, 732 (4th Cir. 2020). While

Strickland “calls for an inquiry into the objective reasonableness of counsel’s performance,

not counsel’s subjective state of mind,” we have little evidence to evaluate whether

counsel’s actions were objectively reasonable. Harrington v. Richter,

(2011). Because the district court did not hold an evidentiary hearing, counsel did not

testify regarding his reasons for not filing a suppression motion. Nor did counsel submit

an affidavit to the district court outlining his decision-making process. On this point, the

record contains only a sworn statement from Pressley’s brother, who relayed a conversation

with counsel in which counsel purportedly stated that he would not seek suppression

because Pressley “made the statement on himself” and counsel “did not think [a

suppression motion] would do any good.” The record also contains a journal entry written

by Pressley in which he notes, without elaboration, that counsel would not seek suppression

of the confession. We thus are left to speculate regarding what information counsel knew

about the circumstances of the interrogation, and how he evaluated that information before

deciding not to file a motion to suppress.

9 We pause to emphasize that a “legal misapprehension” about the merits of a

suppression motion “will not excuse deficient performance.” Grueninger,

.

Nevertheless, under the circumstances presented here, counsel could have made a

reasonable and “informed legal judgment” not to file such a motion, after balancing the

likelihood of success on the motion with the risk of requiring Pressley to testify at a

suppression hearing. See

And, as discussed above, it is unclear whether counsel was

privy to a factual account that reasonably would have supported a suppression motion.

Without knowing what information was available to counsel at the time, or the

tactical considerations that competent counsel would be obliged to consider, we cannot

determine whether counsel acted within the “wide range of professionally competent

assistance” when he refused to file a motion to suppress. Strickland,

. For

these reasons, we conclude that an evidentiary hearing is required: (1) to resolve disputed

facts relevant to the determination whether Pressley was in custody at the time of his

interrogation; (2) to clarify what information about the interrogation was known to counsel

at the time; and (3) to identify the strategic factors that counsel may have reasonably

considered. See Runyon, 983 F.3d at 732 (citing

(b) and remanding for

evidentiary hearing when record was “murky” regarding counsel’s strategic

considerations). Resolution of these issues will inform whether counsel rendered deficient

performance by declining to file a motion to suppress Pressley’s incriminating statements.

C.

We observe that even if the district court resolves these issues in Pressley’s favor

and concludes that counsel rendered deficient performance, Pressley also must show that

10 he was prejudiced by counsel’s error. To satisfy the prejudice prong, Pressley must

demonstrate “(1) that the motion was meritorious and likely would have been granted, and

(2) a reasonable probability that granting the motion would have affected the outcome of

his trial.” Grueninger,

. The first question, whether the motion likely

would have been granted, cannot be answered on the present record because the motion

was never filed and Pressley never testified. That question may only be answered after

Pressley presents his evidence, including his testimony, regarding why the motion would

have been meritorious. For the reasons set forth above, if the district court finds on remand

that Pressley was subject to a custodial interrogation without being given Miranda

warnings, a motion to suppress would have been meritorious and likely to have been

granted, satisfying the first prong of the prejudice analysis. See

The government argues, however, that Pressley cannot show a reasonable

probability that he would have been acquitted even if the incriminating statements had been

excluded. The government points to the voluminous evidence presented at trial showing

Pressley’s extensive involvement in the drug distribution conspiracy and related financial

crimes. Aside from the testimony of Christensen and Beers, the government presented

more than a dozen witnesses, including two informants who had conducted controlled

purchases of cocaine from Pressley, as well as several of Pressley’s co-conspirators who

had cooperated with the government.

Although we agree that the evidence against Pressley was significant, he

nevertheless can establish that he was prejudiced by the admission of his incriminating

statements. To reach a conclusion of prejudice, we need not hold that the government’s

11 other evidence was “insubstantial,” “or that [the other evidence] could not have supported

a guilty verdict in the absence of [the] confession.” Grueninger,

. Rather,

an improperly admitted confession can be prejudicial even in the face of substantial other

evidence of guilt, given the potential that a confession will have “a devastating and

pervasive effect on the outcome of a trial.”

(citation and internal quotation marks

omitted). As the Supreme Court has explained:

A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. The admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.

Arizona v. Fulminante,

(1991) (citation and alterations omitted). To

determine whether admission of Pressley’s confession was prejudicial, we look to the

content of the statements and to their centrality in the government’s case. Grueninger,

.

In the present case, Pressley’s confession was detailed and far-reaching in scope.

He named multiple co-conspirators, including Taylor, and identified large quantities of

narcotics he had participated in distributing over more than a decade. He detailed specific

drug transactions with these co-conspirators, and stated that he had used drug proceeds to

buy a personal vehicle. A memorandum memorializing the interview was entered into

evidence at trial, and Christensen’s testimony recounting Pressley’s confession accounts

for twenty pages of the trial transcript.

12 The government relied on Pressley’s statements as a centerpiece of its presentation.

In addition to Christensen’s lengthy recitation of the interview, the government highlighted

the confession to the jury during closing arguments. The government maintained that it

had proven the drug quantities charged in the indictment based on the amounts that Pressley

admitted distributing. In the words of government counsel, the jury’s work was “done”

upon considering Pressley’s admissions. Government counsel also stated that “Pressley’s

own statement puts him over the five kilograms or more of powder cocaine that the

government alleged.” Counsel further emphasized that its cooperating witnesses at trial

corroborated the statements Pressley himself had made, thereby bolstering the witnesses’

credibility. And at the end of its rebuttal argument, government counsel returned to

Pressley’s confession, reiterating that “Pressley admitted it. He admitted that he bought

the [vehicle in question] with drug proceeds. He admitted that he was a drug dealer. And

that’s a fact. That is a fact.”

Upon our review of this record, we are left with no doubt that Pressley’s

incriminating statements reasonably could have impacted the jury’s assessment of his guilt.

Notably, Pressley’s co-defendant, who did not provide a confession, was acquitted on all

charges. Given the damaging impact of confessions in general, the particularly inculpatory

nature of Pressley’s statements, and the “centrality of the confession to this case, we cannot

be confident that there is no reasonable probability” that Pressley’s statements affected the

outcome of the trial. Grueninger,

(internal quotation marks omitted).

Accordingly, should the district court conclude that counsel was deficient in failing to file

a suppression motion, Pressley also has satisfied the prejudice prong of Strickland.

13 III.

For these reasons, we vacate the district court’s judgment. We remand for an

evidentiary hearing to resolve the factual questions discussed in Section II.B of this

opinion.

VACATED AND REMANDED, WITH INSTRUCTIONS

14