NOT PRECEDENTIAL 1 UNITED STATES COURT OF APPEALS 2 FOR THE THIRD CIRCUIT 3 4 5 No.… v. 11 12 FRANK D. GILLIS, SUPERINTENDENT, S.C.I, Coal Township, 13 ATTORNEY GENERAL OF…

NOT PRECEDENTIAL 1
UNITED STATES COURT OF APPEALS 2
FOR THE THIRD CIRCUIT 3
___________ 4
5
No. 01-2913 6
___________ 7
8
WALTER A. CHRUBY, 9
Appellant 10
v. 11
12
FRANK D. GILLIS, SUPERINTENDENT, S.C.I, Coal Township, 13
ATTORNEY GENERAL OF PENNSYLVANIA 14
15
___________ 16
17
On Appeal from the United States District Court 18
for the Middle District of Pennsylvania 19
(D.C. No. 00-cv-01247) 20
District Judge: The Honorable William J. Nealon 21
___________ 22
23
Argued: October 31, 2002 24
25
26
Before: SLOVITER and FUENTES, Circuit Judges and FULLAM*, District Judge 27
28
(Opinion Filed: November 29, 2002 ) 29
30
31
* The Honorable John P. Fullam, United States District Judge for the Eastern District of 32
Pennsylvania, sitting by designation. 33
___________ 34
35
F. EMMETT FITZPATRICK (Argued) 36

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NIALENA CARAVASOS (Argued) 37
F. Emmett Fitzpatrick, P.C. 38
926 Public Ledger Building 39
610 Chestnut Street 40
Philadelphia, PA 19106 41
42
JOHN ANDREWS 43
JOHN M. UPDEGRAPH 44
Andrews & Koufman, LLC 45
Suite 301 46
265 Essex Street 47
Salem, MA 01970 48
49
LEE G. NOLLAU 50
Nollau & Young 51
2153 East College Avenue 52
State College, PA 16801 53
54
ATTORNEYS FOR APPELLANT 55
56
RAY GRICAR (Argued) 57
MARK S. SMITH 58
Office of District Attorney 59
Centre County Courthouse, Room 404 60
Bellefonte, PA 16823 61
62
ATTORNEY FOR APPELLEES 63
64
________________________ 65
OPINION OF THE COURT 66
________________________ 67
68
FUENTES, Circuit Judge: 69
70
Petitioner Walter A. Chruby appeals the District Court’s denial of his petition for writ 71
of habeas corpus. In his petition, Chruby challenges the constitutionality of his state court 72
conviction of first-degree murder and related crimes. Petitioner asserts that the pre-arrest 73

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1See Miranda v. Arizona, 384 U.S. 436 (1966) 1
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statements he made to his probation officer and evidence discovered following his arrest 74
should have been suppressed because his probation officer did not advise him of his Miranda 75
rights prior to questioning him.1 Additionally, petitioner brings a claim for ineffective 76
assistance of counsel. Because we agree with the District Court that Miranda rights did not 77
attach and because petitioner was not prejudiced by his trial counsel’s performance, we affirm. 78
79
I. Facts and Procedural Background 80
The facts and circumstances of this case stem from the murder of Ruth Fergus on 81
September 3, 1995. After a jury trial, defendant Chruby was convicted of first-degree murder 82
and related theft offenses. The issues on appeal concern the initial interview Chruby had with 83
a probation officer just after the Fergus murder and to comments made by Chruby’s defense 84
attorney during trial. 85
A. Facts relating to Appellants’ assertion that Probation Officer Fox should have 86
Mirandized him prior to interviewing him 87
88
Charles Fox was employed as a probation officer assigned to the Harrisburg, 89
Pennsylvania office. In mid-August 1995, he was assigned to supervise Chruby, who was soon 90
to be released from federal prison. As per Fox’s instruction, Chruby called Fox to let him 91
know he was being released from prison on August 28, 1995. 92
On August 31, 1995, the day before Chruby was to report to Fox for his initial 93
interview, Officer Sleeth of the State College Police called Fox and told him that he had caught 94

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Chruby driving his ex-wife’s car without permission, that the ex-wife had declined to prosecute 95
him, that Chruby made threats of suicide and that he was taken to the hospital and released later 96
that day. On the day of the initial interview, Chruby called Fox and told him he could not 97
appear because he had transportation problems. Fox rescheduled the appointment for 98
September 5. On September 5 Chruby called to again cancel his interview because he still had 99
no transportation. Fox rescheduled the appointment for 3:30 p.m. on September 7. 100
However, on September 6, Fox got a call from John Shoemaker, another State College 101
Police Officer, who told him that the police were looking for Chruby and had a warrant for his 102
arrest on a bad check charge. Shoemaker also said they wanted a photograph of Chruby. Fox 103
told Shoemaker that he was scheduled to meet with Chruby the next day. 104
On September 7, Shoemaker and Detective Dann, both from State College Police 105
Department, and Detective Inschweiler of Dauphin County came to Fox’s office. They told 106
him that Chruby was a suspect in a homicide investigation but that they did not have enough 107
evidence to charge him. At the probation office it was determined that the officers would wait 108
in a separate office during Fox’s interview with Chruby and thereafter Shoemaker would arrest 109
Chruby on the bad check warrant. According to Fox, the police asked him to interrogate 110
Chruby about matters related to their criminal investigation, such as where he had been 111
presently staying, where he had been for the past couple of days, where the car was, and how 112
he got to the appointment in Harrisburg from State College. 113
When Chruby arrived, Fox met him in the lobby and escorted him back to his office. 114
When Fox asked him where he had parked, Chruby responded that he had parked in the Walnut 115

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Street Garage across from the federal building. Fox asked Chruby how he got to the probation 116
office and Chruby responded that a friend named “Dave” whose last name he did not know 117
drove him in. Fox started the standard installation interview and reviewed with Chruby the rules 118
and conditions that would apply to his probation. He asked Chruby if he had any pending cases 119
against him and, after Chruby responded in the negative, Fox told him about the bad check 120
charge. After the interview, Fox took Chruby to the officers, who were now waiting in the 121
lobby. 122
Officer Shoemaker arrested Chruby on the bad check warrant. Officer Dann patted 123
Chruby down for weapons and Officer Shoemaker went into Fox’s office, where he learned 124
from Fox that Chruby initially said he had driven to the interview and parked in the Walnut 125
Street Garage, but later said he had gotten a ride from someone named Dave. Thereafter, Dann 126
gave Shoemaker a Ford car key and a Walnut Street Garage ticket he had removed from Chruby. 127
Shoemaker asked Chruby where the car was parked and Chruby responded that it was not his 128
car and that he had gotten a ride from Dave. The police located the automobile in the Walnut 129
Street Garage and determined that it belonged to the murder victim, Ruth Fergus. The key in 130
Chruby’s pocket fit the ignition. Found hidden in a blood stained glove in the undercarriage 131
of the car was Fergus’ credit card. On October 4, 1995, an eight-count criminal information 132
was filed against Chruby for the murder of Ruth Fergus. His trial commenced on June 23, 133
1997. 134
B. Facts relating to Appellant’s assertion that he received ineffective assistance of 135
counsel at trial 136
137

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After promising the jury four times, in a delayed opening statement, that Chruby would 138
testify, defense counsel did not call Chruby to the stand. According to Chruby, trial counsel 139
warned him that he would get the needle if he testified. During the trial, defense counsel also 140
told the jury that Chruby had used the victim’s credit card and had stolen her car. Chruby 141
claims he was prejudiced because he intended to take the stand and tell the jury that he had not 142
committed these acts. The trial judge instructed the jury not to draw any inference of guilt 143
from Chruby’s exercise of his constitutional right to elect to remain silent and not testify on 144
his own behalf. 145
Following the jury trial and verdict, the jury sentenced Chruby to life imprisonment on 146
the murder charge. The trial judge added concurrent and consecutive sentences for the related 147
theft charges. Chruby brought post-sentence motions in which he asserted that (1) the trial 148
court made various errors; (2) the Commonwealth was guilty of prosecutorial misconduct; and 149
(3) his trial counsel was ineffective. After unsuccessfully appealing his conviction to the 150
Pennsylvania Superior Court and the Pennsylvania Supreme Court, appellant filed a petition for 151
writ of habeas corpus in the United States District Court for the Middle District of 152
Pennsylvania on July 13, 2000. He alleged that he is in custody pursuant to a judgment of a 153
state court in violation of the Constitution. The District Court denied the petition and found 154
no basis for a certificate of appealability. This Court granted a certificate of appealability. 155
II. Jurisdiction and Standard of Review 156
The District Court exercised jurisdiction over this matter under 28 U.S.C. § 2254. We 157
have appellate jurisdiction under 28 U.S.C. § 1291. 158

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In habeas corpus appeals, this Court conducts a de novo review of the district court’s 159
rulings. See, e.g., Elder v. Holloway, 510 U.S. 510, 516 (1994). The Court is to decide what 160
is clearly established law as determined by the Supreme Court, see Williams v. Taylor, 529 161
U.S. 362, 390 (2000), then determine whether the state court’s decision was “contrary to” or 162
“an unreasonable application of” that law. Id. at 404-05 (citing 28 U.S.C. § 2254(d)(1)). Each 163
of these clauses has an independent meaning. See id. at 405. 164
A state court decision can be “contrary to” the Supreme Court’s clearly established 165
precedent in one of two ways: (1) if the state court applies a rule that contradicts the governing 166
law set forth in Supreme Court cases, see id. at 405; or (2) “if the state court confronts a set 167
of facts that are materially indistinguishable from a decision of [the Supreme] Court and 168
nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 406. 169
A state-court decision involves an “unreasonable application” of Supreme Court 170
precedent if (1) the state court identifies the correct legal rule from controlling Supreme 171
Court cases but unreasonably applies it to the facts of presented by the state prisoner; or (2) 172
if the state court either unreasonably extends a legal principle from Supreme Court precedent 173
to a new context where it should not apply or refuses to extend that principle to a new context 174
where it should apply. See id. at 407. 175
The state court’s determinations of factual issues are presumed correct. See 28 U.S.C. 176
§ 2254(e)(1). The petitioner bears the “burden of rebutting the presumption of correctness 177
by clear and convincing evidence.” Id. 178
III. Discussion 179

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Relying on Minnesota v. Murphy, 465 U.S. 420 (1984), Chruby asserts that Probation 180
Officer Fox acted as an agent of the police and thus his questioning gave rise to a Fifth 181
Amendment privilege. In Minnesota v. Murphy, the Supreme Court held that a probationer 182
must timely assert his Fifth Amendment privilege when questioned by his probation officer if 183
the probationer’s privilege is to be preserved. The Court recognized three exceptions to that 184
general rule: when the incriminating statement was “obtained from suspects in police 185
custody[,]” id. at 429; “where the assertion of the privilege is penalized so as to ‘foreclos[e] 186
a free choice to remain silent, and . . . compe[l] . . . incriminating testimony[,]’” id. at 434 187
(citation omitted); and “in the context of the federal occupational and excise taxes on 188
gamblers[,]” id. at 439. 189
In arriving at its conclusion that Murphy was not in custody and hence did not fall within 190
the first exception, the Supreme Court reasoned that: (1) the fact that he was under legal 191
compulsion to attend the meeting and to answer his probation officer’s questions truthfully did 192
not excuse his failure to exercise his Fifth Amendment privilege even though the probation 193
officer was anticipating incriminating answers; see id. at 431; and that (2) due to the nature of 194
probation, Murphy should have expected to be questioned on a wide range of topics related to 195
his past criminality and therefore he was not deprived of a right to seek counsel before 196
attending the meeting. See id. at 432. 197
In Murphy, the Court emphasized that it has “consistently held” that the “extraordinary 198
safeguard” of exclusion of incriminating statements “does not apply outside the context of the 199
inherently coercive custodial interrogation for which it was designed.” Id. at 430 (citations 200

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omitted). See also Illinois v. Perkins, 496 U.S. 292, 296 (1990) (statements obtained by an 201
undercover agent posing as a prisoner held admissible because of the absence of a “police- 202
dominated atmosphere” and “compulsion”). 203
Whether a suspect is in custody depends on whether, under the totality of the 204
circumstances, a reasonable person in his position would feel free to leave. See Thompson v. 205
Keohane, 516 U.S. 99, 112 (1995). Chruby argues that he falls within the custodial 206
interrogation exception, but the record of the evidentiary hearing on Chruby’s motion to 207
suppress is devoid of any evidence showing that he felt like he was not free to leave. The 208
record presented at the evidentiary hearing did not show that Chruby was aware of the police 209
presence outside of Fox’s office before Fox told him he would be arrested in the bad check 210
warrant and introduced him to the officers. Moreover, even in light of Chruby’s testimony 211
during a hearing on post-sentence motions, we conclude that a reasonable person in his 212
circumstances would not feel that he was not free to leave. 213
Chruby asserts that he was frisked when he entered the federal building even though he 214
had not been frisked other times he had entered the building and that he was frisked as soon as 215
he entered Fox’s office. After searching him, Fox told him he was going to take his picture. 216
Even if these events marked departures from Chruby’s previous experience, they do not give 217
rise to a reasonable sense of being unable to leave. Additionally, Chruby asserts that he saw 218
officers sitting directly across the hallway from where he was sitting and thought they were 219
there to talk to him about the car he had stolen. 220
It was not reasonable for Chruby to have believed that he was not free to leave after 221

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seeing the officers because (1) Fox’s questioning as to how he had gotten to the meeting 222
should have come as no surprise because he had told Fox previously, when calling to reset the 223
date for his installation interview, that he had been experiencing transportation problems; and 224
(2) he did not know at the time Fox questioned him that the police were planning to arrest him 225
on a bad check warrant. Therefore, even if he saw the officers at the federal building, at the 226
time that he was questioned, he had no reasonable basis for thinking they were there to arrest 227
him. 228
Chruby does not contend that he falls within the other two exceptions discussed in 229
Murphy that requires prior Miranda warnings. Accordingly, the District Court correctly 230
concluded that it was not unreasonable for the state superior court to conclude that Chruby, 231
like the defendant in Minnesota v. Murphy, was not entitled to be Mirandized. 232
Moreover, even were the Court to accept Chruby’s argument that he was in custody and 233
therefore that his statements to Fox should have been excluded, he cannot seriously dispute 234
that the officers would have discovered the car key and thereby the incriminating evidence in 235
the car. This is because, when an officer makes an arrest of a suspect based on probable cause, 236
“a full search of the person is not only an exception to the warrant requirement of the Fourth 237
Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. 238
Robinson, 414 U.S. 218, 235 (1973). 239
Chruby’s ineffective assistance of counsel claim also fails to warrant habeas relief. 240
Chruby asserts that he did not testify because his trial counsel made an unauthorized admission 241
to the jury that he had used the victim’s credit card and had stolen her car and therefore, had 242

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he taken the stand, he would have contradicted his attorney’s statement. Chruby asserts that 243
he wanted to testify he had never used the victim’s credit card and had used her car only after 244
he found it far from her home. Chruby complains that he decided not to testify only after trial 245
counsel told him that he would get the needle if he took the stand. 246
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court explained that 247
the inquiry to be asked in assessing an ineffective assistance of counsel claim is whether “in 248
light of all the circumstances, the identified acts or omissions were outside the wide range of 249
professionally competent assistance . . . . [T]he court should recognize that counsel is strongly 250
presumed to have rendered adequate assistance and made all significant decisions in the 251
exercise of reasonable professional judgment.” Id. at 690. The troubling aspect of trial 252
counsel’s performance is that he delivered an opening statement after the close of the 253
prosecution’s case. At that point he had heard the evidence against his client and was in a good 254
position to determine whether or not to call him to the stand. Moreover, if he was unsure at 255
that point whether Chruby should testify, he probably should not have promised the jury that 256
Chruby would take the stand in his defense. 257
Assuming that Chruby has shown that counsel’s errors were “professionally 258
unreasonable,” id. at 691, he nonetheless fails to show that “there is a reasonable probability 259
that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. 260
at 695. The Supreme Court teaches that a “reasonable probability” in this context “is a 261
probability sufficient to undermine confidence in the outcome.” Id. We therefore turn to the 262
evidence presented by the Commonwealth during Chruby’s criminal trial in order to ascertain 263

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whether, absent the errors asserted, there is a reasonable probability that the jury would not 264
have convicted Chruby. 265
The Commonwealth presented a strong case against Chruby, which included evidence 266
of the facts that follow. The day after their investigation of Fergus’ homicide began, the police 267
received clothing and some store tags and receipts all contained within an “American 268
Outfitters” shopping bag that had been discovered by an employee of a trash pick-up service 269
in a dumpster across town. All of the items appeared to be stained with blood. The district 270
manager for American Outfitters reviewed the receipt, which showed that the clothing was paid 271
for with the victim’s credit card, which was missing from her wallet, and that the purchase had 272
been made fifty minutes after the last time that anyone had heard from the victim. The clothing 273
was sold to an individual matching Chruby’s general description and placed in a shopping bag 274
identical to the one found in the dumpster. The next day the police discovered that Chruby had 275
been an inmate at the federal prison in Butner, North Carolina and that inmates at this facility 276
were provided with green army-type belts identical to the one found in the bag in the dumpster. 277
The police investigation also revealed that a person matching Chruby’s description had been 278
taken to the Nittany Mall where items identical to other bloody clothing found in the dumspter 279
were purchased. After the outfit matching the bloody dumpster ensemble was purchased, a taxi 280
picked a man up at the mall and brought him to the motel where Chruby had been staying. The 281
motel clerk remembered seeing Chruby return to his room that evening with a bag and also 282
remembered seeing Chruby wearing a shirt identical to the bloody one found in the dumpster. 283
According to motel records, a call was placed from Chruby’s room to the victim’s residence 284

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on September 1, 1995. 285
At trial it was also disclosed that Chruby and the victim had met in the spring of 1995, 286
before Chruby went to prison. The victim and Chruby had met at a fund-raiser dinner for the 287
Centre County Women’s Resource Center, where they were among six other guests. The 288
victim realized that the topics of conversation were not of interest to Chruby so she directed 289
his attention to something they had in common--Chruby’s acquaintance with her son, Chuck. 290
Chuck Fergus is an author who writes about hunting, nature, and the outdoors. Chruby met 291
Chuck when Chruby was employed as a hunting guide at a hunting preserve in Centre County 292
and the two hunted together. The police thought that Chruby may have formed the impression 293
that the Fergus family was well off because Chuck Fergus was a well-known author and the 294
victim was a prominent community activist. 295
The Commonwealth presented the evidence summarized above and other evidence at 296
trial. Given the strength of the Commonwealth’s case, we cannot conclude that, absent trial 297
counsel’s errors, the jury would have had a reasonable doubt as to Chruby’s guilt. 298
IV. Conclusion 299
After hearing oral arguments and carefully considering the arguments discussed above 300
and all other arguments advanced by the petitioner in support of his assertion that the District 301
Court erred in denying his petition for writ of habeas corpus, we affirm the District Court’s 302
decision. 303
_____________________________ 304
TO THE CLERK OF THE COURT: 305

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Kindly file the foregoing Opinion. 306
By the Court, 307
308
/s/ Julio M. Fuentes 309
Circuit Judge 310
311

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