Jerome Gordon v. Daniel Braxton , 780 F.3d 196 ( 2015 )


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  •                               PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-7040
    JEROME STEVEN GORDON,
    Petitioner – Appellant,
    v.
    DANIEL BRAXTON, Warden,
    Respondent – Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria.   Liam O’Grady, District
    Judge. (1:12-cv-00834-LO-TRJ)
    Argued:   December 9, 2014                 Decided:   March 3, 2015
    Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
    Reversed and remanded by published opinion.     Judge Diaz wrote
    the opinion, in which Judge Niemeyer and Judge Wynn joined.
    ARGUED: Christopher Ryan Ford, MAYER BROWN, LLP, Washington,
    D.C., for Appellant.    Donald Eldridge Jeffrey, III, OFFICE OF
    THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
    Appellee.    ON BRIEF: Mark R. Herring, Attorney General of
    Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
    Virginia, for Appellee.
    DIAZ, Circuit Judge:
    We granted a certificate of appealability in this case to
    consider    the    district   court’s       dismissal     of   Jerome    Steven
    Gordon’s petition for a writ of habeas corpus.                 Gordon alleges
    that his trial counsel was ineffective for failing to file a
    notice of appeal when instructed to do so and for not consulting
    with him about an appeal.         We hold that (1) Gordon properly
    exhausted    his   state   remedies;       (2)   the   state   court    did   not
    adjudicate Gordon’s claim on the merits; (3) the district court
    consequently owed no deference to the state court’s denial of
    Gordon’s petition; and (4) the district court applied the wrong
    standard in deciding whether to hold an evidentiary hearing.                  We
    therefore reverse and remand.
    I.
    In 2009, Gordon pleaded no contest in a Virginia circuit
    court to one count each of carnal knowledge and soliciting the
    production of child pornography, pursuant to a plea agreement
    that did not include a waiver of appellate or post-conviction
    rights.     The court sentenced him to thirty-five years in prison
    with eight years suspended.        Mufeed W. Said represented Gordon
    at the plea and sentencing hearings.             Gordon did not timely file
    a direct appeal.
    2
    Gordon did, however, pursue collateral relief.                                In state
    court,     he     filed    a    pro        se   habeas      corpus      petition    alleging
    ineffective       assistance          of    counsel    at    his     sentencing     hearing.
    While his petition was pending, Gordon moved for leave to amend,
    seeking to add another ineffective-assistance-of-counsel claim,
    this one alleging that his attorney failed to file an appeal
    when asked to do so and that Gordon wrote to Said “asking for an
    appeal, but never got any response.” 1                      J.A. 71.      He requested an
    evidentiary hearing and appointment of counsel.                              Gordon later
    filed     a     motion    to    supplement           his    petition     with     additional
    supporting facts, including that he asked Said “about a possible
    appeal.”      J.A. 86.
    The warden moved to dismiss the petition and attached an
    affidavit from Said.             Gordon opposed the motion and again moved
    for   leave      to    amend.         To    these     filings      he   attached    a   sworn
    “Affidavit.”           The state court granted Gordon’s various motions
    for leave to amend but denied Gordon’s request for counsel and,
    without an evidentiary hearing, dismissed Gordon’s petition.
    All told, Gordon’s petition raised six claims.                               The state
    court     concluded       on    the    first     five--all      related      to    counsel’s
    performance       at     the   sentencing        hearing--that          Gordon     failed   to
    1
    Gordon also filed a pro se motion for a delayed appeal
    with the Court of Appeals of Virginia, which denied the motion.
    3
    show deficient performance and prejudice.                  On the sixth claim,
    the court found that Gordon had not shown deficient performance
    because Gordon had merely inquired about an appeal, not directly
    requested one.        The state court addressed counsel’s duty to file
    an   appeal    when    directed     to   do    so,   but   said   nothing       about
    counsel’s duty to consult.          The Supreme Court of Virginia denied
    Gordon’s petition for appeal.
    Gordon then filed a pro se habeas corpus petition in the
    district     court.       Without   an    evidentiary      hearing,      the    court
    dismissed      Gordon’s     petition       based     on    the    state    court’s
    reasoning.      Gordon appealed, and we granted a certificate of
    appealability to consider “whether, in light of Roe v. Flores-
    Ortega, 
    528 U.S. 470
     (2000), and United States v. Cooper, 
    617 F.3d 307
     (4th Cir. 2010), counsel was ineffective for not filing
    a notice of appeal.”        Order, Gordon v. Braxton, No. 13-7040 (4th
    Cir. Feb. 7, 2014).
    Our review of the district court’s dismissal of Gordon’s
    habeas petition is de novo.              Teleguz v. Pearson, 
    689 F.3d 322
    ,
    327 (4th Cir. 2012).
    II.
    To prevail on an ineffective-assistance-of-counsel claim, a
    defendant must show (1) that his counsel’s performance “fell
    below   an    objective    standard      of    reasonableness”     and    (2)    that
    4
    counsel’s deficient performance prejudiced him.                   Strickland v.
    Washington,    
    466 U.S. 668
    ,   687-88      (1984).        Gordon’s    claim
    implicates    two    related    duties       entrusted   to    criminal     defense
    attorneys.     First, counsel must file a notice of appeal when
    instructed by her client to do so.               Flores-Ortega, 
    528 U.S. at 477
    .     Second, even if the client does not expressly request an
    appeal, counsel must consult with her client about an appeal
    when a rational defendant would want to appeal or her client
    expresses an interest in appealing.               Cooper, 
    617 F.3d at 313
    .
    Dereliction    in    either    duty   constitutes    deficient      performance.
    See Flores-Ortega, 
    528 U.S. at 477, 480
    ; Cooper, 
    617 F.3d at 313
    .     A defendant establishes prejudice when he demonstrates a
    reasonable probability that he would have filed an appeal “but
    for” counsel’s failure to file or consult.                    Flores-Ortega, 
    528 U.S. at 484
    .        The defendant need not show that his appeal has
    merit.    
    Id. at 486
    .
    A.
    We begin with the warden’s argument that Gordon did not
    exhaust his state remedies.            The warden does not dispute that
    Gordon properly alleged that Said failed to file a notice of
    appeal.     But, according to the warden, Gordon did not exhaust
    his contention that Said failed to consult with him about an
    appeal because Gordon did not identify it as a separate claim.
    We disagree.
    5
    State      prisoners      like       Gordon        must     exhaust      their     state
    remedies before filing a habeas petition in federal court.                                   
    28 U.S.C. § 2254
    (b).          The purpose of the exhaustion requirement is
    to “giv[e] the State the opportunity to pass upon and correct
    alleged violations of its prisoners’ federal rights.”                               Jones v.
    Sussex    I    State     Prison,      
    591 F.3d 707
    ,    712    (4th      Cir.   2010)
    (quoting Baldwin v. Reese, 
    541 U.S. 27
    , 29 (2004)).
    A   habeas       petitioner      meets       the    exhaustion       requirement       by
    “‘fairly       present[ing]’         his    claim        in    each    appropriate       state
    court . . . , thereby alerting that court to the federal nature
    of the claim.”          Reese, 
    541 U.S. at 29
     (quoting Duncan v. Henry,
    
    513 U.S. 364
    ,    365    (1995)).            To     satisfy      his     burden,      the
    petitioner      must    show    that       “both    the       operative    facts     and    the
    controlling       legal    principles         [were]          presented      to   the    state
    court.”        Jones, 
    591 F.3d at 713
     (alteration omitted) (quoting
    Baker v. Corcoran, 
    220 F.3d 276
    , 289 (4th Cir. 2000)).
    We hold that Gordon fairly presented the failure-to-consult
    issue in state court.                In its decision granting the warden’s
    motion    to    dismiss,      the     state    court          determined     that   Gordon’s
    petition raised the issue of counsel’s duty to file a notice of
    appeal,    but     found      that    Gordon       never       expressly      requested      an
    appeal.       Rather, said the court, Gordon “merely ‘asked [counsel]
    is there anything else we can do from this point . . . .’”                                 J.A.
    126 (alterations in original) (quoting Gordon’s affidavit).                                But
    6
    by inquiring about what could be done after being sentenced,
    Gordon was    indicating      his    interest    in   appealing      which,    at   a
    minimum,    triggered    counsel’s     separate       duty    to   consult.     The
    state court, however, said nothing at all about this aspect of
    Said’s performance.
    In addition, the parties’ filings before the state court
    referred to Strickland, Flores-Ortega, and Miles v. Sheriff, 
    581 S.E.2d 191
     (Va. 2003).          As noted earlier, Strickland provides
    the familiar test for a federal Sixth Amendment ineffective-
    assistance-of-counsel claim.          
    466 U.S. at 687-88
    .           Flores-Ortega
    discusses both the duty to consult and the duty to file as
    falling along a “spectrum.”          
    528 U.S. at 477
    .          And in Miles, the
    Supreme Court of Virginia discusses Strickland and Flores-Ortega
    in detail and mentions both the duty to consult and the duty to
    file.     581 S.E.2d at 194.        This is not unusual, as courts often
    address    both    the   duty   to    consult     and    duty      to   file   when
    petitioners allege that they were denied their right to appeal
    because of counsel’s ineffective assistance.
    For example, in United States v. Poindexter, the petitioner
    alleged that “his attorney rendered constitutionally ineffective
    assistance when he failed to file a timely notice of appeal
    after being unequivocally instructed to do so.”                    
    492 F.3d 263
    ,
    265 (4th Cir. 2007).       We remanded for an evidentiary hearing and
    directed     the   district     court       to   first       “determine    whether
    7
    Poindexter        unequivocally      instructed      his     attorney    to    file    a
    notice of appeal,” and, if not, “determine if Poindexter met his
    burden” on a failure-to-consult theory.                    
    Id. at 273
    ;     see also,
    e.g., Thompson v. United States, 
    504 F.3d 1203
    , 1206 (11th Cir.
    2007) (finding no clear error in the district court’s decision
    to credit counsel’s testimony that his client did not expressly
    request      an      appeal    and   then       discussing    counsel’s       duty    to
    consult); Gomez-Diaz v. United States, 
    433 F.3d 788
    , 792 (11th
    Cir.    2005)     (finding     the   pleadings      unclear    as   to   whether      the
    petitioner expressly requested an appeal but concluding that the
    pleadings, if true, supported counsel having a duty to consult);
    United States v. Witherspoon, 
    231 F.3d 923
    , 926-27 (4th Cir.
    2000)      (declining     to   decide     whether     the    petitioner       expressly
    requested       an    appeal    because     the    record     showed     that,   at    a
    minimum, the petitioner expressed an interest in appealing that
    triggered counsel’s duty to consult).
    Thus, on these facts, we reject the warden’s contention
    that Gordon failed to present his failure-to-consult theory and
    hold, instead, that Gordon exhausted his state remedies. 2
    2
    The warden also contends that Gordon did not raise his
    failure-to-consult argument in the district court.       But if
    anything, Gordon made this argument more directly in the federal
    forum.   In his filings in the district court, he wrote that he
    “expressly communicated to his attorney his desire to appeal”
    and cited Poindexter, 
    492 F.3d 263
    , for three propositions: “1.
    his attorney had a duty to consult under Flores-Ortega; 2. his
    (Continued)
    8
    B.
    We next consider what standard of review applies to the
    state    court’s     dismissal     of   Gordon’s    petition.       The    district
    court looked to the highly deferential standard in 
    28 U.S.C. § 2254
    (d), as amended by the Antiterrorism and Effective Death
    Penalty Act of 1996 (“AEDPA”).                We review this choice de novo.
    Winston v. Kelly (Winston I), 
    592 F.3d 535
    , 544 (4th Cir. 2010).
    Section 2254(d) prohibits federal courts from granting a
    state     prisoner’s      habeas    petition      unless   the     state    court’s
    decision to deny the petition (1) 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)
    “was    based   on   an   unreasonable        determination   of   the     facts    in
    light of the evidence presented in the State court proceeding.”
    However,     the     state   court’s      decision     must      qualify     as    an
    “adjudicat[ion] on the merits” to trigger AEDPA deference.                         
    Id.
    If it does not so qualify, review in the federal courts is de
    attorney failed to fulfill his consultation obligations; 3. he
    was prejudiced by his attorney’s failure to fulfill these
    obligations.”   J.A. 183 (underline added).   Gordon also wrote,
    verbatim, “On October 20, 2009, Mr. Gordon asks Mr. Said about
    challenging, his conviction(s) and or sentence during a [meeting
    in the holding cell] after being sentence. . . .       Two weeks
    later, Gordon wrote to his lawyer, informing his attorney that
    he ‘wanted to appeal’ his conviction(s) and or sentence.”    
    Id.
    (ellipsis added).   Accordingly, Gordon preserved this issue for
    our review.
    9
    novo.     Winston v. Pearson (Winston II), 
    683 F.3d 489
    , 499 (4th
    Cir. 2012).
    A claim is not “adjudicated on the merits” when the state
    court makes its decision “on a materially incomplete record.”
    Winston    I,    
    592 F.3d at 555
    .         A    record         may    be     materially
    incomplete “when a state court unreasonably refuses to permit
    ‘further development of the facts’ of a claim.”                                 Winston II, 683
    F.3d at 496 (quoting Winston I, 
    592 F.3d at 555
    ).                                         In this
    circumstance,         we    do     not   offend        the      principles         of    “comity,
    finality, and federalism” that animate AEDPA deference because
    the state court has “passed on the opportunity to adjudicate
    [the] claim on a complete record.”                        Winston I, 
    592 F.3d at 555, 557
    .
    We hold that the state court did not adjudicate Gordon’s
    claim    on     the    merits      because       it       (1)    unreasonably           truncated
    further    factual         development     on        Gordon’s     contention            that   Said
    failed to file an appeal and (2) said nothing at all about
    Gordon’s      assertion          that    Said        failed     to    consult         with     him.
    Specifically, the state court considered only Gordon’s formally
    titled    “Affidavit”         in    determining           that       no    conflict       existed
    between Gordon’s and Said’s accounts.                           As we discussed above,
    the state court found that Gordon’s “own affidavit indicates
    that he merely ‘asked [counsel] is there anything else we can do
    from this point . . . .’” J.A. 126 (alterations in original).
    10
    Gordon’s      argument,        however,      rests    on     allegations       made
    throughout his filings, asserting that he in fact asked Said
    (orally    and     in    writing)       to    pursue    an    appeal.        The    warden
    counters that we should accord no weight to these allegations
    because they are “unsworn.”              We disagree.
    Virginia requires habeas petitioners to use a form, the
    contents of which are produced in the Code.                             
    Va. Code Ann. § 8.01-655
     (2014).              If the petitioner does not substantially
    comply with the form, the court is “entitle[d] . . . to return
    such petition to the prisoner pending the use of and substantial
    compliance       with     such       form.”         § 8.01-655(A).         Among      other
    requirements, the form must be verified before a notary or other
    officer authorized to administer oaths.                     § 8.01-655(B).
    Gordon signed his petition attesting that the facts therein
    were true to the best of his information and belief, but he was
    not sworn.       Nonetheless, the state court did not return Gordon’s
    petition to him because of this defect, nor did it refuse to
    consider    the       allegations       in    the    petition      because     they   were
    unsworn.
    Moreover, Gordon was pro se, and Virginia courts in habeas
    corpus proceedings “do not expect or require high standards of
    legal    draftsmanship          of   petitioners       filing      petitions    pro    se.”
    Strickland       v.     Dunn,    
    244 S.E.2d 764
    ,    767    (Va.   1978).        We
    therefore think it proper to consider both Gordon’s affidavit
    11
    and his unsworn petition in determining whether the state court
    adjudicated Gordon’s claim on the merits.
    The record in this case sets up a classic factual dispute.
    Gordon alleged that he asked Said to file an appeal shortly
    after sentencing and again later in writing.                      As to the former,
    Gordon alleged in his petition that he had a conversation with
    Said      “right    after    the     sentencing         hearing     was      completed,
    requesting an appeal.”            J.A. 105.          And in his affidavit, Gordon
    asserted: “After sentencing I spoke briefly with Mr. Said about
    the time, I just receive[d].              I asked Mr. Said is there anything
    else we can do from this point and Mr. Said just simply shook
    his head in a no position.”            J.A. 111.
    Although in his affidavit Said insisted that Gordon never
    expressly        requested   an     appeal,      a    letter   Said    sent     to   the
    Virginia State Bar (attached to his affidavit) suggests that
    Said had some communication with Gordon or his family about an
    appeal.           Specifically,      the      letter      stated      that     “[a]fter
    sentencing[,] Mr. Gordon and his family contacted me regarding
    post-conviction motions.            I indicated to them very clearly that
    I   had    not    been   retained    to     do   post[-]conviction        motions     or
    appeals.”        J.A. 95 (emphasis added).
    Gordon also alleged that he sent Said a letter in which he
    told Said that he “wanted to have an appeal filed concerning his
    case.”       J.A.    109,    114.      In     his     affidavit,      Gordon    further
    12
    described       that    letter:          “About   two     weeks         later     [after
    sentencing], I wrote to Mr. Said explain[in]g the discomfort in
    the time I receive[d] and asking him are you sure there isn’t
    anything that you can do and if you want more money, I will pay
    you.    I never got any response back from Mr. Said.”                    J.A. 111.
    Said, in his affidavit, denied receiving such a letter and
    attached two November 2009 letters from Gordon requesting that
    Said send Gordon a number of documents.                  But Gordon was adamant
    that a different letter, not in the record, was the one where he
    requested       an   appeal.        To     support    this   contention,          Gordon
    submitted a billing invoice from Said that referenced “[r]eview
    of 13 letters sent to Office by Mr. Gordon.”                 J.A. 119.
    Rather    than   hold   an    evidentiary        hearing    to     develop     the
    record and resolve this credibility contest, the state court
    focused    on    one    line   in    Gordon’s        affidavit,        while    ignoring
    Gordon’s allegations in his papers that he asked Said to file an
    appeal.     In any event, at a minimum, Gordon’s affidavit clearly
    implicated Said’s duty to consult, which the state court did not
    address   at     all.    And   Said’s       response     that     he    had     not   been
    retained for post-conviction motions or appeals would be, by
    itself, insufficient to discharge this duty.                    See Flores-Ortega,
    
    528 U.S. at 478
     (defining “consult” as “advising the defendant
    about the advantages and disadvantages of taking an appeal, and
    making a reasonable effort to discover the defendant’s wishes”).
    13
    As a result, the state court did not adjudicate Gordon’s claim
    on the merits, and the district court owed no deference to the
    state court’s ruling.
    C.
    Having held that the district court should have reviewed
    the state court’s decision de novo, we turn to the district
    court’s denial of an evidentiary hearing.         We review this ruling
    for abuse of discretion.      Conaway v. Polk, 
    453 F.3d 567
    , 582
    (4th Cir. 2006).       Because the district court did not hold an
    evidentiary hearing, “we must evaluate the petition under the
    standards governing motions to dismiss made pursuant to Rule
    12(b)(6) of the Federal Rules of Civil Procedure.            Accordingly,
    we are obliged to accept a petitioner’s well-pleaded allegations
    as true, and we are to draw all reasonable inferences therefrom
    in the petitioner’s favor.”    
    Id.
     (citation omitted).
    AEDPA   Section    2254(e)(2)    restricts    a    federal   court’s
    ability to hold an evidentiary hearing, but those restrictions
    apply only when the habeas petitioner “has failed to develop the
    factual basis of a claim in State court proceedings.”               This
    failure occurs when a state prisoner does not act diligently to
    develop the record in state court.      Williams v. Taylor, 
    529 U.S. 420
    , 437 (2000).   “Diligence will require in the usual case that
    the prisoner, at a minimum, seek an evidentiary hearing in state
    court in the manner prescribed by state law.”          
    Id.
    14
    The       district     court    did    not    reach     Section     2254(e)(2)’s
    requirements because it summarily denied Gordon’s request for an
    evidentiary hearing with a citation to Cullen v. Pinholster, 
    131 S. Ct. 1388
     (2011).           Gordon v. Braxton, No. 1:12cv834, 
    2013 WL 2047818
    , at *8 (E.D. Va. May 14, 2013).                    Pinholster held that a
    Section        2254(d)(1)     determination         (that     the     state    court’s
    decision was contrary to, or an unreasonable application of, the
    Supreme Court’s clearly established federal law) must be made on
    the basis of the record before the state court.                        
    131 S. Ct. at 1398
    .
    However, as discussed above, Section 2254(d)(1) does not
    apply     to    Gordon’s     claim    because       the     state     court   did     not
    adjudicate it on the merits.                Pinholster did not substantively
    engage     with       the   adjudication-on-the-merits               requirement;      it
    included nothing more than “the terse acknowledgement that the
    habeas petitioner’s claims had been adjudicated on the merits in
    state-court       proceedings.”            Winston    II,      683    F.3d    at     501.
    Therefore, Pinholster does not foreclose an evidentiary hearing.
    In effect, the district court’s error in applying AEDPA
    deference       led    it   to   conclude         mistakenly     that    it    had     no
    discretion to grant a hearing.               We therefore think it proper to
    remand for the district court to exercise its discretion in the
    first instance on this question.
    15
    III.
    For    the   reasons   given,   we     reverse   the   district   court’s
    dismissal    of    Gordon’s    petition        and    remand    for    further
    proceedings.
    REVERSED AND REMANDED
    16