Riddick v. Angelone ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN A. RIDDICK, 
Petitioner-Appellant,
v.
RONALD J. ANGELONE, Director of  No. 01-7109
the Virginia Department of
Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CA-00-622-2)
Submitted: October 31, 2001
Decided: November 19, 2001
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
John A. Riddick, Appellant Pro Se. Thomas Drummond Bagwell,
Assistant Attorney General, Richmond, Virginia, for Appellee.
2 RIDDICK v. ANGELONE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John Addison Riddick appeals from the district court’s order adopt-
ing the magistrate judge’s recommendation and denying relief on his
28 U.S.C.A. § 2254 (West 1994 & Supp. 2001) petition. For the rea-
sons discussed below, we deny a certificate of appealability and dis-
miss in part, and grant a certificate of appealability, vacate in part,
and remand.
Following a guilty plea in Virginia state court to one count of credit
card theft and one count of credit card fraud, Riddick was sentenced
to a total of fifteen years in prison. Riddick did not file a direct crimi-
nal appeal, and his state habeas corpus petition was unsuccessful. He
then filed this § 2254 petition alleging several grounds of ineffective
assistance of counsel. The district court denied relief on all his claims.
This court reviews de novo a district court’s denial of a petition for
a writ of habeas corpus. Ashe v. Styles, 67 F.3d 46, 50 (4th Cir. 1995).
Relief may be granted under § 2254 only if the state court’s decision
is contrary to, or an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United States.
28 U.S.C.A. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13
(2000). A state court’s factual findings are presumed correct unless
the applicant presents clear and convincing evidence to the contrary.
§ 2254(e)(1).
One of the issues Riddick raised in his § 2254 petition, signed
under penalty of perjury, alleged that he was denied effective assis-
tance of counsel because he asked counsel to seek reconsideration of
his sentence and counsel did not comply. It is not clear from Ridd-
ick’s pleadings whether he claims he asked counsel merely to seek
reconsideration of his sentence in the trial court, pursuant to Va. S.
Ct. R. 1:1, or whether he also asserts that he asked counsel to file a
RIDDICK v. ANGELONE 3
direct criminal appeal. The district court did not resolve this matter.
Relying on an affidavit from Riddick’s trial lawyer, in which she
declares that he never asked her to appeal, the district court rejected
Riddick’s claim.
Riddick’s verified petition is the equivalent of an affidavit. Wil-
liams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). If his petition is
construed as alleging that counsel did not comply with his request to
file an appeal, then it squarely conflicts with his trial lawyer’s affida-
vit and the district court improperly relied upon counsel’s affidavit in
denying Riddick’s claim. Gray v. Spillman, 925 F.2d 90, 95 (4th Cir.
1991); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979). To the
extent that Riddick’s petition alleges that counsel did not comply with
his request to seek reconsideration of his sentence in the trial court,
it is not contradicted by counsel’s affidavit. Thus, the district court
still must address whether such an omission amounts to ineffective
assistance of counsel. Cf. United States v. Witherspoon, 231 F.3d 923,
926 (4th Cir. 2000) (declining to address merits of underlying ineffec-
tive assistance of counsel claim in 28 U.S.C.A. § 2255 (West Supp.
2001) action where district court improperly made credibility determi-
nation based upon conflicting affidavits).
We therefore grant a certificate of appealability, vacate the portion
of the district court’s order concerning Riddick’s claim that counsel
did not comply with his request to pursue reconsideration or an
appeal, whichever is meant, and remand for further proceedings con-
sistent with this opinion. Regarding the remainder of Riddick’s
claims, we have reviewed the record and the district court’s opinion
accepting the magistrate judge’s recommendation and find no revers-
ible error. Consequently, we deny a certificate of appealability, and
dismiss these claims on the reasoning of the district court. Riddick v.
Angelone, No. CA-00-622-2 (E.D. Va. filed June 25, 2001; entered
June 26, 2001). We deny Riddick’s motion for discovery and dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED IN PART, VACATED IN PART, AND REMANDED