Richardson v. State of North Carolina

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-6770

DAVID LOUIS RICHARDSON,

Petitioner − Appellee,

v.

STATE OF NORTH CAROLINA; ROBERT SMITH,

Respondents − Appellants.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:07-hc-02099-FL)

Argued: January 27, 2009 Decided: March 11, 2009

Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and
Arthur L. ALARCÓN, Senior Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.

Reversed and remanded with instructions by unpublished per
curiam opinion.

ARGUED: Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants. Mary
Elizabeth McNeill, NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Cooper,
Attorney General of the State of North Carolina, Raleigh, North
Carolina, for Appellants.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

David Louis Richardson filed this 28 U.S.C.A. § 2254 (West

2006) petition for a writ of habeas corpus in the Eastern

District of North Carolina, contending that his counsel was

ineffective in failing to file a written notice of appeal after

a state trial judge rejected his oral notice of appeal. The

district court conditionally granted Richardson’s habeas

petition, concluding that Richardson’s counsel was indeed

ineffective for failing to file a written notice of appeal after

the oral notice was rejected and ordering North Carolina (“the

State”) to grant Richardson an appeal within 90 days. For the

reasons that follow, we reverse and remand with instructions to

deny Richardson’s habeas petition.

I.

On April 5, 2006, David Louis Richardson pleaded guilty in

the Pitt County Superior Court to obtaining property by false

pretenses (“Count I”), in violation of N.C. Gen. Stat. § 14-100

(2007); felony larceny (“Count II”), in violation of N.C. Gen.

Stat. § 14-72 (2007); and to being a habitual felon (“Count

III”), in violation of N.C. Gen. Stat. § 14-7.1 (2007). Based

solely on his status as a habitual felon, Richardson faced a

possible maximum punishment of 261 months. Pursuant to the

terms of his plea agreement, however, several other outstanding

2
matters against Richardson were dismissed and Count I and Count

II were “consolidated into one habitual felon Level [V]

judgment, sentencing to be in the discretion of the Court.” 1

This provision of the plea agreement lowered Richardson’s

potential term of imprisonment to 151 to 191 months, and,

accordingly, Richardson was sentenced to a term of 124 to 158

months imprisonment—a sentence within the presumptive range

under North Carolina law.

After sentencing, the following exchange took place between

the trial judge and Richardson’s attorney Stephan M. Hagen:

MR. HAG[E]N: Your Honor, I discussed with Mr.
Richardson although it’s the
presumptive range sentence—he
wants to give notice of appeal. I
think he’s hoping that somehow the
Court of Appeals will find that my
services were constitutionally
inadequate and that he would get
another bite of the apple.

THE COURT: Well, he’s got to have grounds for
appeal, I think, in order to note
his appeal.

MR. HAG[E]N: All I can do—he’s asking me to
give notice of appeal. Mr.
Richardson would like to give
notice of appeal. It is a
presumptive range sentence and
it’s in compliance with our plea
agreement. I, as a lawyer, don’t
see grounds for an appeal but I
think as a principle I always tell
1
Richardson thus stipulated to a prior record level of V
for purposes of sentencing.

3
 my people—they are always free to
try and ask the Court of Appeals
to find out if there was a
mistake. If you say that you are
not going to enter appellate
entries and assign the appellate
defenders, I understand, but I’m
just—Mr. Richardson wants me to
say he gives notice of appeal.

THE COURT: I think there are certain law—some
law regarding—

MR. HAG[E]N: I think the statute says he’s not
entitled to appeal if the sentence
is within the presumptive range.

(J.A. at 86-87.)

At this point in the dialogue, the trial judge asked

someone to read him the relevant statute concerning the

right to appeal, N.C. Gen. Stat. 15A-1444 (2007). 2 After

2
Of course, “it is well settled that there is no
constitutional right to an appeal.” Abney v. United States, 431
U.S. 651, 656 (1977). And, “[i]n North Carolina, a defendant’s
right to appeal in a criminal proceeding is purely a creation of
state statute.” State v. Pimental, 568 S.E.2d 867, 869 (N.C.
Ct. App. 2002). Under the relevant provisions of N.C. Gen.
Stat. § 15A-1444 (2007), a North Carolina defendant who has
entered a guilty plea to a felony in superior court is entitled
to appeal only four issues as a matter of right: (1) “whether
his or her sentence is supported by evidence introduced at the
trial and sentencing hearing only if the minimum sentence of
imprisonment does not fall within the presumptive range for the
defendant's prior record or conviction level and class of
offense,” § 15A-1444(a1) (emphasis added); (2) whether the
sentence imposed “[r]esults from an incorrect finding of the
defendant's prior record level under G.S. 15A-1340.14 or the
defendant's prior conviction level under G.S. 15A-1340.21,” §
15A-1444(a2)(1); (3) whether the sentence imposed “[c]ontains a
type of sentence disposition that is not authorized by G.S. 15A-
1340.17 or G.S. 15A-1340.23 for the defendant's class of offense
and prior record or conviction level,” § 15A-1444(a2)(2); or (4)
(Continued)
4
the relevant sections of the statute had been read to the

judge, the conversation continued:

THE COURT: I don’t see any grounds for
appeal.

MR. HAG[E]N: I understand.

THE COURT: Does he want to withdraw his plea?

MR. HAG[E]N: I don’t think he wants to withdraw
his plea. It’s actually less than
the maximum you could give him
under the agreement.

THE COURT: Well, that’s up to him. You might
want to ask him.

(J.A. at 89.)

After Hagen consulted with Richardson, the exchange

continued:

THE COURT: Does he want to withdraw his plea?

MR. HAG[E]N: No.

MR. RICHARDSON: No, sir.

whether the sentence imposed “[c]ontains a term of imprisonment
that is for a duration not authorized by G.S. 15A-1340.17 or
G.S. 15A-1340.23 for the defendant’s class of offense and prior
record or conviction level,” § 15A-1444(a2)(3). Otherwise, “the
defendant is not entitled to appellate review as a matter of
right when he has entered a plea of guilty or no contest to a
criminal charge in the superior court, but he may petition the
appellate division for review by writ of certiorari,” and “[i]f
an indigent defendant petitions the appellate division for a
writ of certiorari, the presiding superior court judge may in
his discretion order the preparation of the record and
transcript of the proceedings at the expense of the State.” §
15A-1444(e).

5
THE COURT: Are you sure?

MR. HAG[E]N: Yes, sir.

THE COURT: Are you satisfied with your
lawyer? Sir?

MR. RICHARDSON: I mean I’m all right, sir.

THE COURT: Are you satisfied with your
lawyer?

MR. RICHARDSON: Yeah, I’m fine. Yes, sir.

THE COURT: And you don’t want to withdraw
your plea? Because I’ll allow you
to withdraw it.

MR. RICHARDSON: And if I withdraw it, then that
means I’ve got to go to trial.

THE COURT: That’s up to you.

MR. RICHARDSON: I mean I don’t want to go to
trial. I already know that. With
my record I know I can’t win.

THE COURT: Well, yes, but tell me. This is
the third time I’ve asked you and
you said yes twice I think.

MR. RICHARDSON: I’m fine. I’m fine. I’m fine.
I’ll just write the Court of
Appeals myself.

THE COURT: Are you sure you don’t want to
withdraw this plea?

MR. RICHARDSON: Yes, sir.

THE COURT: I’ll allow you to withdraw it if
you want me to let you withdraw
the plea.

MR. RICHARDSON: What is the maximum I can get if I
go to trial, sir? I mean I’m just
asking.

6
 THE COURT: Well, your lawyer—I have always
found him to be very, very
informed about criminal law. Has
he told you?

MR. HAG[E]N: I keep telling him with a habitual
felon judgment every felony they
convict him of, the ones that he
pled guilty to today, that would
be two times the habitual felon
level 5, assuming they stay in the
presumptive range, about 300
months minimum. There are several
other felonies that are getting
dismissed and then this one down
in Craven County.

THE COURT: There it is. Do you want to withdraw
your plea?

MR. RICHARDSON: No, I’ll stick with it.

THE COURT: And you are sure?

MR. RICHARDSON: I’m sure.

THE COURT: All right.

(J.A. at 89-91.)

As this exchange makes clear, seeing no grounds for appeal,

the judge refused to accept the oral notice of appeal, to

appoint an appellate attorney, or to make appellate entries.

And, neither Hagen nor Richardson himself filed a written notice

of appeal on Richardson’s behalf.

On February 2, 2007, Richardson filed a pro se motion for

appropriate relief (“MAR”) in the Pitt County Superior Court.

In that motion, Richardson stated:

Defendant was not advised of his right to appeal. No
appeal was entered in open court on his behalf and the

7
 time period for doing so pursuant [to] Rule 4(a) has
now expired. Therefore, Defendant now move [sic] the
court for appropriate relief from the Judgement [sic]
. . . .

(J.A. at 95-96). The MAR court summarily denied Richardson’s

claims for relief. Richardson then filed a pro se petition for

writ of certiorari with the North Carolina Court of Appeals,

which was also denied.

On May 18, 2007, Richardson filed a pro se § 2254 petition

in the Eastern District of North Carolina, alleging that his

sentence was illegal, that he received ineffective assistance of

counsel, that he was denied his right to appeal, and that the

state court did not have jurisdiction over him. The State filed

a motion for summary judgment arguing that Richardson’s claims

were without merit. The district court granted the State’s

motion for summary judgment with respect to all of Richardson’s

claims except his claim that his counsel failed to file a notice

of appeal at Richardson’s request. The district court ordered

an evidentiary hearing to consider Richardson’s contention that

his trial counsel failed to note an appeal on his behalf, but

ultimately vacated that order after the State produced a copy of

the stenographic transcript of Richardson’s guilty plea

proceeding.

On May 2, 2008, the district court issued an order

conditionally granting Richardson’s habeas petition, concluding

8
that “Hag[e]n’s failure to file a notice of appeal on behalf of

petitioner was per se ineffective assistance of counsel.” (J.A.

at 170.) The order stated that the writ would not issue if the

State granted Richardson a belated appeal within 90 days.

The State appealed, and we possess jurisdiction pursuant to

28 U.S.C.A. §§ 1291 and 2253 (West 2006).

II.

A.

We review de novo the district court’s decision to grant

Richardson’s § 2254 petition based on the state court record,

applying the same standards as the district court. Whittlesey

v. Conroy, 301 F.3d 213, 216 (4th Cir. 2002). Pursuant to the

Anti-Terrorism and Effective Death Penalty Act (“AEDPA”),

however, our review of the relevant state court decision is

highly constrained. Jackson v. Johnson, 523 F.3d 273, 276 (4th

Cir. 2008). We may not grant a petition for habeas relief in

cases where a state court considered a claim on its merits

unless the decision was “contrary to, or involved 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)(1).

A state court’s decision is contrary to clearly established

federal law “if the state court arrives at a conclusion opposite

9
to that reached by [the Supreme] Court on a question of law or

if the state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.”

Williams v. Taylor, 529 U.S. 362, 413 (2000). And, a state

court’s decision involves an unreasonable application of federal

law when the state court “correctly identifies the governing

legal rule [from the Supreme Court’s cases] but applies it

unreasonably to the facts of a particular . . . case,” id. at

407-08, or “applies a precedent in a context different from the

one in which the precedent was decided and one to which

extension of the legal principle of the precedent is not

reasonable [or] fails to apply the principle of a precedent in a

context where such failure is unreasonable,” Robinson v. Polk,

438 F.3d, 350, 355 (4th Cir. 2006) (internal quotation marks and

citation omitted). “The state court’s application of clearly

established federal law must be ‘objectively unreasonable,’ for

a ‘federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the

relevant state-court decision applied clearly established

Federal law erroneously or incorrectly.’” 3 Jackson, 523 F.3d at

3
We also note that the deference we owe the MAR court’s
denial of Richardson’s ineffective assistance of counsel claim
is not lessened by the fact that the MAR court denied the claim
in a summary order without explaining its rationale. Bell v.
Jarvis, 236 F.3d 149, 158 (4th Cir. 2000) (en banc) (“[W]e may
(Continued)
10
277 (quoting Williams, 529 U.S. at 409, 411). “The phrase

‘clearly established federal law’ refers ‘to the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions as of

the time of the relevant state-court decision.’” Id. (quoting

Williams, 529 U.S. at 412).

B.

On appeal, the State contends that Richardson is not

entitled to habeas relief on his ineffective assistance of

counsel claim because the MAR court’s denial of that claim was

neither contrary to, nor involved an unreasonable application

of, clearly established federal law. According to the State,

Hagen was not ineffective for failing to file a written notice

of appeal after Richardson’s guilty plea because North Carolina

procedural rules do not require or express a preference for

written notice and the trial court had already refused to accept

oral notice. Richardson counters that his counsel’s failure to

file a written notice of appeal after the trial court rejected

the oral notice constitutes ineffective assistance of counsel

and that the MAR court’s denial of his ineffective assistance of

not presume that [the] summary order is indicative of a cursory
or haphazard review of [the] petitioner’s claims. Rather, the
state court decision is no less an adjudication of the merits of
the claim and must be reviewed under the deferential provisions
of § 2254(d)(1).” (internal quotation marks and citation
omitted)).

11
counsel claim was contrary to, or involved an unreasonable

application of, the United States Supreme Court’s decisions in

Strickland v. Washington, 466 U.S. 668 (1984), and Roe v.

Flores-Ortega, 528 U.S. 470 (2000).

Before resolving this dispute, we review the relevant

Supreme Court case law.

In Strickland, the Supreme Court held that criminal

defendants have a Sixth Amendment right to “reasonably

effective” legal assistance, 466 U.S. at 687, and announced the

following test: A defendant claiming ineffective assistance of

counsel must show (1) that counsel's representation “fell below

an objective standard of reasonableness,” id. at 688, and (2)

that counsel’s deficient performance prejudiced the defendant,

id. at 692.

In Flores-Ortega, the Supreme Court held that the

Strickland test applies to claims, like Richardson’s, that

counsel was constitutionally ineffective for failing to file a

notice of appeal. Flores-Ortega, 528 U.S. at 477. As to

Strickland’s first prong, the Court noted that “a lawyer who

disregards specific instructions from the defendant to file a

notice of appeal acts in a manner that is professionally

unreasonable,” but that “a defendant who explicitly tells his

attorney not to file an appeal plainly cannot later complain

that, by following his instructions, his counsel performed

12
deficiently.” Id. at 477. In cases where the defendant does

not provide the attorney with explicit instructions about

whether to file an appeal, the Flores-Ortega Court explained

that “whether counsel has performed deficiently by not filing a

notice of appeal is best answered by first asking a separate,

but antecedent, question: whether counsel in fact consulted with

the defendant about an appeal,” id. at 478, and that “counsel

has a constitutionally imposed duty to consult with the

defendant about an appeal when there is reason to think either

(1) that a rational defendant would want to appeal (for example,

because there are nonfrivolous grounds for appeal), or (2) that

this particular defendant reasonably demonstrated to counsel

that he was interested in appealing,” id. at 480.

As to Strickland’s second prong, the Flores-Ortega Court

observed that a presumption of prejudice applies when an

attorney’s deficient performance “deprives a defendant of an

appeal that he otherwise would have taken, the defendant has

made out a successful ineffective assistance of counsel claim

entitling him to an appeal.” Id. at 484. Of course, “whether a

given defendant has made the requisite showing will turn on the

facts of a particular case.” Id. at 485. “[E]vidence that

there were nonfrivolous grounds for appeal or that the defendant

in question promptly expressed a desire to appeal will often be

highly relevant in making [the prejudice] determination,” id. at

13
485, and “a defendant's inability to specify the points he would

raise [on appeal] . . . will not foreclose the possibility that

he can satisfy the prejudice requirement where there are other

substantial reasons to believe that he would have appealed,” id.

at 486 (internal quotation marks and citation omitted).

C.

1.

The ultimate question that we must answer in this appeal—

the same question the district court faced below—is whether the

MAR court’s denial of Richardson’s ineffective assistance of

counsel claim was contrary to, or an unreasonable application

of, Strickland. On the record before us, we conclude that it

was not.

In this case, consistent with the Supreme Court’s

instruction in Flores-Ortega, Richardson’s counsel consulted

with his client about an appeal and attempted to carry out the

explicit instructions of his client by orally noticing an appeal

at the sentencing hearing. The trial court rejected that

notice.

Richardson first complains that the trial court improperly

rejected his oral notice of appeal because it saw no grounds for

appeal. On this point, Richardson is correct; the North

Carolina appellate procedures do not require a notice of appeal

to state the grounds for appeal. See N.C. R. App. P. 4(b).

14
Nevertheless, to the extent that Richardson’s claim for habeas

relief rests on the state court’s erroneous application of state

law, it must fail. Estelle v. McGuire, 502 U.S. 62, 67-68

(1991) (“[F]ederal habeas corpus relief does not lie for errors

of state law. . . . [W]e reemphasize that it is not the province

of a federal habeas court to reexamine state-court

determinations on state-law questions.” (internal citations

omitted)).

2.

Richardson’s more nuanced argument for habeas relief is

that his counsel’s conduct was ineffective as a matter of

federal constitutional law because, if counsel had filed a

written notice of appeal with the clerk of the Superior Court,

“[t]he jurisdiction of the trial court with regard to [his] case

[would have been] divested,” N.C. Gen. Stat. § 15A-1448(a)(3)

(2007), and his appeal would have proceeded despite the trial

court’s erroneous rejection of his earlier oral notice of

appeal. The MAR court implicitly determined that Richardson’s

counsel’s conduct—that is, his failure to end-run the court’s

erroneous rejection of oral notice with a written notice—“fell

[within] an objective standard of reasonableness,” Strickland,

466 U.S. at 688, and we fail to see how the MAR court’s

determination that Richardson did not receive ineffective

15
assistance of counsel was contrary to, or an unreasonable

application of, clearly established Federal law.

In so holding, we first emphasize that this case involves

the North Carolina Rules of Appellate Procedure, not the Federal

Rules of Appellate Procedure (“FRAP”). In concluding that

Richardson’s counsel was required to file written notice after

the oral notice was rejected, the district court relied on McCoy

v. United States, No. 3:06CV313-V-02, 2006 WL 2241156 (W.D.N.C.

Aug. 3, 2006) (unpublished). In McCoy, the district court found

that trial counsel provided ineffective assistance of counsel by

failing to file a written notice of appeal after the petitioner

attempted to file oral notice of appeal but was told by the

judge that he had to file a written notice of appeal within 10

days. Id. at *1-2. McCoy, however, was decided under the FRAP

not the North Carolina Rules of Appellate Procedure, and thus

any reliance on McCoy in the case before us is misplaced.

Unlike the FRAP, which do not provide for oral notice of

appeal, see Fed. R. App. P. 3(a)(1) (“An appeal permitted by law

as of right from a district court to a court of appeals may be

taken only by filing a notice of appeal with the district clerk

within the time allowed by Rule 4.” (emphasis added)), North

Carolina Rule of Appellate Procedure 4(a) provides that “[a]ny

party entitled by law to appeal from a judgment or order of a

superior or district court rendered in a criminal action may

16
take appeal by (1) giving oral notice of appeal at trial, or (2)

filing notice of appeal with the clerk of superior court . . .

.” 4 N.C. R. App. P. 4(a) (emphasis added). Importantly, this

rule gives a criminal defendant the option to file a notice of

appeal either orally or in writing, but it neither expresses a

preference for written notice over oral notice nor mandates that

courts must treat a written notice differently than an oral

notice—and the parties have not pointed us to any other

provision of North Carolina law that does so. Thus, although

counsel in McCoy was certainly ineffective for failing to file a

written notice of appeal given that the FRAP provide only for

written notice, we would find it difficult to say that

Richardson’s counsel’s failure to file written notice falls

below an objective standard of reasonableness. But we need not

go that far, for it certainly was not an unreasonable

application of Strickland for the MAR court to reach that

conclusion. This is so because the North Carolina Rules give

criminal defendants the option of filing either oral or written

notice.

4
In North Carolina, “[n]otice of appeal shall be given
within the time, in the manner and with the effect provided in
the rules of appellate procedure.” N.C. Gen. Stat. § 15A-
1448(b).

17
 Second, we note that after the court rejected the oral

notice of appeal, the court asked Richardson repeatedly if he

wished to withdraw his guilty plea in light of the fact that the

court was not going to enter a notice of appeal. In response,

Richardson himself told the court, “I’m fine. I’m fine. I’m

fine. I’ll just write the Court of Appeals myself.” (J.A. at

90.) And, as noted above, Richardson did ultimately file a

petition for writ of certiorari, but it was denied. Under these

circumstances, we think that Richardson’s statement relieved his

counsel of any further obligations respecting Richardson’s

appeal—it indicated Richardson’s desire to forego a written

notice of appeal in favor of Richardson filing a petition for a

writ of certiorari with the appellate division, which was his

appropriate remedy under § 15A-1444(e). Cf. Flores-Ortega, 528

U.S. at 477 (“[A] defendant who explicitly tells his attorney

not to file an appeal plainly cannot later complain that, by

following his instructions, his counsel performed

deficiently.”).

In sum, we are mindful that “courts must judge the

reasonableness of counsel’s challenged conduct on the facts of

the particular case, viewed as of the time of counsel’s

conduct,” and that “judicial scrutiny of counsel’s performance

must be highly deferential.” Flores-Ortega, 528 U.S. at 477

(internal quotation marks and citations omitted). Here, Hagen

18
consulted with Richardson and attempted to enter an oral notice

of appeal on his behalf but it was rejected; North Carolina law

gives defendants the option to file either oral or written

notice of appeal and does not provide for different treatment of

oral and written notices; and Richardson himself, when

questioned by the court, accepted that his appropriate remedy

was not to file a notice of appeal, but to petition for a writ

of certiorari. On these facts, and under the highly deferential

AEDPA standard, we simply cannot say that the MAR court’s denial

of Richardson’s ineffective assistance of counsel claim was

contrary to, or an unreasonable application of, clearly

established federal law.

III.

For the foregoing reasons, we reverse the district court’s

judgment granting the writ of habeas corpus based on ineffective

assistance of counsel and remand with instructions to deny

Richardson’s § 2254 petition.

REVERSED AND REMANDED WITH INSTRUCTIONS

19