Filed: December 23, 2009
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6331
(8:07-cv-00727-JFA)
ROGER O’NEILL BOSTICK, a/k/a Rodgers O’Neill Bostick,
Petitioner - Appellant,
v.
FNU STEVENSON, Warden, Broad River Correctional Institution,
Respondent - Appellee.
O R D E R
The court amends its opinion filed December 17, 2009, as
follows:
On the cover sheet, district court information section --
the name of “G. Ross Anderson, Jr., Senior District Judge” is
deleted and is replaced by “Joseph F. Anderson, Jr., District
Judge.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROGER O’NEILL BOSTICK, a/k/a
Rodgers O’Neill Bostick,
Petitioner-Appellant,
v. No. 08-6331
FNU STEVENSON, Warden, Broad
River Correctional Institution,
Respondent-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Joseph F. Anderson, Jr., District Judge.
(8:07-cv-00727-JFA)
Argued: October 30, 2009
Decided: December 17, 2009
Before GREGORY, SHEDD, and DUNCAN,
Circuit Judges.
Reversed and remanded by published opinion. Judge Gregory
wrote the opinion, in which Judge Shedd and Judge Duncan
joined.
COUNSEL
ARGUED: Daniel Vandergriff, WAKE FOREST UNIVER-
SITY SCHOOL OF LAW, Appellate Advocacy Clinic,
2 BOSTICK v. STEVENSON
Winston-Salem, North Carolina, for Appellant. William
Edgar Salter, III, OFFICE OF THE ATTORNEY GENERAL,
Columbia, South Carolina, for Appellee. ON BRIEF: John J.
Korzen, Brian J. Conley, Third Year Law Student, Matthew
J. Monteith, Third Year Law Student, WAKE FOREST UNI-
VERSITY SCHOOL OF LAW, Appellate Advocacy Clinic,
Winston-Salem, North Carolina, for Appellant. Henry Dargan
McMaster, Attorney General, Donald J. Zelenka, Assistant
Deputy Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Columbia, South Carolina, for Appellee.
OPINION
GREGORY, Circuit Judge:
Roger O’Neill Bostick ("Bostick"), appeals the district
court’s awarding summary judgment to the warden in his peti-
tion for a writ of habeas corpus. We issued a certificate of
appealability to address Bostick’s ineffective assistance of
counsel claim pursuant to 28 U.S.C. § 2253(c) (2006), and
now agree with Bostick that the state procedural ground under
which the district court found his claim to have been proce-
durally defaulted was not consistently applied at the time of
his state proceedings.1 Furthermore, we find that the perfor-
mance of Bostick’s trial counsel was constitutionally deficient
because counsel did not consult with Bostick about an appeal
following his conviction. We therefore reverse the district
court’s grant of summary judgment and remand to the district
court with instructions that it issue the writ of habeas corpus.
1
Bostick alternatively argues that the state supreme court’s summary
denial of his petition for certiorari, given the procedural posture of his
case, did not constitute an actual dismissal on state grounds as required
under the Supreme Court’s decision in Coleman v. Thompson, 501 U.S.
722 (1991) and its progeny. We need not decide this question, because
even if the state court actually relied upon a state ground, Rule 59(e) was
plainly inadequate.
BOSTICK v. STEVENSON 3
I.
In September 2001, Bostick was convicted of murder and
sentenced to thirty years imprisonment in South Carolina.
Prior to sentencing, Bostick told his daughter in open court,
"Don’t worry, I’ll get a appeal [sic], don’t worry." (J.A. 249.)2
Bostick never explicitly told trial counsel to file an appeal
after trial, however, and counsel never did so.
In March 2002, Bostick filed a pro se, post-conviction-
relief ("PCR") application alleging, among other things, that
the performance of his trial counsel was constitutionally defi-
cient because counsel did not consult with him about an
appeal. At the PCR hearing in June 2004, Bostick reiterated
that trial counsel never discussed with him whether or not to
file an appeal and that he never requested that counsel file
one. His then-wife also testified that she asked counsel about
an appeal and he told her, "I can’t do an appeal because it was
a jury trial." (J.A. 162-63.) Counsel denied saying that he
could not appeal, but acknowledged that he told Bostick’s
wife, "there’s been a jury trial. The jury has spoken. What
possible grounds are there for an appeal?" (J.A. 186.) Counsel
did not testify as to any post-conviction consultation with
Bostick regarding an appeal, but did say that before trial Bost-
ick told him, "that he was going to be satisfied with what the
jury come up with, win, lose, or draw, and that would be the
end of it." (J.A. 186-87.) Counsel then said that he agreed
with Bostick’s assessment.
The PCR court denied Bostick relief in August 2004.
Though it addressed several claims, it did not address whether
counsel was ineffective for not discussing an appeal with
Bostick. Bostick, this time through counsel, petitioned the
South Carolina Supreme Court for certiorari in October 2005,
2
Citations to (J.A. __) refer to the Joint Appendix filed by the parties
upon appeal.
4 BOSTICK v. STEVENSON
but the court summarily denied his petition in January 2007.
(J.A. 264.)
Bostick then, once again pro se, filed a habeas petition in
the United States District Court in South Carolina, alleging,
among other things, that counsel was ineffective for not con-
sulting with him about a direct appeal and arguing that he was
entitled to a belated appeal as a result. The warden moved for
summary judgment. The warden conceded that Bostick
exhausted his claim in state court, but insisted that the claim
was procedurally defaulted, because Bostick had not asked
the PCR court to amend its opinion to address his ineffective-
assistance claim before petitioning for certiorari. The warden
alternatively argued that even if it could be considered, Bost-
ick’s claim was unsupported by the record. A magistrate
judge recommended that summary judgment be granted on
this claim on the grounds that Bostick’s claim was procedur-
ally defaulted, and the district court agreed. Bostick timely
appealed.
II.
We review a district court’s grant of a motion for summary
judgment in habeas proceedings de novo. Frye v. Lee, 235
F.3d 897, 902 (4th Cir. 2000). Where a petitioner’s claim has
been "adjudicated on the merits" by a state court, section 104
of the Antiterrorism and Effective Death Penalty Act
("AEDPA") of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(codified at 28 U.S.C. § 2254(d)), precludes our granting
relief unless the state court 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. § 2254(d)(1). In a case like Bos-
tick’s, however, where the state courts did not reach the
claim’s merits and instead ruled on procedural grounds, we
review the claim de novo. Hudson v. Hunt, 235 F.3d 892, 895
(4th Cir. 2000).
BOSTICK v. STEVENSON 5
III.
Bostick’s appeal raises two related issues: (A) whether or
not his claim is procedurally defaulted due to his conceded-
failure to comply with South Carolina Rule of Civil Procedure
59(e) and (B) whether or not his trial counsel was in fact inef-
fective for not consulting with him about an appeal following
his conviction. We address each issue in turn.
A.
Bostick first alleges that the district court erroneously
deemed his ineffective-assistance claim procedurally
defaulted. He admits that he did not comply with Rule 59(e)’s
requirement that he ask the PCR court to amend its opinion
before petitioning the state supreme court for certiorari, but he
nonetheless argues that his failure to do so should not proce-
durally bar his claim. We agree with Bostick that at the time
of his state proceedings, South Carolina Rule 59(e) was not
consistently applied by the state’s courts, and that as a result,
his failure to comply with the rule does not prevent him from
pursuing his claim here.
Federal courts may not hear a section 2254 claim if a state
court disposed of the claim on adequate and independent
state-law grounds, unless the petitioner can show cause and
prejudice for, or a fundamental miscarriage of justice result-
ing from, failure to comply with the applicable rule. Coleman
v. Thompson, 501 U.S. 722, 750 (1991); Wilson v. Moore, 178
F.3d 266, 272 (4th Cir. 1999). This rule protects the state’s
interest in the finality of its judgments and promotes respect
for the state-court system. Coleman, 501 U.S. at 750. For a
state-law ground to be "adequate," though, it must be applied
regularly or consistently. Johnson v. Mississippi, 486 U.S.
578, 587 (1988); Brown v. Lee, 319 F.3d 162, 169 (4th Cir.
2003). Where a procedural rule is inconsistently applied, we
will not allow a state’s invocation of that rule "to thwart fed-
eral habeas review of constitutional issues that the ‘adequacy’
6 BOSTICK v. STEVENSON
requirement was designed to prevent." Brown, 319 F.3d at
170.
It is quite clear to us that Rule 59(e) was not consistently
applied by the South Carolina courts at the time of Bostick’s
PCR proceedings. Indeed, in 2001 we explicitly noted that
Rule 59(e) was inconsistently applied and that it was inade-
quate to preclude federal review. Pearson v. Harrison, 9 Fed.
App’x 85, 87 (4th Cir. 2001).3 And though the warden urges
us to find that the South Carolina Supreme Court has clarified
its jurisprudence and begun applying the rule more consis-
tently, the state court did not do so until well-after Bostick
filed his petition for certiorari. See Marlar v. South Carolina,
653 S.E.2d 266 (S.C. 2007), rev’g 644 S.E.2d 769 (S.C. Ct.
App. 2007).
In Marlar, which the warden repeatedly cites for the propo-
sition that Rule 59(e) is consistently applied, the South Caro-
lina Court of Appeals detailed the South Carolina Supreme
Court’s past willingness to "overlook" Rule 59(e) violations
"in order to attend to the pervasive problem of inadequate
[PCR] orders." 644 S.E.2d at 771 (citing to prior decisions in
which the state supreme court remanded to the PCR court for
further findings, despite a petitioner’s non-compliance with
Rule 59(e)), rev’d, 653 S.E.2d 266. It also discussed a single
case in which the court was unwilling to overlook a petition-
er’s failure to comply with Rule 59(e), but stated that "it is not
clear whether" the court would begin to consistently apply the
rule in light of PCR-court errors that "continue to permeate
[South Carolina’s] judicial system."4 Id. at 772.
3
Citation to unpublished decisions is "disfavored" in our circuit. Loc. R.
32.1. We acknowledge Pearson not as support for a legal proposition, but
rather to emphasize that this Court has previously taken judicial notice of
the facts underlying Bostick’s claim.
4
Counsel for the warden conceded at oral argument that the intermediate
court’s overview of the law as it stood at the time was correct — that there
were some cases in which the state supreme court clearly applied Rule
59(e) and there were other cases in which it did not.
BOSTICK v. STEVENSON 7
The South Carolina Supreme Court then reversed the court
of appeals’ decision. Marlar, 653 S.E.2d at 266. In doing so,
it stated that "the general rule" is that where a party fails to
file a Rule 59(e) motion, the argument is forfeited. Id. at 267.
The state supreme court acknowledged, however, that it had
previously excused failures to file Rule 59 motions in order
to force PCR courts to make specific findings.5 Id. Even in
overruling the intermediate court and insisting that it would
consistently apply Rule 59(e) from that day forward, the state
supreme court acknowledged that the lower court’s view of
the law as it existed at the time was essentially correct.
The state court of appeals issued its decision in Marlar in
March 2007; two months after the state supreme court denied
Bostick’s petition for certiorari and two-and-a-half years after
the PCR court dismissed his appeal. The state supreme court
did not reverse that decision until November 2007. South Car-
olina, therefore, cannot be said to have "regularly" or "consis-
tently" applied the law if both of its appellate courts
acknowledged that they did not strictly enforce Rule 59(e)
even months after Bostick’s final appeal was denied. See
Brown, 319 F.3d at 169. We decline to hold Bostick responsi-
ble for failing to comply with a rule when, at the time his case
was decided, the state courts did not distinguish, in any princi-
pled way, those cases in which it would apply the rule from
those in which it would not.6 The district court’s award of
5
This statement undercuts any attempt by the warden to argue that Rule
59(e) was consistently applied insofar as it was applied to bar claims of
parties similarly situated to Bostick. Failure to apply the rule stemmed not
from anything about a particular case, but rather from the state supreme
court’s broader goal of forcing lower courts to comply with the law.
6
We also note that the state courts’ inconsistent application of Rule
59(e) here is clearly distinguishable from the Supreme Court’s recent deci-
sion in Beard v. Kindler, No. 08-992, 2009 U.S. LEXIS 8944 (Dec. 8,
2009). In Kindler, the Court held only that facially discretionary state rules
can be adequate to preclude federal habeas review. Id. at *13. We do not
read Kindler to apply to facially mandatory rules that state courts nonethe-
less apply arbitrarily. Indeed, the Court in Kindler explicitly declined to
address a broader challenge to the adequate-state-ground doctrine. Id. at
*17.
8 BOSTICK v. STEVENSON
summary judgment to the warden on the grounds that Bost-
ick’s federal habeas claim was procedurally defaulted is there-
fore reversed.
B.
Having established that Bostick’s ineffective assistance of
counsel claim is not procedurally defaulted, we now address
that claim’s merits. The warden does not contest Bostick’s
assertion that this Court may decide whether Bostick’s trial
counsel was ineffective without remanding to the district
court to address the issue in the first instance. Though it is
generally preferable for a district court to consider the matter
first, we see no need for remand in this case because no fact-
finding is required, the issue has been fully briefed by each
side, and the result is obvious. Ohio Bureau of Employment
Servs. v. Hodory, 431 U.S. 471, 482 (1977); see Forsyth
County, GA v. Nationalist Movement, 505 U.S. 123, 135 n.12
(1992); Bigelow v. Virginia, 421 U.S. 809, 826-27 (1975)
(declining to remand where "the outcome is readily appar-
ent").
Both sides’ briefs addressed whether Bostick’s counsel was
ineffective, and the undisputed facts7 that they set forth and
upon which we rely, are as follows: Bostick told his daughter
in open-court that he would "get a appeal." He nonetheless
did not directly ask his attorney to file one. Despite Bostick’s
in-court statement, counsel never discussed filing an appeal
with him after he was convicted. This was ostensibly because
Bostick previously told counsel that he would accept the
7
The only disputed factual issue is whether trial counsel told Bostick’s
then-wife that Bostick could not appeal because he had a jury trial or
whether he simply told her that there were no grounds for appeal. But, as
we discuss below, what counsel told Bostick’s wife is legally irrelevant in
light of the warden’s concession that counsel never consulted with Bostick
after he unambiguously indicated that he would "get a appeal," and
because even if counsel had told Bostick what he told his wife, it still
would not have been "consultation" in the legal sense.
BOSTICK v. STEVENSON 9
jury’s verdict and counsel shared this sentiment. Finally,
despite counsel’s failure to consult with him about an appeal
or aid him in filing one, Bostick has consistently sought relief
through all available channels since his conviction. In light of
such an unambiguous factual record, we are confident in our
ability to thoroughly analyze Bostick’s claim.
To prove that an attorney’s performance was so deficient
that it implicated the Sixth Amendment’s right to counsel,
petitioner must show that counsel’s performance was (1)
objectively unreasonable under prevailing professional norms
and (2) that petitioner was prejudiced by that deficient perfor-
mance. Strickland v. Washington, 466 U.S. 668, 688-90, 694
(1984). Trial counsel’s performance here satisfies both
prongs.
1.
To establish that he is entitled to habeas relief, Bostick
must first show that his attorney’s performance was objec-
tively unreasonable. Id. at 688-90. In the appellate context, a
petitioner may demonstrate both deficient performance and
prejudice by showing that counsel failed to file an appeal after
the petitioner explicitly requested that counsel do so. Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000). Where a petitioner
never explicitly requests an appeal, that petitioner can still
establish deficient performance by showing that counsel
failed to consult with petitioner, and that a reasonable attorney
would have done so under the circumstances. Id. at 480. For
an attorney to "consult," that attorney must advise the client
about the advantages and disadvantages of an appeal and
make reasonable efforts to ascertain the client’s wishes. Id. at
478; United States v. Witherspoon, 231 F.3d 923, 926 (4th
Cir. 2000).
Trial counsel indisputably failed to consult with Bostick
about filing an appeal. After hearing Bostick tell his daughter
that he would appeal, counsel admits that he never talked to
10 BOSTICK v. STEVENSON
Bostick about it and instead merely told Bostick’s then-wife
that "[t]he jury has spoken. What possible grounds are there
for an appeal?" Even assuming, without deciding, that counsel
can fulfill the duty to consult before the verdict, it is likewise
clear that any conversation between Bostick and his attorney
before the verdict did not constitute consultation. After Bost-
ick stated that he would be satisfied with the jury’s decision,
counsel testified at the PCR hearing that he agreed with Bost-
ick’s assessment. But, as a legal matter, an attorney’s agreeing
with the client’s assertion that the client will be satisfied with
the jury’s verdict does not satisfy the duty to consult. See
Flores-Ortega, 528 U.S. at 478; Thompson v. United States,
504 F.3d 1203, 1207 (11th Cir. 2007) ("Simply asserting the
view that an appeal would not be successful does not consti-
tute ‘consultation’ in any meaningful sense").
Likewise, it is clear that counsel’s failure to consult flew in
the face of a duty to do so. An attorney must consult with a
client about filing an appeal either where a reasonable defen-
dant would have wanted to appeal, typically because there
were non-frivolous grounds to pursue, or because the particu-
lar defendant adequately demonstrated to counsel an interest
in appealing. Flores-Ortega, 528 U.S. at 480; Frazer v. South
Carolina, 430 F.3d 696, 707-08 (4th Cir. 2005). Though there
is no per-se rule, a lawyer who fails to consult with a defen-
dant about an appeal following a jury trial almost always8 acts
unreasonably. Flores-Ortega, 528 U.S. at 481 (noting that "in
the vast majority of cases," counsel has a duty to consult with
her client about an appeal), 488 (Breyer, J., concurring) (not-
8
The Supreme Court provides two examples of when consultation
would not be constitutionally necessary, both of which are inapplicable:
First, where defense counsel advises a defendant to plead guilty, advises
him of what sentence to expect, the defendant receives the expected sen-
tence, the sentencing court advises the defendant of his right to appeal, and
defense counsel sees no, non-frivolous grounds to pursue. Flores-Ortega,
528 U.S. at 479. Second, where the sentencing court so clearly advises that
defendant of his right to appeal that any consultation by counsel would be
unnecessary. Id. at 479-80.
BOSTICK v. STEVENSON 11
ing that Court’s opinion "makes clear that counsel does
‘almost always’ have a constitutional duty to consult with a
defendant about an appeal after a trial"). Here, trial counsel
had a duty to consult with Bostick because he went to trial,
there were non-frivolous grounds to pursue, and, most impor-
tantly, Bostick unequivocally demonstrated his interest in an
appeal post-verdict. See id. at 480.
Our review of the record reveals at least three non-frivolous
grounds for appeal.9 First, Bostick could have challenged the
sufficiency of the evidence, given that he went to trial and
actively contested his guilt. Next, he could have alleged that
his indictment was deficient because it stated that the victim
was killed by blunt-force trauma, while the proof at trial
showed that she was killed by carbon-monoxide poisoning.
Further, Bostick could have alleged ineffective assistance of
counsel due to counsel’s opening the door to evidence of
Bostick’s prior bad acts when counsel asked witnesses to
comment on Bostick’s character.10
Bostick also clearly demonstrated his interest in filing an
appeal in open court, which was sufficient, in and of itself, to
implicate his attorney’s duty to consult. Bostick explicitly told
his daughter, in counsel’s presence, that he would appeal.
Though Bostick concedes that before the verdict he told coun-
sel that he would be satisfied with the jury’s decision, this
does not negate his post-conviction assertion that he was
going to appeal. See Witherspoon, 231 F.3d at 927 (noting
that where counsel failed to consult with defendant after
9
Of course, we do not decide whether any of these grounds would ulti-
mately be successful on appeal. We note only that these issues do not
clearly " ‘lack[ ] an arguable basis either in law or in fact.’ " McLean v.
United States, 566 F.3d 391, 399 (4th Cir. 2009) (quoting Neitzke v. Wil-
liams, 490 U.S. 319, 325 (1989)).
10
At the PCR hearing, counsel admitted that he knew character evidence
would be damaging in the circumstantial case against Bostick and, in fact,
designed his trial strategy so as to prevent the jury from hearing that evi-
dence.
12 BOSTICK v. STEVENSON
defendant expressed interest in appeal, "counsel’s perfor-
mance clearly was constitutionally deficient"). This is espe-
cially so in light of counsel’s duty to consult with clients
about an appeal "in the vast majority of cases," following a
jury verdict. Flores-Ortega, 528 U.S. at 481. Counsel’s fail-
ure to consult with Bostick about an appeal was therefore
objectively unreasonable and constitutionally deficient.
2.
To show prejudice from counsel’s failure to consult regard-
ing an appeal, Bostick must show that but for the failure, he
would have timely appealed. Id. at 484. This analysis overlaps
with the deficient performance analysis to the extent that peti-
tioner may satisfy the prejudice prong by showing that there
were non-frivolous grounds for appeal or by showing that
petitioner was so determined to appeal that consultation
would not have dissuaded that petitioner from doing so. Id. at
485-86; Frazer, 430 F.3d at 708. A petitioner’s "unwavering
and ongoing" interest in and pursuit of an appeal demonstrates
the intent to pursue that appeal regardless of an attorney’s
advice. See Frazer, 430 F.3d at 712.
As discussed above, Bostick had non-frivolous grounds to
appeal his conviction. Even if he did not, he was still preju-
diced by counsel’s failure to consult given that he wanted to
appeal and would have done so notwithstanding counsel’s
advice. Bostick’s is hardly a case in which a petitioner ini-
tially decides to forego an appeal and decides only after years
in prison to challenge a conviction; indeed, at the time of sen-
tencing, Bostick stated in open court that he would "get a
appeal." Bostick’s "tenacity in pursuing habeas relief only
bolsters th[e] conclusion" that he would have appealed. Id.
Bostick has therefore satisfied the prejudice prong of his inef-
fective assistance of counsel claim. We are convinced that but
for trial counsel’s failure to consult, Bostick would have
timely appealed his conviction.
BOSTICK v. STEVENSON 13
IV.
For the foregoing reasons, we reverse the district court’s
grant of summary judgment to the warden. We remand this
case to the district court with instructions that it issue the writ
of habeas corpus and that it order Bostick released from
prison unless the state grants him a direct appeal within a rea-
sonable time.
REVERSED AND REMANDED