UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7492
MICHAEL KEITH LAMBERT,
Petitioner - Appellant,
v.
GENE M. JOHNSON, Director, Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:06-cv-00631-RBS)
Submitted: November 3, 2009 Decided: July 6, 2010
Before MOTZ and SHEDD, Circuit Judges, and Jane R. ROTH, Senior
Circuit Judge of the United States Court of Appeals for the
Third Circuit, sitting by designation.
Vacated and remanded by unpublished opinion. Senior Judge Roth
wrote the opinion, in which Judge Motz and Judge Shedd joined.
Nathan S. Mammen, Charles A. Fernández, KIRKLAND & ELLIS, LLP,
Washington, D.C., for Appellant. William C. Mims, Attorney
General, Josephine F. Whalen, Assistant Attorney General II,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
ROTH, Senior Circuit Judge:
Michael Lambert appeals the District Court=s order denying
his petition for writ of habeas corpus under 28 U.S.C. ' 2254.
Lambert seeks habeas relief that would allow him to appeal in
state court his conviction for second-degree murder.
Because we write primarily for the parties, we only briefly
recite the facts. Lambert pleaded guilty to second-degree
murder in state court for the death of his wife. Lambert=s brief
consultation with counsel regarding his Alford plea occurred in
open court. After conducting a short colloquy, the court
accepted Lambert=s plea. At sentencing, the prosecutor proffered
victim impact statements and argued for an upward departure from
the state sentencing guidelines even though the plea agreement
provided that the state would not recommend a sentence. The
court accepted the prosecutor=s recommendation and sentenced
Lambert to 43 years= imprisonment. Lambert expressed
dissatisfaction with this result, but his counsel never advised
him of the right to appeal. Lambert exhausted post-conviction
remedies under state law and filed this habeas petition claiming
ineffective assistance of counsel.
Our review is plenary as to the District Court=s decision,
Robinson v. Polk, 438 F.3d 350, 354 (4th Cir. 2006), but
deferential as to state court determinations. Under the Anti-
Terrorism and Effective Death Penalty Act of 1996, Lambert is
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not entitled to habeas relief Awith respect to any claim that was
adjudicated on the merits in state court proceedings unless the
adjudication of the claim . . . resulted in a decision that 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).
Claims of ineffective assistance of counsel are reviewed
under the two-part test of Strickland v. Washington, which
examines whether assistance was ineffective and, if so, whether
it prejudiced the defendant. 466 U.S. 668 (1984). Failure to
counsel a defendant of appellate rights can constitute
prejudicially ineffective assistance. A[C]ounsel 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.@ Roe v. Flores-Ortega, 528 U.S.
470, 480 (2000). AFor 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.@ Bostick v. Stevenson, 589 F.3d 160, 166 (4th Cir.
2009).
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In this case, trial counsel admits he did not advise
Lambert of his right to appeal. Had Lambert known of his
appellate rights, he could have asserted three nonfrivolous
arguments challenging his conviction and sentence: (1) the
validity of his guilty plea, (2) the Commonwealth=s alleged
breach of the plea agreement, and (3) the trial court=s admission
of victim impact statements in violation of state law. Lambert
reasonably demonstrated interest in pursuing an appeal by
expressing dissatisfaction shortly after the sentence was
imposed. See Frazer v. South Carolina, 430 F.3d 696, 712 (4th
Cir. 2005) (noting that interest in appeal demonstrated by
expression of dissatisfaction). The state court=s contrary
determinations are unreasonable applications of federal law; the
District Court erred by denying the writ.
The order of the District Court will be VACATED and the
case REMANDED. On remand, the District Court shall grant the
writ of habeas corpus allowing Lambert to pursue his appeal in
state court.
VACATED AND REMANDED
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