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