dissenting:
I'agree with the majority’s analysis in all respects but one: The majority concludes that it was not unreasonable for the Supreme Court of Virginia to treat Vaughn’s letter' as' an affidavit attesting to the truth of the letter’s contents. I do not see how this can be so. If the letter is no more than a correct copy of an unattested account, it cannot form the basis for a finding that Strong’s sworn account is untrue. Without a sworn statement from Vaughn, the supreme court’s determination that Strong’s should be discredited becomes unreasonable, and I find it to be such. Accordingly, I would reverse the district court and grant the writ.
The jurat on Vaughn’s letter is unusual, but not unclear. To the customary “Subscribed and sworn to before me ...” language, the notary appended “as a true and correct copy,” so that the jurat reads: “Subscribed and sworn to before me, a notary public in and for the jurisdiction aforesaid as a true and correct copy this 26th day of June, 2003.” J.A. 58. The majority correctly observes that the words “Subscribed and sworn to before me” indicate that an oath was administered to Vaughn. But the majority then concludes that the supreme court acted reasonably in finding implicitly that the oath in question dealt with the veracity of the contents of Vaughn’s letter.
It is plain from the wording of the notary’s inscription that Vaughn’s oath had nothing to do with the letter’s contents. Unmodified, the phrase “subscribed and sworn to” would indicate that the document in question had been affirmed to be true and signed by the affiant. See Black’s Law Dictionary 866 (8th ed.2004) (defining jurat). On Vaughn’s letter, however, the phrase is modified. According to the jurat, Vaughn swore that the document was an accurate copy of another: the letter he sent to the Virginia State Bar.
*142To reach the conclusion that the notary’s inscription on the letter indicates Vaughn attested to the truth of the letter’s contents, the supreme court (and the majority) must ignore the words “as a true and correct copy,” which are included,as part of that inscription. These words are equally a part- of the jurat as those upon which the majority places so much importance. To ignore them is to change the meaning of the statement given by the notary, a proposition that seems to me completely antithetical to the purpose of requiring the notary’s verification in the first place.* Courts treat as true sworn statements to which a notary public has borne witness. The only record a court is given as to what a notary witnessed is the notary’s own, embodied in the jurat. The court that replaces the notary’s inscription with one it expects to find nullifies the authentication upon which the court purports to rely.
By implicitly finding that Vaughn swore to the truth of the contents ,of his letter, the supreme court found that the notary’s inscription means something other than what it says. I consider this finding wholly unreasonable. The notary’s statement is not ambiguous. It is not incoherent or nonsensical. It is not, as far as I can tell, in need of any correction whatsoever. The notary’s language cannot be ignored or altered at a court’s convenience; the content of Vaughn’s letter must be treated as unattested. ' .
Without a verified account or other evidence contradicting Strong’s sworn assertions, the supreme court cannot reasonably determine them to be false. In his verified petition, Strong stated unequivocally that he asked .Vaughn to appeal his case, but Vaughn refused to do so. The supreme court relied upon Vaughn’s letter to discredit Strong’s claims. There was nothing else upon which to rely. Absent that letter, there is no basis for concluding that Strong’s assertion was false. If his assertion is true, he must prevail.
As the majority notes, a failure to file a requested appeal is per se ineffective assistance of counsel. See ante at 138 (citing United States v. Foster, 68 F.3d 86, 88 (4th Cir.1995)). To win his case, Strong need not show prejudice, see United States v. Peak, 992 F.2d 39, 42 (4th Cir.1993); he need only show that he requested an appeal and none was filed. He has shown both. Therefore, under 28 U.S.C. § 2254(d)(2), this Court must grant Strong a writ of habeas corpus and afford him an opportunity for his appeal to be heard. On this record, the supreme court’s finding that Strong withdrew his request for Vaughn to file an appeal was unreasonable. The majority upholds that finding. Thus, I respectfully dissent.
I doubt the majority would be willing to ignore a portion of the jurat in every case. Surely the majority would not uphold the supreme court's finding if the jurat had read "Subscribed and sworn to before me, a notary public in and for the jurisdiction aforesaid as an untrue and incorrect copy this 26th day of June, 2003.”