David Richardson v. State of North Carolina
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
January 27, 2009
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 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Unpublished opinions are not binding precedent in this circuit.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 of for a writ of habeas corpus that in his the Eastern was
ineffective in failing to file a written notice of appeal after a state trial judge rejected his oral notice of appeal. district petition, court conditionally that granted Richardson's counsel was The
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 term of of the plea agreement to 151 lowered to 191 Richardson's 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. Well, he's got to have grounds for appeal, I think, in order to note his appeal. 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
Richardson thus stipulated to a prior record level of V for purposes of sentencing.
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: MR. HAG[E]N: I think there are certain law--some law regarding-- 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
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. 15A1340.17 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: MR. HAG[E]N: THE COURT: MR. HAG[E]N: I don't appeal. see any grounds for
I understand. Does he want to withdraw his plea? I don't think he wants to withdraw his plea. It's actually less than the maximum you could give him under the agreement. Well, that's up to him. want to ask him. You might
THE COURT: (J.A. at 89.) After continued: THE COURT: MR. HAG[E]N: MR. RICHARDSON: Hagen
Does he want to withdraw his plea? No. 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).
THE COURT: MR. HAG[E]N: THE COURT: MR. RICHARDSON: THE COURT: MR. RICHARDSON: THE COURT:
Are you sure? Yes, sir. Are you satisfied lawyer? Sir? with your
I mean I'm all right, sir. Are you lawyer? satisfied with your
Yeah, I'm fine.
And you don't want to withdraw your plea? Because I'll allow you to withdraw it. And if I withdraw it, then that means I've got to go to trial. That's up to you. I mean I don't want to go to trial. I already know that. With my record I know I can't win. Well, yes, but tell me. This is the third time I've asked you and you said yes twice I think. I'm fine. I'm fine. I'll just write the Appeals myself. Are you sure you don't withdraw this plea? Yes, sir. I'll allow you to withdraw it if you want me to let you withdraw the plea. What is the maximum I can get if I go to trial, sir? I mean I'm just asking. I'm fine. Court of want to
MR. RICHARDSON: THE COURT: MR. RICHARDSON:
THE COURT: MR. RICHARDSON: THE COURT:
Well, your lawyer--I have always found him to be very, very informed about criminal law. Has he told you? 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. There it is. your plea? Do you want to withdraw
MR. RICHARDSON: THE COURT: MR. RICHARDSON: THE COURT: (J.A. at 89-91.)
No, I'll stick with it. And you are sure? I'm sure. All right.
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). claims for relief. The MAR court summarily denied Richardson's 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
that "Hag[e]n's failure to file a notice of appeal on behalf of petitioner was per se ineffective assistance of counsel." at 170.) (J.A.
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. v. Conroy, 301 F.3d 213, 216 (4th Cir. 2002). Anti-Terrorism however, our and review Effective of the Death Penalty state Whittlesey
Pursuant to the Act ("AEDPA"), decision is
highly constrained. Cir. 2008). cases unless where the
Jackson v. Johnson, 523 F.3d 273, 276 (4th
We may not grant a petition for habeas relief in a state court was considered "contrary a claim or on its merits 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 of the the precedent legal was decided of the and one to which 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 applied judgment clearly that the
Federal law erroneously or incorrectly.'" 3 Jackson, 523 F.3d at
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
`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.'" Williams, 529 U.S. at 412). B. On entitled appeal, to the State relief contends on his that Richardson is not of Id. (quoting
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
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, have a the Sixth Supreme Court held that to criminal
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, test applies the to Supreme claims, Court like held that the 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, 12 his counsel performed
deficiently." not provide
Id. at 477. the attorney
In cases where the defendant does 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 attorney's that a presumption of prejudice "deprives a applies when of an 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. was not. In this in case, consistent with the Supreme counsel Court's consulted On the record before us, we conclude that it
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 on habeas court to reexamine (internal state-court citations
2. Richardson's that his more nuanced argument for habeas as a relief matter filed is of 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 appeal. erroneous rejection of his earlier oral notice of
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, that and we fail to did see not how the MAR court's
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 the a written have notice not differently pointed us than to an oral other
provision of North Carolina law that does so.
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 to it difficult written to say that falls
below an objective standard of reasonableness. go that far, of for it certainly for the was MAR not court
But we need not an to unreasonable reach that
This is so because the North Carolina Rules give
criminal defendants the option of filing either oral or written notice.
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. § 15A1448(b).
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. Richardson himself told the court, "I'm fine. fine. 90.) In response, I'm
I'll just write the Court of Appeals myself."
And, as noted above, Richardson did ultimately file a Under these
petition for writ of certiorari, but it was denied.
circumstances, we think that Richardson's statement relieved his counsel appeal--it of any further obligations respecting to Richardson's 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 Here, Hagen
(internal quotation marks and citations omitted). 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 to, ineffective or an assistance of counsel claim was
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?