Jerome Gordon v. Daniel Braxton

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:12-cv-00834-LO-TRJ. [999538756]. [13-7040]

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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.

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DIAZ, Circuit Judge:
We granted a certificate of appealability in this case to
consider

the

district

court’s

dismissal

of

Gordon’s petition for a writ of habeas corpus.

Jerome

Steven

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.
exhausted

his

state

We hold that (1) Gordon properly

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.
a direct appeal.

2

Gordon did not timely file

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Gordon did, however, pursue collateral relief.
court,

he

filed

ineffective

a

pro

assistance

se

of

habeas

counsel

at

corpus
his

In state

petition

alleging

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.
filed

a

motion

to

supplement

his

petition

Gordon later

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.
for

leave

to

“Affidavit.”

Gordon opposed the motion and again moved

amend.

To

these

filings

he

attached

a

sworn

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.
court

concluded

performance

at

on
the

the

first

sentencing

five--all

related

hearing--that

1

to

Gordon

The state
counsel’s
failed

to

Gordon also filed a pro se motion for a delayed appeal
with the Court of Appeals of Virginia, which denied the motion.

3

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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.
an

appeal

when

The state court addressed counsel’s duty to file
directed

to

counsel’s duty to consult.

do

so,

but

said

nothing

about

The Supreme Court of Virginia denied

Gordon’s petition for appeal.
Gordon then filed a pro se habeas corpus petition in the
district

court.

dismissed
reasoning.

Without

Gordon’s

an

petition

evidentiary

hearing,

based

the

on

the

state

court

court’s

Gordon appealed, and we granted a certificate of

appealability to consider “whether, in light of Roe v. FloresOrtega, 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
4

reasonableness”

and

(2)

that

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counsel’s deficient performance prejudiced him.
Washington,
implicates

466
two

attorneys.

U.S.
related

668,

687-88

duties

entrusted

to

Gordon’s
criminal

claim
defense

First, counsel must file a notice of appeal when

instructed by her client to do so.
477.

(1984).

Strickland v.

Flores-Ortega, 528 U.S. at

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.
Dereliction

in

either

duty

Cooper, 617 F.3d at 313.

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.
U.S. at 484.
merit.

Flores-Ortega, 528

The defendant need not show that his appeal has

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

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State

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prisoners

like

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Gordon

must

exhaust

their

state

remedies before filing a habeas petition in federal court.
U.S.C. § 2254(b).

28

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.”
Sussex

I

State

Prison,

591

F.3d

707,

712

(4th

Jones v.

Cir.

2010)

(quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)).
A

habeas

“‘fairly

petitioner

present[ing]’

meets

his

the

claim

exhaustion
in

each

requirement

appropriate

by

state

court . . . , thereby alerting that court to the federal nature
of the claim.”
513

U.S.

Reese, 541 U.S. at 29 (quoting Duncan v. Henry,

364,

petitioner

365

must

show

controlling
court.”

legal

(1995)).
that

To

“both

principles

satisfy

his

burden,

the

operative

facts

[were]

presented

to

the

and

the

the

state

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

state

to

dismiss,

the

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

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by inquiring about what could be done after being sentenced,
Gordon was
minimum,

indicating

triggered

his

interest

counsel’s

in

separate

appealing
duty

to

which,

consult.

at

a

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 ineffectiveassistance-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.

address

both

the

duty

This is not unusual, as courts often
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.”
265 (4th Cir. 2007).
directed

the

492 F.3d 263,

We remanded for an evidentiary hearing and

district

court

to
7

first

“determine

whether

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Poindexter

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unequivocally

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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

requested

an

to

appeal

decide
because

whether
the

the

record

petitioner
showed

expressly

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)
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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

“adjudicat[ion] on the merits” to trigger AEDPA deference.

an
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.

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novo.

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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,

“comity,

we

do

not

offend

the

principles

of

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

further

the

factual

merits

because

development

it

on

(1)

unreasonably

Gordon’s

contention

truncated
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

between Gordon’s and Said’s accounts.

no

conflict

existed

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).
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Gordon’s

argument,

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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.
§ 8.01-655 (2014).

Va. Code Ann.

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

Strickland

v.

Dunn,

of

petitioners

244

S.E.2d

filing

764,

767

petitions
(Va.

pro

se.”

1978).

We

therefore think it proper to consider both Gordon’s affidavit
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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

requesting an appeal.”

sentencing

J.A. 105.

hearing

was

completed,

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

had

not

appeals.”

been

retained

I indicated to them very clearly that
to

do

post[-]conviction

motions

or

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
12

affidavit,

Gordon

further

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described

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that

letter:

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“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.”
Rather

than

hold

an

evidentiary

J.A. 119.

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”).
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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.
for abuse of discretion.
(4th Cir. 2006).

We review this ruling

Conaway v. Polk, 453 F.3d 567, 582

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.”
AEDPA

Section

Id. (citation omitted).

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.
420, 437 (2000).

Williams v. Taylor, 529 U.S.

“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.”
14

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The

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district

court

did

Pg: 15 of 16

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).
Section

2254(d)(1)

determination

Pinholster held that a

(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

adjudicate it on the merits.
engage

with

the

the

state

court

did

not

Pinholster did not substantively

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

discretion to grant a hearing.

mistakenly

that

it

had

no

We therefore think it proper to

remand for the district court to exercise its discretion in the
first instance on this question.

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III.
For
dismissal

the
of

reasons

given,

Gordon’s

we

reverse

petition

and

the

district

remand

for

court’s
further

proceedings.
REVERSED AND REMANDED

16