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Criminal Practice — Habeas Claim Alleges ‘Failure to Consult’

Gordon v. Braxton, Warden (Lawyers Weekly No. 15-01-0207, 16 pp.) (Diaz, J.) No. 13-7040, March 3, 2015; USDC at Alexandria, Va. (O’Grady, J.) 4th Cir.

Holding: A defendant who pleaded guilty to carnal knowledge and soliciting production of child pornography, but who did not waive his appeal rights, exhausted his claim that his trial counsel failed to consult with him on his inquiry about an appeal; the 4th Circuit reverses denial of his writ for a petition of habeas corpus and remands for the district court to consider whether to hold an evidentiary hearing.

We hold that appellant fairly presented the failure-to-consult issue in state court. In its decision granting the warden’s motion to dismiss, the state court determined the petition raised the issue of counsel’s duty to file a notice of appeal, but found appellant never expressly requested an appeal but had only asked “is there anything else we can do from this point.” By inquiring about what could be done after being sentenced, appellant 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 the lawyer’s performance.

On these facts, we reject the warden’s contention that appellant failed to present his failure-to-consult theory and hold, instead, that appellant exhausted his state remedies.

We further hold the state court did not adjudicate appellant’s claim on the merits because it unreasonably truncated further factual development on his contention that his trial counsel failed to file an appeal, and said nothing at all about appellant’s assertion that the lawyer failed to consult with him. Specifically, the state court considered only appellant’s formally titled “Affidavit” in determining that no conflict existed between appellant’s and the lawyer’s accounts.

Appellant’s argument rests on allegations made throughout his filings asserting he in fact asked his lawyer (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. Appellant signed his petition attesting that the facts therein were true to the best of his information and belief, but he was not sworn. Nevertheless, the state court did not return appellant’s petition to him because of this defect, nor did it refuse to consider the allegations because they were unsworn. We think it proper to consider both appellant’s affidavit and his unsworn petition in determining whether the state court adjudicated his claim on the merits.

At a minimum, appellant’s affidavit clearly implicated his lawyer’s duty to consult, which the state court did not address at all. The lawyer’s response that he had not been retained for post-conviction motions or appeals would be, by itself, insufficient to discharge this duty. The district court owed no deference to the state court’s ruling.

Further, the district court’s error in applying deference under the Antiterrorism and Effective Death Penalty Act led it to conclude mistakenly that it had no discretion to grant an evidentiary hearing. We therefore think it proper to remand for the district court to exercise its discretion in the first instance on this question.

Reversed and remanded.