Jerome Gordon v. Daniel Braxton
780 F.3d 196
| 4th Cir. | 2015Background
- In 2009 Gordon pled no contest in Virginia to carnal knowledge and soliciting child pornography and was sentenced to 35 years (8 suspended); plea did not waive appellate or post-conviction rights. Counsel Mufeed Said represented him; no timely direct appeal was filed.
- Gordon filed a pro se state habeas petition alleging multiple Strickland claims about sentencing counsel’s performance and moved to amend to add that counsel failed to file an appeal when asked and failed to consult about appeal; he sought an evidentiary hearing and counsel.
- The warden moved to dismiss and submitted Said’s affidavit denying an express request to appeal; Gordon submitted an affidavit and other papers alleging he orally asked shortly after sentencing and later wrote a letter requesting an appeal.
- The state court granted leave to amend but dismissed the petition without an evidentiary hearing, finding Gordon had merely inquired rather than expressly requested an appeal and saying nothing about a failure-to-consult claim.
- Gordon filed for federal habeas relief; the district court dismissed without a hearing applying AEDPA deference and citing Pinholster. This court granted COA to review counsel’s failure-to-file/failure-to-consult ineffective-assistance claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion: Did Gordon fairly present a failure-to-consult claim to state courts? | Gordon argued his filings (petition, affidavit, motions) and citations to Strickland/Flores-Ortega/Miles fairly presented both failure-to-file and failure-to-consult theories. | Warden argued Gordon did not specifically raise failure-to-consult as a separate claim in state court. | Held: Exhaustion satisfied; the state court was alerted to the failure-to-consult theory. |
| AEDPA deference: Was the state court’s dismissal an adjudication on the merits triggering §2254(d) deference? | Gordon argued the state court unreasonably truncated factual development and ignored failure-to-consult, so no merits adjudication occurred. | Warden treated state dismissal as an on-the-merits ruling deserving AEDPA deference. | Held: State court did not adjudicate on the merits (materially incomplete record and no consideration of consultation duty); AEDPA deference not owed. |
| Evidentiary hearing: Could the federal court hold a hearing despite Pinholster? | Gordon argued Pinholster doesn’t bar a hearing when the state court never adjudicated the claim on the merits and the record is incomplete; he sought development to resolve the credibility dispute. | Warden relied on Pinholster to preclude expanding the record and denied hearing was appropriate. | Held: Pinholster does not foreclose a hearing here because §2254(d) deference does not apply; remand for district court to exercise discretion on a hearing. |
| Merits threshold (duty to file vs. duty to consult; prejudice) | Gordon alleged he both asked Said to file an appeal (duty to file) and at minimum expressed interest that triggered a duty to consult; alleged prejudice because he would have appealed but for counsel’s failures. | Said denied an express request and asserted he was not retained for appeals; state court credited a narrow reading of Gordon’s affidavit. | Held: Credibility dispute unresolved; failure to resolve merits in state court requires de novo federal review and development of facts to assess Strickland/Flores-Ortega claims. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes deficient-performance and prejudice test for ineffective assistance)
- Roe v. Flores-Ortega, 528 U.S. 470 (counsel must file appeal if instructed and must consult when defendant would rationally want to appeal)
- United States v. Cooper, 617 F.3d 307 (4th Cir.) (explains duty-to-consult framework under Flores-Ortega)
- United States v. Poindexter, 492 F.3d 263 (4th Cir.) (directs remand for hearing to resolve whether client unequivocally instructed counsel to appeal or whether Flores-Ortega consultation duty was triggered)
- Cullen v. Pinholster, 131 S. Ct. 1388 (Sup. Ct.) (limits review under §2254(d)(1) to state-court record; court explains its limited application here)
- Winston v. Pearson, 592 F.3d 535 (4th Cir.) (discusses when a state-court decision is not an adjudication on the merits due to materially incomplete record)
- Winston v. Pearson, 683 F.3d 489 (4th Cir.) (clarifies when refusal to permit further factual development defeats AEDPA deference)