Frank D. Frazer v. State of South Carolina Henry Dargan McMaster Attorney General for South Carolina

C. appellate

In their third and final

contention, they the defendants maintain resentencing

are entitled to under United Booker, 220, 125

States v. (2005), proge L.Ed.2d 621 and its brief,

ny. in its supplemental letter Court, April again 2005 to this prosecution argument, oral has con agreed

ceded issue and error resentencing

Booker mandates of the de position prosecution’s

fendants. The

valid, and we therefore vacate the defen

dants’ sentences and remand for such re-

sentencing proceedings may be approp

riate.17

III. foregoing,

Pursuant to the affirm we convictions,

defendants’ vacate their sen-

tences, and remand. PART,

AFFIRMED IN VACATED IN

PART, AND REMANDED. FRAZER,

Frank D. Petitioner-

Appellee, CAROLINA; Henry

State of SOUTH McMaster,

Dargan Attorney General Carolina, Respondents-Ap

for South

pellants.

No. 04-6500. Appeals,

United States Court of

Fourth Circuit.

Argued Dec. 2004.

Decided Dec. Hughes, 17. As in United. States v. sentencing.” "[w]e of at the of [the time defendants’] judge, course offer no criticism of the district (4th Cir.2005). F.3d See 401 545 n. procedure who followed the law and in effect MOTZ Judge DIANA GRIBBON

which MOTZ, joined. Judge DIANA GRIBBON concurring opinion. separate wrote a dissenting Judge wrote a LUTTIG opinion.

OPINION DUNCAN, Judge. Circuit appeals the district South Carolina granting on order relief Frank court’s a writ petition of habeas cor Frazer’s solely granted relief as to pus. The attorney claim that his failed to Frazer’s regarding him consult with a direct traffick following sentencing his state ing charges in and that as result he Although appeal. lost his this claim con state courts that reviewed did not that the Amendment cluded Sixth require Frazer’s counsel to consult with appeal, him the district court regarding under was unreasonable this conclusion found Washington, St rickland (1984), 2052, 80 L.Ed.2d 674 following For the rea progeny. and its sons, affirm. we I. grand a South Carolina March Salter, III, Edgar William ARGUED: trafficking, pos- for jury indicted Frazer General, Attorney Office Assistant Senior during weapon the commission sessing Carolina, Attorney of South of the General violence, a con- possessing and a crime of Carolina, Columbia, Appellants. for South distribute. with intent to trolled substance Columbia, Betts, Bruce South Car- David sentencing hearing change plea At a and Henry olina, Appellee. BRIEF: for ON 22, 1994, guilty pleaded Frazer on March General, McMaster, Attorney John Dargan undisputed It charges. to first two McIntosh, Attorney Deputy Gen- Chief

W. that the and state that Frazer assumed Zelenka, eral, Deputy J. Assistant Donald five- apply concurrent judge trial General, Columbia, Car- Attorney South However, court im- year sentences. olina, Appellants. for five-year sentences consecutive posed $100,000, fact that the despite a fine of MOTZ, LUTTIG, Before convictions was fine for Frazer’s maximum DUNCAN, Judges. Circuit Howie, counsel, $25,000. Frazer’s As Jack Frazer did acknowledged, opinion. Judge subsequently Affirmed published sen- to consecutive expect in not receive majority opinion, wrote the DUNCAN tences, immediately expressed and Frazer ap- “never informed him of his After, surprise peal,” his and discontent. there nothing record or judge sentence, announced Frazer’s Fraz- hearing “to indicate con- [Frazer] having er Howie to “about veyed asked see time to his attorney trial a desire to run together.” J.A. 189. until it was too late.” J.A. 209. Septem- The PCR court’s order issued on Despite prior assurance that he would ber 1999. Frazer appealed the PCR necessary paperwork” “file the if some- court’s decision to the South Carolina Su- thing wrong sentencing, went J.A. preme for petition certiorari dat- Howie’s effort to end was an ed June 2000. The South Carolina reconsideration, for informal oral motion summarily denied Frazer’s which denied without order on petition May other elaboration. At no time either be- 7, 2003, fore or after the denial the motion for March On un- Frazer'filed the ' reconsideration did Howie derlying pro ascertain se application- for a writ of appeal. whether Frazer wished to As corpus a habeas pursuant to 28 U.S.C. result, period noting § an application 2254. Frazer’s renewed the passed appeal being presented without notice of five issues to the South Carolina filed, § a fact Frazer did learn-until after Court.2 application His he express wrote Howie to continuing magistrate judge his was referred to a who pursue denying claims, dissatisfaction and recommended ap- desire an relief on all peal. finding no error in the PCR court’s rea- soning that Howie was under no Sixth filed a post- Frazer state Amendment obligation consult with (“PCR”) conviction relief February regarding appeal. Frazer Frazer filed application alleged 1997. His that he re- timely objections recommendation. counsel, ceived ineffective assistance of Following review, a de novo plea the district his had not been knowing and court found that obligation Howie had an voluntary, and that the trial court lacked jurisdiction under Strickland to consult with Frazer accept guilty plea.1 Fol- regarding an appeal. lowing evidentiary While acknowl- hearing at which testified, edging formally that Frazer never de- Howie the PCR court concluded manded an until after the adjust it was to appropriate Frazer’s (the period expired, had $100,000 $25,000 the district fine from court noted to amount parties both agreed was the maximum for undisputed that, [t]he evidence shows the trafficking charge), but that Frazer immediately sentencing, after Frazer was otherwise not entitled to relief. The agreed and Howie that Howie would that, PCR court although noted seek review of the sentence. Howie as- .Howie 3) 1. previously Frazer had applica- filed PCR by failing Howie had also been ineffective 31, 1995, tion on October btit withdrew adequately to prior consult with him to his voluntarily year. following Frazer When 4) change plea; plea knowingly his was not petition, PCR his the PCR refiled ly court initial- entered; 5) voluntarily and and that his sen- application dismissed Frazer’s as succes- tencing was The vindictive. district court dis- sive, but the South Carolina 1) 3) through prejudice, missed claims with permitted Frazer to it. re-file 4) 5) preju- and dismissed claims and without dice. Neither South Carolina nor Frazer con- 2. regarding In addition to his claim Howie’s tests district court's resolution these consult, 1) failure to Frazer contended that: issues. jurisdiction accept the trial court lacked to his 2) defective; guilty plea; his indictment was

703 (2000) 1495, (discussing 146 L.Ed.2d 389 file the he “would Frazer sured 2254(d)). “clearly § phrase The estab- to have the sen- paperwork” necessary by modified, not lished Federal as determined Frazer did hear tence Supreme Court of the United States” re- again until Frazer contacted from Howie quires that federal courts assess the validi- appeal. of his him the status about ty of the claims on the inmate’s based court specifically The 114. district J.A. “as of the holdings reasonably “Frazer demonstrat- noted that decision.” time of the relevant state-court he was interested to Howie that ed 412, at 1495. A Id. 120 S.Ct. state habeas sentence,” and that of the seeking review unreasonably applies clearly estab- grounds ap- non-frivolous “there were it “identifies the lished Federal law when The district court’s Id. 115. peal.” ... governing legal principle correct but relief on this claim habeas granting order unreasonably principle applies 2004, 12, February was entered 413, prisoner’s facts case.” Id. of the timely appeal. noted South Carolina II. A. court’s decision to A district principle applicable legal de novo. relief is reviewed grant habeas assistance of counsel claims of ineffective (4th Lee, 366 F.3d Cir.

Allen v. Washington, are set forth denied, 2004) (en banc), U.S. cert. 80 L.Ed.2d 104 S.Ct. (2004). As L.Ed.2d 182 125 S.Ct. (1984). the ex Strickland establishes court, our of a district review with the obligations nature tent and of counsel’s governed claims is petitioner’s habeas two-part test for as the defendant and and Effective Death the Anti-Terrorism inef sessing proved whether counsel has 104-132, Pub.L. No. Penalty Act obligations. in discharging fective those (the “AEDPA”). rele 110 Stat. First, prove must his the defendant provides AEDPA that: part, vant objectively unrea efforts were counsel’s a writ of habeas cor- An against prevailing when measured sonable custody person behalf of a pus on 688-90, Id. at professional norms. a State judgment to the pursuant Second, the must S.Ct. 2052. defendant respect granted court shall be performance, demonstrate that counsel’s adjudicated on any claim deficient, Id. prejudicial. was also adjudication of unless the merits requires generally 2052. This claim— a reason demonstrate defendant that, (1) but counsel’s er in able probability a decision that was con- resulted ror, proceeding the to, result of or involved an unreasonable the trary Id. of, have different. clearly established Feder- been application law, by Supreme al as determined the test of Strickland two-part States; or the United Court of in order to satisfy that defendants must (2) in a that was based resulted decision of coun an assistance prevail on ineffective determination the on an unreasonable qualifies unquestionably sel claim presented the light evidence facts law under federal “clearly established” proceeding. the State 391, 2254(d). Williams, 120 529 at § U.S. (“It the past question 2254(d); S.Ct. 1495 § see v. 28 also Williams U.S.C. qualifies 362, 402-13, rule forth in Strickland 120 set Taylor, 529 U.S. 704

‘clearly Federal as deter- established dant’s claims under the standards of the AEDPA). by the Court of United mined ”). Flores-Ortega, States.’ Roe v. 528 B. 470, 477-80, 1029, 120 S.Ct. 145 U.S. (2000), Teague, Under a prisoner

L.Ed.2d 985 state collaterally attacking his applied may conviction Strickland to hold that counsel’s rely not on a new constitutional rule an duty to general- consult the defendant nounced after his conviction became final.4 ly requires counsel to discuss with the 310-11, Teague, 489 U.S. 109 S.Ct. 1060. pursue defendant whether appeal. to an A new rule is one which “breaks new 477-80, 528 120 U.S. S.Ct. 1029. The ground,” “imposes a new obligation on the two-part then followed the test of Government,” or States the Federal or Strickland to assist courts in establishing by not precedent “was existing dictated particular whether the failure to consult the time the defendant’s conviction became regarding appeal amounted to ineffec- 301, Teague, final.” 489 U.S. at 109 S.Ct. However, tive assistance. because Flores- noted, 1060. As the Court has OHega issued after Frazer’s state-court guidelines these are than rigidly rather final, conviction became we up must take criteria, applied single and no test is deter rely- threshold issue of whether we are minative. See Gilmore v. Taylor, 508 U.S. ing on that decision violation of the non- 333, 340, 2112, 124 L.Ed.2d 306 principle Teague retroactive announced in (1993) (noting by” the “dictated test Lane, 288, 1060, v. 489 U.S. 109 S.Ct. cases”). meaningful in “majority a (1989).3 Banks, L.Ed.2d 334 See Horn v. 266, 271-72, 536 U.S. 122 S.Ct. Applying guidelines these to (2002) curiam) (per L.Ed.2d 301 (noting Flores-Ortega demonstrates that it does federal up habeas courts must take present not a new constitutional rule under analysis Teague under necessary Rather, where Teague. simply addressing the merits of crystalizes the defen- application of Strickland to before exception 3. There is an this affirmatively to rule: "a feder asserted the claims had been not, may, al court but apply need decline merits), to decided on it has waived its Teague argue the State not does it.” Cas pursue appeal.” (emphasis matter on Bohlen, 383, 389, pari v. 510 U.S. 114 S.Ct. added)). (1994). Although 127 L.Ed.2d we here, opt apply Teague South Carolina’s non-retroactivity Teague 4.The rule of is sub failure opening to address the matter in its ject exceptions to two applicable here. provide adequate briefs to this court could permits exception "The first the retroactive grounds forego inquiry altogether. places of a rule rule new if the See, e.g., Engine Marine Co. v. Pleasurecraft private beyond power class of conduct (4th Corp., Thermo 272 F.3d Power proscribe, State ... or addresses 'sub Cir.2001); Ortiz, Arredondo v. 365 F.3d categorical guarante[e] stantive accorded (9th Cir.2004) (declining apply Teague Constitution,’ 'prohibiting such as rule sponte sua where it was mentioned category punishment certain class of denied, "only passing”), state cert. defendants because of their status of (2004); 160 L.Ed.2d 156 ” Parks, 484, 494, fense.' French, see also Noland v. 134 F.3d Saffle 1257, (1990) (cita (4th 110 S.Ct. L.Ed.2d Cir.1998) 108 415 (noting Teague the rule in the is omitted). exception tions defense); "The second is an for Royal nature of affirmative v. 239, (4th ("Be Taylor, Cir.1999) procedure’ 'watershed rules impli F.3d of criminal 188 247 cating cause in the accuracy the district court the fundamental fairness and Commonwealth 495, failed proceeding.” [affirmative to raise the of the of ... criminal at defense] Id. 110 (indeed respect default with to these claims it S.Ct. 1257.

705 dut[y] presented by “particular Frazer’s the to the context consult with the specific 476-81, important defendant on Flores-Ortega, 528 U.S. at decisions” identi- claim. Strickland, 688, fied at in 466 U.S. making this tailored 120 S.Ct. Flores-Ortega’s S.Ct. 2052. exclu- distillation analysis, relied (but generally invariably) that counsel not in announced sively principles on the duty has to a consult with his client re- defining other cases Strickland and pursue to an garding appeal whether is in the appellate process. role counsel such, thus As dictated Strickland. Indeed, the Court’s conclusions See id. not ground Teag- Court did break new for Flores-Ortega prior its are dictated respect purposes duty ue to counsel’s a) has ulti- that: the defendant conclusions to consult. to the fundamental authority mate make appeal, take an decision as whether to Flores-Ortega’s formulation of the Barnes, 751, 103 S.Ct. v. 463 U.S.

Jones prejudice prong of Strickland likewise b) obligation and counsel’s to assist presents nothing new Teague. under The duty includes a “to consult defendant Flores-Ortega explicitly Court noted important deci- with the defendant tailoring its prejudice of Strickland’s sions,” 466 U.S. prong to better suit the of an context S.Ct. 2052. attorney’s obligation to consult regarding ground,” “breaks no as appeal new it con necessity The of counsel’s prejudice inquiry “mirrors the applied regarding with the defendant sultation Lockhart, Hill U.S. 106 S.Ct. of whether to fundamental decision (1985), and Rodriquez 88 L.Ed.2d preced from and clear cases States, v. United 395 U.S. 89 S.Ct. of the defen ing it that address nature (1969).” 1715, 23 L.Ed.2d 340 U.S. at A right appeal. dant’s to a direct defen 485, 120 S.Ct. 1029. Because the Court pursue appeal, a a dant has direct impose did not on defense counsel a new frivolous, which must even if counsel assist duty postulating and did not believe it was as in behalf of his “an active advocate regarding prejudice, a new rule Flores- California, client.” Anders v. Ortega no introduces element consider 738, 744, 18 L.Ed.2d 493 ation foreclos that federal courts would be (1967). Although press need not counsel Indeed, retroactively. applying ed from particular issues the defendant’s choos argue the con South Carolina does not implication consult ing, by counsel must trary, it did raise issue identify with the defendant whether it at expressly briefs and disclaimed oral any appeal. there are meritorious issues to argument. Barnes, S.Ct. 3308. Indeed, Finally, procedural both the posture a the defendant discussion with Su- regarding Flores-Ortega a direct issues which arose and the what (if critical, pursue any) “multiply preme disposition of the case con- Court’s ing assignments of will firm that did not announce a new rule error dilute a for in- good purposes. case and will not save bad habeas weaken (internal omitted). attack on quotations one.” Id. volved collateral state § need sentence under 28 U.S.C. 2254. See 528 defendant’s assistance 473-74, very 1029. The who can the record U.S. at advocate “examine fact addressed the selecting promis with a view to the most id., review,” remanded for ing petition be over merits of the issues cannot —and stated, of the necessary proceedings face component and is further —in Teague by demon- imposed

limitations C. legal controlling principle that the strates dissent, alone, and the dissent Flores-Ortega in not a new discussed was rely that we on elabora asserts cannot the 302, Penry Lynaugh, See v. rule. Flores-Ortega tion of Strickland in eval 2934, 313, 109 L.Ed.2d 256 uating Frazer’s claim of ineffective assis (1989),abrogated grounds, on other Atkins Although tance of counsel. South Carolina Virginia, v. argument, makes dissent nowhere the (2002) (“Under Teague, 153 L.Ed.2d 335 posits on its behalf that because Flores- applied rules will not be Ortega new announced issued after the PCR ren decision, unless dered the AEDPA they cases collateral review forecloses any to Flores-Ortega recourse in evaluat exceptions.”) fall into one of Had two the 2254(d) ing § claim. Frazer’s While does established, principle not been availability limit the federal of habeas re Court, as well as all lower Feder- rely lief on “clearly to claims that estab courts, precluded by al would have been law,” lished Federal dissent’s insis from Teague granting requested the relief divorcing Teague tence on Section and petitioner Flores-Ortega. 2254(d) analysis misguided. in this case is join Accordingly, we the Third Circuit in The has Supreme Court made clear that not does con qualify “whatever would as an old rule a purposes stitute new rule for the of Teague jurisprudence under our con will Johnson, Teague. Lewis v. 359 F.3d ‘clearly stitute established Federal (3d Cir.2004);5 but see v. Daniel Cock by the determined (5th rell, Cir.2002) 283 F.3d 707-08 2254(d)(1).” § United States’ under (assuming, deciding, without that Flores- Williams, 529 U.S. at for Ortega Teague announced “new” rule added).6 (emphasis purposes), abrogated part, United III. Grammas, (5th v.

States F.3d Cir.2004). 2254(d) § Teague Neither nor Assessing Frazer’s claim under forecloses examination of Frazer’s enti precedents, agree these we with the dis tlement to relief habeas under Strickland trict court “state PCR court’s directly applicable progeny, and its most decision appli constituted an unreasonable Flores-Ortega. cation of Strickland.”7 J.A. 112. The Johnson, 2254(d)(1), Lewis purposes § 5. Third Circuit noted federal law we "general that Strickland established rule recognize necessarily that the is converse necessitating case-by-case applicability" as- may true. is so This because rule be an- sessment, proposition that "a after a nounced defendant's be- conviction requires defendant the advice of counsel to final, point comes which is the relevant respecting make an informed decision his purposes Teague analysis, of a but before the hardly novel” when [] decision, relevant state court which is deter- applicant’s habeas state-court conviction be- purposes minative for under of consideration final. Affording came 359 F.3d 656. 2254(d)(1). § That latter scenario not the Flores-Ortega comports Frazer the benefit here, analysis case governed however. Our emphasis Court's that a pre-dated which con- both the given applied uniformly constitutional rule be and PCR viction court review. consistently appeal, within each class of unjust disparity so as avoid an in the treat- recognize 7.We that the PCR decision court's similarly ment situated defendants. pur- is the relevant state-court decision for Although 2254(d). Williams tells us that an old rule poses § 28of U.S.C. Teague "clearly under constitutes established” keep the defendant informed of relief without to habeas court denied PCR duty developments a to in the considering important Howie had course of whether added)). regarding appeal an (emphasis with Frazer prosecution” consult obli- generic Therefore, from the was distinct confronted with claim that when a right. The Frazer of that apprise to gation that counsel rendered ineffective assis- to the extent of failure assess PCR court’s to with failing tance in consult the defen- the circum- consult under duty to Howie’s an a regarding appeal, dant court must stances, having identified Strick- despite three-step inquiry. conduct a land, in which to paradigm as the relevant consideration is The threshold claim, an un- demonstrates assess Frazer’s independently whether the defendant had paradigm. that application of reasonable to and communi appeal decided whether above, re noted As counsel.8 If the cated that decision to inmate coun that the demonstrate quires requested affirmatively defendant has an objectively was unrea performance sel’s appeal, counsel’s to the defen assistance prejudiced he was this and that sonable obviously making dant in that decision Strickland, performance. unreasonable unnecessary. See id. at 120 S.Ct. 688-90, 94, 104 2052. at S.Ct. 466 U.S. Indeed, long 1029. before explained that held that the “fundamental Amendment but not generally, the Sixth appeal to with decision” of whether rests invariably, counsel to consult with requires Barnes, defendant. Jones regarding appeal. a direct the defendant L.Ed.2d 987 477-80, Signif 1029. at 528 U.S. (1983). only icantly, court determined the PCR Where, here, as the defendant has under no consti that Frazer’s counsel was appeal, specifically requested coun him of his to inform obligation tutional to professional obligation sel is a under under the circumstances appeal consult, regarding “consult” with defendant obligation case. this Counsel’s decision, cir that unless the fundamental however, duty in from the is distinct (iden cumstances demonstrate consultation form. See id. Flores-Ortega, unnecessary. particular duties consult tifying “more 478-79, If fails 120 S.Ct. 1029.9 counsel decisions important with defendant counsel; rejects a counsel defendant consults dissent the relevance 8. Because the guilty plea analysis Flores-Ortega, the merits asks advises the defendant sentence; year explicitly requested probably lead to a 2 Frazer will whether expresses pleads appeal Howie satisfaction and file an and whether Howie defendant obliged right. guilty; to inform Frazer of the court sentences defendant However, expected it imprisonment we believe clear and in- years’ Post 731. appeal rights; that this is based on Strickland and Barnes of his the defendant forms analysis, this conclusion incomplete express any does not interest the defendant by Flores-Ortega. The is reinforced dissent’s appealing, and counsel concludes ignore Flores-Ortega’s we dis- grounds ap- insistence that there are no nonfrivolous given circumstances, and Barnes tillation of Strickland peal. Under these is, posture as noted procedural say profession- counsel is be difficult to above, unpersuasive. unreasonable, mat- ally a constitutional ter, consulting with such defendant in not Or, sup- appeal. example, regarding an examples Flores-Ortega offers where two to a pose sentencing instructions duty to court's be relieved of a consult counsel would rights par- about Flores-Ortega notes that defendant his by circumstance. and informative as case are so clear ticular where consult, may requirement to defendant demonstrate that the necessitates that trial showing that a defen- inform a prejudice by rational counsel criminal defendant of his appeal. right appeal, guilty to to following plea.” dant would The defendant want by J.A. 209. may demonstrating do either that this a) for ap- there non-frivolous issues were objectively That this result is un b) peal, adequately or he had indicated his in light reasonable of the dictates of 480, 120 appealing. interest in Id. at abundantly is Strickland made clear presence 1029. The mere of non-frivolous Flores-Ortega. While appeal generally issues to sufficient to Carey in holding echoes that there is to satisfy the defendant’s burden show per no se rule requiring counsel to consult prejudice. at 1029. At- Id. with his client a direct regarding appeal, tempting prejudice based to demonstrate Carey does not delineate circum reasonably pursu- on a obvious interest duty under which stances such however, ing appeal, an necessitates an does, however, apply. Flores-Ortega illus “that, showing additional the defen- had that trate when there are non-frivolous dant reasonable from coun- received advice appeal to or issues the defendant has man appeal, sel about in- he would have an in appealing, ifested interest Strickland structed his counsel to file an Id. appeal.” that requires counsel with the consult de in deciding go

fendant whether to forward. A. Flores-Ortega, 478-79, 528 U.S. duty S.Ct. 1029. Significantly, applies After reviewing the factual determina if the guilty. even defendant pled has Al tions of court according the PCR and them may there though be fewer issues to ap 2254(e), required § deference we circumstances, peal under such so long as find the of relief denial on Frazer’s habeas appeal the defendant right, retains an unreasonably applied claim Strickland and obligation counsel’s remains the same. above, its progeny. accept As noted after 480, 120 See id. at S.Ct. 1029. ing plea, guilty Frazer’s the trial court proceeded immediately sentencing, to The PCR court’s reliance on our imposed consecutive sentences as well as a Carey decision as determinative of Fraz statutorily impermissible fine. The PCR er’s claim is unreasonable even without the court that Frazer explicitly found did not of Flores-Ortega. Carey’s benefit request time, and it is with subsequent conflicts decisions undisputed that Howie Jones, a) never discussed Strickland and require which that possibility with Frazer. Neverthe counsel to assist the defendant with all less, b) court no decisions, PCR found Sixth important identify violation, citing Carey Amendment Lev whether pursue decision direct (4th erette, Cir.1979), important F.2d as an decision that ultimately proposition “there is no constitutional duty lies with defendant.10 The duty Interestingly, substitute counsel’s to consult. South does not Carolina con- 10. cases, we might considering tend that are barred from some counsel then reason- light Flores-Ortega. Frazer’s claim in deed, In- ably repeat decide he need not Carey South Carolina asserts bright- We reject a information. therefore Flores-Ortega. consistent For the rea- always line rule that counsel must consult stated, disagree. Carey presumes sons we regarding appeal. with the defendant that counsel need not inform consult with 479-80, (internal

528 U.S. at 120 S.Ct. 1029 regarding right appeal. his defendant quotations omitted). and citations however, Flores-Ortega, opposite: states the 120 S.Ct. 1029. con- is broader We identified consult clude that Frazer has shown both. inform obligation to the narrow than As appeal. of his defendant clear, makes itself district agree We with the aof criminal defendant [representation could pursued Frazer have two non-frivo- basic duties. Counsel’s entails certain above, issues on As appeal. lous stated defendant, ... the function to assist guilty exposed Frazer’s him to a stat- plea duty to overarching the includes] [which $25,000, utory-maximum fine of and all and the defendant’s cause advocate the Carolina) parties (including expect- South to duties consult particular more two ed that Frazer’s sentences for the important decisions on the defendant pleading guilty counts to which he was to the keep and of defendant informed However, be the court would concurrent. developments in the course important of $100,000 and, a fine without a imposed of prosecution. the request prosecution, from the consecutive 688, Strick- 104 S.Ct. 2052. felt imper- sentences —actions Frazer were duty to con- itself that the land indicates missibly motivated. The trial court also duty “particu- to inform are and sult response to refused revisit its decision lar,” obligations and therefore distinct to Howie’s oral motion for reconsideration. to sim- inadequate It counsel. is therefore responds proce- Carolina three South discharged Howie his analyze ply whether have prevented dural would obstacles ap- of to duty to inform Frazer his these pressing ap- Frazer from issues on separate obligation a to Howie had peal; no peal, and that therefore Howie had Al- well. regarding an consult duty to consult. consider these We did have the not though PCR turn. synthesis of and its benefit Barnes, in Strickland and holdings of the a. two later decisions were available First, Carolina contends South and the rules contained the PCR court automatically plea Frazer’s guilty clearly established at

therein were appellate review all issues foreclosed PCR court reached its decision. time the not to the trial court’s that did relate However, subject jurisdiction. matter B. holdings assertion overstates Although it is based. can decisions on which turn now to whether Frazer We language in South there is some broad satisfy the that the Flores- requirements that “a case law to effect from Strickland. Carolina Ortega Court distilled a waiver plea generally from constitutes prejudice guilty order demonstrate consult, claims of non-jurisdictional must defects and Frazer Howie’s failure rights,” v. of constitutional State posi- a in his violations show that rational defendant 862, Passaro, 499, 567 866 may do so 350 S.C. S.E.2d appeal. He tion want (2002) 264 (citing v. identifying issues Rivers by either non-frivolous 97, (1975)), 121, appealed byor show- S.E.2d that could have been S.C. plea to be that “a expressed general appears an inter- rule ing adequately that he understandingly voluntarily and appeal. Flores-Ortega, guilty, in pursuing est cases, appeal." 528 U.S. at majority counsel dant about that "in the vast duty defen- S.Ct. 1029. a to consult with a [will] ha[ve] made, non-jurisdie- objection constitutes waiver of for review. To contrary, sev prior ... tional defects defenses to the eral Carolina South cases indicate that Rivers, plea,” (emphasis 213 S.E.2d at 98 issue to presenting an the trial court added).11 Moreover, Carolina, in South initial determination is all that is neces “[sentencing, although often combined See, e.g., Johnston, sary. State v. 333 S.C. guilt hearing, with the admission of (1999) (stating 510 S.E.2d separate guilt issue from distinct an “issue was not raised below and of the criminal Easter phase process,” v. subject did involve jurisdic matter State, 355 S.C. S.E.2d tion,” the defendant could not raise it (2003), which bolsters our conclusion added)); the first time on (emphasis cannot expected forego defendants be Williams, State 303 S.C. 401 S.E.2d subsequent sentencing errors at simply by (1991) (noting that it is failure fact, pleading guilty. South Car- to a “interpose[] timely objection at sen olina a Court has corrected sen- in to tencing order have ruled [an] issue parties tence on direct that both upon by the circuit court in in the first maximum, statutory agreed exceeded the (em stance” that forecloses further review despite the to defendant’s failure raise a added)); phasis Woodruff, State v. 300 S.C. Johnston, sentencing objection at trial. (1989) (“Mat 454 n. 1 387 S.E.2d 510 S.E.2d at 425 (noting that “the State passed upon by ters not the trial court will in argu- has conceded its briefs and oral added)).12 (emphasis be reviewed.” that ment the trial court committed error ambiguity And to the extent that exists sentence.”). by imposing an excessive regarding preservation of error such Consequently, we are not persuaded circumstances, it suggests of the existence guilty plea Frazer’s an appeal foreclosed another non-frivolous issue for appeal. argues. as South Carolina

Moreover, South Carolina argues further proffers South Carolina case that an Frazer supporting signed just no affidavit proposition prior that a virtually contemporaneous guilty, to pleading motion for re which he acknowl preserve consideration is edged right insufficient to an appeal, his to relieved Howie Henderson, See also Tollett v. 411 U.S. period years a cerated for of five to run (1973) 36 L.Ed.2d 235 consecutive. (holding entry guilty plea challenges waives recommending counseling I'm and treat- deprivation “the rights to of constitutional drug you ment for abuse. And I will tell prior entry guilty that occurred to the this, you gone had to trial ” added)). plea (emphasis charges my you it's firm belief that charges have been convicted of the I and 12. The fact opportunity that there was little given you every day would have that I could sentencing protest judge's to sentence and have on what I- based consider to abe trial judge appear did not amenable to an without merit.” objection that, weight argument adds to the sentencing adjourned J.A. 137. Frazer's im- circumstances, present under an oral mo- statements, mediately following these without pre- tion reconsideration could suffice to n opportunity objec- an for final comments or sentencing review. hearing serve Frazer’s Generally, op- tions. if a defendant “had concluded as no follows: portunity object partic- to or comment” on cocaine; trafficking "The sentence on sentence, aspects ular of his his you failure period be a [sic] incarcerated for press contemporaneous objection years pay ten would not and one fine of hundred subsequent result in the waiver of thousand dollars. review. Warden, possession weapon Sentence on the of a United States 291 F.3d 365 n. crime, Cir.2002). during (5th you a violent be incar- Frazer time the decision to is to to consult with be made any obligation “Affidavit Frazer’s is determinative. The correction of regarding appeal. Guilty separate proceeding Plea” does reflect the error is irrel- Defendant for appeal. obligation his evant to the issue of counsel’s understanding of his However, consult. that document is insufficient obligations of his under

relieve Howie b. Flores-Ortega, as an attor requires more than duty to consult ney’s Turning to whether there existed informing the defendant that he has appeal, non-frivolous issues for we note at appeal. The term consult “con right to impo least two: the excessive fine and the meaning advising the de vey[s] specific sition of consecutive sentences. re With — advantages and disad fendant about the first, spect to the ac South Carolina’s making vantages taking appeal, knowledgment that Frazer’s fine exceeded to discover the defen a reasonable effort statutory maximum indicates Flores-Ortega, wishes.”13 dant’s have it on pressed appeal. Frazer could added). (emphasis above, precedent As noted there is allow demonstrating that the defendant Simply ing present Carolina defendants to South constructively aware of his actually unpreserved sentencing an otherwise error insufficient to relieve appeal conceded in where “the State has its briefs obligations under counsel of his defense argument trial and oral court Flores-Ortega.14 Johnston, committed error.” 510 S.E.2d Consequently, at 425. the excessive fine Finally, argues South Carolina presents trig a non-frivolous issue that Frazer could have only issue gered duty to consult. Howie’s frivolous, as the appeal raised on is now Second, by error reduc the district court not court remedied this PCR arguably for the sake ed that Frazer could have chal ing assuming the fine. Even only the trial court’s decision to argument lenged impose that this is indeed the pressed appeal, Frazer could have consecutive sentences. South Carolina issue Carolina, correctly that the notes that in trial disagree. parties agree Both South we in statutory judges maximum have “broad discretion sentenc fine exceeded the statutory limits,” and that by ing the trial court.15 within nei imposed when it was had an ther of Frazer’s custodial sentences ex establishing whether counsel statutory maximum. obligation given to consult the circum ceeded the relevant However, stances, exception to this rule Flores-Ortega only asks there is an whether supporting are “facts an alle pro would have elected to where there the defendant prejudice” against the defendant. appeal following gation with an that consul ceed State, 353, 465 S.E.2d presence tation. It therefore the of Garrett v. 320 S.C. (1995). Here, the trial court’s in conviction or sentence at the error (1974) (not- Indeed, argument S.C. 208 S.E.2d counsel for South 13. ing though “a reasonable that even there is Carolina conceded that Howie had not con- assump- meaning within the basis for trial counsel's sulted with Frazer conclusion fully aware of Flores-Ortega. that the defendant was his tion appeal rights, not have rested should counsel appears 14. We note that it this would also be assumption”). upon that of South Carolina law. insufficient as matter 44-53-370, Bar, §§ 44-53- Anonymous 15. See S.C.Code Ann. In re Member 303 S.C. State, (1991); White v. 375. 400 S.E.2d 483 that the district court refused consecutive sentences dissatisfied impose decision to decisions, sentencing by and Frazer’s to reconsider parties surprise, took both just day expressed after “a his dissatisfaction both as place one and sentencing took in hearing” sentencing hearing in which concluded and [pre-trial] heated subsequent kind of went J.A. communications with Howie. “thing[s] really [s]outh.” Describing hearing appeal as “bru- Frazer’s interest an 183-84. Because tal,” “any ruling unwavering ongoing, adverse we find it Howie noted judge in an adequately have had” from reflects both his interest we could following day, “we pursue Frazer the and an intent them sentenced circum- tenacity pursuing Id. at 184. Under these all costs. Frazer’s got.” stances, that an persuaded we are not habeas relief bolsters this conclu- that his sentence was assertion Frazer sion.16 partiality prejudice” [or]

“the result of Garrett, 465 be frivolous. S.E.2d IV. omitted). (internal quotations agree Because we with the district court that, in light of Strickland and Flores- obligation had an Ortega, Frazer’s counsel alternative, may In the Frazer regarding appeal, him to consult with prejudice show under by his prejudiced and that Frazer was demonstrating an interest so, counsel’s failure to do we find the PCR that a consultation with his coun showing unreasonably applied federal law not have dissuaded him from sel would rejecting Accordingly, this claim. we af- that, it. It is uncontested imme pursuing firm grant the district court’s of habeas diately following sentencing, Frazer indi relief. unhappiness cated his with his consecutive AFFIRMED. sentences asked Howie see about “having together.” run J.A. 128. [them] MOTZ, DIANA GRIBBON Circuit It was in fact Frazer’s indication of dissat Judge, concurring: that Howie to his prompted isfaction make Judge opinion I concur in Duncan’s for oral motion for reconsideration. Given separately simply the court. I write to set that Frazer need demonstrate an in fully why forth more I the district believe Flores-Ortega, in appealing, terest correctly granted court habeas relief here. 480, 1029, at U.S. Frazer meets demonstrating initial requirement The Antiterrorism and Effective Death prejudice in this manner. (AEDPA) Penalty Act authorizes a federal However, grant application Frazer must also show that court to for a writ of adju- resulting gal- corpus respect consultation would have habeas to a claim in go vanized that interest into a desire to dicated on the merits state court forward, adjudication than in dissuading rather him. “resulted a decision that See id. 120 S.Ct. 1029. We find was ^[1] contrary to, ^[2] involved of, application clearly Frazer’s letter to Howie estab- satisfies this unreasonable law, secondary showing. clearly by Frazer was lished Federal as determined analysis forego taking up regarding 16. Because the dissent's of the merits its contentions predicated of Frazer's claim is on its conclu- doing merits of Frazer’s claim as so would apply, sion does not appeal. advance the of this resolution analysis largely is We irrelevant. therefore (“It past question that of the United States.” 28 the rule set forth Supreme Court 2254(d)(l)(2000). in Supreme qualifies ‘clearly § Strickland as estab- U.S.C. law, by state-court lished Federal explained “[a] has determined States.’”). contrary Supreme to” certainly will be Court of the United decision law, Nor can clearly any question Federal as deter- there be established Strick- Court, land, “if Supreme the state which the Court in mined issued 1984 to legal principles a rule that contradicts the establish applies governing claims counsel, of ineffective governing law set forth” assistance of Taylor, extant at 529 U.S. the time of all relevant state precedent. Williams 362, 405, 120 S.Ct. 146 L.Ed.2d 389 court decisions in this case. (2000). “A decision that cor- state-court To demonstrate a claim of ineffective legal rule

rectly governing identifies the assistance under familiar Strickland’s two- unreasonably to applies but the facts (1) test, part petitioner must show that certainly particular prisoner’s case would performance “counsel’s was deficient” and ‘involv[ing] a decision an unrea- qualify as (2) performance that this “deficient preju ... estab- sonable diced the defense.” ” 407-408, lished Federal law.’ Id. at measure, 687, 104 preju S.Ct. 2052. We (alterations original). S.Ct. dice under a reasonableness standard. Generally, explained

The Court has further defendant must show that that, ‘“clearly probability established Federal as de- there is a “reasonable but errors, ... unprofessional termined Court’ re- for counsel’s the re holdings, opposed proceeding to the to the sult of the have been fers dicta,” Court decisions “as of different.” Id. at However, the time of the relevant state-court deci- or constructive denial “[a]ctual altogether sion.” Id. at 120 S.Ct. 1495. More- of the assistance of counsel over, particular significance legally presumed prejudice.” and of in this to result case, Court has instructed Id. 104 S.Ct. 2052. As to counsel’s Williams qualify performance, as an old rule Court es that “whatever would Lane, Teague adopting bright-line 489 chewed standard or [the Court’s] [v. under guidelines representation,” 103 L.Ed.2d 334 “detailed jurisprudence explaining particular set of de (1989)(plurality opinion) “[n]o ] “satisfactorily take ac ‘clearly constitute established Federal tailed rules” could will ” 2254(d)(1) law,’ variety § of AEDPA as count of the of circumstances faced under 688-89, at 104 Supreme a case is the source defense counsel.” Id. long as Court again rule. Id. S.Ct. 2052. Once reasonableness is of the directs courts the touchstone. Strickland hand, In the the case at district of counsel’s “judge the reasonableness properly granted habeas relief because the par challenged conduct on the facts of the claim denying state court decision Frazer’s 690, 2052. ticular case.” Id. at 104 S.Ct. “contrary was both to” and “involved 470, Flores-Ortega, v. In unreasonable of’ Strickland Roe v. (2000), the 104 145 L.Ed.2d 985 Washington, 466 U.S. S.Ct. (1984). ques- Supreme precisely did this. The 80 L.Ed.2d 674 No one can Court test qualifies clearly tion that case illustrates how the Strickland Strickland particular in- Supreme applies [a] established Court to the “facts precedent; deed, involving a claim that counsel the so stated. See case”—one Williams Court Williams, failing 120 1495 was ineffective for to consult 529 U.S. at S.Ct. that, the concluded not- taking appeal. Wiggins, For this Court about

his client AEDPA, reason, obviously useful it Flores-Ortega withstanding could consider habeas claim. considering Frazer’s in the relevant state court case issued after a claim of ineffec- case involves That the recently its decided case decision because arising from different facts assistance tive simply proper applica- the “illustrat[ed] at in does than were issue Strickland tion” of Id. at 2535-36. Strickland. one unresolved render the claim a “new” Wiggins provides important guidance Supreme by clearly established Court looked to Wiggins here. The Court first therefore, and, by AED- barred precedent Strickland, setting forth the Strickland Although argument is occasional- PA. this noting although Strickland test and offered, traction in gained it has little ly guide- specific had “declined to articulate Rather, the Court Supreme Court. conduct,” appropriate attorney for it lines pro- that “the Strickland test has directed proper had set forth standards guidance resolving vir- vides sufficient generally assessing challenged judg- tually all ineffective-assistance-of-counsel “in adequacy ments of counsel terms of the Williams, at claims.”1 U.S. investigations supporting those Thus, 1495. as the Court has ex- 2535; Id. judgments.” at see just “the Strickland test plained, because 690-91, 104 S.Ct. 2052. The U.S. case-by-case necessity requires a exami- Wiggins next looked to its recent Court evidence,” nation of the this “obviates nei- Williams, decision in in which had found clarity of the rule nor the extent ther the Wiggins’ claim similar to ineffec- habeas to which the rule must be seen as ‘estab- Wig- claim to be “meritorious.” tiveness AEDPA purposes] lished’ [for Wiggins gins, 123 S.Ct. (internal quotation Court.” Id. marks expressly “opinion Court found its recent omitted). citation Taylor v. illustrative of [to be] Williams Moreover, Supreme the fact proper application of the[] [relevant Court issued state after on the standards” and relied ] court denied Frazer’s ineffective assistance Wig- rationale of Williams prevent claim does not federal habeas gins involved violation estab- considering Flores-Ortega court from precedent. lished See id. resolving Frazer’s claim under AEDPA. Scalia, dissent, objected Smith, Justice to the In Wiggins majority’s (2003), reliance on Williams because L.Ed.2d 471 Maryland “postdatefd] Williams soundly explicitly re- jected rejecting Wiggins’ that AEDPA court’s decision Sixth prohib- the contention (Sca- claim.” postdating consideration of cases the Amendment See id. lia, J., dissenting). Although state-court decision under review. claims, mystifyingly there are situations the over-

1. The dissent claims that this in which sentence, riding may six words in focus on fundamental fairness af- which contains 391, Williams, quotation analysis.” addition to an accurate from fect the 529 U.S. at Williams, Thus, support” somehow finds "no in 120 S.Ct. 1495. the Williams Court note, "directed,” sug- specifically at 723. The as I that Williams. Post dissent also analysis guides "virtually gests passage I all inef- that have taken from Strickland But, When, claims.” Williams "out of context.” Id. this is not fective-assistance-of-counsel here, analysis a so. The sentence from Williams states in its as that dictates the result in Strickland, entirety: given application provides "It is true that while the Strickland it guidance resolving "clearly pur- provides established law” for AEDPA test sufficient virtually poses. all ineffective-assistance-of-counsel

715 imposed, obviously been a had decided Williams constitutes most Court after Wiggins’ “important the denial of decision” upheld state court about which an attor- relief, majori post-conviction ney claim for should “consult” with his client. Id. complaint, rejected Scalia’s ex ty Justice Strickland also establishes the proper that it could look to Williams as plaining prejudice inquiry in a situation in like this be application” a Strickland “proper there has a which been denial of counsel had come before the cause Williams is, “altogether” stage: at a critical and the Court on “habeas review” Court “prejudice presumed.” Id. at 104 in resolving “made no new law had Thus, here, 2052. in Wiggins, S.Ct. “ claim.” Id. at Williams’ effectiveness ‘clearly precedent established’ of Strick- ” majority it could Wiggins 2535. The held governs. Wiggins, land See 123 at S.Ct. as “illustrative of the look Williams

proper application” of Strickland because Moreover, again Wiggins, as in a Su- did not create new but rath Williams (here, preme Court habeas case Flores- by “squarely governed [the er was Ortega) shortly issued the relevant after in Strickland.” Id. at Court’s] court state decision illustrates the proper Williams, 529 U.S. at (quoting 2536 application of particular Strickland to the 1495). Wiggins teaches that Indeed, facts of the case. even if a Court habeas case is Court made even clearer in Flores-Orte- the relevant state court deci issued after ga than it did Williams that it was sion, it can considered as illustrative of be simply applying Strickland to the facts and, proper application Strickland — Flores-Ortega, before it. See at 528 U.S. therefore, as indicative of estab (holding 1029 S.Ct. precedent as of the lished applies “test ... Strickland to claims court decision—if in the time of state constitutionally counsel was ineffective for new decision the Court makes clear that it a failing appeal”); file notice of 528 U.S. simply applying well-established Su 478, 120 preme precedent. (rejecting per at S.Ct. 1029 se adopted rule some circuits “as inconsis- reasoning Faithful adherence to the tent, holding” with Strickland’s and con- Wiggins inexorably leads to the conclusion had “failed to cluding below that in the case at hand the district court engage circumstance-specific in the rea- Here, properly granted habeas relief. inquiry required by sonableness Strick- although Wiggins, Strickland does ”); at land U.S. guidelines for specific appropri- articulate (dismissing suggested holding because it attorney petitioner’s ate conduct as inconsistent with both our deci- “would be claim, proper Strickland does set forth the sense”); and common sion judging standards for that conduct. The (explaining 528 U.S. at 120 S.Ct. 1029 carefully explained Strickland Court part second of the Strickland “[t]he what among the “basic duties” owed counsel requires”); 528 test U.S. “to his client are the duties consult with it, (finding that in. the before case important the defendant decisions applications with all of the Strickland “[a]s keep impor- the defendant informed of test,” ability to make the defendant’s developments tant in the course of the 688, “requisite showing will turn on the facts of prosecution.” case”); particular appeal, partic- 104 S.Ct. 2052. Whether to (vacating the “court ularly in a case like this in the S.Ct. 1029 because which even of the illegal part State concedes that an sentence has below undertook neither Strick- that an Wig- standard to a claim Accordingly, as the Strickland inquiry”).2 land AEDPA, could, constitutionally with deficient for attorney consistent gins Court of the as illustrative failing appeal”). look to Williams file a notice of a par- of Strickland to application proper sum, Wiggins and the case hand scenario, we can look to ticular factual “clearly in assessing demonstrate that es- proper of the Flores-Ortega as illustrative AEDPA, under a tablished Federal law” here. application of Strickland may occasionally Supreme consider a looking to Flores-Orte propriety of opinion issued the state court’s Court after “clearly illustrative of established ga as petitioner’s post-conviction of the denial AEDPA not be under should Federal law” course, Generally, claim. when a feder- Rather, ac simply such use surprising. al court asks whether a state-court habeas that, Judge fact as Duncan cords “contrary to” or an “unrea- decision was precedent explained, Supreme Court has ... application sonable estab- Flores-Ortega as old rule establishes law,” Federal it will consider lished i.e., by prec a rule dictated Teague, under Supreme opinions prior those Court issued (Strickland) existing at the time edent to the state court’s denial of relief. How- When, became final. Frazer’s conviction ever, Wiggins provide this case—and — here, provides case Supreme as Court Where, exceptions prove this rule. as rule, Teague of an “old” the source Wiggins, Supreme here and Court definition, rule, by “will constitute “old” post-dating state collateral review decision law ... under” clearly established Federal (e.g., Flores-Ortega) simply or Williams Williams, 412, AEDPA. 529 U.S. appropriate application illustrates the of a (internal quotation marks and S.Ct. 1495 pre-dates precedent Court omitted). hand, In the case at citation (e.g., the state-court determination Strick- not even contend that Flores- State does ), may court on habeas con- land federal Teag- a new rule under Ortega announced postdated opinion. sider survey legal landscape ue. A of the Flores-Ortega, there Turning then conviction and sen existed when Frazer’s explained that a counsel’s failure the Court conclusively tence became final demon to consult with the defendant about an For, explained that it not. strates did appeal performance constitutes deficient above, itself in and attorney duty had a to consult. Flores-Ortega, dictated Flores- Flores-Ortega, 528 U.S. at 120 S.Ct. Johnson, v. Ortega. See also Lewis constitutionally im- (3d Cir.2004) 1029. has “[C]ounsel (holding F.3d posed duty to consult with the defendant “Flores-Ortega’s application of the Strick about an when there is reason to by precedent land standard was dictated (1) think either that a rational defendant merely applied clarified the law as is (for case”); example, would want be- particular to the facts of that Hud (4th Hunt, grounds cause there are non-frivolous F.3d son v. (2) particular that this defen- Cir.2000)(recognizing appeal), that “Roe v. Flores- reasonably of the dant demonstrated to counsel Ortega clarified the States, Moreover, Flores-Ortega ny, including Rodriquez contains no state- United ment, suggestion, 89 S.Ct. 23 L.Ed.2d 340 or even that its is in States, (1969), Peguero any way other v. United at odds with (1999) Rather, precedents. junctures at various 143 L.Ed.2d (both majority opinion and Justice O’Con- cites and relies on some of concurrence). proge- antecedents and nor’s Strickland's numerous

717 test); Id. cation” appealing.” two-part interested of its that he was Flores-Orte the defen ga, (reject 120 S.Ct. 1029. Once 528 U.S. at 120 S.Ct. 1029 at performance, he ing per establishes deficient a se rule “as dant inconsistent with preju if he can show holding is entitled to relief that performance Strickland’s ‘the at 120 1029. “[T]o dice. Id. S.Ct. inquiry must be whether counsel’s assis circumstances, a in these prejudice show tance was reasonable considering all the that there ”). must demonstrate defendant circumstances’ Strickland and Flores- that, coun probability a but for reasonable Ortega, Carey, unlike do not require the to with him sel’s deficient failure consult defendant to demonstrate “extraordinary timely appeal, about an he would have circumstances” to obtain relief. While 484, 120 Id. at 1029. appealed.” S.Ct. (i.e. that in Carey holds most cases “absent circumstances”) extraordinary attorney are to the principles applied When these need not inform his client appel about his it the state case at hand is clear rights, late clearly illus rejecting Frazer’s ineffec- court’s decision requires contrary trates-that Strickland “contrary claim was both tive-assistance cases, rule: “in majority the vast ... applica- to” and “involved an unreasonable duty counsel to consult with [will] ha[ve] clearly tion of’ this established law. appeal.” the defendant about an Flores- The state PCR court recounted Ortega, 528 at U.S. S.Ct. in Frazer “testified that Counsel never Accordingly, the PCR court’s reliance on right appeal him of to formed his Carey contrary clearly was established appeal never filed an on his behalf.” J.A. Williams, federal law. See U.S. expressly 209. The PCR court then found (“A 405, 120 state-court decision agreed, testifying he never “Counsel certainly contrary clearly will to our be appeal a direct with [Frazer].” discussed if precedent established the state court Nevertheless, rejected court Id. the PCR applies govern a rule that contradicts the Frazer’s ineffective assistance claim. Re cases.”) ing forth in our law set decision, pre-Strickland our Car lying on (4th Leverette, 605 ey v. F.2d Cir. reasons, For similar to the extent 1979), the PCR court concluded Fraz (which applied court Strickland it PCR failing er’s counsel was not deficient for once) Carey, it followed cited when nothing there was file because applica- in an unreasonable engaged court testimony hearing and no at the the record Strickland, clearly tion established Applicant conveyed “to indicate that the 407-08, precedent. Id. at attorney a until it his trial desire to (explaining 120 S.Ct. 1495 state- “[a] too late.” J.A. 209-10. correctly ... identifies the decision it Carey governing legal applies This court’s ab- rule but unrea- —that “extraordinary sonably particular prison- no to the facts of a sent circumstances” case,” “certainly qualify” requirement” “constitutional mandates er’s ... always “that defendants must be informed “an unreasonable law”). appeal following guilty established Federal Strickland their constitutionally Carey, adopted 605 F.2d at the makes clear that to be ef- plea,” 746— fective, type bright-line rule the counsel must “consult with the de- “keep expressly rejected important and its fendant on decisions” See, Strickland, progeny. e.g., important the defendant informed of devel- U.S. 688-90, (refusing prosecution.” in the course of the adopt opments 104 S.Ct. 2052. provide “special amplifi- “detailed rules” or conclusorily above, majority asserts that the state Flores-Ortega illus explained As reasonably in not of PCR court’s failure was application Strickland proper trates the applying Washington, Strickland v. to consult with his client counsel fails when 668, 2052, nonfrivolous U.S. L.Ed.2d taking appeal an when about (1984), majority it that the actu See Flores- is evident appeal exist. grounds 480, ally and holds that the state PCR 120 S.Ct. 1029. reasons Ortega, 528 U.S. at unreasonably applied court Roe v. Flores- utterly failed to consult Frazer’s counsel 1029, 470, 120 extremely impor Ortega, an 528 U.S. with his client about (2000). fact, it is as if its to file an in L.Ed.2d 985 tant decision—whether on opinion were reasoned and written unexpected illegal sentence light of understanding mistaken that Flores-Orte by the trial court. Since PCR imposed court finding ga that was decided before the state PCR despite denied relief court decision, and amended so a direct reached its then counsel “never discussed reason) added), Frazer, (though state (emphasis J.A. 209 as to with” on when it was discover- though grounds ap rested Strickland even nonfrivolous existed, application Flores-Ortega actually post-dated court’s of ed that peal the PCR course, court’s decision. was unreasonable. the state PCR Of Flores-Ortega was not decided because the state court’s decision Because until state court to consider after contrary to and involved an case was both (the claim the merits of Frazer’s state clearly estab- unreasonable court) decision,1it imper- PCR issued its law, re- properly lished the district 2254(d)(1) missible under section for the viewed Frazer’s claim de novo. See Rose rely majority upon opinion to hold (4th Cir.2001). Lee, 676, v. 252 F.3d 689-90 unreasonably “clear- applied the state Moreover, Judge Duncan has demon- ly established Federal as determined strated, con- properly the district court Supreme Court the United that Frazer that his cluded established apparent As it is States.” objectively un- trial counsel’s conduct was Supreme precedent established Court requisite and demonstrated the reasonable the time the state PCR court decision resulting from the constitutional- prejudice did not dictate that Frazer be afforded ly ante at representation. deficient See relief on his ineffective assistance of coun- 14-19; see also Frazer v. State South claim, sel I would hold that the state PCR (D.S.C. Carolina, 12, No. 03-CV-738 Feb. unreasonably apply clearly court did not 2004). affirm Accordingly, we must precedent and established Court granting order of the district court habeas contrary judgment I would reverse the relief. court. district LUTTIG, Judge, dissenting: Circuit I. majority’s grant of the writ of habe- corpus transparently majority concurring based on the Both the and the

impermissible holding opinion attempt that the state PCR evade section 2254(d)(l)’s appli- requirements by holding court’s decision was unreasonable rule precedent cation of a the rule of old post-dated Although Teague that decision. of constitutional law under Plores-Ortega February state PCR court its decision ed 2000. The 1. The rendered May dismissing September supreme certiorari on Frazer’s claims on state court denied decid- 2002. J.A. 259. J.A. and the Lane, prerequisite to federal that a habeas relief (1989), prisoner satisfy thus of the the AEDPA standard of part L.Ed.2d 334 post-AEDPA of sec- review ... none of our cases purposes law for clearly established 2254(d)(1) suggested that a the state court issued have writ habeas cor- when tion 705; automatically if a pus prisoner ante at 716 should issue Ante its decision. standard, J., major- the satisfies the AEDPA or that (Motz, concurring): Neither AEDPA courts- from responsi- concurrence is relieves the separate nor the ity opinion convincing bility addressing properly Teague that Flores- raised remotely even arguments.”).2 by prior precedent Ortega was dictated Teague. a new rule under and thus not Teague would not bar relief on the basis if Flores-Ortega the rule announced A. Flores-Ortega had been an old rule of rules of constitu constitutional law. Old grant peti- Frazer’s habeas In order to by tional law are those were “dictated Flores-Ortega, of- on the basis tion existing at the time the defen precedent independent must overcome two majority Teag conviction became final.” dant’s See imposed by section to relief—that bars ue, A 109 S.Ct. 1060. rule 2254(d)(1) imposed by Teague. by precedent is not dictated is there —and 2254(d)(1) bars relief unless Section if, a new rule of constitutional fore law— to, contrary or judgment “was PCR court’s announcement, to its its existence prior of, an unreasonable involved “susceptible among reason was debate law, Federal as deter- clearly established McKellar, 494 able minds.” See Butler v. by Supreme Court of the United mined 407, 415, 108 L.Ed.2d U.S. Flores-Ortega if were States.” Even (1990). words, a rule is an other federal law at the time clearly established only if all old rule of constitutional law judgment, rendered its the PCR court jurists agreed have reasonable would unreasonably ap- even if the PCR prior it existed to its announcement. bar, it, AEDPA plied overcoming’ thus majority correctly recognizes The held that federal courts Teague—which Flores-Ortega announced a rule of rules of constitutional new apply will not new bar relief. Teague re- constitutional would retroactively law to cases on collateral incorrectly concludes, howev- granting majority independently prevents view— er, by pri- Flores-Ortega was dictated Flores-Ortega on the basis of the writ an old because, precedent and was therefore explained infra, that case an- large rule. And it is able to so hold a new rule of constitutional law. nounced Banks, 266, 272, attempt part because it does not even See Horn (2002) jurists that all reasonable would (per show 153 L.Ed.2d curiam) (“While outcome that case. necessary anticipated have it is of course Teague new rule of constitutional example inde- bar relief—the 2. For an of how can pendently when bar habeas relief even clearly established at the time law was bar, following AEDPA is not assume the decision and was unreason- the PCR court’s First, sequence petitioner's of events: however, pre- Teague, ably applied. Second, the Su- conviction becomes final. issuing court from vent the federal habeas announcing preme issues case newly an- the writ on the basis of the Third, constitutional law. new rule of petitioner's con- rule because the nounced unreasonably newly applies that PCR court the new rule viction became final before petitioner’s rule to the case.' In announced announced. case, 2254(d)(1) would not such a section conducting proper inquiry, remotely approximate proper even Instead of about to show majority merely Teague inquiry.3 sets “the that in principles on the an- exclusively relied B. and other cases de- nounced Strickland Having improperly conducted and an- appellate of counsel in the fining the role Teague inquiry, majority swered the a task that the ma- process,” ante compounds import- then the confusion jority mistakenly believes establishes Teague into ing its erroneous conclusion Flores-Ortega was dictated analysis, AEDPA that deciding because Supreme precedents Court ex- and other Flores-Ortega is old rule of constitu- at the time Frazer’s conviction be- isting “[njeither Teague, Teague tional law under Flores-Ortega came final and that was 2254(d) § nor forecloses an examination of course, therefore an old rule. Of to estab- Frazer’s entitlement to habeas relief.” Supreme lish that the Court relied exclu- doing, majority ante at 706. In so See the sively principles prior the of cases in on that, completely recognize fails to as the Flores-Ortega reaching the rule of is not Supreme has emphasized, “the at all to that those cases dictated establish Teague AEDPA inquiries and are dis- rule, is, jurists that that all reasonable Horn, tinct.” 536 U.S. at agreed precedents would have those Teague inquiry 2147. The new-rule re- inexorably Flores-Ortega. led to quires us to ask whether a rule that the Apart from this erroneous “relied-exclu- petitioner seeks to benefit from was dictat- test, majority’s sively-on” the other by precedent petition- ed at the time the analysis Flores-Ortega of whether was dic- er’s conviction became Section final. remarkably by precedent tated consists 2254(d)(1), contrast, requires us to ask solely of the bald assertion because the alleg- whether rule the PCR court important, the decision to is and edly applied unreasonably clearly es- in dicta that

Strickland stated counsel has time tablished at the the PCR court’s duty to consult with the defendant on decision. decisions, important Strickland dictated Flores-Ortega. analysis majority the This Supreme rule is relies on the entirely unconvincing on its own Taylor terms Court’s statement Williams v. and, go saying, it without a “slight should does not there is connection” between reason, attempt argument In one last to defend its waived for this it most cer- rule, Flores-Ortega major- was an old the tainly gave thought never a moment's ity Flores-Ortega by notes that was decided announcing whether it was a new But rule. the Court on collateral review. any inference is to be drawn from the fact, infers, majority From this the based on silence, complete opposite Court's it is the Teague, that the Court must have by given majority, one from that drawn concluded that the rule set forth in Flores- determining that the Court's test for whether Ortega was an old rule. See ante 705. This plainly a rule is new that the rule dictates debating point, is a fair but no more than new, old, announced in that, certainly upon and not one which an contrary majority's unpersuasive to the con- (as, appellate rely court would fairness any by tention. In the absence of statement understand). majority, appears matter, the Court as to the as in Flores- event, any likely, it is far more if not Ortega, the default rule that new rules will not probable, that the Court instead considered be announced on habeas would almost cer- waived, Teague issue as the state did not tainly yield determining to the actual test for Teague raise in its brief on the merits before the Court. If the Court did not consider the a rule is or is not new. whether petitioner’s Federal conviction became all “clearly established phrase final 2254(d)(1) Teague, jurists agreed would have in section reasonable as to law” qualify as an “whatever would namely that required Flores-Ortega.). outcome of Teague jurisprudence under our But, above, old rule majority as noted never ‘clearly Federal established will constitute whether, question asks the crucial at the determined as decision, time of the state PCR court’s all 2254(d)(1).” § under States’ United jurists anticipated have reasonable Williams, 529 U.S. at (quoting Ante at 706 say, Flores-Ortega. Needless to con- 1495) (emphasis added sequence, majority’s analysis under “connection” to majority). It intends this demonstrably AEDPA is flawed. (and Teague, justify) its focus explain majority proper Had the undertaken the to a focus on the actual standard opposed analysis under section it would have 2254(d)(1). But reason of section hold, required been for the reasons Teague to read out fashion infra, jurist that a explained reasonable critically tempo section 2254 different Rodriquez could have read v. Unit inquir “distinct” limitations these ral States, 327, 1715, ed 395 U.S. 89 S.Ct. 23 ies.4 (1969), Peguero L.Ed.2d 340 and v. United opinion would ad- correctly A reasoned States, 526 U.S. question relevant under dress head-on the (1999), L.Ed.2d 18 as consistent with Car the rule announced AEDPA of whether (4th Leverette, ey v. 605 F.2d 745 Cir. clearly established Flores-Ortega was 1979), authority for the conclusion and decision, PCR court’s the time the state of by that claim defeated his Frazer’s was is, the state that at the time whether of attorney that request appeal.5 failure to his jurists decision all reasonable PCR court’s jurist reasonably thus have Such a could Flores- agreed have that the rule of would (In the of Flores- contrast, anticipate failed to already extant. Ortega was court did in different, Ortega, as indeed the state inquiry corresponding, the but the this case.6 is whether at the time Teague under Carey that is in- temporal between 5. The concurrence contends

4. Because of the difference imposes every consistent with Strickland because it inquiries, clear that not the two it is bright But even the concurrence clearly a line rule. thing qualifies established fed that Carey recognize establishes is that what qualifies must AEDPA as an old rule eral law under really per Ante presumption, not a se rule. example, Flores-Ortega Teague. For under J., (Motz, concurring) {“Carey holds at 717 announced between the time Fraz had been (i.e. extraordinary cases ‘absent that in most date became final and the er's conviction circumstances') attorney need not ...” judgment, been it would have the PCR court’s added)). (emphasis And the concurrence purposes of clearly established federal law for presumption, a mere even cannot contend that Teague. review but a new rule under AEDPA lines, bright is inconsistent if it establishes that it is likewise clear that not I believe Strickland, the as it also contends that everything Teague is that is an old rule under pre- Flores-Ortega, is itself a rule in which purposes clearly of AEDPA. established for sumption, compelled by Ante at is Strickland. accepting Supreme Court's con But even the J., (Motz, concurring) (admitting implicit- Taylor, such trary observation in Williams v. Flores-Ortega ly also a the rule in majority's nothing boot does to save only applies "in the presumption because it analysis given strapped the flaws in AEDPA cases”). majority vast Teague analysis detailed above. Because not, cannot, properly majority and did Flores-Ortega v. Flores-Ortega applied in Hudson was an old rule 6. That we show that Hunt, (4th Cir.2000) law, bootstrap does the Williams 235 F.3d constitutional jurist imply we that a reasonable held unavailable. However, majority part, of the for its the concurrence at- Despite protestations tempts entirely Flores-Ortega fol redefine the elements of and concurrence Teague. rule unavoidably from Strickland and old under It does so lows Barnes, urging that in- category of old rules v. 463 U.S. Jones first, (1983), all opin “simply neither cludes cases which ‘illus- 77 L.Ed.2d 987 proper application’ prior of’ any explanation, trat[e] ion is able to offer much (Motz, J., one, precedent, ante at 714 concur- plausible why as to a reasonable less second, ring), and all later jurist directly not have relied cases inter- (Motz, J., pret ante at 714 Peguero, which address Rodriquez Indeed, concurring). precise majority context. Peguero much does not even as as cite support of its first definition of an old Rodriquez only pássing. it mentions rule, the concurrence invokes Judge And the reference to either Taylor Court’s statement that Williams v. recognition Motz’s concurrence is brief be applied petitioner’s could to the habeas Flores-Ortega.7 are cited in both cases Smith, Wiggins claim in Flores-Ortega (2003), Because the outcome of L.Ed.2d undoubtedly question prior was to the though post-dated even Williams the state case, Flores-Ortega rejection claim, issuance of that was Wiggins’ court’s because neither old law nor established fed- Wiggins Court concluded that eral as determined Court had “made no new law in Williams the United States. As conse- resolving Williams’ ineffectiveness claim.” quence of the fact Id. at 123 S.Ct. 2527 (emphasis add- ed). clearly not until established federal law the The concurrence characterizes the issued, day it was that case cannot be application Wiggins Court’s of Williams in applied to Frazer’s claims—at a least conclusion the Court “could con- 2254(d)(1). consistent with section a sider case issued the relevant state after recently

court decision because its decided C. simply proper case appli- ‘illustrat[ed] (Motz, cation’ of Strickland.” Ante at 714 majority, Like the at- concurrence J., concurring) in (emphasis and alteration tempts upon to defend reliance Flores- majority). Ortega grounds Flores-Ortega on the clearly is old law and thus was established But the Court does not deter- at the time of the state-court decision. mine whether a rule is an old rule (Motz, J., concurring). Ante at 715-716 deciding “simply that it will illustrate the pre-Flores-Ortega required would have been dard of review. Id. 895. We did not raise Hudson, anticipate Flores-Ortega. we Hudson, In Teague sponte sua and thus also applied Flores-Ortega indeed claims, to Hudson's Flores-Ortega reached no could though the even state court had de- applied Teague. be consistent with post-conviction nied relief before Flores-Orte- However, ga was issued. See id. at 895-97. suggest 7. That the Court did not question of whether AEDPA barred relief Rodriquez Peguero was inconsistent Flores-Ortega part because was not a of the Flores-Ortega of course no carries corre- pre- established federal law was not sponding implication jurist reasonable case, sented to the court in that because the reading cases and those Strickland would state court had dismissed claims Hudson's necessarily recognized have that the outcome grounds, procedural not on We the merits. novo, only way was the to reconcile thus reviewed de the claims rather than authority. in accordance with AEDPA’srestrictive stan- the two lines of appli- court’s inquiry, If and thus that state an earlier case. application” proper could entitle a habeas test, virtually everything cation Strickland were rule, petitioner to relief the state court deci- because be an old if ever, with contrary decides case sion toas to or an unreasonable rarely, Williams, an earlier case. applying Strickland. properly out ignores 390-91, rules of old 120 S.Ct. 1495. The lan- a broad view U.S. Such importance guage “resolving focus on about Strickland virtual- Teague’s judgments. Teague, finality ly of criminal all ineffective-assistance-of-counsel . 309, 109 claims,” 1060 S.Ct. which the concurrence takes out 489 U.S. at Williams, in full: provides of context from Instead, held—and reaf- the Court has new repeatedly rule is firmed —that Virginia Supreme The Court erred was not dic- [it reaches] when “the result holding that our decision v. Lockhart existing at the time the by precedent tated [, Fretwell U.S. final.” Id. conviction became defendant’s (1993),] 122 L.Ed.2d 180 modified or in definition of a 1060. This way the rule set down supplanted some reason- ] rule is meant to new “validate! It Strickland. is true while able, existing interpretations of good-faith provides guid- Strickland test sufficient made state courts even precedents virtually all resolving ance for ineffec- contrary to they to be though are shown claims, tive-assistance-of-counsel there Netherland, later decisions.” O’Dell overriding are situations in' which the 151, 156, 138 L.Ed.2d may focus on fundamental fairness affect (1997). in- focus of the old-rule analysis. decidedly not on whether a quiry is thus context, Id. at 120 S.Ct. 1495. application” of proper “illustrates the case mean, language that this does not clear decided previously relies on or otherwise suggests, concurrence ante at 714 cases; inquiry wheth- the focus of the is on (Motz, J., concurring), involving that a case cases in such applies prior a case such er necessarily an old ineffective assistance jurist that no reasonable could a manner rule under because Strickland result the la- disagreed about the have of claims, “virtually all” such but resolves inquiry. case—a far narrower ter-decided only in circumstances rather that it is rare justification concurrence’s second “overriding fo- that a court must have an characterizing of Flores- altogether legal on' a test cus” different implicit an old rule is its asser Ortega as Strickland, i.e., in than the one set forth virtually all holds tion Williams consistent with proceeding whether the is two-prong Strick interpreting cases Contrary Judge fundamental fairness. old standard set forth rules. See land thus em- implication, Motz’s this statement (Motz, J., concurring)(“Rather, at 714 ante that, every hold one phatically does not that ‘the Strickland the Court has directed ineffective post-Strickland of the Court’s guidance for resolv provides test sufficient cases, jurist assistance no reasonable virtually all ineffeetive-assistance-of- ing the result —as disagreed could have Williams, ”)(quoting counsel claims.’ required for all such cases would be 1495). 391, 120 at But Williams U.S. Teague. law under constitute old support no for such assertion. provides Motz, rejoinder to Instead, attempted Judge holds that Strick Williams rejoins at all. Ante point, this obvious clearly is law even land established itself n. 1. That Strickland resolves case-by-case at though requires Strickland clearly that which majority of ineffective assistance is established vast nothing says whatsoever as the relevant claims time state-court decision. particular application Williams, of Strick- whether See 529 U.S. 120 S.Ct. In- Alvarado, a new rule or not. 1495; land constitutes Yarborough v. deed, Motz reveals her own misun- Judge 2140, 2147, 158 L.Ed.2d 938 derstanding inquiry of the new-rule (2004). By declaring that set Williams (as inqui- if it noting emphatically were the rule, forth an old Court indi- most ineffec- ry) “guides” that Strickland jurists that all cated reasonable Ante at n. 1. tive assistance claims. agreed prior have even to the issuance of course, inquiry the new-rule is not Of Williams Williams should be decided “guides” whether the ineffec- Thus, way it was. the Court’s but, rather, analysis, tive assistance wheth- application Wiggins was not Williams dictates the resolution of a er Strickland unexplained departure from the Su- particular ineffective assistance claim. preme repeated explanations Court’s salvage Judge attempts posi- Motz her 2254(d)(1) standard; rather, the section it by hastily asserting that tion the Strick- simply a application further of the analysis generally guides ineffec- land Court’s conclusion that a rule of law that is actually assistance claims dictated the tive by precedent dictated is established Flores-Ortega. ante at result See issued, precedent when that even if that assertion; n. 1. But this is mere she does is before the rule of law is explicitly stated. attempt not even to demonstrate that no Williams, See jurist disagreed reasonable would have 1495. Flores-Ortega. with the result in Wiggins The Court’s statement D. Williams set forth an old rule thus cannot Betraying its discomfort with its obvious holding that a be read as a case sets forth on Flores-Ortega, majority reliance be- “simply an old rule it applies” whenever gins opinion revealingly abridged its with a prior precedent interprets holding, statement that “Strickland as the concurrence would have us believe. progeny” unreasonably ... and its were Instead, under the Court’s defini- fashion, and, applied, ante at in like rule, tion of an old in Wig- conclusion prefaces analysis its ultimate of Frazer’s gins that was an old rule must Williams claim with the statement that “the state represented have a belief the Court PCR court’s decision constituted an unrea- that it would have been unreasonable for a Strickland,” sonable ante at jurist recognize to fail to that the result in clear, however, It majori- that the by precedent. Williams was dictated See (or believe) ty not hold does even that Teague, 489 U.S. at 1060. or, alone is Strickland sufficient for that interpretation An of Strickland that was matter, even that Strickland dictated contrary to Williams would thus have Flores-Ortega. majority opinion The cites “reasonable, qualify good- failed to as a Flores-Ortega than more twice as often as interpretation” faith that Teague recog- Strickland, Flores-Ortega it does and cites deserving nized as of deference. See O’Dell, exclusively analysis almost its actual of 521 U.S. at - See, e.g., claim. reading Wiggins necessary This of for Frazer’s ante at 706 708 is (relying, holding Wiggins to be consistent with the Court’s that Frazer’s counsel holding, pre— performance both and that failed the post-Wiggins, prong, on Frazer- 2254(d)(1) “[cjounsel’s the relevant law under is that Ortega proposition section 2254(d)(1), just certainly it from and was ... is distinct to consult obligation Teague law under inform”;) at 708-712 old rule constitutional ante duty to [his] satisfy can the time Frazer’s conviction became Frazer (considering “whether Flores-Ortega only Flores-Ortega final. It if that is is neces- requirements ” pro- sary and to a conclusion that the state court distilled from Strickland preju- unreasonably applied clearly claim of established analyze Frazer’s ceeding to test); analysis that an Flores-Ortega’s two-part federal law whether under dice had (concluding Flores-Ortega Teague that counsel is a new rule under at 711 ante above, because, obligations apt explained under is in order to meet “his failed ”); Flores-Ortega grant corpus ante at the writ of habeas on the Strickland only Flores-Ortega majority dem- must (claiming need basis that.“Frazer Teague— in order that that decision is not appealing” conclude an interest onstrate ”); Flores-Ortega under barred. prejudice to “show light that “in of Strick- (stating at 712 ante majority on this problem The for the Frazer’s counsel Flores-Ortega, land and coming around. score is that it meets itself him re- obligation to consult with had an necessary to a conclu- Flores-Ortega If is fact, majority garding appeal”). unreasonably ap- that the court sion PCR Flores-Ortega that is es-

virtually admits federal then plied established it concludes to its when sential Flores-Ortega it follows that was not dic- analysis of the dissent’s that “[b]ecause contrary to the ma- tated Strickland — predicated of Frazer’s claim merits For if jority’s separate conclusion. Flores-Ortega does not that its conclusion Flores-Ortega were dictated Strick- largely irrelevant.” analysis its apply, land, judgment would then the state Flores-Ortega was not at 712. If Ante under have been unreasonable majority’s holding, then necessary to the Flores-Ortega. resort to without prec- analysis based on Flores-Ortega well pre-dating majority edent understands Flores-Ortega, would not be rele- dissent conducts did not dictate course, vant, analysis be the myriad but of would from the of formulations as evident conducting as well. majority explanation should be of the rela- invokes and Flores- tionship between Strickland majority does not believe That the asserting Flores- Ortega variously — relying on grant it can relief without 704,. ante at “dis- Ortega “crystalizefd],” by the Flores-Ortega is further confirmed “elaborated],” tillled],” ante at at all. If Teague it even raises fact that “reinforced,” n. ante at ante at majority actually believed “synthesized],” ante at Strick- judgment was an unreason- court’s PCR all, of these formula- Many, land. independent able of Strickland change to or from tions connote addition analysis Flores-Ortega, then inconsistent connotation Strickland —a announced a new Flores-Ortega whether ju- reasonable a conclusion that all utterly be by Teague rule barred rule of agreed have that the rists would court’s unrea- the PCR irrelevant because an- prior to its existed would application of Strickland sonable nouncement. justify issuance of the writ. Strick- alone end, explained, In the for the reasons clearly estab- unquestionably land majority cannot transparent that the of the PCR is federal law at the time lished dictated Flores- that Strickland of section establish purposes decision for court’s 726 Rucker, grant Appeals.” it rests its of the Court of

Ortega and that State (1996) (em- on the conclusion that the S.C. S.E.2d writ instead added); phasis see also Austin v. unreasonably applied court South state PCR Carolina, that did not 305 S.C. S.E.2d Flores-Ortega precedent —a (1991) (reaching the same conclusion with at the time court issued its even exist respect Supreme to the South Carolina judgment.

Court’s refusal to review the denial of E. relief). post-conviction majority’s upon The reliance Flores- language The of section the Su- Ortega at least be defensible the preme interpretation of Court’s supreme discretionary state court’s denial language, plain common sense all certiorari, of not the state PCR court’s preclude the conclusion that such a dis- decision, for our were the relevant decision cretionary by denial should be examined review under AEDPA. For 2254(d) a federal habeas court. Section However, pre-date decision. did provides, part, relevant majority correctly acknowledges, as it application for a [a]n writ habeas must, that the state PCR court decision is corpus person custody on behalf of a court pur- the relevant state decision for pursuant judgment of a State 2254(d). poses section See ante not granted respect shall be n. 7. any claim adjudicated that was on the Under no circumstance can a discretion- proceedings merits State court unless ary adjudication denial of certiorari be relevant to the of the claim— 2254(d). inquiry mandated section (1) resulted in a decision was con- Only pre-Flores-Ortega opinion of the to, trary or involved an unreasonable court, denying PCR and not the letter of, clearly established Feder- review, discretionary can be said have al as Supreme determined “adjudication been an of the claim that Court of the United States. in a meaning

resulted decision” within the 2254(d) added). § (emphasis 28 U.S.C. 2254(d). of section The Supreme Court has defined the The Carolina phrase “clearly South Court did established Federal law” not address the merits of Frazer’s including holdings, opposed claims “the Rather, dicta, at all. the South Carolina Su- of this Court’s decisions as preme Court entered a letter order on time the relevant state-court decision.” 30, 2002, May stating that Frazer’s “Peti- Yarborough, (emphasis S.Ct. at 2147 Williams, tion for Writ of Certiorari added)(quoting [was] Denied.” 259; 1495). J.A. see also Br. of Appellee light statutory In of the (describing petition Frazer’s language, for writ of it is obvious the state being “summarily certiorari as adjudication, denied PCR court’s and not ”) without consideration on the merits South Carolina Court’s letter de- added). Carolina, (emphasis review, nying discretionary South “the can constitute petition denial of a for a writ of certiorari the “relevant state-court decision” under Appeals to the Court of Yarborough. only plausible reading does dismiss underlying appeal; adjudication decide the it simply of section 2254 is that “the that, discretion, determines “adjudication] as matter of the claim” refers South Carolina present [the does the merits” that must Court] be for the not desire to implicated. review decision of the statute to be Because the denying majority re- brought court’s letter view the vast of cases supreme state in keep before it order to “adjudication” nor “on business was neither view manageable “within adju- proportions,” so also merits,” the relevant it cannot be supreme state courts are entitled to cir- under the stat- for consideration dication purely cumscribe their review a discre- “adjudication on the mer- final ute. The Allen, tionary fashion. See Brown v. by the state PCR performed its” was 97 L.Ed. 469 adjudication that court, only it this Frankfurter, J.); (1953)(opinion of Felton whether it we must examine to determine (4th Cir.1990). Barnett, v. 912 F.2d not in a decision” that is entitled “resulted Adopting the view that the denial of certio- to deference. rari is the relevant state-court decision for fact, previously pre- In have taken we that, excep- our review would mean absent Lee, cisely approach. this Bacon (as, example, tional circumstances if (4th Cir.2000), MAR the state F.3d the state court were shown to exercise its summarily petition- denied a habeas court manner), discretion an unconstitutional at 475. The Car- er’s claims. Id. North anytime highest the state’s court denied denied certiora- olina Court then review, discretionary petitioner would of setting ri. Id. In forth our standard ineligible be for relief in federal court. review, did not mention the denial of we Thus, faithfully applied, if interpreta- certiorari, applying instead section tion entirely insulate from review 2254(d)(1) of the MAR only to decision courts; many decisions of the state such a court. Id. at 478. result cannot correct. be reasonably adopt any oth- Nor could we Alternatively, one could instead mischar- interpretation of the statute. There are er acterize the state court’s denial of discre- possible by means which one two tionary summary affirmance review as conclusion that the denial could reach the adopted reasoning ratified of discretionary “adjudication is an review Polk, the lower court. See McHone v. support- on the merits” —and neither is (4th Cir.2004)(holding F.3d 704 n. 5 hand, might the one one treat able. On summary supreme the state court’s just discretionary denial of review as adjudication petitioner’s of habeas claims discretionary deny decision to what is—a reasoning “left intact of the [lower] inquire further review—and then whether court, accordingly and that the state is act the state court’s failure entitled to the benefit of the more thor- law. application unreasonable of federal ough petitioner’s treatment of treatment, But with such there would nev- court”). disregard in that claims Such petitioner to a any grounds er be for relief characterization of its own the state court’s under the deferential standards of section order, enforcing principle far from 2254(d)(1), of effec- because the exercise comity respects, that AEDPA instead un- tively simply unlimited discretion de- no principle giving dermines that effect case, with no particular cline to review to the South Carolina Court’s that the discretion was exercised indication of a holdings respecting import denial any barred federal can discretionary petitioner reason That a review. “contrary discretionary to” or an “unreasonable required never be to seek review simple law—for the to ex- highest of’ the state’s order federal apply remedies serves the inter- purport reason that it does haust his state comity gives because it the state’s federal law at all. Just as United ests it so de- highest opportunity, to re- court the States Court itself refuses 728

sires, appel- the intermediate discussed the relevance of the actions of to reconsider of the claim. See disposition late court’s in a petition- the last state court involved Boerckel, 838, 845, 526 U.S. O’Sullivan v. proceedings, er’s habeas confirm that a (1999) (“Be- 1728, 1 144 L.Ed.2d discretionary by supreme decision a state designed exhaustion doctrine is cause the judgment court is not the last state court a full and fair give to the state courts purposes for the of federal habeas review. constitution- opportunity to resolve federal Coleman, Supreme In direct- presented al those claims are claims before ed federal habeas look to courts to “the the, courts, to federal we conclude that decision the last state court to which the give prisoners state must the state courts petitioner presented his federal claims” to any full consti- opportunity one resolve determine' whether a state court decision by invoking complete tutional issues one than on an rests on federal rather of the State’s appellate round established independent adequate ground. and state requirement pre- process.”). review This Coleman, 732-35, 501 111 U.S. S.Ct. petitioner effectively a from circum- cludes 2546. This directive to look to the decision court in venting the state favor a federal merely of the “last state court” reiterated contrast, interpretation forum. In previous holding Court’s Harris v. a denial of treating discretionary certiorari Reed, 255, 1038, 489 109 S.Ct. 103 as the “relevant state-court decision” (1989). 263, L.Ed.2d 308 See id. at 109 comity by would disregarding frustrate (“[Procedural S.Ct. 1038 default does not grant the state’s decision not to discretion- bar consideration of federal claim on review, thus, ary petitioner like who either direct or habeas review unless the review, discretionary fails to seek rendering judgment last state utterly respect fail the state court’s ‘clearly and expressly’ case states that “selectively choosing hear judgment procedural on a rests state those cases which seem to it to come with- added). bar.”)(emphasis circuit primary purposes in its and functions.” Our has (4th Boss, petition See v. 483 F.2d 653 held that denial of the “[t]he Moffitt Cir.1973) added). (emphasis doing, so ... certiorari was not the last state court effectively supreme state courts judgment” purposes applying Har- forces grant ris, review and decide the claim on the because “the denial of such a writ is any merits case where a relevant inter- judgment simply not a but refusal to vening Supreme Court decision has been Felton, appeal.” 94; hear the 912 F.2d at decided, having or face the reasonable de- Dixon, see v. also Smith F.3d cisions of its lower courts overturned Cir.1994) (4th (same).8 n. 4 And Felton is just the federal habeas courts. This is state, correct; plainly court’s unex- systems sort of intrusion onto state-court plained discretionary denial of review can- comity in violation of that AEDPA was reasonably impart any not be read to view designed prevent. independent on whether an adequate and ground state bars federal court review. v. Thompson, Coleman 501 U.S. Collins, (1991), 910 F.2d See Goodwin L.Ed.2d 640 (5th Cir.1990). Nunnemaker, virtually Ylst v. Felton also com- (1991), pels directly analogous L.Ed.2d 706 which rule that a Although interpret Felton and Smith a deni- Court's that its de- Carolina petition judgments al of a for certiorari nials are North of certiorari on the Court, brings Carolina merits rather than the of the case it within reach of Court, South Carolina the South the rule in Felton and Smith. rea- case violates the strict AEDPA discretionary cannot limits review denial places on our review of state court represent judgment judg- sonably be said than Supreme deferring recent ments. Rather to the fac- court that no by the state court, tual conclusions of the state the requires relief. precedent Court majority repre- as true Frazer’s accepts Indeed, recog- has the Court court, sentations to the even state PCR “in ac- the federal courts are nized that though they rejected by were that court. holding that a dis- with Felton’s cord” majority utterly The then fails to address not cretionary denial of certiorari does the two most relevant Court judgment the last state court constitute indeed, any Supreme cases—or to address determining applica- the purposes Court case other than at Flores-Ortega Ylst, bility procedural of a state bar. any length reaching its con- erroneous —in (cit- 2, 111 at 802 n. 501 U.S. clusion that holdings the state both with (“[T]he Goodwin, 910 F.2d at 187 ing respect performance preju- to the and the to ‘the last Hams court’s reference prongs dice of Strickland were unreason- rendering judgment in the state court ” able. “state intermediate case’ references the a deci- court renders appellate [that] A.

sion,” court highest [that] not “the state review.”); discretionary simply denies majority disregards stringent McCaughtry, 910 F.2d and Prihoda v. places ability limitations AEDPA on the (7th Cir.l990)(“Unexplained second-guess the federal courts to the fac- discretionary affirmances or denials of tual conclusions of state habeas courts. do not retract a state-law basis review AEDPA, “a determination of a fac- Under already given.”)); of decision see also by tual issue made court shall be State Abramajtys, McBee v. 929 F.2d correct,” presumed appli- to be and “[t]he Cir.1991). (6th Furthermore, cannot Ylst rebutting cant shall have the burden of that a interpreted be to have concluded presumption of correctness clear and discretionary adopts denial of certiorari convincing evidence.” 28 U.S.C. explained reasoning of the last deci- 2254(e)(1). court, which, § The state PCR below, assumed sion because majority, unlike the district court and the California evidentiary had the benefit of a full hear- “any lacked discretion entertain ing in which both Frazer and his counsel Ylst, corpus petitions.” habeas testified, nothing held that “[t]here [is] 2,n. at 802 testimony hearing the record or the this relevant state-court Because Applicant conveyed to indicate that the decision, court’s decision is the state PCR attorney his trial a desire to until Flores-Ortega was not decid- and because Despite too late.” 209-10. J.A. decision, at the time of the court’s conclusion, ed PCR majority both the and the dis- majority’s reliance on expressed trict that Frazer court conclude statutory flouts the clear mandate of sec- Ante at appealing. at least an interest 2254(d). Flores-Ortega simply ir- tion 709, 712; 114-15. But neither the J.A. question presented relevant to the to us. pur- nor court even majority the district met his ports to hold that Frazer has

II. the state court’s find- disputing burden of evidence, convincing rely upon Flores-Ortega, ing clear and Unable impact addresses the of the majority’s review of the merits of Frazer’s indeed even finding cluding on this case. claims of violation of constitutional court’s factual state they reasonably rights prior plea.” conclude that to the Rivers v. Nor could burden; met his the state S.C. 213 S.E.2d Frazer has (1975); refused to credit Frazer’s testi- ante 709-710. The limited expressly during hearing, scope appealable J.A. issues of course ren- mony points only testimony plead guilty defendants who less like- and Frazer’s was ders ly trial supported prevail appeal presum- the conclusion that his to and thus ably likely appeal. to an less to desire an agreed appeal. counsel ever file J.A. fact, Moreover, above, In trial ex- as discussed Frazer 177-78. Frazer’s counsel did Frazer, denied, appeal. that he and had not ask his counsel to seek an In pressly sentence, circumstances, appealing the these it was not unreason- ever talked about only indicated that he was able for counsel to fail to do so. and instead See (4th Leverette, 745, having Carey asked to about time run v. 605 F.2d 746 “see[] Cir.1979) together,” by making (holding that he did so an generally there is requirement oral motion for reconsideration to trial “no constitutional that defen- always court. J.A. 189. dants must be informed of their to right appeal following guilty plea.”). B. Supreme precedent specific Court to the court petitioner’s allegation The state PCR was thus faced context of a that he evaluating wrongfully the claim that Fraz- was re- appeal denied also provided quires. er’s counsel ineffective it assistance conclusion that would not Frazer, by failing appeal to after who had have been unreasonable for state court unquestionably pre-Flores-Ortega been advised of to to right his determine that Fraz- affidavit, 143, plea request appeal, J.A. none- er’s failure to when he to request right appeal, theless failed that his counsel knew of his disposi- was States, appeal. correctly Because the state court tive. Rodriquez United 395 327, 329, 1715, Washington, identified Strickland v. U.S. 23 L.Ed.2d 2052, (1969), Supreme U.S. 80 L.Ed.2d 674 340 held that a Court (1984), governing as the law requests lawyer claims of inef- client who that his file an counsel, may only appeal lawyer fective assistance of we and whose fails to do so is grant relief if the state court’s decision was entitled to relief the form of a belated application an unreasonable appeal, even he is unable to disclose and other established Supreme claims he would have raised or dem- what Court onstrate a likelihood of success on those precedent. 1715; claims. id. at See 89 S.Ct. see It is clear that the state court’s conclu Flores-Ortega, also 528 U.S. at sion that Frazer was not entitled to relief S.Ct. 1029. eminently on such facts was an reasonable of the relevant importance request The the client’s law, i.e., existing for an to the in Rodriquez law September 1999. in Peguero Under was confirmed v. United “judicial States, scrutiny perform of counsel’s 119 S.Ct. (1999). highly ance must be deferential.” L.Ed.2d In Peguero, Strick the habe- land, petitioner alleged 104 S.Ct. 2052. that he was entitled Here, which, pled guilty, Frazer as the to relief because his counsel had failed to majority recognizes, at all appeal pursuant waives file notice of to his least. “nonjurisdictional defenses, in- request defects and and because the district court had necessary, right appeal, guilty plea him of his absent extraordi- to inform failed nary by Federal Rule of Criminal circumstances. required 32(a)(2). Id. at Procedure majority analyze fails to even —or court made factual find- The district Peguero, Rodriquez and mentions cite-— notify had failed to ings that the court only in passing. judgment Its rests almost but that right appeal, of his Peguero entirely on conclusion that the state already had been aware of his Peguero decision, abundantly court’s as “made clear Peguero and that had told right appeal, by Flores-Ortega,” “objectively unrea- he did not wish to trial counsel that his light sonable the dictates of Strick- Id. The Court reviewed appeal. land”', according majority, to the 32(a)(2) claim under Rule only Peguero’s “unreasonably applied state Strick- and, awareness of his Peguero’s because of progeny,” by land and its which it of prejudice to infer appeal, refused Flores-Ortega. course means Ante at 708. failure to inform from the trial court’s majority’s necessarily holding That right. of that Id. at 119 S.Ct. Peguero Flores-Ortega rests on is confirmed its Rodriquez, 961. The Court concluded analysis, analysis an in Teague extensive in the trial court’s part had relied which engages solely justify to ulti- which its to Rodriquez right to inform of his failure Flores-Ortega. reliance on mate Besides “not here because appeal, implicated was this ill-conceived reliance on Flores-Orte- finding factual of the District Court’s majority’s ga, the discussion of the merits request appeal.” not an Id. petitioner did fleeting of a Frazer’s case makes reference to relevant Court Peguero did not address an Although in the form of conclusion that Jones claim, of counsel a ineffective assistance Barnes, U.S. reasonably court could pre-Flores-Ortega (1983), L.Ed.2d 987 and render Strickland indicated that Peguero have concluded on our in the PCR court’s reliance decision for an petitioner’s express request appeal Carey v. Leverette unreasonable.9 Ante Rodriquez crucial to the greater length, examined at 709. When should not be Rodriquez and thus that however, it is clear that neither of these petition- extended to circumstances where un- cases renders the state’s decision an Frazer, request appeal. er failed to an application clearly estab- reasonable contrary majority’s to the noted above lished federal law. request. assumption, made no such Con- notes, alone, Peguero majority As the the Court sidering Rodriquez and then, that “the has reasonably recognizes have Barnes accused the state court could authority to make certain fun- that a must at least the ultimate concluded defendant case, regarding damental decisions request appeal either an or be unaware of ... appeal.” an to whether take an right appeal before counsel has his Barnes, 103 S.Ct. 3308. obligation pursue appeal. an Such clear, however, abundantly in As should be particularly conclusion is reasonable been denied his of counsel’s Frazer has no sense light of the deferential review regarding his authority to make a decision performance required was aware that he had Carey appeal. court’s conclusion in that no Frazer and sentence appeal guilty plea his regarding appeal consultation an after arguably afford Frazer majority's of law that can even 9. The almost-exclusive focus on majori- supra (cataloging majority relief. See at 13 confirms that ty's Flores-Ortega). only Flores-Ortega provides a critical reliance on aware that rule required judge might prejudiced to do so within the trial have been and that he was State, him. sentencing, against filed See Garrett v. 320 S.C. days of but he neither ten (1995) requested (holding that his 465 S.E.2d a notice of nor that a sentence is not “if it is excessive counsel do so. J.A. statutory within limitations and there are general does statement Nor Strickland’s supporting allegation preju- no facts duty “to consult with that counsel has defendant]”). against dice [the important decisions” suf the defendant on The state PCR court’s decision that the state court’s decision fice render performed reasonably Frazer’s counsel matter, an initial unreasonable. As was thus not an unreasonable dicta, as the case before the statement prec- established not pose Strickland did edent, majority’s and the conclusion to the question duty of counsel’s to consult contrary misapplication is a clear of the (or regarding the defendant deferential standards of AEDPA review. decision). any important regarding indeed above, only holdings As noted of the Su C. Court, dicta, preme part constitute “clearly Similarly, reasonably established Federal law”' for the state court 2254(d)(1).10 purposes prove section Yarbor concluded Frazer had failed to event, any at 2147. In ough, any performance prejudiced “deficient leeway state court has more determin the defense.” at U.S. ing application general Rodriquez, the of a more rule 104 S.Ct. 2052. In the Court very specific proceeded assumption than the of a rule. on the that peti- the emphasizes requested Id. at 2149. Strickland that tioner had that his counsel file particular appeal, “objectively set of detailed rules for an which “[n]o indicated his appropriate, appeal,” counsel’s conduct” is but rath intent to and thus demonstrated prejudice. Flores-Ortega, er that courts must consider “whether 528 U.S. (citing counsel’s assistance was reasonable consid 120 Rodriquez, S.Ct. 1715). Here, ering contrast, all the circumstances.” 466 U.S. at 89 S.Ct. 688-89, 104 2052. The state court akin to Peguero, facts are more where reasonably could conclude that counsel’s concluded that petitioner’s Court duty regarding to whether peti right appeal consult awareness of his to defeated appeal tioner should file an does not the claim that prejudiced by arise he was petitioner until the indicates an interest trial court’s failure to inform him of that appealing. 28-29, This is all right. Peguero, the more true 526 U.S. at where, here, petitioner’s plea as 961. A reconciling Peguero guilty scope Rodriquez reasonably limits the of issues available could conclude appeal, only grounds for and the petitioner prejudice he ex that a does not suffer pressed lawyer to his regarding dissatisfaction he is not consulted his wishes depend unsupported allegation on his that with respect appeal, long to so as he is (Motz, J., obviously The concurrence is aware of the tant decisions ante at 717 10. distinction between the dicta, of a case and concurring). particular rule Whether (Motz, J., concurring), see ante at 713 "clearly” only arguably set in dicta forth give any application, reasoning but to it fails set forth dicta is irrelevant for AEDPA unreasonably applied that PCR court purposes, given that the Court has Strickland because "Strickland makes clear part made clear that no dicta is a of the effective, constitutionally to be counsel 2254(d). clearly established law under section impor- must 'consult with the defendant on clearly not not appeal simply and does rule was established right of his to aware Flores-Ortega. lawyer prior in exer- to from his request assistance right. cising CONCLUSION Flores-Ortega fact

The mere prejudice standard Court notes majority can grant the writ of habe- compel does not ground” no new “breaks corpus only by grounding in this case contrary conclusion. Insofar its conclusion that the state acted unrea- Flores-Ortega reaffirms the holding that sonably precedent required is not show petitioner judg- decided after the relevant state court successful, been his would have appeal ment failing was entered and to defer prior established law indeed was legal to either the factual or conclusions of Flores-Ortega.11 Flores-Ortega, appropriate state court. I dissent. I Rodriquez, 1029; 120 S.Ct. the decision of reverse the district However, prior U.S. at court and remand for dismissal of Frazer’s Flores-Ortega, rea- it would have been petition. Peguero indicate that a sonable to read alleged preju- that he was petitioner who appeal he was denied an

diced because that he would

required to demonstrate that, as a matter of appealed,

have knew of his petitioner who could request but did showing.12 To the extent

not make this held that a grounds ap-

showing of “nonfrivolous even if prejudice

peal” can demonstrate an

petitioner request appeal, did not knowledge right recognition appeal and failure 11. The concurrence's that Strick- of his "prejudice presumed” request appeal placed land held that when him in the first stage, altogether category at a counsel is denied critical and thus that he could not demon- J., (Motz, concurring), is thus prejudice. ante at 715 She then noted her belief strate begs important petitioners category correct. But the more in the second who question alto- alleged of whether counsel was denied trial court error could demonstrate gether appeal petitioner prejudice, for an or whether the and that this view was consistent simply failed to seek the assistance of counsel Court’s treatment of claims of inef- question appeal; (citing for an it is this that Flores- fective assistance of counsel. Id. Rod- 1715). Ortega provides riquez, a framework to answer. 395 U.S. at Jus- opinion tice O’Connor's thus is consistent that, regardless with a reasonable belief Pegue- 12. Justice O'Connor’s concurrence in petitioner alleged whether a ineffective assis- could, reasonably pr e-Flores-Ortega, ro have tance of counsel or violation Rule support been read to this conclusion. She 32(a)(2), e-Flores-Ortega pr law barred relief distinguished inability between the to demon- any petitioner who could not demonstrate appealed, that one would have which strate because, appealed have like that he would inability prejudice, and the to demon- defeats Peguero, but he knew of his one's would have been strate that successful, requested appeal, but did not bar never prejudice. which does not defeat any petitioner simply because he relief to Peguero, 526 U.S. at 119 S.Ct. 961 J., (O'Connor, appeal would concurring). could not demonstrate that his Justice O’Con- Peguero’s agreed majority with the have been successful. nor

Case Details

Case Name: Frank D. Frazer v. State of South Carolina Henry Dargan McMaster Attorney General for South Carolina

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 8, 2005

Citation: 430 F.3d 696

Docket Number: 04-6500

Court Abbreviation: 4th Cir.