By Carson Smith
On March 3, 2015, in Gordon v. Braxton, the Fourth Circuit reversed and remanded the denial of Jerome Gordon’s petition for writ of habeas corpus by the Eastern District of Virginia. The Fourth Circuit held that “(1) Gordon properly exhausted his state remedies; (2) the state court did not adjudicate Gordon’s claims on the merits; (3) the district court consequently owed no deference to the state court’s denial of Gordon’s petition; and (4) the district court applied the wrong standard in deciding whether to hold an evidentiary hearing.”
Gordon’s Writ of Habeas Corpus for Ineffective Counsel Dismissed In State Court and Federal District Court
In 2009, after pleading no contest to one count of carnal knowledge and one count of production of child pornography, Gordon was sentenced to thirty-five years in prison. Although Gordon failed to file a timely appeal, he filed a pro se habeas corpus petition alleging ineffective assistance of counsel and he requested an evidentiary hearing.
A claim for ineffective assistance of counsel requires a defendant to show (1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced him. Attorneys have an affirmative duty to file a notice of appeal at the request of a client and a duty to consult the client if the client inquires about the possibility of appeal. Prejudice is established if the defendant shows to a reasonable degree of probability that, but for counsel’s failure to file or consult, the appeal would have been filed.
The state court dismissed Gordon’s claim on the grounds that he had not shown deficient performance because he had not asked for an appeal but merely inquired about the possibility. The state court did not discuss whether the inquiry triggered his counsel’s duty to consult.
Subsequently, Gordon filed a pro se habeas corpus petition in the district court for the Eastern District of Virginia. Pursuant to 28 U.S.C. § 2254(d), the district court gave great deference to the state court’s findings and dismissed Gordon’s petition. The Fourth Circuit granted a certificate of appealability.
Gordon Properly Exhausted His State Remedies
Before state prisoners can file a habeas petition in federal court, they must first exhaust all state remedies. A prisoner must show that “both the operative facts and controlling legal principles were presented to the state court.” Braxton, the warden, argued that Gordon had failed to exhaust his state remedies because he did not properly file a claim regarding his counsel’s failure to consult.
The Fourth Circuit held that Gordon had properly filed this claim. He indicated in his affidavit that he had asked his counsel about the possibility of appeal and he referenced multiple cases relevant to the failure to consult issue. Furthermore, the fact that he did not file a separate claim specific to the failure to consult issue was not dispositive as it is fairly common to combine this issue with a failure to appeal claim. Therefore, Gordon properly exhausted his state remedies.
The District Court Failed to Apply the Correct Standard of Review
In dismissing Gordon’s habeas petition and denying his request for an evidentiary hearing, the district court applied a highly deferential standard of review under 28 U.S.C. § 2254(d). Under this standard, a habeas petition can only be granted if the state court (1) unreasonably applied federal law or (2) based its decision on an unreasonable determination of the facts in light of an evidentiary hearing. However, before a district court can apply the § 2254(d) standard, the state court’s decision must “qualify as an adjudication on the merits.” Otherwise, the district court must review the state court’s decision de novo.
The Fourth Circuit held that the state court did not adjudicate Gordon’s petition on the merits because it based its decision “on a materially incomplete record.” The record was incomplete because the state court refused to permit “further development of the facts” for Gordon’s failure to consult claim. In addition, the state court limited its review of the facts to Gordon’s affidavit and failed to consider the allegations made throughout his filings. Since the state court did not adjudicate Gordon’s petition on the merits, the district court should have reviewed the state court’s decision de novo.
The District Court Abused Its Discretion in Denying Gordon an Evidentiary Hearing
In the process of dismissing Gordon’s habeas petition pursuant to § 2254(d), the district court chose not to hold an evidentiary hearing. An evidentiary hearing can be restricted if the habeas petitioner “failed to develop a factual basis of a claim in State proceedings.” By incorrectly applying the high level of deference required by § 2254(d), the district court accepted the state court’s findings and denied Gordon’s request for an evidentiary hearing. The Fourth Circuit held that this was an abuse of discretion.
The Fourth Circuit Reversed and Remanded
For the above reasons, the Fourth Circuit held that the district court must review Gordon’s habeas petition anew and in accordance with its holding.
