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Media Alerts - Gordon v. Braxton -- Fourth Circuit
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April 4, 2015
  Gordon v. Braxton -- Fourth Circuit
Headline: Defendant's Inquiry about Appeal Triggers Separate Burdens for Counsel and Court

Area of Law: Criminal Procedure; Post-Conviction; Habeas

Issue Presented: Whether trial counsel was ineffective for failing to file an appeal, after being instructed to do so, and for not consulting with the client about the appeal.

Brief Summary: In 2009, Jerome Gordon entered into a plea agreement that did not include a waiver of appellate or post-conviction rights. Mufeed W. Said, who represented Gordon at the plea and sentencing hearings, did not timely file a direct appeal. Gordon subsequently elected to pursue collateral relief. Gordon filed a pro se state habeas petition that alleged ineffective assistance of counsel. In the petition, Gordon alleged his attorney failed to consult with Gordon and failed to file an appeal, even after Gordon asked Said what his options were and wrote to Said "asking for an appeal, but never got any response." The warden, Daniel Braxton, moved to dismiss the petition and attached an affidavit from Said in support of his motion. The state court granted the warden's motion without an evidentiary hearing, and dismissed Gordon's petition.

After the Supreme Court of Virginia affirmed the lower court's denial of Gordon's petition, Gordon filed a pro se habeas petition in federal court. The district court, assumed deference to the state court was required, and dismissed Gordon's petition without a hearing based upon the state court rulings. Gordon appealed and the United States Court of Appeals for the Fourth Circuit granted a certificate of appealability.

The Fourth Circuit reversed the district court's dismissal of Gordon's petition and remanded for further proceedings. The court held that Gordon properly exhausted his state remedies because he fairly presented the failure-to-consult issue in state court. Because Gordon inquired about what would be done after sentencing, he triggered counsel's separate duty to inquire into Gordon's interest in appealing. Furthermore, the Fourth Circuit held that the district court should have applied a de novo standard of review rather than afford deference to the state court because the state court failed to adjudicate Gordon's claim on the merits. This treatment unreasonably prevented factual development of the ineffective assistance claim by only considering Said's affidavit; ignoring several of Gordon's submissions solely because they were not administered under oath; and failing to hold an evidentiary hearing. Therefore, the district court should have reviewed the state court's decision de novo before denying a hearing. The Fourth Circuit remanded to the district court to exercise its discretion in the first instance on this question.

To read the full opinion, please click here.

Panel: Judge Niemeyer, Judge Wynn, and Judge Diaz, Circuit Judges

Argument Date: 12/9/14

Date of Issued Opinion: 03/03/15

Docket Number: 13-7040

Decided: Reversed and remanded by published opinion.

Case Alert Author: Alexandra A. Stulpin, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Christopher Ryan Ford, MAYER BROWN, LLP, Washington, D.C., for Appellant. Donald Eldridge Jeffrey, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Author of Opinion: Judge Diaz

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 11:06 AM     4th Circuit  

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