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Gordon v. Braxton

United States Court of Appeals, Fourth Circuit

March 3, 2015

JEROME STEVEN GORDON, Petitioner -- Appellant,
v.
DANIEL BRAXTON, Warden, Respondent -- Appellee

Argued December 9, 2014.

Page 197

[Copyrighted Material Omitted]

Page 198

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. (1:12-cv-00834-LO-TRJ). Liam O'Grady, District Judge.

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.

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Judge Diaz wrote the opinion, in which Judge Niemeyer and Judge Wynn joined.

OPINION

Page 199

DIAZ, Circuit Judge:

We granted a certificate of appealability in this case to consider the district court's dismissal of Jerome Steven Gordon's petition for a writ of habeas corpus. Gordon alleges that his trial counsel was ineffective for failing to file a notice of appeal when instructed to do so and for not consulting with him about an appeal. We hold that (1) Gordon properly exhausted his state remedies; (2) the state court did not adjudicate Gordon's claim 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. We therefore reverse and remand.

I.

In 2009, Gordon pleaded no contest in a Virginia circuit court to one count each of carnal knowledge and soliciting the production of child pornography, pursuant to a plea agreement that did not include a waiver of appellate or post-conviction rights. The court sentenced him to thirty-five years in prison with eight years suspended. Mufeed W. Said represented Gordon at the plea and sentencing hearings. Gordon did not timely file a direct appeal.

Gordon did, however, pursue collateral relief. In state court, he filed a pro se habeas corpus petition alleging ineffective assistance of counsel at his sentencing hearing. While his petition was pending, Gordon moved for leave to amend, seeking to add another ineffective-assistance-of-counsel claim, this one alleging that his attorney failed to file an appeal when asked to do so and that Gordon wrote to Said " asking for an appeal, but never got any response." [1] J.A. 71. He requested an evidentiary hearing and appointment of counsel. Gordon later filed a motion to supplement his petition with additional supporting facts, including that he asked Said " about a possible appeal." J.A. 86.

The warden moved to dismiss the petition and attached an affidavit from Said. Gordon opposed the motion and again moved for leave to amend. To these filings he attached a sworn " Affidavit." The state court granted Gordon's various motions for leave to ...


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