Frazer v. South Carolina, No. 04-6500.

CourtU.S. Court of Appeals — Fourth Circuit
Writing for the CourtDuncan
Citation430 F.3d 696
PartiesFrank D. FRAZER, Petitioner-Appellee, v. State of SOUTH CAROLINA; Henry Dargan McMaster, Attorney General for South Carolina, Respondents-Appellants.
Decision Date08 December 2005
Docket NumberNo. 04-6500.
430 F.3d 696
Frank D. FRAZER, Petitioner-Appellee,
v.
State of SOUTH CAROLINA; Henry Dargan McMaster, Attorney General for South Carolina, Respondents-Appellants.
No. 04-6500.
United States Court of Appeals, Fourth Circuit.
Argued December 2, 2004.
Decided December 8, 2005.

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ARGUED: William Edgar Salter, III, Senior Assistant Attorney General, Office of the Attorney General of South Carolina, Columbia, South Carolina, for Appellants. David Bruce Betts, Columbia, South Carolina, for Appellee. ON BRIEF: Henry Dargan McMaster, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, Columbia, South Carolina, for Appellants.

Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the majority opinion, in which Judge DIANA GRIBBON MOTZ joined. Judge DIANA GRIBBON MOTZ, wrote a separate concurring opinion. Judge LUTTIG wrote a dissenting opinion.

OPINION

DUNCAN, Circuit Judge.


South Carolina appeals the district court's order granting relief on Frank Frazer's petition for a writ of habeas corpus. The court granted relief solely as to Frazer's claim that his attorney failed to consult with him regarding a direct appeal following his sentencing on state trafficking charges in 1994, and that as a result he lost his right to appeal. Although the state courts that reviewed this claim concluded that the Sixth Amendment did not require Frazer's counsel to consult with him regarding an appeal, the district court found this conclusion was unreasonable under Strickland v. Washington, 464 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny. For the following reasons, we affirm.

I.

In March 1994, a South Carolina grand jury indicted Frazer for trafficking, possessing a weapon during the commission of a crime of violence, and possessing a controlled substance with intent to distribute. At a change of plea and sentencing hearing on March 22, 1994, Frazer pleaded guilty to the first two charges. It is undisputed that Frazer and the state assumed that the trial judge would apply concurrent five-year sentences. However, the court imposed consecutive five-year sentences and a fine of $100,000, despite the fact that the maximum fine for Frazer's convictions was $25,000. As Jack Howle, Frazer's counsel, subsequently acknowledged, Frazer did not expect to receive consecutive sentences,

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and Frazer immediately expressed his surprise and discontent. After the judge announced Frazer's sentence, Frazer asked Howle to see "about having time run together." J.A. 189.

Despite a prior assurance that he would "file the necessary paperwork" if something went wrong at sentencing, J.A. 178, Howle's only effort to that end was an informal oral motion for reconsideration, which the court denied without order or other elaboration. At no time either before or after the denial of the motion for reconsideration did Howle ascertain whether Frazer wished to appeal. As a result, the period for noting an appeal passed without a notice of appeal being filed, a fact Frazer did not learn until after he wrote Howle to express his continuing dissatisfaction and desire to pursue an appeal.

Frazer filed a state application for post-conviction relief ("PCR") on February 10, 1997. His application alleged that he received ineffective assistance of counsel, that his plea had not been knowing and voluntary, and that the trial court lacked jurisdiction to accept the guilty plea.1 Following an evidentiary hearing at which Howle testified, the PCR court concluded that it was appropriate to adjust Frazer's fine from $100,000 to $25,000 (the amount both parties agreed was the maximum for the trafficking charge), but that Frazer was otherwise not entitled to relief. The PCR court noted that, although Howle "never informed him of his right to appeal," there was nothing in the record or the hearing "to indicate that [Frazer] conveyed to his trial attorney a desire to appeal until it was too late." J.A. 209. The PCR court's order issued on September 17, 1999. Frazer appealed the PCR court's decision to the South Carolina Supreme Court by petition for certiorari dated June 12, 2000. The South Carolina Supreme Court summarily denied Frazer's petition on May 30, 2002.

On March 7, 2003, Frazer filed the underlying pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Frazer's application renewed the five issues presented to the South Carolina Supreme Court.2 His § 2254 application was referred to a magistrate judge who recommended denying relief on all claims, finding no error in the PCR court's reasoning that Howle was under no Sixth Amendment obligation to consult with Frazer regarding an appeal. Frazer filed timely objections to this recommendation.

Following a de novo review, the district court found that Howle had an obligation under Strickland to consult with Frazer regarding an appeal. While acknowledging that Frazer never formally demanded an appeal until after the appeal period had expired, the district court noted

[t]he undisputed evidence shows that, immediately after sentencing, Frazer and Howle agreed that Howle would seek review of the sentence. Howle assured

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Frazer that he "would file the necessary paperwork" to have the sentence modified, and Frazer did not hear from Howle again until Frazer contacted him about the status of his appeal.

J.A. 114. The district court specifically noted that "Frazer reasonably demonstrated to Howle that he was interested in seeking review of the sentence," and that "there were non-frivolous grounds for appeal." Id. at 115. The district court's order granting habeas relief on this claim was entered on February 12, 2004, and South Carolina noted a timely appeal.

II.

A district court's decision to grant habeas relief is reviewed de novo. Allen v. Lee, 366 F.3d 319, 323 (4th Cir.2004) (en banc), cert. denied, ___ U.S. ___, 125 S.Ct. 208, 160 L.Ed.2d 182 (2004). As with the district court, our review of a habeas petitioner's claims is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (the "AEDPA"). In relevant part, the AEDPA provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (discussing § 2254(d)). The phrase "clearly established Federal law, as determined by the Supreme Court of the United States" requires that federal courts assess the validity of the inmate's claims based on the holdings of the Supreme Court "as of the time of the relevant state-court decision." Id. at 412, 120 S.Ct. 1495. A state habeas court unreasonably applies clearly established Federal law when it "identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495.

A.

The legal principle applicable to claims of ineffective assistance of counsel are set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland establishes the extent and nature of counsel's obligations to the defendant and a two-part test for assessing whether counsel has proved ineffective in discharging those obligations. First, the defendant must prove that his counsel's efforts were objectively unreasonable when measured against prevailing professional norms. Id. at 688-90, 104 S.Ct. 2052. Second, the defendant must demonstrate that counsel's performance, if deficient, was also prejudicial. Id. at 694, 104 S.Ct. 2052. This generally requires the defendant to demonstrate by a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id.

The two-part test of Strickland that defendants must satisfy in order to prevail on an ineffective assistance of counsel claim unquestionably qualifies as "clearly established" federal law under § 2254(d). Williams, 529 U.S. at 391, 120 S.Ct. 1495 ("It is past question that the rule set forth in Strickland qualifies as

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`clearly established Federal law, as determined by the Supreme Court of the United States.'"). In Roe v. Flores-Ortega, 528 U.S. 470, 477-80, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court applied Strickland to hold that counsel's duty to consult with the defendant generally requires counsel to discuss with the defendant whether to pursue an appeal. 528 U.S. at 477-80, 120 S.Ct. 1029. The Court then followed the two-part test of Strickland to assist courts in establishing whether the particular failure to consult regarding an appeal amounted to ineffective assistance. However, because Flores-Ortega issued after Frazer's state-court conviction became final, we must take up the threshold issue of whether we are relying on that decision in violation of the non-retroactive principle announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).3 See Horn v. Banks, 536 U.S. 266, 271-72, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (per curiam) (noting federal habeas courts must take up an analysis under Teague where necessary before addressing the merits of the defendant's claims under the standards of...

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102 practice notes
  • In re Jagana, No. 66682–7–I.
    • United States
    • Court of Appeals of Washington
    • August 13, 2012
    ...[under Strickland ] it can hardly be thought to have created a new principle of constitutional law.”); Frazer v. South Carolina, 430 F.3d 696, 704–05 (4th Cir.2005) ( “[Roe ] simply crystalizes [stet] the application of Strickland to the specific context presented by [the defendant's] claim......
  • Williams v. Branker, NO. 5:99-HC-123-F
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 27, 2013
    ...to determine whether habeas relief is warranted. Rose v. Lee, 252 F.3d 676, 689-90 (4th Cir. 2001V. see also Frazer v. South Carolina, 430 F.3d 696, 718 (4th Cir. 2005) ("Because the state court's decision in this case was both contrary to and involved an unreasonable application of clearly......
  • Newland v. Hall, No. 05-15981.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 14, 2008
    ...Crawford, 311 F.3d 1288, 1315 n. 2 (11th Cir. 2002); Putman, 268 F.3d 1223, 1241 (11th Cir.2001); see also Frazer v. South Carolina, 430 F.3d 696, 706 n. 7 (4th Cir.2005) (relevant state court decision is the state habeas court's rejection of petitioner's claim on the As we did in Putman v.......
  • Chaidez v. U.S., No. 10–3623.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 30, 2011
    ...is not conclusive for purposes of deciding whether the current decision is a ‘new rule’ under Teague ”); Frazer v. South Carolina, 430 F.3d 696, 720 (4th Cir.2005) (Luttig, J., dissenting) (“to establish that the Supreme Court relied exclusively on the principles of prior cases in reaching ......
  • Request a trial to view additional results
103 cases
  • In re Jagana, No. 66682–7–I.
    • United States
    • Court of Appeals of Washington
    • August 13, 2012
    ...[under Strickland ] it can hardly be thought to have created a new principle of constitutional law.”); Frazer v. South Carolina, 430 F.3d 696, 704–05 (4th Cir.2005) ( “[Roe ] simply crystalizes [stet] the application of Strickland to the specific context presented by [the defendant's] claim......
  • Williams v. Branker, NO. 5:99-HC-123-F
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 27, 2013
    ...to determine whether habeas relief is warranted. Rose v. Lee, 252 F.3d 676, 689-90 (4th Cir. 2001V. see also Frazer v. South Carolina, 430 F.3d 696, 718 (4th Cir. 2005) ("Because the state court's decision in this case was both contrary to and involved an unreasonable application of clearly......
  • Newland v. Hall, No. 05-15981.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 14, 2008
    ...Crawford, 311 F.3d 1288, 1315 n. 2 (11th Cir. 2002); Putman, 268 F.3d 1223, 1241 (11th Cir.2001); see also Frazer v. South Carolina, 430 F.3d 696, 706 n. 7 (4th Cir.2005) (relevant state court decision is the state habeas court's rejection of petitioner's claim on the As we did in Putman v.......
  • Chaidez v. U.S., No. 10–3623.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 30, 2011
    ...is not conclusive for purposes of deciding whether the current decision is a ‘new rule’ under Teague ”); Frazer v. South Carolina, 430 F.3d 696, 720 (4th Cir.2005) (Luttig, J., dissenting) (“to establish that the Supreme Court relied exclusively on the principles of prior cases in reaching ......
  • Request a trial to view additional results

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