Filed: Jul. 28, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6570 MARVIN SUMNER, Petitioner - Appellant, v. KEITH DAVIS, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:07-cv-00112-RLW) Argued: March 25, 2009 Decided: July 28, 2009 Before NIEMEYER and GREGORY, Circuit Judges, and Eugene E. SILER, Jr., Senior Circuit Judge of the United States Court of Appeals
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6570 MARVIN SUMNER, Petitioner - Appellant, v. KEITH DAVIS, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:07-cv-00112-RLW) Argued: March 25, 2009 Decided: July 28, 2009 Before NIEMEYER and GREGORY, Circuit Judges, and Eugene E. SILER, Jr., Senior Circuit Judge of the United States Court of Appeals f..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6570
MARVIN SUMNER,
Petitioner - Appellant,
v.
KEITH DAVIS, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cv-00112-RLW)
Argued: March 25, 2009 Decided: July 28, 2009
Before NIEMEYER and GREGORY, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Siler wrote the
opinion, in which Judge Niemeyer joined. Judge Gregory wrote a
dissenting opinion.
ARGUED: David G. Maxted, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina, for Appellant. Leah A. Darron, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON BRIEF: James E. Coleman, Jr., Jennifer E. Brevorka, Jonathan
S. Tam, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina,
for Appellant. Robert F. McDonnell, Attorney General of
Virginia, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SILER, Senior Circuit Judge:
Defendant Marvin Sumner appeals the district court’s denial
of his petition for a writ of habeas corpus. He argues that the
district court erred in concluding that he failed to demonstrate
ineffective assistance of counsel on appeal. For the following
reasons, we affirm the district court.
I.
In 2004, Sumner was convicted of discharging a weapon in
public in violation of Va. Code Ann. § 18.2-280 and possession
of a firearm by a convicted felon in violation of Va. Code Ann.
§ 18.2-108.2. The charges arose out of an incident in July
2004: two witnesses - Kerri Cole and Carlton Outland - allegedly
saw Sumner come out of his apartment, fire a gun three times,
turn and fire another shot, and walk behind the building. Then,
they heard two more shots. They later described Sumner’s
appearance to Officer Cintron and identified Sumner as the
shooter. In addition, Officer Cintron recovered two .45 caliber
shell casings where Sumner had allegedly been standing and one
.45 caliber shell casing on Sumner’s person after arresting him
for littering and drinking in public. The arrest occurred after
Cintron saw Sumner walking down the street drinking a beer and
then throwing the beer bottle on the ground.
3
The state trial court overruled Sumner’s motion to suppress
the shell casing found on his person. After conviction, Sumner
appealed, arguing insufficiency of the evidence. His brief
explained the intended scope of the argument: the evidence was
insufficient and the motion to suppress the cartridge should
have been granted. However, defense counsel failed to include
the Fourth Amendment claim in the question presented.
The Court of Appeals of Virginia affirmed, finding that the
“direct and corroborating circumstantial evidence was sufficient
to prove possession of a firearm and discharging a firearm in
public beyond a reasonable doubt.” It also found Sumner’s
failure to include his Fourth Amendment issue in his questions
presented, as required by Virginia Supreme Court Rules 5A:12(c)
and 5A:20(c), barred consideration of that issue on appeal. A
three-judge panel of the Court of Appeals of Virginia affirmed.
Sumner appealed. His defense counsel presented the same
arguments but amended the question presented to include both the
sufficiency of the evidence and Fourth Amendment claims. In
2006, the Supreme Court of Virginia denied further review.
Sumner thereafter filed a petition for a writ of habeas
corpus in the Supreme Court of Virginia claiming ineffective
assistance of counsel. He argued that defense counsel’s failure
to follow the state court rules - because of counsel error
rather than strategic considerations - precluded direct review
4
of his Fourth Amendment claim in his pro se memorandum in
support of the petition. He did not argue that he suffered
prejudice from his counsel’s conduct. The court dismissed the
petition because Sumner failed to satisfy both the “performance”
and “prejudice” prongs of Strickland v. Washington, 466 U.S.
668, 687 (1984): (1) “the selection of issues to address on
appeal is left to the discretion of appellate counsel, and
counsel need not address every possible issue on appeal” and (2)
Sumner “does not attempt to demonstrate that the excluded
argument had merit or would have been successful had it been
included in the questions presented.”
In 2007, Sumner filed a petition for a writ of habeas
corpus in the federal district court pursuant to 28 U.S.C. §
2254. He claimed that (1) he was entitled to effective
assistance of counsel on direct appeal; (2) his counsel was
ineffective by failing to follow state court rules; (3) the
State violated his due process rights by imposing a sanction on
him for his counsel’s error; and (4) the State violated his
Fourth Amendment rights through an illegal search and seizure.
The district court denied the petition. It determined that only
the second claim was properly before the court; the other three
had been procedurally defaulted because they were not raised
before the state court. It concluded that Sumner “failed to
demonstrate that appellate counsel was deficient or that he was
5
prejudiced by the omission of an appellate challenge to the
Circuit Court’s denial of the motion to suppress.”
II.
We review the “district court’s decision on a petition for
writ of habeas corpus based on a state court record” de novo.
Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir. 2003). Under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
we review state court legal and factual determinations under a
limited and highly deferential standard: an application for a
writ of habeas corpus shall not be granted unless the state
court decision upon which it is based (1) “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) involved “an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” State court factual findings “shall be presumed to
be correct,” and “[t]he applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(d)-(e); see also Lawrence v.
Branker,
517 F.3d 700, 707-08 (4th Cir. 2008).
Sumner must show that the state court’s determinations were
“objectively unreasonable” to prevail. See Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor,
529 U.S.
6
362, 409 (2000). It is not sufficient for the state court’s
decision to be erroneous or incorrect. See
Branker, 517 F.3d at
708 (citing
Williams, 529 U.S. at 409-11). The phrase “clearly
established Federal law” refers to the “holdings, as opposed to
the dicta, of [the Supreme] Court’s decisions as of the time of
the relevant state-court decision.” Id. (citing
Williams, 529
U.S. at 412).
III.
Sumner argues that his counsel was ineffective by failing
to preserve his Fourth Amendment claim and that prejudice should
be presumed because the error effectively precluded direct
appellate review of his entire appeal. However, the district
court properly denied his petition for habeas corpus because the
Supreme Court of Virginia did not unreasonably apply federal law
as determined by the United States Supreme Court by concluding
that Sumner was required to show prejudice and failed to do so.
The Supreme Court has held that to establish ineffective
assistance of counsel, a defendant must show both that (1) his
counsel’s performance was deficient or “fell below an objective
standard of reasonableness” in light of prevailing professional
norms and (2) the deficient performance prejudiced the defendant
or “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
7
been different.” Strickland v. Washington, 466 U.S. 668, 687-
88, 694 (1984). Furthermore, a court need not address both
“performance” and “prejudice” if the defendant makes an
insufficient showing on one, and “[i]f it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.”
Id. at 697.
However, in certain contexts, prejudice is presumed. For
example, “[a]ctual or constructive denial of the assistance of
counsel altogether is legally presumed to result in prejudice.”
Id. at 692; see also Roe v. Flores-Ortega,
528 U.S. 470, 482-83
(2000) (citing United States v. Cronic,
466 U.S. 648, 658-59
(1984)) (providing that prejudice is presumed when a defendant
is deprived of the appellate proceeding altogether, which he
wanted at the time and to which he had a right).
The facts in this case, unlike those contemplated in Cronic
and Flores-Ortega, did not completely deny Sumner of the
appellate process. Although counsel’s error precluded direct
appellate review of an aspect of Sumner’s insufficiency of the
evidence claim, Sumner did not suffer complete forfeiture of
desired appellate proceedings. Counsel’s conduct is more aptly
characterized as a “deficient performance” or “attorney error”
that is “subject to [the] general requirement that the defendant
affirmatively prove prejudice.” Strickland, 466 U.S. at 693.
8
The Supreme Court of Virginia and the district court
reasonably concluded that Sumner failed to show that he was
prejudiced by counsel’s failure to include his Fourth Amendment
claim in the question presented. * The Supreme Court has found
that “[i]f an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in
his presence, he may, without violating the Fourth Amendment,
arrest the offender.” Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001). In this case, Officer Cintron saw Sumner
walking down the street drinking a beer and then throwing the
bottle on the ground. He found the .45 caliber shell casing in
Sumner’s pocket pursuant to a lawful arrest for drinking in
public and littering. See Chimel v. California,
395 U.S. 752,
763 (1969). In addition, even without the challenged shell
casing, there was ample eyewitness testimony of his guilt.
AFFIRMED
*
Sumner only argues that prejudice should be presumed; he
does not argue, in the alternative, that he could otherwise
establish prejudice.
9
GREGORY, Circuit Judge, dissenting:
This case is not as simple as the majority opinion
suggests. Marvin Sumner’s counsel failed to properly set forth
the primary basis of his appeal in the “Questions Presented”
portion of his brief. We must now determine whether this
omission effectively denied him an appeal when it resulted in a
procedural default of the entire claim. If so, then the Supreme
Court has instructed that we may presume prejudice and find
ineffective assistance of counsel. Under the facts of this case
and governing Supreme Court precedent, I am convinced that
Sumner’s counsel was indeed ineffective and that his petition
for a writ of habeas corpus should be granted.
I.
A more detailed rendering of the facts is necessary for a
full consideration of this case: On July 11, 2004, two people,
Kerri Cole and Carlton Outland, claim to have seen Sumner come
out of his apartment, raise a gun, and fire it three times.
They assert that it was not completely dark outside, that the
parking lot and apartment complex were well-lit, and that the
only obstacle between them and Sumner was a chain-link fence.
Cole recounted that, after Sumner fired the first shots, Sumner
saw Cole, walked between two apartments, raised his hand, and
fired a fourth shot before he went behind the building.
10
Cole and Outland relayed what occurred to one Officer
Cintron. They described Sumner’s physical appearance and
clothing, stating that he was wearing a blue jersey with the
number “11.” Police detained Sumner at a nearby 7-11. Cole and
Outland identified Sumner as the person who fired the gun, even
though Sumner was wearing a black jersey with the number “71.”
Cintron returned to the scene of the firings and recovered two
.45-caliber shell casings.
While Cintron returned to the shooting scene, another
officer released Sumner. Upon learning of this, Cintron
followed Sumner and allegedly saw him toss a beer bottle onto
the ground. Cintron arrested Sumner for littering, then
searched him and found a .45-caliber shell casing in his pocket.
Sumner admitted that he was a convicted felon, and Cintron
confirmed this with a background check. Sumner was then
arrested for possession of a firearm by a convicted felon and
for discharging a firearm in a public place.
Sumner was convicted, and the Virginia Court of Appeals
affirmed the conviction, finding that there was sufficient
evidence to support it. However, Sumner’s counsel failed to
identify his Fourth Amendment claim—that the .45-caliber
cartridge was obtained via a pretextual, illegal search and
seizure—in the Questions Presented, as required by the Virginia
11
Supreme Court, * even though his appeal was primarily based on
this claim. The only claim stated in the Questions Presented
was the following: “Did the trial court err in finding evidence
of possession of a firearm by a convicted felon and discharging
a firearm necessary to support a conviction under [Virginia
law]?” (J.A. 58.) Thus, the Court of Appeals deemed the claim
forfeited. The Supreme Court of Virginia denied his petition
for appeal and his petition for a writ of habeas corpus, finding
that he had demonstrated neither deficiency nor prejudice by
counsel.
The appellant filed a habeas petition in the Eastern
District of Virginia, which ruled against him. The district
court found that all of Sumner’s claims except for his
ineffective assistance of counsel (“IAC”) claim had been
procedurally defaulted. Regarding his IAC claim, the district
court found that the question of which issues to appeal was a
strategic one for counsel to make, and moreover, Sumner could
not show how he was prejudiced by counsel’s decision.
*
Virginia Supreme Court Rule 5A:12(c) states, in part:
“The petition for appeal shall contain the questions presented.”
Virginia Supreme Court Rule 5A:20(c) states that the
opening brief shall contain: “A statement of the questions
presented with a clear and exact reference to the page(s) of the
transcript, written statement, record, or appendix where each
question was preserved in the trial court.”
12
II.
Criminal defendants are entitled to effective assistance of
counsel on appeals as of right. Evitts v. Lucey, 469 U.S. 387
(1985). Under Strickland v. Washington,
466 U.S. 668 (1984), a
defendant claiming ineffective assistance of counsel must
typically meet both an objective and a prejudice prong.
Regarding the first prong, “the defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.”
Id. at 688. To meet the prejudice prong,
“[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Id. at
694. However, “[i]n certain Sixth Amendment contexts, prejudice
is presumed. Actual or constructive denial of the assistance of
counsel altogether is legally presumed to result in prejudice.”
Id. at 692.
Constructive denial of assistance of counsel was explored
more deeply in Roe v. Flores-Ortega,
528 U.S. 470 (2000). In
that case, the defendant pled guilty to murder and was allowed
sixty days to appeal his sentence under California law. His
attorney failed to do so despite the fact that the defendant did
not previously consent to a failure to file the appeal.
Although Flores-Ortega dealt with a situation in which the
defendant did not expressly request that his attorney file a
13
notice of appeal, the Supreme Court noted that when a defendant
does expressly make such a request, “[c]ounsel’s failure to do
so cannot be considered a strategic decision; filing a notice of
appeal is a purely ministerial task, and the failure to file
reflects inattention to the defendant’s wishes.” Id. at 477.
Moreover:
[C]ounsel’s alleged deficient performance arguably led
not to a judicial proceeding of disputed reliability,
but rather to the forfeiture of a proceeding
itself. According to respondent, counsel’s deficient
performance deprived him of a notice of appeal
and, hence, an appeal altogether. Assuming those
allegations are true, counsel’s deficient performance
has deprived respondent of more than a fair judicial
proceeding; that deficiency deprived respondent of the
appellate proceeding altogether.
Id. at 483. In such instances, the Supreme Court has instructed
that a presumption should be applied in which a defendant need
only demonstrate that “there is a reasonable probability that,
but for counsel’s deficient failure to consult with him about an
appeal, he would have timely appealed.”
Id. at 484; see also
Peguero v. United States,
526 U.S. 23, 28 (1999) (“[W]hen
counsel fails to file a requested appeal, a defendant is
entitled to resentencing and to an appeal without showing that
his appeal would likely have had merit”).
In United States v. Peak, 992 F.2d 39 (4th Cir. 1993), this
Court considered a case in which the defendant pled guilty to
distribution of crack cocaine. He asked his attorney to appeal
14
his sentence, but the attorney failed to file a notice of
appeal. The Court held that “a criminal defense attorney’s
failure to file a notice of appeal when requested by his client
deprives the defendant of his Sixth Amendment right to the
assistance of counsel, notwithstanding that the lost appeal may
not have had a reasonable probability of success.” Id. at 42.
In explaining why this is the case, the Court noted:
Strickland is concerned with attorney performance in
the course of representation. By its own text, it
does not apply to deprivations of counsel altogether,
which violate the Sixth Amendment without the need for
even the most elementary judicial interpretation. No
one would seriously contend that a defendant need not
have an attorney at trial if there is no “reasonable
probability” that an attorney could win an acquittal.
We see no reason to apply a different rule on direct
appeal, where the defendant has the same absolute
right to counsel he enjoys before conviction. However
effective or ineffective Peak’s counsel was before the
judgment of conviction, his failure to file the
requested appeal deprived Peak of the assistance of
counsel on direct appeal altogether.
Id.; see also Frazer v. South Carolina, 430 F.3d 696 (4th Cir.
2005) (finding ineffective assistance of counsel when an
attorney failed to consult with his client regarding the filing
of an appeal); Becton v. Barnett,
920 F.2d 1190, 1195 (4th Cir.
1990) (“The effect of counsel’s failure to appeal was that
Becton lost his ability to protect his ‘vital interests at
stake.’ He was unable to attempt to demonstrate that his
conviction was unlawful through the appellate process.”
(internal citation omitted)).
15
These cases illustrate that the failure to file an appeal
results in a presumption of ineffective assistance of counsel.
This is so because the failure deprives the defendant of the
process by which his constitutional rights are reviewed and his
deprivation of liberty assessed. And in these circumstances,
the defendant need show only that, but for his counsel’s
omission, he would have filed an appeal. This principle
logically applies to the present case.
Although Sumner’s attorney did file a notice of appeal, he
omitted a critical part of the appeal: properly presenting the
primary issue for review in the Questions Presented. Because of
this omission, the state courts deemed the claim to be
procedurally defaulted. Since Sumner’s appeal was based almost
completely on this unperfected claim, his counsel effectively
denied Sumner the entire appeal. And, but for the omission of
Sumner’s counsel, his appeal would have been timely and properly
before the court. Therefore, by his counsel’s error, Sumner was
indisputably deprived of the process by which his Fourth
Amendment rights and resultant deprivation of liberty would be
assessed, and we may presume prejudice.
The appellees argue, and the majority finds, that Sumner’s
case is different because the above-cited cases all involved
circumstances in which the attorney completely failed to
preserve the right to an appeal, thus forfeiting the entire
16
process. However, the logic underlying the Supreme Court’s
precedent does not allow us to read constructive ineffective
assistance of counsel so narrowly. If an attorney, through his
omission and not strategy, fails to raise a critical claim on
appeal—and the appeal consists almost entirely of that claim—
then the attorney has failed to perfect the appeal and has
effectively denied the defendant his right to the appeal. See
Hernandez v. United States, 202 F.3d 486, 489 (2d Cir. 2000)
(finding “no basis” for “a distinction between a criminal
defendant whose counsel files an untimely notice of appeal, does
not file a notice of appeal, or files a timely notice and then
neglects to perfect the appeal.”); Abels v. Kaiser,
913 F.2d
821, 823 (10th Cir. 1990) (“[W]hen courts have found counsel
constitutionally inadequate, because either retained or
appointed counsel failed to properly perfect an appeal, they do
not consider the merits of arguments that the defendant might
have made on appeal.”).
The problem was compounded when Sumner’s counsel failed to
amend his petition to include a new question presented, even
though a party may attempt to do so prior to an action on the
petition by the Virginia Court of Appeals: “Although the timely
filing of a petition for appeal is jurisdictional, nothing in
the Rules of Court prevents us from exercising our inherent
authority to allow the petitioner to present additional issues
17
for our consideration when we have already acquired jurisdiction
and have not yet acted on the original petition.” Riner v.
Virginia, 579 S.E.2d 671, 677-78 (Va. Ct. App. 2003), aff’d,
601
S.E.2d 555 (Va. 2004). Instead of attempting to amend the
petition, the attorney wrote to Sumner and told him: “I have
never had the appellate court to [sic] reject a brief because of
the question presented or the assignment of errors. I believe
it would be a manifest injustice in this case for them to do
so.” (J.A. 33.) He further claimed that, because “the
appellate courts operate under very strict time frames,” and the
deadline for filing the initial brief had passed, he did not
“have the ability to change anything.” (Id.) Given the holding
in Riner, this was simply incorrect.
This letter is also a clear indication that the decision of
Sumner’s counsel not to include the proper Questions Presented
or to amend the Questions Presented section was not, as the
appellees contend and as the courts below found, a strategic
decision to which we grant deference. The omitted argument
accounted for four of the seven pages of his arguments section.
(J.A. 59-62.) Sumner’s counsel intended to, and indeed did,
present the argument as part of his appeal. But he failed to
properly present the argument in the Questions Presented portion
of the brief. This was not strategy.
18
III.
Sumner was denied consideration of the merits of his appeal
because of the error of his attorney. Thus, he was effectively
denied an appeal altogether. The majority does not recognize
the constitutional infirmity of this denial, and I therefore
dissent from its opinion.
19
