Singleton v. Eagleton , 425 F. App'x 228 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7701
ARTHUR SINGLETON,
Plaintiff - Appellant,
v.
WILLIE EAGLETON, Warden,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. R. Bryan Harwell, District Judge.
(9:08-cv-02539-RBH)
Argued: March 22, 2011 Decided: April 25, 2011
Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Leah Shen, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North
Carolina, for Appellant. William Edgar Salter, III, OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellee. ON BRIEF: James E. Coleman, Jr., Sean
E. Andrussier, Students Daniel Kronberg, Leslie Cooper Mahaffey,
Matthew Vandenberg, Paul A. Woodard, DUKE UNIVERSITY SCHOOL OF
LAW, Durham, North Carolina, for Appellant. Alan Wilson,
Attorney General, Donald J. Zelenka, Assistant Deputy Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Arthur Singleton filed a pro se petition under 28 U.S.C.
§ 2254 in the district court asserting that his state trial
counsel was ineffective for failing to file a direct appeal on
his behalf. The district court denied relief. We affirm.
I.
On September 23, 2003, Singleton was convicted in absentia
by a South Carolina jury on two counts of assault and battery
with intent to kill and one count of possession of a firearm
during the commission of a crime of violence. Singleton knew
his trial was starting on that date, but voluntarily chose not
to attend. He was later apprehended. On February 26, 2004, the
state court sentenced Singleton to twelve years imprisonment for
the first assault conviction, seven years for the second assault
conviction, and five years for the firearm conviction, all to be
served concurrently. Singleton did not file an appeal.
On April 16, 2004, Singleton filed a state post-conviction
relief (“PCR”) application claiming that “[t]rial counsel was
instructed to [a]ppeal [his] guilty verdict,” but that counsel
“failed to follow [his] instruction . . . which prejudiced [him]
by denying him his first [a]ppeal as of right.” J.A. 59. At
the evidentiary hearing before the state PCR court, Singleton
testified as follows:
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[W]hen they opened up my sentence, [trial counsel]
walked me back in the . . . bull pen and he talked to
me, and he . . . asked me did I want to appeal the
case, and . . . I told him, yes.
I instructed him to file the appeal . . . . And
my mother and my girlfriend, [who] was the person
responsible for paying him the money, instructed him
as well to file for the appeal. And they witnessed
that he told me he was going to file for the appeal.
J.A. 92. Singleton’s counsel testified that Singleton did not
instruct him to file an appeal and that he may have discussed
the appeal with Singleton but, if so, “it was only to the
standpoint of, . . . I don’t think you have a case to appeal.”
J.A. 98-100. Counsel testified that if Singleton had asked him
to file an appeal, he would have done so. The state PCR court
found that counsel’s testimony was credible and that Singleton’s
testimony was not credible, and denied relief. Singleton
unsuccessfully petitioned for certiorari in the state supreme
court, again asserting through appointed counsel that he was
entitled to relief because he “asked trial counsel to file for
an appeal . . ., but no appeal was ever filed.” J.A. 205.
After the state post-conviction proceedings were concluded,
Singleton filed his pro se application for habeas relief in the
district court, which was also denied.
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II.
In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court held that defendants have a Sixth Amendment right
to “reasonably effective” legal assistance. Id. at 687. To
prove a violation of this right, a defendant must show that his
attorney’s representation “fell below an objective standard of
reasonableness,” id. at 688, and that this failure prejudiced
him, see id. at 691-92.
In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme
Court recognized two distinct scenarios in which a defendant may
raise a claim of ineffective assistance of counsel for failure
to file a notice of appeal. The first scenario occurs when “a
lawyer . . . disregards specific instructions from the defendant
to file a notice of appeal.” Id. at 477. Where such a claim is
established, the lawyer is per se deficient. See id. The
second scenario occurs when trial counsel fails to consult with
a defendant about an appeal and there was a “constitutionally
imposed duty” to do so. Id. at 480. The duty to consult arises
“when there is reason to think either (1) that a rational
defendant would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this particular
defendant reasonably demonstrated to counsel that he was
interested in appealing.” Id.; see also Bostick v. Stevenson,
589 F.3d 160, 166 (4th Cir. 2009).
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Singleton’s claim in the state PCR proceedings fell
squarely under the first scenario of Flores-Ortega. He claimed
that trial counsel discussed filing an appeal with him
immediately after his sentencing, but disregarded his specific
instruction to file an appeal. The PCR state court made the
requisite credibility determinations, found that Singleton did
not instruct counsel to file an appeal, and denied relief.
Where a state court has adjudicated a claim on the merits,
habeas relief may not be granted unless the state court’s
adjudication “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,” 28 U.S.C. § 2254(d)(1), or “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)(2). The “determination of a factual issue made
by a State court 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(e)(1); see Fisher v. Lee, 215 F.3d 438, 445-46 (4th Cir.
2000).
Here, the state PCR’s factual finding, which must be
presumed correct, was not rebutted by clear and convincing
evidence. Because the state court’s adjudication of the facts
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in light of the evidence was reasonable, and its decision was
neither contrary to nor an unreasonable application of the
applicable federal law, Singleton was clearly not entitled to
habeas relief on his claim that counsel was ineffective in
failing to file an appeal as instructed, and we declined to
grant a certificate of appealability as to it.
In his pro se § 2254 petition, however, it appeared that
Singleton might also be claiming that his counsel was
ineffective for failing to file a direct appeal on his behalf in
violation of the “duty to consult” scenario discussed in Flores-
Ortega. Accordingly, we appointed counsel and granted a
certificate of appealability to consider the viability of such a
claim. We now affirm.
A prisoner in state custody “generally must exhaust state
court remedies, and a federal habeas court may not review
unexhausted claims that would be treated as procedurally barred
by state courts – absent cause and prejudice or a fundamental
miscarriage of justice.” Longworth v. Ozmint, 377 F.3d 437,
447-48 (4th Cir. 2004) (internal citation omitted); see 28
U.S.C. § 2254(b)(1)(A) (“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 unless it appears that . .
. the applicant has exhausted the remedies available in the
courts of the State; or . . . there is an absence of available
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State corrective process.”). In sum, “[t]he exhaustion doctrine
bars a claim if it is raised for the first time in a federal
habeas petition.” Mickens v. Taylor, 240 F.3d 348, 356 (4th
Cir. 2001) (en banc); see also Breard v. Pruett, 134 F.3d 615,
619 (4th Cir. 1998).
In order to exhaust his available state court remedies, a
petitioner must “fairly present[] to the state court both the
operative facts and the controlling legal principles associated
with each claim.” Longworth, 377 F.3d at 448 (4th Cir. 2004)
(citation and internal quotation marks omitted). To satisfy
this requirement, “the ground must be presented face-up and
squarely.” Id. (internal quotation marks omitted); see also
Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 2001).
Otherwise, the state will be deprived of its “opportunity to
correct the constitutional violation in the first instance.”
Longworth, 377 F.3d at 448 (internal quotation marks omitted).
“The procedural default doctrine bars a claim when the habeas
petitioner ‘fails to exhaust available state remedies and the
court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now
find the claims procedurally barred.’” Mickens, 240 F.3d at 356(quoting Breard, 134 F.3d at 619); see Longworth, 377 F.3d at
447-48.
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Having now had the opportunity to review and consider the
state court record, it is apparent that Singleton failed to
present to the state court the operative facts or legal
arguments necessary to exhaust a failure-to-consult claim under
Flores-Ortega. Not only did Singleton fail to present such a
claim “face-up and squarely” to the state court, the evidence
and arguments that he presented to the state court contradict
it. Singleton testified that trial counsel did discuss filing
an appeal with him immediately after the sentencing hearing.
The only fact Singleton contested before the state court was
whether or not he specifically directed counsel to file an
appeal during or after that conversation. In addition, while
Singleton claimed that he was per se prejudiced by trial
counsel’s failure to “follow [his] instruction” and file an
appeal, J.A. 59, he never asserted before the state court that
he was prejudiced from a forgone meritorious appeal. As a
result, the parties had no reason to develop evidence about the
content of the conversation between Singleton and his counsel,
nor did the state PCR court need to make any findings regarding
the consultation beyond the undisputed fact that it occurred.
Because Singleton did not fairly present a failure-to-
consult claim under Flores-Ortega in the South Carolina state
courts when he had the opportunity to do so, and because the
state courts would now treat the claim as procedurally barred,
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the claim is procedurally defaulted on federal habeas review as
well.
III.
For the foregoing reasons, we affirm the district court’s
denial of Singleton’s petition for writ of habeas corpus.
AFFIRMED
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