Frank D. Frazer v.  STATE OF SOUTH CAROLINA; HENRY DARGAN MCMASTER, Attorney General for South Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 FRANK D. FRAZER,
Petitioner-Appellee,
v.
No. 04-6500  STATE OF SOUTH CAROLINA; HENRY
DARGAN MCMASTER, Attorney
General for South Carolina,
Respondents-Appellants. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CA-03-738-2-23)
Argued: December 2, 2004
Decided: December 8, 2005
Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the majority
opinion, in which Judge Motz joined. Judge Motz wrote a separate
concurring opinion. Judge Luttig wrote a dissenting opinion.
COUNSEL
ARGUED: William Edgar Salter, III, Senior Assistant Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAR-
OLINA, Columbia, South Carolina, for Appellants. David Bruce
Betts, Columbia, South Carolina, for Appellee. ON BRIEF: Henry

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Dargan McMaster, Attorney General, John W. McIntosh, Chief Dep-
uty Attorney General, Donald J. Zelenka, Assistant Deputy Attorney
General, Columbia, South Carolina, for Appellants.
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
(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 distrib-
ute. 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 concur-
rent 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, and Frazer immediately expressed
his surprise and discontent. After the judge announced Frazer’s sen-
tence, Frazer asked Howle to see "about having time run together."
J.A. 189.
Despite a prior assurance that he would "file the necessary paper-
work" if something went wrong at sentencing, J.A. 178, Howle’s only
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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 inef-
fective 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 testi-
fied, the PCR court concluded that it was appropriate to adjust Fra-
zer’s fine from $100,000 to $25,000 (the amount both parties agreed
was the maximum for the trafficking charge), but that Frazer was oth-
erwise 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
1Frazer had previously filed a PCR application on October 31, 1995,
but withdrew it voluntarily the following year. When Frazer refiled his
PCR petition, the PCR court initially dismissed Frazer’s application as
successive, but the South Carolina Supreme Court permitted Frazer to re-
file it.
2In addition to his claim regarding Howle’s failure to consult, Frazer
contended that: 1) the trial court lacked jurisdiction to accept his guilty
plea; 2) his indictment was defective; 3) Howle had also been ineffective
by failing to adequately consult with him prior to his change of plea; 4)
his plea was not knowingly and voluntarily entered; and 5) that his sen-
tencing was vindictive. The district court dismissed claims 1) through 3)
with prejudice, and dismissed claims 4) and 5) without prejudice. Neither
South Carolina nor Frazer contests the district court’s resolution of these
issues.
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in the PCR court’s reasoning that Howle was under no Sixth Amend-
ment 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 dis-
trict court noted
[t]he undisputed evidence shows that, immediately after sen-
tencing, Frazer and Howle agreed that Howle would seek
review of the sentence. Howle assured Frazer that he "would
file the necessary paperwork" to have the sentence modified,
and Frazer did not hear from Howle again until Frazer con-
tacted 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.) (en banc), cert.
denied, 125 S. Ct. 108 (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 adju-
dicated 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
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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 (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. A state habeas court
unreasonably applies clearly established Federal law when it "identi-
fies the correct governing legal principle . . . but unreasonably applies
that principle to the facts of the prisoner’s case." Id. at 413.
A.
The legal principle applicable to claims of ineffective assistance of
counsel are set forth in Strickland v. Washington, 466 U.S. 668
(1989). Strickland establishes the extent and nature of counsel’s obli-
gations 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. Second, the defendant must demonstrate that counsel’s
performance, if deficient, was also prejudicial. Id. at 694. This gener-
ally 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 unquestion-
ably qualifies as "clearly established" federal law under § 2254(d).
Williams, 529 U.S. at 391 ("It is past question that the rule set forth
in Strickland qualifies as ‘clearly established Federal law, as deter-
mined by the Supreme Court of the United States.’"). In Roe v.
Flores-Ortega, 528 U.S. 470, 477-80 (2000), the Supreme Court
applied Strickland to hold that counsel’s duty to consult with the
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defendant generally requires counsel to discuss with the defendant
whether to pursue an appeal. 528 U.S. at 477-80. The Court then fol-
lowed 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 viola-
tion of the non-retroactive principle announced in Teague v. Lane,
489 U.S. 288 (1989).3 See Horn v. Banks, 536 U.S. 266, 271-72
(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 the AEDPA).
B.
Under Teague, a state prisoner collaterally attacking his conviction
may not rely on a new constitutional rule announced after his convic-
tion became final.4 Teague, 489 U.S. at 310-11. A new rule is one
3There is an exception to this rule: "a federal court may, but need not,
decline to apply Teague if the State does not argue it." Caspari v. Boh-
len, 510 U.S. 383, 389 (1994). Although we opt to apply Teague here,
South Carolina’s failure to address the matter in its opening briefs to this
court could provide adequate grounds to forego this inquiry altogether.
See, e.g., Pleasurecraft Marine Engine Co. v. Thermo Power Corp., 272
F.3d 654, 657 (4th Cir. 2001); Arredondo v. Ortiz, 365 F.3d 778, 781
(9th Cir.) (declining to apply Teague sua sponte where it was mentioned
by the state "only in passing"), cert. denied, 125 S. Ct. 102 (2004); see
also Noland v. French, 134 F.3d 208, 212 (4th Cir. 1998) (noting the
Teague rule is in the nature of an affirmative defense); Royal v. Taylor,
188 F.3d 239, 247 (4th Cir. 1999) ("Because in the district court the
Commonwealth failed to raise the [affirmative defense] of . . . default
with respect to these claims (indeed it affirmatively asserted that the
claims had been decided on the merits), it has waived its right to pursue
the matter on appeal." (emphasis added)).
4The non-retroactivity rule of Teague is subject to two exceptions not
applicable here. "The first exception permits the retroactive application
of a new rule if the rule places a class of private conduct beyond the
power of the State to proscribe, . . . or addresses ‘substantive categorical
guarante[e] accorded by the Constitution,’ such as a rule ‘prohibiting a
certain category of punishment for a class of defendants because of their
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which "breaks new ground," "imposes a new obligation on the States
or the Federal Government," or "was not dictated by precedent exist-
ing at the time the defendant’s conviction became final." Teague, 489
U.S. at 301. As the Supreme Court has noted, these are guidelines
rather than rigidly applied criteria, and no single test is determinative.
See Gilmore v. Taylor, 508 U.S. 333, 340 (1993) (noting the "dictated
by" test is meaningful in a "majority of cases").
Applying these guidelines to Flores-Ortega demonstrates that it
does not present a new constitutional rule under Teague. Rather,
Flores-Ortega simply crystalizes the application of Strickland to the
specific context presented by Frazer’s claim. Flores-Ortega, 528 U.S.
at 476-81. In making this tailored analysis, the Supreme Court relied
exclusively on the principles announced in Strickland and other cases
defining the role of counsel in the appellate process. See id. Indeed,
the Court’s conclusions in Flores-Ortega are dictated by its prior con-
clusions that: a) the defendant has ultimate authority to make the fun-
damental decision as to whether to take an appeal, Jones v. Barnes,
463 U.S. at 751, and b) counsel’s obligation to assist the defendant
includes a duty "to consult with the defendant on important deci-
sions," Strickland, 466 U.S. at 688.
The necessity of counsel’s consultation with the defendant regard-
ing the fundamental decision of whether to appeal is clear from Str-
ickland and cases preceding it that address the nature of the
defendant’s right to a direct appeal. A defendant has a right to pursue
a direct appeal, even if frivolous, which counsel must assist as "an
active advocate in behalf of his client." Anders v. California, 386 U.S.
738, 744 (1967). Although counsel need not press particular issues of
the defendant’s choosing, by implication counsel must consult with
the defendant to identify whether there are any meritorious issues to
appeal. Barnes, 463 U.S. at 752. Indeed, a discussion with the defen-
dant regarding a direct appeal and what issues to pursue (if any) is
critical, as "multiplying assignments of error will dilute and weaken
status or offense.’" Saffle v. Parks, 494 U.S. 484, 494 (1990) (citations
omitted). "The second exception is for ‘watershed rules of criminal pro-
cedure’ implicating the fundamental fairness and accuracy of the crimi-
nal proceeding." Id. at 495.
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a good case and will not save a bad one." Id. (internal quotations
omitted). The defendant’s need for the assistance of an advocate who
can "examine the record with a view to selecting the most promising
issues for review," id., cannot be overstated, and is a necessary com-
ponent of the "particular dut[y] to consult with the defendant on
important decisions" identified in Strickland. 466 U.S. at 688. Flores-
Ortega’s distillation that counsel generally (but not invariably) has a
duty to consult with his client regarding whether to pursue an appeal
is thus dictated by Strickland. As such, the Court did not break new
ground for Teague purposes with respect to counsel’s duty to consult.
Flores-Ortega’s formulation of the prejudice prong of Strickland
likewise presents nothing new under Teague. The Flores-Ortega
Court noted explicitly that its tailoring of Strickland’s prejudice prong
to better suit the context of an attorney’s obligation to consult regard-
ing an appeal "breaks no new ground," as it "mirrors the prejudice
inquiry applied in Hill v. Lockhart, 474 U.S. 52 (1985), and
Rodriquez v. United States, 395 U.S. 327 (1969)." 528 U.S. at 485.
Because the Court did not impose on defense counsel a new duty and
did not believe it was postulating a new rule regarding prejudice,
Flores-Ortega introduces no element or consideration that federal
courts would be foreclosed from applying retroactively. Indeed, South
Carolina does not argue to the contrary, as it did not raise the issue
in its briefs and expressly disclaimed it at oral argument.
Finally, both the procedural posture in which Flores-Ortega arose
and the Supreme Court’s disposition of the case confirm that it did not
announce a new rule for habeas purposes. Flores-Ortega involved a
collateral attack on a state court sentence under 28 U.S.C. § 2254. See
528 U.S. at 473-74. The very fact that the Supreme Court addressed
the merits of the petition — and remanded for further proceedings —
in the face of the limitations imposed by Teague demonstrates that the
controlling legal principle discussed in Flores-Ortega was not a new
rule. See Penry v. Lynaugh, 492 U.S. 302, 313 (1989), abrogated on
other grounds, Atkins v. Virginia, 536 U.S. 304 (2002) ("Under
Teague, new rules will not be applied or announced in cases on collat-
eral review unless they fall into one of two exceptions.") Had the
principle not been clearly established, the Supreme Court, as well as
all lower Federal courts, would have been precluded by Teague from
granting the relief requested by the petitioner in Flores-Ortega.
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Accordingly, we join the Third Circuit in holding that Flores-
Ortega does not constitute a new rule for the purposes of Teague.
Lewis v. Johnson, 359 F.3d 646, 657 (3d Cir. 2004);5 but see Daniel
v. Cockrell, 283 F.3d 697, 707-08 (5th Cir. 2002) (assuming, without
deciding, that Flores-Ortega announced a "new" rule for Teague pur-
poses), abrogated in part, United States v. Grammas, 376 F.3d 433,
438 (5th Cir. 2004). Neither Teague nor § 2254(d) forecloses an
examination of Frazer’s entitlement to habeas relief under Strickland
and its most directly applicable progeny, Flores-Ortega.
C.
The dissent, and the dissent alone, asserts that we cannot rely on
the elaboration of Strickland in Flores-Ortega in evaluating Frazer’s
claim of ineffective assistance of counsel. Although South Carolina
nowhere makes this argument, the dissent posits on its behalf that
because Flores-Ortega issued after the PCR court rendered its deci-
sion, the AEDPA forecloses any recourse to Flores-Ortega in evaluat-
ing Frazer’s claim. While § 2254(d) does limit the availability of
federal habeas relief to claims that rely on "clearly established Federal
law," the dissent’s insistence on divorcing the Teague and Section
2254(d) analysis in this case is misguided. The Supreme Court has
made clear that "whatever would qualify as an old rule under our
Teague jurisprudence will constitute ‘clearly established Federal law,
as determined by the Supreme Court of the United States’ under
§ 2254(d)(1)." Williams, 529 U.S. at 412 (emphasis added).6
5In Lewis v. Johnson, the Third Circuit noted that Strickland estab-
lished a rule of "general applicability" necessitating a case-by-case
assessment, and that the proposition that "a defendant requires the advice
of counsel to make an informed decision respecting his right to appeal
[ ] was hardly novel" when the habeas applicant’s state-court conviction
became final. 359 F.3d at 655, 656. Affording Frazer the benefit of
Flores-Ortega comports with the Supreme Court’s emphasis that a given
constitutional rule be applied uniformly and consistently within each
class of appeal, so as to avoid an unjust disparity in the treatment of simi-
larly situated defendants.
6Although Williams tells us that an old rule under Teague constitutes
"clearly established" federal law for purposes of § 2254(d)(1), we recog-
nize that the converse is not necessarily true. This is so because a rule
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III.
Assessing Frazer’s claim under these precedents, we agree with the
district court that the "state PCR court’s decision constituted an
unreasonable application of Strickland."7 J.A. 112. The PCR court
denied habeas relief without considering whether Howle had a duty
to consult with Frazer regarding an appeal that was distinct from the
generic obligation to apprise Frazer of that right. The PCR court’s
failure to assess the extent of Howle’s duty to consult under the cir-
cumstances, despite having identified Strickland as the relevant para-
digm in which to assess Frazer’s claim, demonstrates an unreasonable
application of that paradigm.
As noted above, Strickland requires that the inmate demonstrate
counsel’s performance was objectively unreasonable and that he was
prejudiced by this unreasonable performance. Strickland, 466 U.S. at
688-90, 94. The Flores-Ortega Court explained that the Sixth
Amendment generally, but not invariably, requires counsel to consult
with the defendant regarding a direct appeal. 528 U.S. at 477-80. Sig-
nificantly, the PCR court determined only that Frazer’s counsel was
under no constitutional obligation to inform him of his right to appeal
under the circumstances of this case. Counsel’s obligation to consult,
however, is distinct from the duty to inform. See id. at 688 (identify-
ing "more particular duties to consult with the defendant on important
decisions and to keep the defendant informed of important develop-
ments in the course of the prosecution" (emphasis added)). Therefore,
when confronted with a claim that counsel rendered ineffective assis-
tance in failing to consult with the defendant regarding an appeal, a
court must conduct a three-step inquiry.
may be announced after a defendant’s conviction becomes final, which
is the relevant point for purposes of a Teague analysis, but before the rel-
evant state court decision, which is determinative for purposes of consid-
eration under § 2254(d)(1). That latter scenario is not the case here,
however. Our analysis is governed by Strickland, which pre-dated both
the conviction and PCR court review.
7We recognize that the PCR court’s decision is the relevant state-court
decision for purposes of 28 U.S.C. § 2254(d).
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The threshold consideration is whether the defendant had indepen-
dently decided whether to appeal and communicated that decision to
counsel.8 If the defendant has affirmatively requested an appeal, coun-
sel’s assistance to the defendant in making that decision is obviously
unnecessary. See id. at 477. Indeed, long before Strickland, the
Supreme Court held that the "fundamental decision" of whether to
appeal rests with the defendant. Jones v. Barnes, 463 U.S. 745, 751
(1983).
Where, as here, the defendant has not specifically requested an
appeal, counsel is under a professional obligation to "consult" with
the defendant regarding that fundamental decision, unless the circum-
stances demonstrate that consultation is unnecessary. Flores-Ortega,
528 U.S. at 478-79.9 If counsel fails to consult, the defendant may
8Because the dissent rejects the relevance of Flores-Ortega, its analy-
sis of the merits asks only whether Frazer explicitly requested that Howle
file an appeal and whether Howle was obliged to inform Frazer of that
right. Post at 47. However, we believe it clear based on Strickland and
Barnes that this is an incomplete analysis, and this conclusion is rein-
forced by Flores-Ortega. The dissent’s insistence that we ignore Flores-
Ortega’s distillation of Strickland and Barnes given the procedural pos-
ture of this appeal is, as noted above, unpersuasive.
9Flores-Ortega offers two examples where counsel would be relieved
of a duty to consult by circumstance. Flores-Ortega notes that where
a defendant consults with counsel; counsel advises the defendant
that a guilty plea probably will lead to a 2 year sentence; the
defendant expresses satisfaction and pleads guilty; the court sen-
tences the defendant to 2 years’ imprisonment as expected and
informs the defendant of his appeal rights; the defendant does
not express any interest in appealing, and counsel concludes that
there are no nonfrivolous grounds for appeal. Under these cir-
cumstances, it would be difficult to say that counsel is profes-
sionally unreasonable, as a constitutional matter, in not
consulting with such a defendant regarding an appeal. Or, for
example, suppose a sentencing court’s instructions to a defen-
dant about his appeal rights in a particular case are so clear and
informative as to substitute for counsel’s duty to consult. In
some cases, counsel might then reasonably decide that he need
not repeat that information. We therefore reject a bright-line rule
that counsel must always consult with the defendant regarding an
appeal.
528 U.S. at 479-80 (internal quotations and citations omitted).
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demonstrate prejudice by showing that a rational defendant would
want to appeal. The defendant may do this by demonstrating either
that a) there were non-frivolous issues for appeal, or b) he had ade-
quately indicated his interest in appealing. Id. at 480. The mere pres-
ence of non-frivolous issues to appeal is generally sufficient to satisfy
the defendant’s burden to show prejudice. Id. at 486. Attempting to
demonstrate prejudice based on a reasonably obvious interest in pur-
suing an appeal, however, necessitates an additional showing "that,
had the defendant received reasonable advice from counsel about the
appeal, he would have instructed his counsel to file an appeal." Id.
A.
After reviewing the factual determinations of the PCR court and
according them the deference required by § 2254(e), we find the
denial of relief on Frazer’s habeas claim unreasonably applied Strick-
land and its progeny. As noted above, after accepting Frazer’s guilty
plea, the trial court proceeded immediately to sentencing, and
imposed consecutive sentences as well as a statutorily impermissible
fine. The PCR court found that Frazer did not explicitly request an
appeal at that time, and it is undisputed that Howle never discussed
that possibility with Frazer. Nevertheless, the PCR court found no
Sixth Amendment violation, citing Carey v. Leverette, 605 F.2d 745
(4th Cir. 1979), for the proposition that "there is no constitutional
requirement that necessitates that trial counsel inform a criminal
defendant of his right to appeal, following a guilty plea." J.A. 209.
That this result is objectively unreasonable in light of the dictates
of Strickland is made abundantly clear by Flores-Ortega. While
Flores-Ortega echoes the holding in Carey that there is no per se rule
requiring counsel to consult with his client regarding a direct appeal,
Carey does not delineate the circumstances under which such a duty
would apply. Flores-Ortega does, however, illustrate that when there
are non-frivolous issues to appeal or the defendant has manifested an
interest in appealing, Strickland requires that counsel consult with the
defendant in deciding whether to go forward. Flores-Ortega, 528 U.S.
at 478-79. Significantly, this duty applies even if the defendant has
pled guilty. Although there may be fewer issues to appeal under such
circumstances, so long as the defendant retains an appeal of right,
counsel’s obligation remains the same. See id. at 480.
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The PCR court’s reliance on our decision in Carey as determinative
of Frazer’s claim is unreasonable even without the benefit of Flores-
Ortega. Carey’s holding conflicts with the subsequent decisions in
Strickland and Jones, which a) require counsel to assist the defendant
with all important decisions, and b) identify the decision whether to
pursue a direct appeal as an important decision that ultimately lies
with the defendant.10 The duty to consult identified in Strickland is
broader than the narrow obligation to inform a defendant of his right
to appeal. As Strickland itself makes clear,
[r]epresentation of a criminal defendant entails certain basic
duties. Counsel’s function is to assist the defendant, . . .
[which includes] the overarching duty to advocate the defen-
dant’s cause and the more particular duties to consult with
the defendant on important decisions and to keep the defen-
dant informed of important developments in the course of
the prosecution.
466 U.S. at 688. Strickland itself indicates that the duty to consult and
the duty to inform are "particular," and therefore distinct obligations
on counsel. It is therefore inadequate to simply analyze whether
Howle discharged his duty to inform Frazer of his right to appeal;
Howle had a separate obligation to consult regarding an appeal as
well. Although the PCR court did not have the benefit of Flores-
Ortega and its synthesis of the holdings in Strickland and Barnes, the
two later decisions were available to the PCR court and the rules con-
tained therein were clearly established at the time the PCR court
reached its decision.
10Interestingly, South Carolina does not contend that we are barred
from considering Frazer’s claim in light of Flores-Ortega. Indeed, South
Carolina asserts that Carey is consistent with Flores-Ortega. For the rea-
sons stated, we disagree. Carey presumes that counsel need not inform
or consult with his defendant regarding the right to appeal. Flores-
Ortega, however, states the opposite: that "in the vast majority of cases,
counsel [will] ha[ve] a duty to consult with a defendant about an appeal."
528 U.S. at 481.
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B.
We turn now to whether Frazer can satisfy the requirements that
the Flores-Ortega Court distilled from Strickland. In order to demon-
strate prejudice from Howle’s failure to consult, Frazer must show
that a rational defendant in his position would want to appeal. He may
do so by either identifying non-frivolous issues that could have been
appealed or by showing that he adequately expressed an interest in
pursuing an appeal. Flores-Ortega, 528 U.S. at 480. We conclude that
Frazer has shown both.
1.
We agree with the district court that Frazer could have pursued two
non-frivolous issues on appeal. As stated above, Frazer’s guilty plea
exposed him to a statutory-maximum fine of $25,000, and all parties
(including South Carolina) expected that Frazer’s sentences for the
two counts to which he was pleading guilty would be concurrent.
However, the court imposed a fine of $100,000 and, without a request
from the prosecution, consecutive sentences — actions Frazer felt
were impermissibly motivated. The trial court also refused to revisit
its decision in response to Howle’s oral motion for reconsideration.
South Carolina responds that three procedural obstacles would have
prevented Frazer from pressing these issues on appeal, and that there-
fore Howle had no duty to consult. We consider these in turn.
a.
First, South Carolina contends that Frazer’s guilty plea automati-
cally foreclosed appellate review of all issues that did not relate to the
trial court’s subject matter jurisdiction. However, this assertion over-
states the holdings of the decisions on which it is based. Although
there is some broad language in South Carolina case law to the effect
that "a guilty plea generally constitutes a waiver of non-jurisdictional
defects and claims of violations of constitutional rights," State v. Pas-
saro, 567 S.E.2d 862, 866 (S.C. 2002) (citing Rivers v. Strickland,
213 S.E.2d 97, 98 (S.C. 1975)), the general rule appears to be that "a
plea of guilty, voluntarily and understandingly made, constitutes a
waiver of non-jurisdictional defects and defenses . . . prior to the
14 FRAZER v. SOUTH CAROLINA

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plea," Rivers, 213 S.E.2d at 98 (emphasis added).11 Moreover, in
South Carolina, "[s]entencing, although often combined with the
admission of guilt in a hearing, is a separate issue from guilt and a
distinct phase of the criminal process," Easter v. State, 584 S.E.2d
117, 119 (S.C. 2003), which bolsters our conclusion that defendants
cannot be expected to forego subsequent errors at sentencing simply
by pleading guilty. In fact, the South Carolina Supreme Court has cor-
rected a sentence on direct appeal that both parties agreed exceeded
the statutory maximum, despite the defendant’s failure to raise a sen-
tencing objection at trial. Johnston, 510 S.E.2d at 425 (noting that
"the State has conceded in its briefs and oral argument that the trial
court committed error by imposing an excessive sentence."). Conse-
quently, we are not persuaded that Frazer’s guilty plea foreclosed an
appeal as South Carolina argues.
Moreover, South Carolina proffers no case supporting the proposi-
tion that a virtually contemporaneous motion for reconsideration is
insufficient to preserve an objection for review. To the contrary, sev-
eral South Carolina cases indicate that presenting an issue to the trial
court for its initial determination is all that is necessary. See, e.g.,
State v. Johnston, 510 S.E.2d 423, 425 (S.C. 1999) (stating that if an
"issue was not raised below and did not involve subject matter juris-
diction," the defendant could not raise it for the first time on appeal
(emphasis added)); State v. Williams, 401 S.E.2d 168, 169 (S.C.
1991) (noting that it is the failure to "interpose[ ] a timely objection
at sentencing in order to have [an] issue ruled upon by the circuit
court in the first instance" that forecloses further review (emphasis
added)); State v. Woodruff, 387 S.E.2d 453, 454 n.1 (S.C. 1989)
("Matters not passed upon by the trial court will not be reviewed."
(emphasis added)).12 And to the extent that ambiguity exists regarding
11See also Tollett v. Henderson, 411 U.S. 258, 267 (1973) (holding
entry of guilty plea waives challenges to "the deprivation of constitu-
tional rights that occurred prior to the entry of the guilty plea" (emphasis
added)).
12The fact that there was little opportunity at sentencing to protest the
judge’s sentence and that the judge did not appear amenable to an objec-
tion adds weight to the argument that, under the present circumstances,
an oral motion for reconsideration could suffice to preserve review. Fra-
zer’s sentencing hearing concluded as follows:
15 FRAZER v. SOUTH CAROLINA

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preservation of error in such circumstances, it suggests the existence
of another non-frivolous issue for appeal.
South Carolina further argues that an affidavit Frazer signed just
prior to pleading guilty, in which he acknowledged his right to appeal,
relieved Howle of any obligation to consult with Frazer regarding an
appeal. Frazer’s "Affidavit of Defendant for Guilty Plea" does reflect
his understanding of his right to appeal. However, that document is
insufficient to relieve Howle of his obligations under Strickland and
Flores-Ortega, as an attorney’s duty to consult requires more than
informing the defendant that he has the right to appeal. The term con-
sult "convey[s] a specific meaning — advising the defendant about
the advantages and disadvantages of taking an appeal, and making a
reasonable effort to discover the defendant’s wishes."13 Flores-
Ortega, 528 U.S. at 478 (emphasis added). Simply demonstrating that
the defendant was actually or constructively aware of his right to
"The sentence on the trafficking in cocaine, you be [sic] incar-
cerated for a period for ten years and pay a fine of one hundred
thousand dollars.
Sentence on the possession of a weapon during a violent
crime, that you be incarcerated for a period of five years to run
consecutive.
I’m recommending counseling and treatment for drug abuse.
And I will tell you this, that if you had gone to trial on the
charges it’s my firm belief that you would have been convicted
of the charges and I would have given you every day that I could
have based on what I consider to be a trial without merit."
J.A. 137. Frazer’s sentencing adjourned immediately following these
statements, without an opportunity for final comments or objections.
Generally, if a defendant "had no opportunity to object to or comment"
on particular aspects of his sentence, his failure to press a contemporane-
ous objection would not result in the waiver of subsequent review.
United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002).
13Indeed, at argument counsel for South Carolina conceded that Howle
had not consulted with Frazer within the meaning of Flores-Ortega.
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appeal is insufficient to relieve defense counsel of his obligations
under Flores-Ortega.14
Finally, South Carolina argues that the only issue Frazer could
have raised on appeal is now frivolous, as the PCR court remedied
this error by reducing the fine. Even assuming for the sake of argu-
ment that this is indeed the only issue Frazer could have pressed on
appeal, we disagree. Both parties agree that the fine exceeded the stat-
utory maximum when it was imposed by the trial court.15 In establish-
ing whether counsel had an obligation to consult given the
circumstances, Flores-Ortega asks only whether the defendant would
have elected to proceed with an appeal following that consultation. It
is therefore the presence of error in the conviction or sentence at the
time the decision to appeal is to be made that is determinative. The
correction of the error in a separate proceeding is irrelevant to the
issue of counsel’s obligation to consult.
b.
Turning to whether there existed non-frivolous issues for appeal,
we note at least two: the excessive fine and the imposition of consecu-
tive sentences. With respect to the first, South Carolina’s acknowl-
edgment that Frazer’s fine exceeded the statutory maximum indicates
that Frazer could have pressed it on appeal. As noted above, there is
precedent allowing South Carolina defendants to present an otherwise
unpreserved sentencing error where "the State has conceded in its
briefs and oral argument that the trial court committed error." John-
ston, 510 S.E.2d at 425. Consequently, the excessive fine presents a
non-frivolous issue that triggered Howle’s duty to consult.
Second, the district court noted that Frazer arguably could have
challenged the trial court’s decision to impose consecutive sentences.
14We note that it appears this would also be insufficient as a matter of
South Carolina law. In re Anonymous Member of the Bar, 400 S.E.2d
483 (S.C. 1991); White v. State, 208 S.E.2d 35, 39 (S.C. 1974) (noting
that even though there is "a reasonable basis for trial counsel’s conclu-
sion or assumption that the defendant was fully aware of his appeal
rights, counsel should not have rested upon that assumption").
15See S.C. Code Ann. §§ 44-53-370, 44-53-375.
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South Carolina correctly notes that in South Carolina, trial judges
have "broad discretion in sentencing within statutory limits," and that
neither of Frazer’s custodial sentences exceeded the relevant statutory
maximum. However, there is an exception to this rule where there are
"facts supporting an allegation of prejudice" against the defendant.
Garrett v. State, 465 S.E.2d 349, 350 (S.C. 1995). Here, the trial
court’s decision to impose consecutive sentences took both parties by
surprise, and Frazer’s sentencing took place just one day after "a
heated [pre-trial] hearing" in which "thing[s] really kind of went
[s]outh." J.A. 183-84. Describing this hearing as "brutal," Howle
noted that "any adverse ruling we could have had" from the judge that
sentenced Frazer the following day, "we got." Id. at 184. Under these
circumstances, we are not persuaded that an assertion by Frazer that
his sentence was "the result of partiality [or] prejudice" would be friv-
olous. Garrett, 465 S.E.2d at 350 (internal quotations omitted).
2.
In the alternative, Frazer may show prejudice under Flores-Ortega
by demonstrating an interest in an appeal and showing that a consulta-
tion with his counsel would not have dissuaded him from pursuing it.
It is uncontested that, immediately following sentencing, Frazer indi-
cated his unhappiness with his consecutive sentences and asked
Howle to see about "having [them] run together." J.A. 128. It was in
fact Frazer’s indication of dissatisfaction that prompted Howle to
make his oral motion for reconsideration. Given that Frazer need only
demonstrate an interest in appealing, Flores-Ortega, 528 U.S. at 480,
Frazer meets the initial requirement for demonstrating prejudice in
this manner.
However, Frazer must also show that the resulting consultation
would have galvanized that interest into a desire to go forward, rather
than dissuading him. See id. at 486. We find Frazer’s letter to Howle
satisfies this secondary showing. Frazer was clearly dissatisfied that
the district court refused to reconsider its sentencing decisions, and
expressed his dissatisfaction both as the sentencing hearing concluded
and in subsequent communications with Howle. Because Frazer’s
interest in an appeal was unwavering and ongoing, we find it ade-
quately reflects both his interest in an appeal and an intent to pursue
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them at all costs. Frazer’s tenacity in pursuing habeas relief only bol-
sters this conclusion.16
IV.
Because we agree with the district court that, in light of Strickland
and Flores-Ortega, Frazer’s counsel had an obligation to consult with
him regarding an appeal, and that Frazer was prejudiced by his coun-
sel’s failure to do so, we find the PCR court unreasonably applied
federal law in rejecting this claim. Accordingly, we affirm the district
court’s grant of habeas relief.
AFFIRMED
DIANA GRIBBON MOTZ, Circuit Judge, concurring:
I concur in Judge Duncan’s opinion for the court. I write separately
simply to set forth more fully why I believe the district court correctly
granted habeas relief here.
The Antiterrorism and Effective Death Penalty Act (AEDPA)
authorizes a federal court to grant an application for a writ of habeas
corpus with respect to a claim adjudicated on the merits in state court
if that adjudication "resulted in a decision that was [1] contrary to, or
[2] involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d)(1)(2000). The Supreme Court has explained that
"[a] state-court decision will certainly be contrary to" clearly estab-
lished Federal law, as determined by the Supreme Court, "if the state
court applies a rule that contradicts the governing law set forth" in
Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405
(2000). "A state-court decision that correctly identifies the governing
legal rule but applies it unreasonably to the facts of a particular pris-
oner’s case certainly would qualify as a decision ‘involv[ing] an
16Because the dissent’s analysis of the merits of Frazer’s claim is pred-
icated on its conclusion that Flores-Ortega does not apply, its analysis
is largely irrelevant. We therefore forego taking up its contentions
regarding the merits of Frazer’s claim as doing so would not advance the
resolution of this appeal.
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unreasonable application of . . . clearly established Federal law.’" Id.
at 407-408 (alterations in original).
The Court has further explained that "‘clearly established Federal
law, as determined by the Supreme Court’ . . . refers to the holdings,
as opposed to the dicta," in Supreme Court decisions "as of the time
of the relevant state-court decision." Id. at 412. Moreover, and of par-
ticular significance in this case, the Williams Court has instructed that
"whatever would qualify as an old rule under [the Court’s] Teague [v.
Lane, 489 U.S. 288 (1989)(plurality opinion)] jurisprudence will con-
stitute ‘clearly established Federal law,’" under § 2254(d)(1) of
AEDPA as long as a Supreme Court case is the source of the rule. Id.
In the case at hand, the district court properly granted habeas relief
because the state court decision denying Frazer’s claim was both
"contrary to" and "involved an unreasonable application of" Strick-
land v. Washington, 466 U.S. 668 (1984). No one can question that
Strickland qualifies as clearly established Supreme Court precedent;
indeed, the Williams Court so stated. See Williams, 529 U.S. at 391
("It is past question that the rule set forth in Strickland qualifies as
‘clearly established Federal law, as determined by the Supreme Court
of the United States.’"). Nor can there be any question that Strickland,
which the Court issued in 1984 to establish legal principles governing
claims of ineffective assistance of counsel, was extant at the time of
all relevant state court decisions in this case.
To demonstrate a claim of ineffective assistance under Strickland’s
familiar two-part test, a petitioner must show that (1) "counsel’s per-
formance was deficient" and (2) that this "deficient performance prej-
udiced the defense." Strickland, 466 U.S. at 687. We measure
prejudice under a reasonableness standard. Generally, a defendant
must show that there is a "reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would have
been different." Id. at 694. However, "[a]ctual or constructive denial
of the assistance of counsel altogether is legally presumed to result in
prejudice." Id. at 692. As to counsel’s performance, the Strickland
Court eschewed adopting a bright-line standard or "detailed guide-
lines for representation," explaining that "[n]o particular set of
detailed rules" could "satisfactorily take account of the variety of cir-
cumstances faced by defense counsel." Id. at 688-89. Once again rea-
20 FRAZER v. SOUTH CAROLINA

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sonableness is the touchstone. Strickland directs courts to "judge the
reasonableness of counsel’s challenged conduct on the facts of the
particular case." Id. at 690.
In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court
did precisely this. The case illustrates how the Strickland test applies
to the "facts of [a] particular case" — one involving a claim that coun-
sel was ineffective for failing to consult with his client about taking
an appeal. For this reason, Flores-Ortega is obviously useful in con-
sidering Frazer’s habeas claim. That the case involves a claim of inef-
fective assistance arising from different facts than were at issue in
Strickland does not render the claim a "new" one unresolved by
clearly established Supreme Court precedent and, therefore, barred by
AEDPA. Although this argument is occasionally offered, it has
gained little traction in the Supreme Court. Rather, the Court has
directed that "the Strickland test provides sufficient guidance for
resolving virtually all ineffective-assistance-of-counsel claims."1 Wil-
liams, 529 U.S. at 391. Thus, as the Court has explained, just because
"the Strickland test of necessity requires a case-by-case examination
of the evidence," this "obviates neither the clarity of the rule nor the
extent to which the rule must be seen as ‘established’ [for AEDPA
purposes] by this Court." Id. (internal quotation marks and citation
omitted).
Moreover, the fact that the Supreme Court issued Flores-Ortega
after the state court denied Frazer’s ineffective assistance claim does
not prevent a federal habeas court from considering Flores-Ortega in
1The dissent mystifyingly claims that this sentence, which contains
only six words in addition to an accurate quotation from Williams, some-
how finds "no support" in Williams. Post at 35. The dissent also suggests
that I have taken this passage from Williams "out of context." Id. But,
this is not so. The sentence from Williams states in its entirety: "It is true
that while the Strickland test provides sufficient guidance for resolving
virtually all ineffective-assistance-of-counsel claims, there are situations
in which the overriding focus on fundamental fairness may affect the
analysis." Williams, 529 U.S. at 391. Thus, the Williams Court specifi-
cally "directed," as I note, that the Strickland analysis guides "virtually
all ineffective-assistance-of-counsel claims." When, as here, that analysis
dictates the result in a given application of Strickland, it provides
"clearly established law" for AEDPA purposes.
21 FRAZER v. SOUTH CAROLINA

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resolving Frazer’s claim under AEDPA. In Wiggins v. Smith, 123 S.
Ct. 2527 (2003), the Supreme Court soundly and explicitly rejected
the contention that AEDPA prohibits consideration of cases postdat-
ing the state-court decision under review. In Wiggins, the Court con-
cluded that, notwithstanding AEDPA, it could consider a case issued
after the relevant state court decision because its recently decided
case simply "illustrat[ed] the proper application" of Strickland. Id. at
2535-36.
Wiggins provides important guidance here. The Wiggins Court first
looked to Strickland, setting forth the Strickland test and noting that
although Strickland had "declined to articulate specific guidelines for
appropriate attorney conduct," it had set forth the proper standards for
generally assessing the challenged judgments of counsel "in terms of
the adequacy of the investigations supporting those judgments." Id. at
2535; see Strickland, 466 U.S. at 690-91. The Wiggins Court next
looked to its recent decision in Williams, in which it had found a
habeas claim similar to Wiggins’ ineffectiveness claim to be "merito-
rious." Wiggins, 123 S. Ct. at 2535. The Wiggins Court expressly
found its recent "opinion in Williams v. Taylor [to be] illustrative of
the proper application of the[ ] [relevant Strickland] standards" and
relied on the rationale of Williams in holding that Wiggins involved
a violation of clearly established Supreme Court precedent. See id.
Justice Scalia, in dissent, objected to the majority’s reliance on Wil-
liams because Williams "postdate[d] the Maryland court’s decision
rejecting Wiggins’ Sixth Amendment claim." See id. at 2546 (Scalia,
J., dissenting). Although the Supreme Court had decided Williams
after the state court upheld the denial of Wiggins’ claim for post-
conviction relief, the majority rejected Justice Scalia’s complaint,
explaining that it could look to Williams as a "proper application" of
Strickland because Williams had come before the Court on "habeas
review" and the Court had "made no new law in resolving Williams’
effectiveness claim." Id. at 2535. The Wiggins majority held it could
look to Williams as "illustrative of the proper application" of Strick-
land because Williams did not create new law, but rather was
"squarely governed by [the Court’s] holding in Strickland." Id. at
2536 (quoting Williams, 529 U.S. at 390). Wiggins teaches that even
if a Supreme Court habeas case is issued after the relevant state court
decision, it can be considered as illustrative of the proper application
22 FRAZER v. SOUTH CAROLINA

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of Strickland — and, therefore, as indicative of clearly established
Supreme Court precedent as of the time of that state court decision
— if in the new decision the Court makes clear that it is simply apply-
ing well-established Supreme Court precedent.
Faithful adherence to the reasoning in Wiggins inexorably leads to
the conclusion that in the case at hand the district court properly
granted habeas relief. Here, as in Wiggins, although Strickland does
not articulate specific guidelines for appropriate attorney conduct as
to the petitioner’s claim, Strickland does set forth the proper standards
for judging that conduct. The Strickland Court carefully explained
that among the "basic duties" owed by counsel to his client are the
duties "to consult with the defendant on important decisions and to
keep the defendant informed of important developments in the course
of the prosecution." Strickland, 466 U.S. at 688. Whether to appeal,
particularly in a case like this in which even the State concedes that
an illegal sentence has been imposed, obviously constitutes a most
"important decision" about which an attorney should "consult" with
his client. Id. Strickland also establishes the proper prejudice inquiry
in a situation like this in which there has been a denial of counsel "al-
together" at a critical stage: that is, "prejudice is presumed." Id. at
692. Thus, here, as in Wiggins, the "‘clearly established’ precedent of
Strickland" governs. See Wiggins, 123 S. Ct. at 2536.
Moreover, again as in Wiggins, a Supreme Court habeas case (here,
Flores-Ortega) issued shortly after the relevant state court decision
illustrates the proper application of Strickland to the particular facts
of the case. Indeed, the Supreme Court made it even clearer in Flores-
Ortega than it did in Williams that it was simply applying Strickland
to the facts before it. See Flores-Ortega, 528 U.S. at 477 (holding that
the Strickland "test applies to claims . . . that counsel was constitu-
tionally ineffective for failing to file a notice of appeal"); 478 (reject-
ing a per se rule adopted by some circuits "as inconsistent with
Strickland’s holding" and concluding that the court below had "failed
to engage in the circumstance-specific reasonableness inquiry
required by Strickland"); 479 (dismissing a suggested holding
because it "would be inconsistent with both our decision in Strickland
and common sense"); 481 (explaining what "[t]he second part of the
Strickland test requires"); 485 (finding that in the case before it, "[a]s
with all applications of the Strickland test," a defendant’s ability to
23 FRAZER v. SOUTH CAROLINA

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make the "requisite showing will turn on the facts of a particular
case"); 487 (vacating because the "court below undertook neither part
of the Strickland inquiry").2 Accordingly, as the Wiggins Court could,
consistent with AEDPA, look to Williams as illustrative of the proper
application of Strickland to a particular factual scenario, we can look
to Flores-Ortega as illustrative of the proper application of Strickland
here.
The propriety of looking to Flores-Ortega as illustrative of "clearly
established Federal law" under AEDPA should not be surprising.
Rather, such use simply accords with the fact that, as Judge Duncan
has explained, Supreme Court precedent establishes Flores-Ortega as
an old rule under Teague, i.e., a rule dictated by precedent (Strick-
land) existing at the time Frazer’s conviction became final. When, as
here, a Supreme Court case provides the source of an "old" Teague
rule, that "old" rule, by definition, "will constitute clearly established
Federal law . . . under" AEDPA. Williams, 529 U.S. at 412 (internal
quotation marks and citation omitted). In the case at hand, the State
does not even contend that Flores-Ortega announced a new rule
under Teague. A survey of the legal landscape as it existed when Fra-
zer’s conviction and sentence became final conclusively demonstrates
that it did not. For, as explained above, and by the Supreme Court
itself in Flores-Ortega, Strickland dictated Flores-Ortega. See also
Lewis v. Johnson, 359 F.3d 646, 655 (3d Cir. 2004) (holding that
"Flores-Ortega’s application of the Strickland standard was dictated
by precedent and merely clarified the law as is applied to the particu-
lar facts of that case"); Hudson v. Hunt, 235 F.3d 892, 896 (4th Cir.
2000)(recognizing that "Roe v. Flores-Ortega clarified the application
of the Strickland standard to a claim that an attorney was constitution-
ally deficient for failing to file a notice of appeal").
In sum, Wiggins and the case at hand demonstrate that in assessing
2Moreover, Flores-Ortega contains no statement, or even suggestion,
that its holding is in any way at odds with other Supreme Court prece-
dents. Rather, at various junctures Flores-Ortega cites and relies on some
of Strickland’s numerous antecedents and progeny, including Rodriquez
v. United States, 395 U.S. 327 (1969), and Peguero v. United States, 526
U.S. 23 (1999) (both the majority opinion and Justice O’Connor’s con-
currence).
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"clearly established Federal law" under AEDPA, a court may occa-
sionally consider a Supreme Court opinion issued after the state
court’s denial of the petitioner’s post-conviction claim. Generally, of
course, when a federal habeas court asks whether a state-court deci-
sion was "contrary to" or an "unreasonable application of . . . clearly
established Federal law," it will consider only those Supreme Court
opinions issued prior to the state court’s denial of relief. However,
this case — and Wiggins — provide the exceptions that prove this
rule. Where, as here and in Wiggins, a Supreme Court decision post-
dating state collateral review (e.g., Williams or Flores-Ortega) simply
illustrates the appropriate application of a Supreme Court precedent
that pre-dates the state-court determination (e.g., Strickland), a federal
court on habeas may consider the postdated opinion.
Turning then to Flores-Ortega, there the Court explained that a
counsel’s failure to consult with the defendant about an appeal consti-
tutes deficient performance if the attorney had a duty to consult.
Flores-Ortega, 528 U.S. at 478. "[C]ounsel has a constitutionally
imposed duty to consult with the defendant about an appeal when
there is reason to think either (1) that a rational defendant would want
to appeal (for example, because there are non-frivolous grounds for
appeal), or (2) that this particular defendant reasonably demonstrated
to counsel that he was interested in appealing." Id. at 480. Once the
defendant establishes deficient performance, he is entitled to relief if
he can show prejudice. Id. at 481. "[T]o show prejudice in these cir-
cumstances, a defendant must 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.
When these principles are applied to the case at hand it is clear that
the state court’s decision rejecting Frazer’s ineffective-assistance
claim was both "contrary to" and "involved an unreasonable applica-
tion of" this clearly established law.
The state PCR court recounted that Frazer "testified that Counsel
never informed him of his right to appeal and never filed an appeal
on his behalf." J.A. 209. The PCR court then expressly found that
"Counsel agreed, testifying he never discussed a direct appeal with
[Frazer]." Id. Nevertheless, the PCR court rejected Frazer’s ineffec-
tive assistance claim. Relying on our pre-Strickland decision, Carey
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v. Leverette, 605 F.2d 745 (4th Cir. 1979), the PCR court concluded
that Frazer’s counsel was not deficient for failing to file an appeal
because there was nothing in the record and no testimony at the hear-
ing "to indicate that the Applicant conveyed to his trial attorney a
desire to appeal until it was too late." J.A. 209-10.
This court’s holding in Carey — that absent "extraordinary circum-
stances" no "constitutional requirement" mandates "that defendants
must always be informed of their right to appeal following a guilty
plea," Carey, 605 F.2d at 746 — adopted the type of bright-line rule
the Supreme Court expressly rejected in Strickland and its progeny.
See, e.g., Strickland, 466 U.S. at 688-90 (refusing to adopt "detailed
rules" or provide "special amplification" of its two-part test); Flores-
Ortega, 528 U.S. at 478 (rejecting a per se rule "as inconsistent with
Strickland’s holding that ‘the performance inquiry must be whether
counsel’s assistance was reasonable considering all the circum-
stances’"). Strickland and Flores-Ortega, unlike Carey, do not require
the defendant to demonstrate "extraordinary circumstances" to obtain
relief. While Carey holds that in most cases (i.e. "absent extraordinary
circumstances") an attorney need not inform his client about his
appellate rights, Flores-Ortega clearly illustrates that Strickland
requires a contrary rule: "in the vast majority of cases, . . . counsel
[will] ha[ve] a duty to consult with the defendant about an appeal."
Flores-Ortega, 528 U.S. at 481. Accordingly, the PCR court’s reli-
ance on Carey was contrary to clearly established federal law. See
Williams, 529 U.S. at 405 ("A state-court decision will certainly be
contrary to our clearly established precedent if the state court applies
a rule that contradicts the governing law set forth in our cases.")
For similar reasons, to the extent that the PCR court applied Strick-
land (which it cited once) when it followed Carey, the court engaged
in an unreasonable application of Strickland, a clearly established
Supreme Court precedent. Id. at 407-08 (explaining that if "[a] state-
court decision . . . correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular prisoner’s case," it
"certainly would qualify" as "an unreasonable application of . . .
clearly established Federal law"). Strickland makes clear that to be
constitutionally effective, counsel must "consult with the defendant
on important decisions" and "keep the defendant informed of impor-
tant developments in the course of the prosecution." Strickland, 466
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U.S. at 688. As explained above, Flores-Ortega illustrates the proper
application of Strickland when counsel fails to consult with his client
about taking an appeal when nonfrivolous grounds for appeal exist.
See Flores-Ortega, 528 U.S. at 480. Frazer’s counsel utterly failed to
consult with his client about an extremely important decision —
whether to file an appeal in light of the unexpected and illegal sen-
tence imposed by the trial court. Since the PCR court denied relief
despite finding that counsel "never discussed a direct appeal with"
Frazer, J.A. 209 (emphasis added), even though nonfrivolous grounds
for appeal existed, the PCR court’s application of Strickland was
unreasonable.
Because the state court’s decision in this case was both contrary to
and involved an unreasonable application of clearly established law,
the district court properly reviewed Frazer’s claim de novo. See Rose
v. Lee, 252 F.3d 676, 689-90 (4th Cir. 2001). Moreover, as Judge
Duncan has demonstrated, the district court properly concluded that
Frazer established that his trial counsel’s conduct was objectively
unreasonable and demonstrated the requisite prejudice resulting from
the constitutionally deficient representation. See ante at 14-19; see
also Frazer v. State of South Carolina, No. 03-CV-738 (D.S.C. Feb.
12, 2004). Accordingly, we must affirm the order of the district court
granting habeas relief.
LUTTIG, Circuit Judge, dissenting:
The majority’s grant of the writ of habeas corpus is transparently
based on the impermissible holding that the state PCR court’s deci-
sion was an unreasonable application of a Supreme Court precedent
that post-dated that decision. Although the majority asserts conclu-
sorily that the state PCR court’s failure was in not reasonably apply-
ing Strickland v. Washington, 466 U.S. 668 (1984), it is evident that
the majority actually reasons and holds that the state PCR court
unreasonably applied Roe v. Flores-Ortega, 528 U.S. 470 (2000). In
fact, it is as if its opinion were reasoned and written on the mistaken
understanding that Flores-Ortega was decided before the state PCR
court reached its decision, and then amended so as to state (though
not reason) that it rested on Strickland when it was discovered that
Flores-Ortega actually post-dated the state PCR court’s decision. Of
course, because Flores-Ortega was not decided until after the only
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state court to consider the merits of Frazer’s claim (the state PCR
court) issued its decision,1 it is impermissible under section
2254(d)(1) for the majority to rely upon that opinion to hold that the
state unreasonably applied "clearly established Federal law, as deter-
mined by the Supreme Court of the United States." As it is apparent
that clearly established Supreme Court precedent at the time of the
state PCR court decision did not dictate that Frazer be afforded relief
on his ineffective assistance of counsel claim, I would hold that the
state PCR court did not unreasonably apply clearly established
Supreme Court precedent and I would reverse the contrary judgment
of the district court.
I.
Both the majority and the concurring opinion attempt to evade sec-
tion 2254(d)(1)’s requirements by holding that the rule of Flores-
Ortega was an old rule of constitutional law under Teague v. Lane,
489 U.S. 288 (1989), and thus part of the clearly established law for
purposes of section 2254(d)(1) when the state court issued its deci-
sion. Ante at 8; ante at 24 (Motz, J., concurring). Neither the majority
opinion nor the separate concurrence is even remotely convincing that
Flores-Ortega was dictated by prior precedent and thus not a new rule
under Teague.
A.
In order to grant Frazer’s habeas petition on the basis of Flores-
Ortega, the majority must overcome two independent bars to relief —
that imposed by section 2254(d)(1) and that imposed by Teague. Sec-
tion 2254(d)(1) bars relief unless the PCR court’s judgment "was con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States." Even if Flores-Ortega were clearly established federal
law at the time the PCR court rendered its judgment, and even if the
PCR court unreasonably applied it, thus overcoming the AEDPA bar,
1The state PCR court rendered its decision dismissing Frazer’s claims
on September 17, 1999, J.A. 215, and the Supreme Court decided Flores-
Ortega on February 23, 2000. The state supreme court denied certiorari
on May 30, 2002. J.A. 259.
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Teague — which held that federal courts will not apply new rules of
constitutional law retroactively to cases on collateral review — inde-
pendently prevents granting the writ on the basis of Flores-Ortega
because, as explained infra, that case announced a new rule of consti-
tutional law. See Horn v. Banks, 536 U.S. 266, 272 (2002) (per
curiam) ("While it is of course a necessary prerequisite to federal
habeas relief that a prisoner satisfy the AEDPA standard of review . . .
none of our post-AEDPA cases have suggested that a writ of habeas
corpus should automatically issue if a prisoner satisfies the AEDPA
standard, or that AEDPA relieves courts from the responsibility of
addressing properly raised Teague arguments.").2
Teague would not bar relief on the basis of Flores-Ortega if the
rule announced in Flores-Ortega had been an old rule of constitu-
tional law. Old rules of constitutional law are those that were "dic-
tated by precedent existing at the time the defendant’s conviction
became final." See Teague, 489 U.S. at 301. A rule is not dictated by
precedent — and is therefore a new rule of constitutional law — if,
prior to its announcement, its existence was "susceptible to debate
among reasonable minds." See Butler v. McKellar, 494 U.S. 407, 415
(1990). In other words, a rule is an old rule of constitutional law only
if all reasonable jurists would have agreed that it existed prior to its
announcement.
The majority correctly recognizes that if Flores-Ortega announced
a new rule of constitutional law, Teague would bar relief. The major-
ity incorrectly concludes, however, that Flores-Ortega was dictated
by prior precedent and was therefore an old rule. And it is able to so
2For an example of how Teague can independently bar habeas relief
even when AEDPA is not a bar, assume the following sequence of
events: First, the petitioner’s conviction becomes final. Second, the
Supreme Court issues a case announcing a new rule of constitutional law.
Third, the PCR court unreasonably applies that newly announced rule to
the petitioner’s case. In such a case, section 2254(d)(1) would not bar
relief — the new rule of constitutional law was clearly established at the
time of the PCR court’s decision and was unreasonably applied. Teague,
however, would prevent the federal habeas court from issuing the writ on
the basis of the newly announced rule because the petitioner’s conviction
became final before the new rule was announced.
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hold in large part because it does not even attempt to show that all
reasonable jurists would have anticipated the outcome of that case.
Instead of conducting this proper inquiry, the majority merely sets
about to show that in Flores-Ortega "the Supreme Court relied exclu-
sively on the principles announced in Strickland and other cases
defining the role of counsel in the appellate process," ante at 7, a task
that the majority mistakenly believes establishes that Flores-Ortega
was dictated by Strickland and other Supreme Court precedents exist-
ing at the time Frazer’s conviction became final and that Flores-
Ortega was therefore an old rule. Of course, to establish that the
Supreme Court relied exclusively on the principles of prior cases in
reaching the rule of Flores-Ortega is not at all to establish that those
cases dictated that rule, that is, that all reasonable jurists would have
agreed that those precedents led inexorably to Flores-Ortega.
Apart from this erroneous "relied-exclusively-on" test, the majori-
ty’s only other analysis of whether Flores-Ortega was dictated by
precedent remarkably consists solely of the bald assertion that
because the decision to appeal is important, and Strickland stated in
dicta that counsel has a duty to consult with the defendant on impor-
tant decisions, Strickland dictated the rule of Flores-Ortega. This
analysis is entirely unconvincing on its own terms and, it should go
without saying, does not even remotely approximate the proper
Teague inquiry.3
3In one last attempt to defend its holding that Flores-Ortega was an
old rule, the majority notes that Flores-Ortega was decided by the
Supreme Court on collateral review. From this fact, the majority infers,
based on Teague, that the Supreme Court must have concluded that the
rule set forth in Flores-Ortega was an old rule. See ante at 8. This is a
fair debating point, but no more than that, and certainly not one upon
which an appellate court would rely (as, in fairness to the majority, it
appears to understand).
In any event, it is far more likely, if not probable, that the Court
instead considered the Teague issue waived, as the state did not raise
Teague in its brief on the merits before the Court. If the Court did not
consider the argument waived for this reason, it most certainly never
gave a moment’s thought to whether it was announcing a new rule. But
if any inference is to be drawn from the Court’s complete silence, it is
the opposite one from that drawn by the majority, given that the Court’s
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B.
Having improperly conducted and answered the Teague inquiry,
the majority then compounds the confusion by importing its errone-
ous Teague conclusion into its AEDPA analysis, deciding that
because Flores-Ortega is an old rule of constitutional law under
Teague, "[n]either Teague nor § 2254(d) forecloses an examination of
Frazer’s entitlement to habeas relief." See ante at 9. In so doing, the
majority fails completely to recognize that, as the Supreme Court has
emphasized, "the AEDPA and Teague inquiries are distinct." Horn,
536 U.S. at 272. The Teague new-rule inquiry requires us to ask
whether a rule that the petitioner seeks to benefit from was dictated
by precedent at the time the petitioner’s conviction became final. Sec-
tion 2254(d)(1), in contrast, requires us to ask whether the rule that
the PCR court allegedly applied unreasonably was clearly established
at the time of the PCR court’s decision.
The majority relies on the Supreme Court’s statement in Williams
v. Taylor that there is a "slight connection" between the phrase
"clearly established Federal law" in section 2254(d)(1) and Teague,
namely that "whatever would qualify as an old rule under our Teague
jurisprudence will constitute ‘clearly established Federal law, as
determined by the Supreme Court of the United States’ under
§ 2254(d)(1)." Ante at 9 (quoting Williams, 529 U.S. at 412) (empha-
sis added by majority). It intends this "connection" to explain (and
justify) its focus on Teague, as opposed to a focus on the actual stan-
dard of section 2254(d)(1). But to reason in this fashion is to read out
of Teague and section 2254 the critically different temporal limita-
tions of these "distinct" inquiries.4
test for determining whether a rule is new plainly dictates that the rule
announced in Flores-Ortega is new, not old, contrary to the majority’s
unpersuasive contention. In the absence of any statement by the Court as
to the matter, as in Flores-Ortega, the default rule that new rules will not
be announced on habeas would almost certainly yield to the actual test
for determining whether a rule is or is not new.
4Because of the temporal difference between the two inquiries, it is
clear that not everything that qualifies as clearly established federal law
under AEDPA qualifies as an old rule under Teague. For example, if
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A correctly reasoned opinion would address head-on the relevant
question under AEDPA of whether the rule announced in Flores-
Ortega was clearly established at the time of the state PCR court’s
decision, that is, whether at the time of the state PCR court’s decision
all reasonable jurists would have agreed that the rule of Flores-Ortega
was already extant. (In contrast, the corresponding, but different,
inquiry under Teague is whether at the time the petitioner’s convic-
tion became final all reasonable jurists would have agreed as to the
required outcome of Flores-Ortega.). But, as noted above, the major-
ity never asks the crucial question whether, at the time of the state
PCR court’s decision, all reasonable jurists would have anticipated
Flores-Ortega. Needless to say, as a consequence, the majority’s
analysis under AEDPA is demonstrably flawed.
Had the majority undertaken the proper analysis under section
2254, it would have been required to hold, for the reasons explained
infra, that a reasonable jurist clearly could have read Rodriquez v.
United States, 395 U.S. 327 (1969), and Peguero v. United States,
526 U.S. 23 (1999), as consistent with Carey v. Leverette, 605 F.2d
745 (4th Cir. 1979), and as authority for the conclusion that Frazer’s
claim was defeated by his failure to request that his attorney appeal.5
Flores-Ortega had been announced between the time Frazer’s conviction
became final and the date of the PCR court’s judgment, it would have
been clearly established federal law for purposes of AEDPA review but
a new rule under Teague. I believe that it is likewise clear that not every-
thing that is an old rule under Teague is clearly established for purposes
of AEDPA. But even accepting the Supreme Court’s contrary observa-
tion in Williams v. Taylor, such does nothing to save the majority’s
bootstrapped AEDPA analysis given the flaws in its Teague analysis
detailed above. Because the majority did not, and cannot, properly show
that Flores-Ortega was an old rule of constitutional law, the Williams
bootstrap is unavailable.
5The concurrence contends that Carey is inconsistent with Strickland
because it imposes a bright line rule. But even the concurrence must rec-
ognize that what Carey establishes is really a presumption, not a per se
rule. Ante at 26 (Motz, J., concurring) ("Carey holds that in most cases
(i.e. ‘absent extraordinary circumstances’) an attorney need not . . ."
(emphasis added)). And the concurrence cannot contend that a mere pre-
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Such a jurist could thus have reasonably failed to anticipate the hold-
ing of Flores-Ortega, as indeed the state court did in this case.6
Despite the protestations of the majority and concurrence that
Flores-Ortega follows unavoidably from Strickland and Jones v.
Barnes, 463 U.S. 745 (1983), neither opinion is able to offer any
explanation, much less a plausible one, as to why a reasonable jurist
would not have relied directly on Rodriquez and Peguero, which
address this precise context. Indeed, the majority does not even as
much as cite Peguero and it mentions Rodriquez only in passing. And
the only reference to either in Judge Motz’s concurrence is a brief rec-
ognition that both cases are cited in Flores-Ortega.7
Because the outcome of Flores-Ortega was undoubtedly in ques-
tion prior to the issuance of that case, Flores-Ortega was neither old
sumption, even if it establishes bright lines, is inconsistent with Strick-
land, as it also contends that the rule in Flores-Ortega, which is itself a
presumption, is compelled by Strickland. Ante at 26 (Motz, J., concur-
ring) (admitting implicitly that the rule in Flores-Ortega is also a pre-
sumption because it applies only "in the vast majority of cases").
6That we applied Flores-Ortega in Hudson v. Hunt, 235 F.3d 892 (4th
Cir. 2000) does not imply that we held that a reasonable jurist pre-
Flores-Ortega would have been required to anticipate Flores-Ortega. In
Hudson, we indeed applied Flores-Ortega to Hudson’s claims, even
though the state court had denied post-conviction relief before Flores-
Ortega was issued. See id. at 895-97. However, the question of whether
AEDPA barred relief because Flores-Ortega was not a part of the clearly
established federal law was not presented to the court in that case,
because the state court had dismissed Hudson’s claims on procedural
grounds, not on the merits. We thus reviewed the claims de novo, rather
than in accordance with AEDPA’s restrictive standard of review. Id. at
895. We did not raise Teague sua sponte in Hudson, and thus also
reached no holding that Flores-Ortega could be applied consistent with
Teague.
7That the Supreme Court did not suggest that Rodriquez or Peguero
was inconsistent with Flores-Ortega of course carries no corresponding
implication that a reasonable jurist reading those cases and Strickland
would have necessarily recognized that the outcome of Flores-Ortega
was the only way to reconcile the two lines of authority.
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law nor clearly established federal law, as determined by the Supreme
Court of the United States. As a consequence of the fact that Flores-
Ortega was not clearly established federal law until the day it was
issued, that case cannot be applied to Frazer’s claims — at least not
consistent with section 2254(d)(1).
C.
Like the majority, the concurrence attempts to defend reliance upon
Flores-Ortega on the grounds that Flores-Ortega is old law and thus
was clearly established at the time of the state-court decision. Ante at
23-24 (Motz, J., concurring). However, for its part, the concurrence
attempts to redefine entirely the elements of an old rule under Teague.
It does so by urging that the category of old rules includes first, all
cases which "simply ‘illustrat[e] the proper application’ of" prior pre-
cedent, ante at 22 (Motz, J., concurring), and second, all later cases
that interpret Strickland, ante at 21 (Motz, J., concurring).
In support of its first definition of an old rule, the concurrence
invokes the Supreme Court’s statement that Williams v. Taylor could
be applied to the petitioner’s habeas claim in Wiggins v. Smith, 539
U.S. 510 (2003), even though Williams post-dated the state court’s
rejection of Wiggins’ claim, because the Wiggins Court concluded
that the Williams Court had "made no new law in resolving Williams’
ineffectiveness claim." Id. at 522 (emphasis added). The concurrence
characterizes the Court’s application of Williams in Wiggins as a con-
clusion that the Court "could consider a case issued after the relevant
state court decision because its recently decided case simply
‘illustrat[ed] the proper application’ of Strickland." Ante at 22 (Motz,
J., concurring) (emphasis and alteration in majority).
But the Supreme Court does not determine whether a rule is an old
rule by deciding that it will "simply illustrate the proper application"
of an earlier case. If this were the test, virtually everything would be
an old rule, because the Supreme Court rarely, if ever, decides a case
without properly applying an earlier case. Such a broad view of old
rules ignores Teague’s focus on the importance of the finality of crim-
inal judgments. Teague, 489 U.S. at 309.
Instead, the Court has held — and reaffirmed repeatedly — that a
rule is new when "the result [it reaches] was not dictated by precedent
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existing at the time the defendant’s conviction became final." Id. at
301. This definition of a new rule is meant to "validate[ ] reasonable,
good-faith interpretations of existing precedents made by state courts
even though they are shown to be contrary to later decisions." O’Dell
v. Netherland, 521 U.S. 151, 156 (1997). The focus of the old-rule
inquiry is thus decidedly not on whether a case "illustrates the proper
application" of or otherwise relies on previously decided cases; the
focus of the inquiry is on whether a case applies such prior cases in
such a manner that no reasonable jurist could have disagreed about
the result of the later-decided case — a far narrower inquiry.
The concurrence’s second justification for characterizing the hold-
ing of Flores-Ortega as an old rule is its implicit assertion that Wil-
liams holds that virtually all cases interpreting the two-prong
Strickland standard set forth old rules. See ante at 21 (Motz, J., con-
curring)("Rather, the Court has directed that ‘the Strickland test pro-
vides sufficient guidance for resolving virtually all ineffective-
assistance-of-counsel claims.’")(quoting Williams, 529 U.S. at 391).
But Williams provides no support for such an assertion. Instead, Wil-
liams holds only that Strickland itself is clearly established law even
though Strickland requires a case-by-case inquiry, and thus that a
state court’s application of Strickland could entitle a habeas petitioner
to relief if the state court decision was contrary to or an unreasonable
application of Strickland. Williams, 529 U.S. at 390-91. The language
about Strickland "resolving virtually all ineffective-assistance-of-
counsel claims," which the concurrence takes out of context from Wil-
liams, provides in full:
The Virginia Supreme Court erred in holding that our deci-
sion in Lockhart v. Fretwell[, 506 U.S. 364 (1993),] modi-
fied or in some way supplanted the rule set down in
Strickland. It is true that while the Strickland test provides
sufficient guidance for resolving virtually all ineffective-
assistance-of-counsel claims, there are situations in which
the overriding focus on fundamental fairness may affect the
analysis.
Id. at 391. In context, it is clear that this language does not mean, as
the concurrence suggests, ante at 21 (Motz, J., concurring), that a case
involving ineffective assistance is necessarily an old rule under Str-
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ickland because Strickland resolves "virtually all" such claims, but
rather that it is only in rare circumstances that a court must have an
"overriding focus" on a different legal test altogether than the one set
forth in Strickland, i.e., whether the proceeding is consistent with fun-
damental fairness. Contrary to Judge Motz’s implication, this state-
ment thus emphatically does not hold that, for every one of the
Court’s post-Strickland ineffective assistance cases, no reasonable
jurist could have disagreed with the result — as would be required for
all such cases to constitute old law under Teague.
Judge Motz, in attempted rejoinder to this obvious point, rejoins
not at all. Ante at 21 n.1. That Strickland resolves the vast majority
of ineffective assistance claims says nothing whatsoever as to whether
a particular application of Strickland constitutes a new rule or not.
Indeed, Judge Motz reveals her own misunderstanding of the new-
rule inquiry by noting emphatically (as if it were the inquiry) that Str-
ickland "guides" most ineffective assistance claims. Ante at 21 n.1. Of
course, the new-rule inquiry is not whether Strickland "guides" the
ineffective assistance analysis, but, rather, whether Strickland dictates
the resolution of a particular ineffective assistance claim. Judge Motz
attempts to salvage her position by hastily asserting that the Strick-
land analysis that generally guides ineffective assistance claims actu-
ally dictated the result in Flores-Ortega. See ante at 21 n.1. But this
is mere assertion; she does not even attempt to demonstrate that no
reasonable jurist would have disagreed with the result in Flores-
Ortega.
The Court’s statement in Wiggins that Williams set forth an old rule
thus cannot be read as a holding that a case sets forth an old rule
whenever it "simply applies" prior precedent or interprets Strickland,
as the concurrence would have us believe. Instead, under the Supreme
Court’s definition of an old rule, the conclusion in Wiggins that Wil-
liams was an old rule must have represented a belief by the Court that
it would have been unreasonable for a jurist to fail to recognize that
the result in Williams was dictated by precedent. See Teague, 489
U.S. at 301. An interpretation of Strickland that was contrary to Wil-
liams would thus have failed to qualify as a "reasonable, good-faith
interpretation" that Teague recognized as deserving of deference. See
O’Dell, 521 U.S. at 156. This reading of Wiggins is necessary for
Wiggins to be consistent with the Court’s holding, both pre- and post-
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Wiggins, that the relevant law under section 2254(d)(1) is that which
is clearly established at the time of the relevant state-court decision.
See Williams, 529 U.S. at 412; Yarborough v. Alvarado, 124 S. Ct.
2140, 2147 (2004). By declaring that Williams set forth an old rule,
the Supreme Court indicated that all reasonable jurists would have
agreed even prior to the issuance of Williams that Williams should be
decided the way that it was. Thus, the Court’s application of Williams
in Wiggins was not an unexplained departure from the Supreme
Court’s repeated explanations of the section 2254(d)(1) standard;
rather, it was simply a further application of the Court’s conclusion
that a rule of law that is dictated by precedent is clearly established
when that precedent is issued, even if that is before the rule of law
is explicitly stated. See Williams, 529 U.S. at 412.
D.
Betraying its discomfort with its obvious reliance on Flores-
Ortega, the majority begins its opinion with a revealingly abridged
statement of its holding, that "Strickland . . . and its progeny" were
unreasonably applied, ante at 2, and, in like fashion, it prefaces its
ultimate analysis of Frazer’s claim with the statement that "the state
PCR court’s decision constituted an unreasonable application of Str-
ickland," ante at 10. It is clear, however, that the majority does not
hold (or even believe) that Strickland alone is sufficient or, for that
matter, even that Strickland dictated Flores-Ortega. The majority
opinion cites Flores-Ortega more than twice as often as it does Strick-
land, and cites Flores-Ortega almost exclusively in its actual analysis
of Frazer’s claim. See, e.g., ante at 10-12 (relying, in holding that Fra-
zer’s counsel failed the performance prong, on Frazer-Ortega for the
proposition that "[c]ounsel’s obligation to consult . . . is distinct from
[his] duty to inform"; ante at 13-19 (considering "whether Frazer can
satisfy the requirements that the Flores-Ortega Court distilled from
Strickland" and proceeding to analyze Frazer’s claim of prejudice
under Flores-Ortega’s two-part test); ante at 16 (concluding that
counsel had failed to meet "his obligations under Strickland and
Flores-Ortega"); ante at 18 (claiming that "Frazer need only demon-
strate an interest in appealing" in order to "show prejudice under
Flores-Ortega"); ante at 19 (stating that "in light of Strickland and
Flores-Ortega, Frazer’s counsel had an obligation to consult with him
regarding an appeal"). In fact, the majority virtually admits that
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Flores-Ortega is essential to its holding when it concludes that
"[b]ecause the dissent’s analysis of the merits of Frazer’s claim is
predicated on its conclusion that Flores-Ortega does not apply, its
analysis is largely irrelevant." Ante at 19. If Flores-Ortega was not
necessary to the majority’s holding, then the analysis based on
Supreme Court precedent pre-dating Flores-Ortega that this dissent
conducts would not only be relevant, but of course, would be the anal-
ysis the majority should be conducting as well.
That the majority does not believe that it can grant relief without
relying on Flores-Ortega is further confirmed by the fact that it even
raises Teague at all. If the majority actually believed that the PCR
court’s judgment was an unreasonable application of Strickland inde-
pendent of Flores-Ortega, then its analysis of whether Flores-Ortega
announced a new rule barred by Teague would be utterly irrelevant
because the PCR court’s unreasonable application of Strickland
would alone justify issuance of the writ. Strickland was unquestion-
ably clearly established federal law at the time of the PCR court’s
decision for purposes of section 2254(d)(1), and it was just as cer-
tainly an old rule of constitutional law under Teague at the time Fra-
zer’s conviction became final. It is only if Flores-Ortega is necessary
to a conclusion that the state court unreasonably applied clearly estab-
lished federal law that an analysis of whether Flores-Ortega is a new
rule under Teague is apt because, as explained above, in order to grant
the writ of habeas corpus on the basis of Flores-Ortega the majority
must conclude that that decision is not Teague-barred.
The problem for the majority on this score is that it meets itself
coming around. If Flores-Ortega is necessary to a conclusion that the
PCR court unreasonably applied clearly established federal law, then
it follows that Flores-Ortega was not dictated by Strickland — con-
trary to the majority’s separate conclusion. For if Flores-Ortega were
dictated by Strickland, then the state court judgment would have been
unreasonable under Strickland, without resort to Flores-Ortega.
The majority understands well that Strickland did not dictate
Flores-Ortega, as evident from the myriad of formulations that it
invokes in explanation of the relationship between Strickland and
Flores-Ortega — variously asserting that Flores-Ortega "crystal-
ize[d]," ante at 7, "distill[ed]," ante at 8, 14 "elaborat[ed]," ante at 9,
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"reinforced," ante at 11 n.8, and "synthesi[zed]," ante at 13, Strick-
land. Many, if not all, of these formulations connote addition to or
change from Strickland — a connotation inconsistent with a conclu-
sion that all reasonable jurists would have agreed that the rule of
Flores-Ortega existed prior to its announcement.
In the end, for the reasons explained, it is transparent that the
majority cannot establish that Strickland dictated Flores-Ortega and
that it rests its grant of the writ instead on the conclusion that the state
PCR court unreasonably applied Flores-Ortega — a precedent that
did not even exist at the time that court issued its judgment.
E.
The majority’s reliance upon Flores-Ortega would at least be
defensible if the state supreme court’s discretionary denial of certio-
rari, not the state PCR court’s decision, were the relevant decision for
our review under AEDPA. For Flores-Ortega did pre-date that deci-
sion. However, the majority correctly acknowledges, as it must, that
the state PCR court decision is the relevant state court decision for
purposes of section 2254(d). See ante at 10 n.7.
Under no circumstance can a discretionary denial of certiorari be
relevant to the inquiry mandated by section 2254(d). Only the pre-
Flores-Ortega opinion of the PCR court, and not the letter denying
discretionary review, can be said to have been an "adjudication of the
claim that resulted in a decision" within the meaning of section
2254(d).
The South Carolina Supreme Court did not address the merits of
Frazer’s claims at all. Rather, the South Carolina Supreme Court
entered a letter order on May 30, 2002, stating that Frazer’s "Petition
for Writ of Certiorari [was] Denied." J.A. 259; see also Br. of Appel-
lee at 4 (describing Frazer’s petition for writ of certiorari as being
"summarily denied without consideration on the merits") (emphasis
added). In South Carolina, "the denial of a petition for a writ of certio-
rari to the Court of Appeals does not dismiss or decide the underlying
appeal; it simply determines that, as a matter of discretion, [the South
Carolina Supreme Court] does not desire to review the decision of the
Court of Appeals." State v. Rucker, 471 S.E.2d 145, 145 (S.C. 1996)
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(emphasis added); see also Austin v. South Carolina, 409 S.E.2d 395,
396 (S.C. 1991) (reaching the same conclusion with respect to the
South Carolina Supreme Court’s refusal to review the denial of post-
conviction relief).
The language of section 2254, the Supreme Court’s interpretation
of that language, and plain common sense all preclude the conclusion
that such a discretionary denial should be examined by a federal
habeas court. Section 2254(d) provides, in relevant part, that
[a]n 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 adju-
dicated on the merits in State court proceedings 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.
28 U.S.C. § 2254(d) (emphasis added). The Supreme Court has
defined the phrase "clearly established Federal law" as including "the
holdings, as opposed to the dicta, of this Court’s decisions as of the
time of the relevant state-court decision." Yarborough, 124 S. Ct. at
2147 (emphasis added)(quoting Williams, 529 U.S. at 412). In light
of the statutory language, it is obvious that only the state PCR court’s
adjudication, and not the South Carolina Supreme Court’s letter deny-
ing discretionary review, can constitute the "relevant state-court deci-
sion" under Yarborough. The only plausible reading of section 2254
is that "the adjudication of the claim" refers to the "adjudicat[ion] on
the merits" that must be present for the statute to be implicated.
Because the state supreme court’s letter denying review was neither
an "adjudication" nor "on the merits," it cannot be the relevant adjudi-
cation for consideration under the statute. The final "adjudication on
the merits" was performed by the state PCR court, and it is only this
adjudication that we must examine to determine whether it "resulted
in a decision" that is not entitled to deference.
In fact, we have previously taken precisely this approach. In Bacon
v. Lee, 225 F.3d 470 (4th Cir. 2000), the state MAR court summarily
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denied a habeas petitioner’s claims. Id. at 475. The North Carolina
Supreme Court then denied certiorari. Id. In setting forth our standard
of review, we did not mention the denial of certiorari, instead apply-
ing section 2254(d)(1) only to the decision of the MAR court. Id. at
478.
Nor could we reasonably adopt any other interpretation of the stat-
ute. There are only two possible means by which one could reach the
conclusion that the denial of discretionary review is an "adjudication
on the merits" — and neither is supportable. On the one hand, one
might treat the denial of discretionary review as just what it is — a
discretionary decision to deny further review — and then inquire
whether the state court’s failure to act was an unreasonable applica-
tion of federal law. But with such treatment, there would never be any
grounds for relief to a petitioner under the deferential standards of
section 2254(d)(1), because the exercise of effectively unlimited dis-
cretion simply to decline to review a particular case, with no indica-
tion that the discretion was exercised for any reason barred by federal
law, can never be "contrary to" or an "unreasonable application of"
federal law — for the simple reason that it does not purport to apply
federal law at all. Just as the United States Supreme Court itself
refuses to review the vast majority of cases brought before it in order
to keep its business "within manageable proportions," so also state
supreme courts are entitled to circumscribe their review in a purely
discretionary fashion. See Brown v. Allen, 344 U.S. 443, 491
(1953)(opinion of Frankfurter, J.); Felton v. Barnett, 912 F.2d 92, 95
(4th Cir. 1990). Adopting the view that the denial of certiorari is the
relevant state-court decision for our review would mean that, absent
exceptional circumstances (as, for example, if the state court were
shown to exercise its discretion in an unconstitutional manner), any-
time the state’s highest court denied discretionary review, the peti-
tioner would be ineligible for relief in federal court. Thus, if faithfully
applied, this interpretation would entirely insulate from review many
decisions of the state courts; such a result cannot be correct.
Alternatively, one could instead mischaracterize the state court’s
denial of discretionary review as a summary affirmance that adopted
and ratified the reasoning of the lower court. See McHone v. Polk,
392 F.3d 691, 704 n.5 (4th Cir. 2004)(holding that the state supreme
court’s summary adjudication of habeas petitioner’s claims "left intact
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the reasoning of the [lower] court, and that the state is accordingly
entitled to the benefit of the more thorough treatment of petitioner’s
Strickland claims in that court"). Such disregard of the state court’s
characterization of its own order, far from enforcing the principle of
comity that AEDPA respects, instead undermines that principle by
giving no effect to the South Carolina Supreme Court’s holdings
respecting the import of a denial of discretionary review. That a peti-
tioner is required to seek discretionary review in the state’s highest
court in order to exhaust his state remedies serves the interests of
comity because it gives the state’s highest court the opportunity, if it
so desires, to reconsider the intermediate appellate court’s disposition
of the claim. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
("Because the exhaustion doctrine is designed to give the state courts
a full and fair opportunity to resolve federal constitutional claims
before those claims are presented to the federal courts, we conclude
that state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of
the State’s established appellate review process."). This requirement
precludes a petitioner from effectively circumventing the state court
in favor of a federal forum. In contrast, an interpretation treating a
discretionary denial of certiorari as the "relevant state-court decision"
would frustrate comity by disregarding the state’s decision not to
grant discretionary review, and thus, like a petitioner who fails to seek
discretionary review, would fail utterly to respect the state court’s
right of "selectively choosing to hear only those cases which seem to
it to come within its primary purposes and functions." See Moffitt v.
Ross, 483 F.2d 650, 653 (4th Cir. 1973) (emphasis added). In so
doing, it effectively forces state supreme courts to grant review and
decide the claim on the merits in any case where a relevant interven-
ing Supreme Court decision has been decided, or face having the rea-
sonable decisions of its lower courts overturned by the federal habeas
courts. This is just the sort of intrusion onto state-court systems in
violation of comity that AEDPA was designed to prevent.
Coleman v. Thompson, 501 U.S. 722 (1991), and Ylst v. Nunne-
maker, 501 U.S. 797 (1991), which discussed the relevance of the
actions of the last state court involved in a petitioner’s habeas pro-
ceedings, confirm that a discretionary decision by a state supreme
court is not the last state court judgment for the purposes of federal
habeas review.
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In Coleman, the Supreme Court directed federal habeas courts to
look to "the decision of the last state court to which the petitioner pre-
sented his federal claims" to determine whether a state court decision
rests on federal law, rather than on an independent and adequate state
ground. Coleman, 501 U.S. at 732-35. This directive to look to the
decision of the "last state court" merely reiterated the Court’s previ-
ous holding in Harris v. Reed, 489 U.S. 255 (1989). See id. at 263
("[P]rocedural default does not bar consideration of a federal claim on
either direct or habeas review unless the last state court rendering a
judgment in the case ‘clearly and expressly’ states that its judgment
rests on a state procedural bar.")(emphasis added). Our circuit has
held that "[t]he denial of the petition for certiorari was not . . . the last
state court judgment" for purposes of applying Harris, because "the
denial of such a writ is not a judgment but is simply a refusal to hear
the appeal." Felton, 912 F.2d at 94; see also Smith v. Dixon, 14 F.3d
956, 964 n.4 (4th Cir. 1994) (same).8 And Felton is plainly correct;
the state court’s unexplained denial of discretionary review cannot
reasonably be read to impart any view on whether an adequate and
independent state ground bars federal court review. See Goodwin v.
Collins, 910 F.2d 185, 187 (5th Cir. 1990). Felton also virtually com-
pels the directly analogous rule that a denial of discretionary review
cannot reasonably be said to represent a judgment by the state court
that no recent Supreme Court precedent requires relief.
Indeed, the Supreme Court has recognized that the federal courts
are "in accord" with Felton’s holding that a discretionary denial of
certiorari does not constitute the last state court judgment for purposes
of determining the applicability of a state procedural bar. Ylst, 501
U.S. at 802 n.2 (citing Goodwin, 910 F.2d at 187 ("[T]he Harris
court’s reference to ‘the last state court rendering a judgment in the
case’" references the "state intermediate appellate court [that] renders
a decision," not "the highest state court [that] simply denies discre-
tionary review."); and Prihoda v. McCaughtry, 910 F.2d 1379, 1383
(7th Cir. 1990)("Unexplained affirmances or denials of discretionary
8Although Felton and Smith interpret a denial of a petition for certio-
rari by the North Carolina Supreme Court, rather than the South Carolina
Supreme Court, the South Carolina Supreme Court’s holding that its
denials of certiorari are not judgments on the merits of the case brings
it within the reach of the rule in Felton and Smith.
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review do not retract a state-law basis of decision already given."));
see also McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991).
Furthermore, Ylst cannot be interpreted to have concluded that a dis-
cretionary denial of certiorari adopts the reasoning of the last
explained decision below, because the Court assumed that the Califor-
nia Supreme Court lacked "any discretion not to entertain habeas cor-
pus petitions." Ylst, 501 U.S. at 802 n.2.
Because the only relevant state-court decision is the state PCR
court’s decision, and because Flores-Ortega was not decided at the
time of the PCR court’s decision, the majority’s reliance on Flores-
Ortega flouts the clear statutory mandate of section 2254(d). Flores-
Ortega is simply irrelevant to the question presented to us.
II.
Unable to rely upon Flores-Ortega, the majority’s review of the
merits of Frazer’s case violates the strict limits AEDPA places on our
review of state court judgments. Rather than deferring to the factual
conclusions of the state court, the majority accepts as true Frazer’s
representations to the state PCR court, even though they were rejected
by that court. The majority then utterly fails to address the two most
relevant Supreme Court cases — or indeed, to address any Supreme
Court case other than Flores-Ortega at any length — in reaching its
erroneous conclusion that the state holdings both with respect to the
performance and the prejudice prongs of Strickland were unreason-
able.
A.
The majority disregards the stringent limitations AEDPA places on
the ability of the federal courts to second-guess the factual conclu-
sions of state habeas courts. Under AEDPA, "a 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 presump-
tion of correctness by clear and convincing evidence." 28 U.S.C.
§ 2254(e)(1). The state PCR court, which, unlike the district court and
the majority, had the benefit of a full evidentiary hearing in which
both Frazer and his counsel testified, held that "[t]here [is] nothing in
the record or the testimony at this hearing to indicate that the Appli-
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cant conveyed to his trial attorney a desire to appeal until it was too
late." J.A. 209-10. Despite this conclusion, both the majority and the
district court conclude that Frazer expressed at least an interest in
appealing. Ante at 14, 18-19; J.A. 114-15. But neither the majority nor
the district court even purports to hold that Frazer has met his burden
of disputing the state court’s finding by clear and convincing evi-
dence, or indeed even addresses the impact of the state court’s factual
finding on this case. Nor could they reasonably conclude that Frazer
has met his burden; the state court expressly refused to credit Frazer’s
testimony at points during the hearing, J.A. 208, and Frazer’s was the
only testimony that supported the conclusion that his trial counsel
ever agreed to file an appeal. J.A. 177-78. In fact, Frazer’s trial coun-
sel expressly denied that he and Frazer had ever talked about appeal-
ing the sentence, and instead indicated only that he was asked to
"see[ ] about having time run together," and that he did so by making
an oral motion for reconsideration to the trial court. J.A. 189.
B.
The state PCR court was thus faced only with evaluating the claim
that Frazer’s counsel provided ineffective assistance by failing to
appeal after Frazer, who had unquestionably been advised of his right
to appeal by the plea affidavit, J.A. 143, nonetheless failed to request
that his counsel appeal. Because the state court correctly identified
Strickland v. Washington, 466 U.S. 668 (1984), as the law governing
claims of ineffective assistance of counsel, we may only grant relief
if the state court’s decision was an unreasonable application of Strick-
land and other clearly established Supreme Court precedent.
It is clear that the state court’s conclusion that Frazer was not enti-
tled to relief on such facts was an eminently reasonable application
of the relevant Supreme Court law, i.e., that Supreme Court law exist-
ing in September 1999. Under Strickland, "[j]udicial scrutiny of coun-
sel’s performance must be highly deferential." Strickland, 466 U.S. at
689. Here, Frazer pled guilty, which, as the majority recognizes, at
least waives all "nonjurisdictional defects and defenses, including
claims of violation of constitutional rights prior to the plea." Rivers
v. Strickland, 213 S.E.2d 97, 98 (S.C. 1975); ante at 14-15. The lim-
ited scope of appealable issues of course renders defendants who
plead guilty less likely to prevail on appeal and thus presumably less
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likely to desire an appeal. Moreover, as discussed above, Frazer did
not ask his counsel to seek an appeal. In these circumstances, it was
not unreasonable for counsel to fail to do so. See Carey v. Leverette,
605 F.2d 745, 746 (4th Cir. 1979) (holding that there is generally "no
constitutional requirement that defendants must always be informed
of their right to appeal following a guilty plea.").
Supreme Court precedent specific to the context of a petitioner’s
allegation that he was wrongfully denied an appeal also requires the
conclusion that it would not have been unreasonable for a state court
pre-Flores-Ortega to determine that Frazer’s failure to request an
appeal, when he knew of his right to appeal, was dispositive. In
Rodriquez v. United States, 395 U.S. 327, 329 (1969), the Supreme
Court held that a client who requests that his lawyer file an appeal
and whose lawyer fails to do so is entitled to relief in the form of a
belated appeal, even if he is unable to disclose what claims he would
have raised or demonstrate a likelihood of success on those claims.
See id. at 329; see also Flores-Ortega, 528 U.S. at 477.
The importance of the client’s request for an appeal to the holding
in Rodriquez was confirmed in Peguero v. United States, 526 U.S. 23
(1999). In Peguero, the habeas petitioner alleged that he was entitled
to relief because his counsel had failed to file a notice of appeal pur-
suant to his request and because the district court had failed to inform
him of his right to appeal, as required by Federal Rule of Criminal
Procedure 32(a)(2). Id. at 25. The district court made factual findings
that the court had failed to notify Peguero of his right to appeal, but
that Peguero had already been aware of his right to appeal, and that
Peguero had told his trial counsel that he did not wish to appeal. Id.
The Supreme Court reviewed only Peguero’s claim under Rule
32(a)(2) and, because of Peguero’s awareness of his right to appeal,
refused to infer prejudice from the trial court’s failure to inform
Peguero of that right. Id. at 28. The Court concluded that Rodriquez,
which had relied in part on the trial court’s failure to inform
Rodriquez of his right to appeal, was "not implicated here because of
the District Court’s factual finding that petitioner did not request an
appeal." Id.
Although Peguero did not address an ineffective assistance of
counsel claim, a pre-Flores-Ortega court could reasonably have con-
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cluded that Peguero indicated that petitioner’s express request for an
appeal was crucial to the holding in Rodriquez and thus that
Rodriquez should not be extended to circumstances where petitioner
failed to request an appeal. Frazer, as noted above and contrary to the
majority’s assumption, made no such request. Considering Rodriquez
and Peguero alone, then, the state court could reasonably have con-
cluded that a defendant must at least either request an appeal or be
unaware of his right to appeal before counsel has an obligation to pur-
sue an appeal. Such a conclusion is particularly reasonable in light of
the deferential review of counsel’s performance required by Strick-
land and this court’s conclusion in Carey that no consultation regard-
ing an appeal after a guilty plea is necessary, absent extraordinary
circumstances.
The majority fails to analyze — or even cite — Peguero, and it
mentions Rodriquez only in passing. Its judgment rests almost entirely
on its conclusion that the state court’s decision, as "made abundantly
clear by Flores-Ortega," was "objectively unreasonable in light of the
dictates of Strickland"; according to the majority, the state court "un-
reasonably applied Strickland and its progeny," by which it of course
means Flores-Ortega. Ante at 12. That the majority’s holding neces-
sarily rests on Flores-Ortega is confirmed by its extensive Teague
analysis, an analysis in which it engages solely to justify its ultimate
reliance on Flores-Ortega. Besides this ill-conceived reliance on
Flores-Ortega, the majority’s discussion of the merits of Frazer’s case
makes only a fleeting reference to relevant Supreme Court law, in the
form of its conclusion that Jones v. Barnes, 463 U.S. 745 (1983), and
Strickland render the PCR court’s reliance on our decision in Carey
v. Leverette unreasonable.9 Ante at 13. When examined at greater
length, however, it is clear that neither of these cases renders the
state’s decision an unreasonable application of clearly established fed-
eral law.
As the majority notes, the Court in Barnes recognizes that "the
accused has the ultimate authority to make certain fundamental deci-
9The majority’s almost-exclusive focus on Flores-Ortega confirms that
the majority is aware that only Flores-Ortega provides a rule of law that
can even arguably afford Frazer relief. See supra at 13 (cataloging the
majority’s critical reliance on Flores-Ortega).
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sions regarding the case, as to whether to . . . take an appeal." Barnes,
463 U.S. at 751. As should be abundantly clear, however, Frazer has
in no sense been denied his authority to make a decision regarding his
appeal. Frazer was aware that he had a right to appeal his guilty plea
and sentence and that he was required to do so within ten days of sen-
tencing, but he neither filed a notice of appeal nor requested that his
counsel do so. J.A. 143.
Nor does Strickland’s general statement that counsel has a duty "to
consult with the defendant on important decisions" suffice to render
the state court’s decision unreasonable. As an initial matter, that state-
ment is dicta, as the case before the Supreme Court in Strickland did
not pose the question of counsel’s duty to consult with the defendant
regarding an appeal (or indeed regarding any important decision). As
noted above, only holdings of the Supreme Court, not dicta, constitute
part of the "clearly established Federal law" for purposes of section
2254(d)(1).10 Yarborough, 124 S. Ct. at 2147. In any event, the state
court has more leeway in determining the application of a more gen-
eral rule than the application of a very specific rule. Id. at 2149.
Strickland emphasizes that "[n]o particular set of detailed rules for
counsel’s conduct" is appropriate, but rather that courts must consider
"whether counsel’s assistance was reasonable considering all the cir-
cumstances." 466 U.S. at 688-89. The state court could reasonably
conclude that counsel’s duty to consult regarding whether petitioner
should file an appeal does not arise until the petitioner indicates an
interest in appealing. This is all the more true where, as here, the peti-
tioner’s plea of guilty limits the scope of issues available for appeal,
and the only grounds he expressed to his lawyer for dissatisfaction
depend on his unsupported allegation that the trial judge might have
10The concurrence is obviously aware of the distinction between the
holding of a case and dicta, see ante at 20 (Motz, J., concurring), but fails
to give it any application, reasoning that the PCR court unreasonably
applied Strickland because "Strickland makes clear that to be constitu-
tionally effective, counsel must ‘consult with the defendant on important
decisions . . . ,’" ante at 26 (Motz, J., concurring). Whether a particular
rule is "clearly" set forth in dicta or only arguably set forth in dicta is
irrelevant for AEDPA purposes, given that the Supreme Court has made
clear that no dicta is a part of the clearly established law under section
2254(d).
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been prejudiced against him. See Garrett v. State, 465 S.E.2d 349,
350 (S.C. 1995) (holding that a sentence is not excessive "if it is
within statutory limitations and there are no facts supporting an alle-
gation of prejudice against [the defendant]").
The state PCR court’s decision that Frazer’s counsel performed
reasonably was thus not an unreasonable application of clearly estab-
lished Supreme Court precedent, and the majority’s conclusion to the
contrary is a clear misapplication of the deferential standards of
AEDPA review.
C.
Similarly, the state court reasonably concluded that Frazer had
failed to prove that any "deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687. In Rodriquez, the Court pro-
ceeded on the assumption that the petitioner had requested that his
counsel file an appeal, which "objectively indicated his intent to
appeal," and thus demonstrated prejudice. Flores-Ortega, 528 U.S. at
485 (citing Rodriquez, 395 U.S. at 328). Here, in contrast, the facts
are more akin to Peguero, where the Court concluded that petitioner’s
awareness of his right to appeal defeated the claim that he was preju-
diced by the trial court’s failure to inform him of that right. Peguero,
526 U.S. at 28-29. A court reconciling Peguero and Rodriquez could
reasonably conclude that a petitioner does not suffer prejudice if he
is not consulted regarding his wishes with respect to an appeal, so
long as he is aware of his right to appeal and does not request assis-
tance from his lawyer in exercising that right.
The mere fact that the Flores-Ortega Court notes that its prejudice
standard "breaks no new ground" does not compel the contrary con-
clusion. Insofar as Flores-Ortega reaffirms the holding that the peti-
tioner is not required to show that his appeal would have been
successful, it indeed was clearly established law prior to Flores-
Ortega.11 Flores-Ortega, 528 U.S. at 484; Rodriquez, 395 U.S. at 328.
11The concurrence’s recognition that Strickland held that "prejudice is
presumed" when counsel is denied altogether at a critical stage, ante at
23 (Motz, J., concurring), is thus correct. But it begs the more important
question of whether counsel was denied altogether for an appeal or
whether the petitioner simply failed to seek the assistance of counsel for
an appeal; it is this question that Flores-Ortega provides a framework to
answer.
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However, prior to Flores-Ortega, it would have been reasonable to
read Peguero to indicate that a petitioner who alleged that he was
prejudiced because he was denied an appeal was required to demon-
strate that he would have appealed, and that, as a matter of law, a
petitioner who knew of his right to appeal but did not request an
appeal could not make this showing.12 To the extent that the Flores-
Ortega Court held that a showing of "nonfrivolous grounds for
appeal" can demonstrate prejudice even if a petitioner did not request
an appeal, that rule was simply not clearly established prior to Flores-
Ortega.
CONCLUSION
The majority can grant the writ of habeas corpus in this case only
by grounding its conclusion that the state acted unreasonably on a
Supreme Court precedent decided after the relevant state court judg-
ment was entered and by failing to defer to either the factual or legal
conclusions of the appropriate state court. I dissent. I would reverse
the decision of the district court and remand for dismissal of Frazer’s
petition.
12Justice O’Connor’s concurrence in Peguero could, pre-Flores-
Ortega, have reasonably been read to support this conclusion. She distin-
guished between the inability to demonstrate that one would have
appealed, which defeats prejudice, and the inability to demonstrate that
one’s appeal would have been successful, which does not defeat preju-
dice. Peguero, 526 U.S. at 30 (O’Connor, J., concurring). Justice
O’Connor agreed with the majority that Peguero’s knowledge of his right
to appeal and failure to request an appeal placed him in the first category
and thus that he could not demonstrate prejudice. She then noted her
belief that petitioners in the second category who alleged trial court error
could demonstrate prejudice, and that this view was consistent with the
Court’s treatment of claims of ineffective assistance of counsel. Id. (cit-
ing Rodriquez, 395 U.S. at 327). Justice O’Connor’s opinion thus is con-
sistent with a reasonable belief that, regardless of whether a petitioner
alleged ineffective assistance of counsel or a violation of Rule 32(a)(2),
pre-Flores-Ortega law barred relief to any petitioner who could not dem-
onstrate that he would have appealed because, like Peguero, he knew of
his right to appeal but never requested an appeal, but did not bar relief
to any petitioner simply because he could not demonstrate that his appeal
would have been successful.
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