Federal and state inmates file thousands of habeas petitions in the federal courts every year. Very few are granted.
However, last week in Gordon v. Braxton the Fourth Circuit in a published opinion reversed the district judge’s (alexandria division) dismissal of the petitioner’s habeas petition. Mr. Gordon, who had pled guilty in state court and received a long sentence, claimed his counsel was ineffective by not filing a notice of appeal.
Judge Diaz’s opinion spends several pages discussing procedural aspects of 2254 habeas litigation, but the gist of the decision is that the lower court should have held an evidentiary hearing to resolve the question of whether Mr. Gordon’s trial counsel failed to file an appeal after being instructed to do so.
The message the Fourth Circuit seems to be sending here is that, where the petitioner’s allegations raise a valid factual question, there needs to be a hearing to resolve it.
As an aside, Virginia appellate courts’ review of criminal sentences is extremely limited, almost to the point of nonexistence. However, this did not become an obstacle to the petitioner on appeal because, as the opinion notes, a habeas petitioner claiming ineffective assistance for missed appeal deadlines “need not show that his appeal has merit.”