Clinton Folkes v. Warden Nelsen

In concluding the petitioner was asserting these new claims, we

observed that his prior “express reliance on the[] four claims of ineffective assistance of

counsel are to the exclusion of other claims of ineffective assistance of counsel.”

Because, consistent with the Habeas Corpus Rules noted above, the petitioner had

identified discrete facts constituting the alleged IAC, we made clear those alone were the

claims he had put forward in his § 2254 petition. His ability to rely on a different factual

basis for an IAC claim would be governed—and limited—by AEDPA and other applicable

rules. 8

These principles restricting a petitioner’s advocacy throughout the § 2254

proceeding apply equally to a court’s adjudication of that proceeding. Nothing authorizes

a district court to expand or contract a petitioner’s claim sua sponte. Instead, the court must

consider claims as they are presented in the petition, reviewing them under the applicable

standard. A court that alters the nature of a petitioner’s claim, and grants habeas relief on

For example, Federal Rule of Civil Procedure 15 governs when and how § 2254 8

petitioners may amend their pleadings, and § 2254(b)(1)(A) bars § 2254 petitioners from raising a claim without first exhausting their state court remedies as to each. Subject to limited exceptions, both rules impose exacting standards that bar petitioners from altering the factual basis for their claims between state and federal habeas proceedings and during the course of their § 2254 proceeding. See, e.g., Fed. R. Civ. P. 15(c)(1) (discussing when amended pleadings “relate back” to the original filing to ensure their timeliness); Mayle, 545 U.S. at 655–63 (discussing the interplay between § 2254’s one-year limitations period and Rule 15’s provisions regarding amending pleadings); Longworth v. Ozmint,

377 F.3d 437, 448

(4th Cir. 2004) (reiterating that to exhaust state court remedies, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues,” “[a]nd this opportunity must be given by fairly presenting to the state court both the operative facts and the controlling legal principles associated with each claim” (emphasis added) (internal quotation marks and citation omitted)).

14 that different ground, crosses the line between jurist and advocate. See Beaudett v. City of

Hampton,

775 F.2d 1274, 1278

(4th Cir. 1985) (admonishing district courts from

“conjur[ing] up questions never squarely presented to them” by pro se litigants, because

“requiring those courts to explore exhaustively all potential claims of a pro se plaintiff . . .

would transform the district court from its legitimate advisory role to the improper role of

an advocate”). A court acting in this manner also bypasses AEDPA’s framework, thus

allowing a petitioner to do indirectly what the foregoing principles barred the petitioner

from doing directly. Cf. Shoop v. Hill,

139 S. Ct. 504

, 507–09 (2019) (per curiam) (vacating

award of § 2254 relief after concluding the court of appeals failed to limit review to the

proper AEDPA standards when the petitioner originally briefed his claim as warranting

relief under § 2254(d)(2), but the court ordered supplemental briefing on a case that post-

dated the state PCR court’s decision and then relied extensively on the new case and

briefing to support relief under § 2254(d)(1)).

Courts of appeals have expressly recognized the district court’s duty to consider

only the specific claims raised in a § 2254 petition. Ellis v. Raemisch,

872 F.3d 1064

, 1090–

94 (10th Cir. 2017) (reversing a district court’s judgment granting § 2254 relief when the

attorney conduct serving as the basis for an IAC claim was raised sua sponte and differed

from the conduct that formed the basis for the originally presented and exhausted claim);

Bracken v. Dormire,

247 F.3d 699, 702

(8th Cir. 2001) (“Earlier cases have made clear that

‘we will not consider issues or grounds for relief that were not alleged in a prisoner’s habeas

petition.’” (quoting Frey v. Schuetzle,

78 F.3d 359, 360

(8th Cir. 1996)); Frey, 78 F.3d at

360–61 (“[D]istrict courts must be careful to adjudicate only those claims upon which the

15 petitioner seeks relief and take care not to decide claims upon which the habeas petitioner

never intended to seek relief.”). Because it follows from both the general habeas principles

discussed previously as well as our long-standing recognition that plaintiffs—not the

district court—typically determine the case for decision, we adhere to this course in the

context of a district court’s duty when considering the grounds for relief presented in a

§ 2254 petition. See, e.g., Beaudett,

775 F.2d at 1278

; Harman v. Mohn,

683 F.2d 834, 838

(4th Cir. 1982) (affirming the district court’s conclusion, pre-AEDPA, that a § 2254

petitioner had “waived” the right to raise a new claim during argument before the

magistrate because the allegations in his habeas complaint did not identify the factual basis

for that claim); cf. United States ex rel. Bunk v. Gosselin World Wide Moving, N.V.,

741 F.3d 390

, 405–06 (4th Cir. 2013) (discussing cases relying on the principle that the plaintiff

is the “master of his complaint” and thus responsible for describing his claims, identifying

the defendants, and otherwise crafting the case he presents to the district court for

decision). 9

9 The Supreme Court’s holding in Jennings v. Stephens,

574 U.S. 271

(2015), bolsters this conclusion. There, the Court considered the circuit split that had developed as to whether a § 2254 petitioner had to obtain a certificate of appealability when he was the appellee on appeal and wanted to defend the judgment on alternative grounds the district court had rejected. Id. at 273. In holding that a petitioner-appellee did not have to obtain a certificate of appealability to “defend[] his judgment,” the Court admonished that he would be “confined to those alternative grounds present in the record: he may not simply argue any alternative basis, regardless of its origin.” Id. at 279. Once again, case law emphasized the federal courts’ duty to guard against new bases of decision throughout the state habeas petitioners’ federal proceedings.

16 Applying those principles here, Ground 3 of Folkes’ § 2254 petition referred to

appellate counsel’s alleged ineffective assistance and stated a single fact supporting that

claim––“failing to file a Petition for Rehearing in the Court of Appeals.” J.A. 28. He later

characterized the claim using slightly different surrounding language, but again pointed

unambiguously and exclusively to the sole act of failing to file the petition for rehearing:

J.A. 31 (emphasis added). These were, verbatim, the issue statements he presented in his

state PCR application and subsequent petition for certiorari review of the state PCR court

decision. Compare J.A. 28, with J.A. 679, and J.A. 31, with J.A. 833. Folkes’ “express

reliance on [this one] claim[] of ineffective assistance of [appellate] counsel [is] to the

exclusion of other claims of ineffective assistance of [appellate] counsel.” Samples,

860 F.3d at 275

Instead of adjudicating the claim set out in the § 2254 petition, the district court sua

sponte required additional briefing on conduct encompassing other components of

representation. The facts supporting the district court’s new claims involved acts of

omission and commission, looking beyond the only act identified in the § 2254 petition––

counsel’s “fail[ure] to file a Petition for Rehearing in the Court of Appeals.” J.A. 28

(emphasis added). Specifically, the district court granted relief based on the following

conduct: failing to advise Folkes of the South Carolina Court of Appeals’ decision, failing

17 to consult with him about his opportunities to seek further discretionary appellate relief,

and sending a form letter that incorrectly advised Folkes that he had exhausted his right to

state relief. These claims all require looking at different conduct over a broader period of

time and under different caselaw than the specific claim Folkes raised in his § 2254 petition.

Perhaps most illuminating for purposes of understanding the district court’s

alteration of the factual basis for an IAC claim is its express recognition that had the factual

basis for Folkes’ claim been solely whether appellate counsel was ineffective for failing to

file a petition for rehearing, he would not be entitled to relief. In that regard, the court

stated:

The PCR court and [the State] have attempted to posit this case as only raising the question of whether [Folkes] had a constitutional right to have his counsel file a petition for rehearing to the South Carolina Court of Appeals and for certiorari to the South Carolina Supreme Court. If this were the sole issue before the Court, the PCR court and [the State] would be correct. What the PCR court did not address, and [the State] seeks to avoid, are the duties of appellate counsel during the period post an adverse decision while the appeal is still pending on direct appeal before the appellate court. . . . [F]rom the issuance of the adverse decision on September 24, 2010[,] until the filing of the remittitur on October 18, 2010[,] appellate counsel had the duty to advise the client of the adverse decision and of his right to seek further appellate review.

J.A. 158 (emphasis added) (internal citation omitted).

Tellingly, the district court pointed to no basis in law or fact for its declaration that

an IAC claim based solely on failure to file a petition for rehearing necessarily

encompasses additional conduct that occurs from the time the court of appeals issued its

decision to the remittitur. Notwithstanding whatever additional duties appellate counsel

may have had during the relevant timeframe, none of those were the solitary duty Folkes’

18 petition put before the district court. As the earlier recited AEDPA principles make clear,

courts can no more alter the factual basis for a claim simply because other alleged duties

may have arisen after issuance of an appellate decision than they can alter the factual basis

for a claim because the alleged duties arose during trial. See Samples,

860 F.3d at 275

Here, the act of not filing a petition for rehearing is distinct from the other conduct the

district court expanded its review to encompass, and then relied on to grant relief. Federal

courts are not responsible for identifying the factual basis for a petitioner’s claims; the

petitioner is. And, as Folkes’ § 2254 petition makes clear, appellate counsel’s failure to file

a petition for rehearing was his sole IAC claim.

The district court’s conclusion that the state PCR court misunderstood the full scope

of Folkes’ claim is not supported by the record. To the contrary, the state PCR court

addressed the precise factual circumstance Folkes presented as the issue before it.

Moreover, Folkes—who was represented by counsel throughout the state PCR

proceedings—did not file a motion to reconsider in the state PCR court or assert in his

subsequent petition for certiorari to the Supreme Court of South Carolina that the state PCR

decision mistakenly narrowed either the issue he was presenting or the factual basis to

support his claim. The sole issue identified for the state PCR courts asserted that appellate

counsel’s performance was deficient for failing to file the petition for rehearing. Only after

Folkes’ § 2254 petition was filed did his claim adopt a different hue. And even then, that

was only after the district court required Folkes to respond to its sua sponte questions about

the facts and law surrounding the period following the filing of the South Carolina Court

19 of Appeals’ decision. Before that time, Folkes’ claim rested on the failure to file a petition

for rehearing because that omission prevented him from filing a petition for certiorari.

That Folkes filed his § 2254 petition pro se does not alter this conclusion. To be

sure, pro se filings are “h[e]ld to less stringent standards than formal pleadings drafted by

lawyers,” Haines v. Kerner,

404 U.S. 519, 520

(1972), but that does not give a court license

to look beyond the claim presented. Beaudett,

775 F.2d at 1278

; see Bing v. Brivo Sys.,

LLC,

959 F.3d 605

, 618 (4th Cir. 2020) (stating that liberal construction of a pro se

litigant’s pleadings “does not mean overlooking the pleading requirements”); Williams v.

Ozmint,

716 F.3d 801, 805

(4th Cir. 2013) (“[L]iberal construction does not require us to

attempt to ‘discern the unexpressed intent of the [petitioner],’ but only to determine the

actual meaning of the words used in the [pleading].” (citation omitted)). Here, there is no

specialized procedural or substantive legal barrier that would warrant reading “filing a

petition for rehearing” to encompass any other acts. See Bing, 959 F.3d at 618 (observing

that the court’s conclusions did not arise from the filing using “unsophisticated language

or [its] failure to adhere to formalities”). That is particularly true here because Folkes’ pro

se § 2254 petition used the precise issue statements from his state PCR application and

subsequent petition for certiorari to the Supreme Court of South Carolina, language crafted

when he was represented by counsel. He included no additional argument in support of his

IAC claim. Thus, while Folkes’ § 2254 petition was filed pro se, the language he submitted

to the district court that identified the issue before the court was prepared by counsel.

By considering, and then granting relief based on, a different factual ground than

that originally presented in Folkes’ § 2254 petition, the district court considered a claim

20 that Folkes did not raise. In so doing, it permitted Folkes to circumvent AEDPA’s

framework for how federal courts are to review § 2254 claims raised by state prisoners.

IV.

The above analysis of the generally applicable principles for understanding what

“claims” are raised in a § 2254 petition is alone sufficient to reverse the district court’s

judgment. But further discussion is warranted given the specific nature of Folkes’ claim

and the dissenting opinion’s contrary understanding of its scope. In particular, the dissent

would hold that Folkes’ claim both encompassed and entitled him to habeas relief on the

additional issues decided by the district court. In reaching both conclusions, the dissenting

opinion draws on principles applicable when considering the right to counsel in

transitioning from conviction in the trial court to an initial appeal as of right. Those

principles have no applicability where the setting is the transition from an appellate court’s

decision in an initial appeal as of right to a subsequent, discretionary appeal in the same or

another appellate court. Moreover, grafting them into this context runs directly counter to

the Supreme Court’s holdings that specifically address the pursuit of a subsequent,

discretionary appeal. 10 Before discussing how the dissenting opinion’s mistaken view

10 We use the terms “direct appeal” and “initial appeal as of right” interchangeably. They refer to the proceeding following a defendant’s conviction and sentence in the trial court that operates as an error correction for the proceedings in that court.

As its individual parts suggest, the phrase “subsequent, discretionary appeals” refers to any additional appellate proceedings beyond the initial appeal of right. They are secondary (or later) reviews of the original appellate court’s review of the proceedings in (Continued) 21 taints its analysis of both the threshold issue of the scope of Folkes’ claim and its merits

analysis of that claim, we first review the applicable Supreme Court case law.

The Sixth Amendment guarantees not just a right to counsel, but to the effective

assistance of that counsel in all criminal prosecutions. The Supreme Court has long

recognized that counsel “plays a crucial role in the adversarial system . . . since access to

counsel’s skill and knowledge is necessary to accord defendants the ample opportunity to

meet the case of the prosecution.” Strickland v. Washington,

466 U.S. 668, 685

(1984)

(citation and internal quotation marks omitted). Indeed, the right to counsel “protect[s] the

fundamental right to a fair trial.”

Id. at 684

. The right to counsel is meaningless without

“the right to the effective assistance of counsel.”

Id. at 686

(emphasis added) (quoting

McMann v. Richardson,

397 U.S. 759

, 771 n.14 (1970)). Accordingly, “[t]he benchmark

for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.”

Id.

On that basis, the Strickland Court developed the familiar two-

part test for establishing IAC claims.

trial court. And they are discretionary in that the court being appealed to plays a gatekeeper function in deciding whether to consider the appeal at all. Examples include a petition for rehearing in the same court that heard the direct appeal or a petition for writ of certiorari to a higher court such as the Supreme Court of the United States.

22 The constitutional right to counsel—and to the effective assistance of said counsel—

extends to a “first appeal as of right,” when one is provided. Evitts v. Lucey,

469 U.S. 387, 396

(1985); see

id.

at 392–400 (explaining why the Sixth Amendment guarantees this

right). Briefly, the Supreme Court has recognized that “if a State has created appellate

courts as an integral part of the system for finally adjudicating the guilt or innocence of a

defendant, the procedures used in deciding appeals must comport with the demands of the

Due Process and Equal Protection Clauses of the Constitution.”

Id. at 393

(cleaned up); see

also Douglas v. California,

372 U.S. 353, 357

(1963) (“[W]here the merits of the one and

only appeal an indigent has as of right are decided without benefit of counsel, we think an

unconstitutional line has been drawn between rich and poor.”). However, counsel’s role

significantly differs at the appellate stage. At trial, counsel acts “as a shield to protect [a

defendant] against being ‘haled into court’ by the State and stripped of his presumption of

innocence.” Ross, 417 U.S. at 610–11. By contrast, during the initial appeal as of right,

counsel’s role is to act “as a sword to upset the prior determination of guilt.”

Id.

And when

undertaking that swordsman task, appellate counsel must provide effective representation,

or else the right to counsel during an initial appeal as of right “would be a futile gesture.”

Evitts,

469 U.S. at 397

However, the Supreme Court has drawn a bright line regarding the constitutional

right to counsel between an initial appeal as of right and subsequent, discretionary appeals.

Defendants “do[] not have a constitutional right to counsel to pursue discretionary state

appeals or applications for review in [the Supreme Court].” Wainwright,

455 U.S. at 587

(citing Ross,

417 U.S. at 612

) (emphasis added). In explaining this division, the Supreme

23 Court first noted that the Constitution guarantees the right to counsel in the initial appeal

as of right because, otherwise, indigent defendants would be “denied meaningful access to

the appellate system because of their poverty,” Ross,

417 U.S. at 611

, given that “the

services of a lawyer will for virtually every layman be necessary to present an appeal in a

form suitable for appellate consideration on the merits,” Evitts,

469 U.S. at 393

. During a

subsequent, discretionary appeal, however, the assistance counsel provides lessens, as does

the “handicap borne by the indigent defendant.” Ross,

417 U.S. at 616

. The Supreme Court

has reiterated that the Sixth Amendment does not guarantee the right of counsel to “assist[]

[a defendant] in every conceivable manner at every stage in the proceeding,” but instead

“assure[s] the indigent defendant an adequate opportunity to present his claims fairly,” a

goal that is accomplished by guaranteeing the assistance of counsel in preparing the initial

appeal as of right.

Id. at 616

And because no similar right exists during a subsequent, discretionary appeal, the

Supreme Court has consistently held that IAC claims based on conduct related to that stage

of the appellate process are not cognizable. E.g., Wainwright, 455 U.S. at 587–88. In short,

when a defendant “has no constitutional right to counsel” for a particular proceeding, “he

[cannot] be deprived of the effective assistance of counsel by his retained counsel’s”

conduct related to that proceeding. Id.

The significant difference between the constitutional right to counsel in an initial

appeal and the absence of such a right in a subsequent, discretionary one is particularly

evident in how the Supreme Court has analyzed IAC claims based on counsel’s failure to

24 file for each type of appeal. For example, when confronted with an IAC claim based on

counsel’s failure to file an appeal in an initial appeal as of right when it is unknown whether

the defendant requested him to do so, the Supreme Court has stated that this claim requires

courts to consider whether trial counsel consulted with the defendant about his direct appeal

rights. But when confronted with an IAC claim based on counsel’s failure to file a

subsequent, discretionary appeal, the Supreme Court has simply rejected such claims based

on the absence of any right to counsel at that stage of the appellate process.

Because the Constitution “guarantees a criminal appellant pursuing a first appeal as

of right certain minimum safeguards,” Evitts, 459 U.S. at 392 (emphasis added), the

Supreme Court “ha[s] long held that a lawyer who disregards specific instructions from the

defendant to file a notice of appeal acts in a manner that is professionally unreasonable”

for purposes of establishing an IAC claim, Roe v. Flores-Ortega,

528 U.S. 470, 477

(2000).

The Supreme Court was confronted in Flores-Ortega with a nuanced question in the

context of the initial appeal as of right: whether counsel was “deficient for not filing a

notice of appeal when the defendant has not clearly conveyed his wishes one way or the

other.”

Id.

The Supreme Court stated that this question was “best answered by first asking

a separate, but antecedent, question: whether counsel in fact consulted with the defendant

about an appeal.”

Id. at 478

. It used “the term ‘consult’ to convey 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.”

Id.

The two questions were

tethered together, in the Court’s reasoning, because when counsel has consulted with the

defendant, then courts can better determine whether counsel performed unreasonably by

25 failing to file a notice of appeal by looking to whether counsel “follow[ed] the defendant’s

express instructions” after that consultation.

Id.

But if counsel failed to consult, then courts

had to consider “whether [the] failure to consult with the defendant itself constitute[d]

deficient performance.”

Id.

Rather than creating a bright-line rule that counsel has a duty to consult in the

context of a direct appeal, the Court held that “counsel 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 . . . , or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing.”

Id. at 480

. Flores-

Ortega thus established the interconnectedness of a claim that counsel was ineffective for

failing to file a direct appeal and counsel’s duty to consult about a defendant’s ability to

pursue that appeal with the assistance of counsel.

In stark contrast to the approach it adopted in Flores-Ortega, when confronted with

an IAC claim based on appellate counsel’s failure to file for timely subsequent,

discretionary review, the Supreme Court outright rejected that claim because no right to

counsel existed in that next stage of the appeals process. Wainwright. 455 U.S. at 587–88.

Specifically, after an intermediate appellate court affirmed a state petitioner’s convictions,

appellate counsel filed a petition for writ of certiorari to the state supreme court, which the

court dismissed as untimely.

Id. at 586

. The state petitioner alleged an IAC claim based on

appellate counsel’s failure to file a timely petition.

Id.

at 586–87. It was not disputed that

review by the state supreme court was discretionary.

Id. at 587

. Citing Ross, the Supreme

Court unequivocally held that because the state petitioner “had no constitutional right to

26 counsel, he could not be deprived of the effective assistance of counsel by his retained

counsel’s failure to file the application timely.”

Id.

at 587–88.

This Supreme Court precedent demonstrates why the district court and the dissent

are incorrect in positing that the ground for relief Folkes asserted—an IAC claim based on

the failure to file for discretionary review—encompassed additional claims. In Wainwright,

the Supreme Court was confronted with a claim identical to the one Folkes raised, which

it analyzed and rejected. It did not view that claim as actually presenting or requiring

discussion of any additional ones, including any duty to consult. Wainwright governs our

analysis here and precludes the one adopted by the dissent.

To reach a different conclusion, the dissent relies principally on Gordon v. Braxton,

780 F.3d 196

, 200–02 (4th Cir. 2015), in which we held that an IAC claim based on trial

counsel’s failure to file a direct appeal of right necessarily encompassed the issue of

whether trial counsel was ineffective for failing to consult with the defendant about his

ability to pursue an initial appeal as of right. As should be clear from our earlier discussion,

Gordon is simply a straightforward application of the Supreme Court’s instruction in

Flores-Ortega.

In Gordon, a § 2254 petitioner had asserted in his state habeas proceedings that trial

counsel had rendered ineffective assistance by failing to file notice of an initial appeal as

of right.

780 F.3d at 199

. The state habeas court found that petitioner “had not shown

deficient performance because [he] had merely inquired about an appeal, not directly

27 requested one.”

Id. at 200

. Its analysis went no further and denied relief. The petitioner’s

§ 2254 petition argued counsel was ineffective for both “failing to file a notice of appeal

and for not consulting with him about an appeal.” Id. at 199. The district court dismissed

the § 2254 petition “based on the state court’s reasoning.” Id. at 200.

On appeal to this Court, the Commonwealth argued that the petitioner failed to

exhaust his state remedies as to the failure-to-consult claim because he had not “identif[ied]

it as a separate claim.” Id. at 200. We disagreed, holding that the petitioner had fairly

presented “both the operative facts and the controlling legal principles . . . to the state

court.” Id. at 201 (citation omitted). We pointed out that the state court’s finding that the

petitioner “never expressly requested an appeal” did not end the analysis because the fact

that the petitioner “asked [counsel] is there anything else we can do from this point,”

“indicat[ed] his interest in appealing which, at a minimum, triggered counsel’s duty to

consult.” Id. Put another way, although the state habeas court concluded that the petitioner

had not specifically instructed counsel to file a notice of appeal, it failed to undertake the

“antecedent” inquiry Flores-Ortega directed courts to consider when assessing an IAC

claim based on trial counsel’s failure to file a direct appeal when the defendant had not

“clearly conveyed his wishes one way or the other.”

528 U.S. at 478

. Importantly, we

further observed that the state-court filings referenced Strickland, Flores-Ortega, and Miles

v. Sheriff,

581 S.E.2d 191

(Va. 2003), three cases assessing ineffective assistance of

counsel claims in which the petitioner “allege[d] that they were denied their right to [a

direct] appeal because of counsel’s ineffective assistance.” Gordon,

780 F.3d at 201

. Based

on Flores-Ortega’s specific recognition that the duty to file a direct appeal and the duty to

28 consult about that appeal “fall[] along a ‘spectrum,’” we held that the petitioner had

exhausted his state remedies as to both the failure-to-file and the failure-to-consult claims.

at 201–02 (quoting Flores-Ortega,

528 U.S. at 477

). 11

By treating Gordon with near-dispositive effect, the dissent unmoors that decision

from its necessary context: the transition from trial proceedings to a direct appeal,

throughout which a defendant has the right to counsel. Proceeding in that manner so elides

the legally significant differences between that stage of proceedings and the stage at issue

in this case, the transition from the direct appeal to a discretionary appeal, where the

Supreme Court has drawn a bright line as to the constitutional right to effective counsel.

The spectrum analysis from Flores-Ortega and Gordon simply does not apply with respect

to Folkes’ claim that counsel was ineffective for failing to file a subsequent, discretionary

petition for rehearing. Nor does it follow from either of those decisions that all “failure to

file” claims necessarily implicate counsel’s earlier conduct (or lack thereof).

11 The dissent observes that “[l]ike the petitioner in Gordon, Folkes cited to Strickland” in his state PCR filings. Diss. Op. 60. But that hardly demonstrates exhaustion of remedies. Strickland established the generic standard for ineffective assistance of counsel but says nothing about the specific context of ineffective assistance of counsel for failing to file a discretionary appeal or failing to consult about any next steps in the proceedings. By contrast, Gordon observed that the petitioner’s state habeas claim had cited not just Strickland, but also Flores-Ortega and a related state case that identified the specific claim alleged—ineffective assistance of counsel for failure to file a notice of direct appeal—and also discussed why that claim necessarily raised the issue of counsel’s duty to consult in that context. Neither Folkes’ § 2254 petition nor his state PCR filings similarly cited case law reflecting any interconnectedness between a duty-to-file claim and a duty- to-consult claim in the context of discretionary appeals.

29 Moreover, Wainwright precludes applying the reasoning of Flores-Ortega to the

context presented here. When confronted with the question of whether appellate counsel

was ineffective for failing to file a petition for a subsequent, discretionary appeal, the

Supreme Court limited its analysis to that discrete question without conducting the sort of

spectrum analysis it used in Flores-Ortega. We have no authority to do otherwise.

These distinct approaches to IAC claims based on the initial appeal as of right and

subsequent, discretionary appeals make sense given that they arise in separate stages of the

criminal proceedings, which the Constitution protects differently. Because the Constitution

imposes a duty on trial counsel to file a direct appeal (1) when instructed to do so, and (2)

sometimes even when not instructed to do so, bringing an IAC claim based on failure to

file necessarily requires courts to consider trial counsel’s consultation with the client about

pursuing an initial appeal as of right. But because the Constitution imposes no duty on

counsel to file a discretionary appeal—regardless of whether one is requested—analyzing

that claim never implicates “antecedent” questions concerning consultation between

counsel and the client. Flores-Ortega,

528 U.S. at 478

. Accordingly, when a petitioner

raises an IAC claim based on failure to file for a subsequent, discretionary appeal, that is

the extent of the claim presented and the sole basis upon which habeas relief could be

granted. In short, Wainwright—not Flores-Ortega or Gordon—answers the question of

whether the claim raised in Folkes’ § 2254 petition encompasses anything beyond a duty-

to-file claim. And it answers the question with a clear “no.”

30 2.

As the foregoing principles reflect, by alleging appellate counsel ineffective for

failing to file a subsequent, discretionary appeal—the petition for rehearing, which was

required to file a petition for certiorari (also a subsequent, discretionary appeal)––Folkes

alleged a claim based solely on that conduct. That conclusion is the same under both the

generally applicable principles for understanding the scope of a petitioner’s § 2254 ground

for relief discussed at the outset and the specific case law relevant to an IAC claim based

on appellate counsel’s conduct related to a subsequent, discretionary appeal. The district

court erred in expanding the scope of Folkes’ claim.

We need not remand the case for the district court to limit its review to this one

issue, however, because the district court already addressed it. And it properly recognized

that Folkes would not be entitled to habeas relief based on Wainwright’s holding that there

is “no right to counsel for discretionary appellate review.” See Folkes,

2021 WL 62577

, at

*9 (citing Wainwright, 455 U.S. at 587–88); see also Ross, 455 U.S. at 587–88. By

concluding that the state PCR court’s decision was correct, the district court necessarily

concluded that Folkes could not satisfy § 2254’s requirement of showing that the state PCR

court’s decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

§ 2254(d)(1); see Shinn v. Kayer,

141 S. Ct. 517, 523

(2020) (emphasizing “the special

importance of the AEDPA framework in cases involving Strickland claims” because

Strickland’s “general standard[] [provides] a state court [with] even more latitude to

reasonably determine that a defendant has not satisfied that standard” (citation omitted));

31 Harrington, 562

U.S. at 101–02 (discussing the differences between undertaking

§ 2254(d)(1)’s review of a state court’s adjudication of an IAC claim and directly

considering whether counsel’s performance fell below Strickland’s standards).

As to this specific ground for relief, we agree with the district court’s conclusion

that the state PCR court did not act contrary to or unreasonably apply those principles when

it concluded that Folkes could not assert an IAC claim based on counsel’s failure to file a

petition for rehearing because that stage of South Carolina’s appellate process is purely

discretionary. J.A. 802 (discussing Douglas v. State,

631 S.E.2d 542

, 543–44 (S.C. 2006),

which held that appellate counsel has no duty “to pursue rehearing and/or certiorari

following the decision of the Court of Appeals in a criminal direct appeal” because that

constitutes discretionary relief and that no claim of ineffective assistance of appellate

counsel can be made against an attorney pursuing discretionary relief after a direct appeal);

see also Chalk v. Kuhlmann,

311 F.3d 525

, 528–29 (2d Cir. 2002) (holding that although

state law required appointed counsel to file for discretionary appellate relief, no ineffective

assistance of counsel claim could be asserted against counsel for defective performance

related to that discretionary appeal because any such “failure would not violate any

constitutional right”). Folkes was not entitled to § 2254 relief on the sole claim adequately

alleged in his petition. Accordingly, we reverse the district court and remand for entry of

an order denying Folkes’ § 2254 petition.

Even if the dissent is correct on the threshold question of what issues were part of

Folkes’ § 2254 petition, its substantive analysis of those claims is in error and thus warrants

32 a response. Because Folkes had no constitutional right to counsel regarding the petition for

rehearing, he cannot allege an IAC claim based on a failure to consult about either the

outcome of his direct appeal or his next steps in the state’s discretionary appeals process.

In short, a merits analysis of these additional unpled claims leads to the same conclusion:

Folkes is not entitled to habeas relief. 12

Both the district court and the dissent recognize that under Supreme Court

precedent, appellate counsel would not have been required to represent Folkes in any

proceeding for discretionary relief. Nor does either suggest that counsel would be required

to discuss with Folkes the pros and cons of filing a petition for rehearing or preparing a

petition that Folkes could then use to file—hence, the dissenting opinion’s attempt to

narrow the novel duty being crafted as a “duty to consult” that means something less than

the duty to consult discussed in Flores-Ortega. See Diss. Op. 50 n.1 (defining its

understanding of counsel’s duty to “consult” about a subsequent, discretionary appeal to

something narrower than Flores-Ortega’s description of it in the context of an initial appeal

as of right). So framed, the dissent’s formulation of appellate counsel’s duty to consult rests

on the faulty premise that Folkes had a constitutional right to have counsel inform him of

12 The proper standard of review for such a claim presents multiple problems under AEDPA’s framework. For purposes of this section, we will assume that review is de novo and that the dissent is correct that Folkes’ state PCR petitions implicated both claims it enumerates (failure to file and failure to consult), but the state PCR courts failed to address the latter claim. See Tice v. Johnson,

647 F.3d 87, 105

(4th Cir. 2011) (recognizing that de novo review of a § 2254 claim is appropriate when the state court “did not address” an issue raised in a state habeas petition, so there are no state-court findings or conclusions to defer to in considering § 2254 relief).

33 two things: (1) the South Carolina Court of Appeals’ decision; and (2) his opportunity to

pursue further discretionary appeals.

But the Supreme Court has never held that appellate counsel has a constitutional

duty to do either one. Applying Supreme Court precedent to the analysis, multiple circuit

courts have held that no such duty to consult exists. Indeed, the dissent acknowledges this

majority view in out-of-circuit authority and instead adopts a position broader than any of

our sister circuits follows. See Diss. Op. 70–72. Adopting the dissenting opinion’s

substantive view would have us create a circuit split in the first instance, and would further

put us in plain tension with the Supreme Court’s relevant case law. Even were we to reach

the merits of the issues the district court and dissenting opinion concluded to be part of

Folkes’ § 2254 petition, we would conclude that Folkes is not entitled to relief because the

Constitution does not impose the duties both opinions impose on appellate counsel.

While state rules, ethical canons, or other sources may impose a duty on counsel to

inform their clients of the decision of a direct appeal, the Constitution does not. Instead, as

the Fifth Circuit has recognized, “[t]he constitutionally secured right to counsel ends when

the decision by the appellate court is entered.” Moore v. Cockrell,

313 F.3d 880, 882

(5th

Cir. 2002). This conclusion rests squarely on the Supreme Court’s reasoning about the right

to effective counsel in the first instance.

When it first recognized the constitutional right to counsel in the first appeal as of

right, the Supreme Court framed the basis in terms of the necessary value counsel adds in

presenting the case to the appellate court for its review. Douglas,

372 U.S. at 357

(“[W]here

34 the merits of the one and only appeal an indigent has as of right are decided without benefit

of counsel, we think an unconstitutional line has been drawn between rich and poor.”

(emphasis added)); see also

id. at 356

(observing that its holding was not concerned with

questions “that might arise from the denial of counsel for the preparation of a petition for

discretionary or mandatory review beyond the stage in the appellate process at which the

claims have once been presented by a lawyer and passed upon by an appellate court”

(emphasis added)).

The Supreme Court’s subsequent discussions of the right to appellate counsel

similarly address the assistance counsel provides in preparing and presenting the

defendant’s appeal for review by the court. Evitts, 469 U.S. at 393–94 (“[T]he services of

a lawyer will for virtually every layman be necessary to present an appeal in a form suitable

for appellate consideration on the merits. . . . [Counsel] must be available to assist in

preparing and submitting a brief to the appellate court, and must play the role of an active

advocate, rather than a mere friend of the court assisting in a detached evaluation of the

appellant’s claim.” (emphases added) (internal citations omitted)); Ross, 417 U.S. at 610–

11 (describing appellate counsel’s constitutional role “as a sword to upset the prior

determination of guilt”); Swenson v. Bosler,

386 U.S. 258, 259

(1967) (per curiam) (“The

assistance of appellate counsel in preparing and submitting a brief to the appellate court

which defines the legal principles upon which the claims of error are based and which

designates and interprets the relevant portions of the trial transcript may well be of

substantial benefit to the defendant.” (emphasis added)). This constitutionally guaranteed

role has been served in its entirety once the appellate court issues its decision.

35 Indeed, it is precisely because the appeal has already “been presented by a lawyer

and passed upon by an appellate court” that the Supreme Court has concluded no further

right to counsel exists beyond the initial appeal as of right. Ross,

417 U.S. at 614

(“[The

defendant] . . . received the benefit of counsel in examining the record of his trial and in

preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his

seeking discretionary review in the State Supreme Court, his claims had ‘once been

presented by a lawyer and passed upon by an appellate court.’” (quoting Douglas,

372 U.S. at 356

)); id. at 616 (“The duty of the State under our cases is not to duplicate the legal

arsenal that may be privately retained by a criminal defendant in a continuing effort to

reverse his conviction, but only to assure the indigent defendant an adequate opportunity

to present his claims fairly in the context of the State’s appellate process.” (emphasis

added)); see also Coleman v. Thompson,

501 U.S. 722

, 755–56 (1991) (holding a state

criminal defendant had no “constitutional right to counsel on appeal from the state habeas

trial court judgment” because he had already “had his one and only appeal” during which

counsel had assisted in providing him with “an adequate opportunity to present his claims

fairly in the context of the State’s appellate process” (cleaned up) (emphasis added));

Anders v. California,

386 U.S. 738, 744

(1967) (explaining that appellate counsel’s “role

as advocate requires that he support his client’s appeal to the best of his ability” and that

this role is satisfied by, inter alia, notifying the court that she has found no meritorious

issues for appeal “accompanied by a brief referring to anything in the record that might

arguably support the appeal”).

36 Supreme Court case law thus supports the conclusion that the constitutional right to

appellate counsel is satisfied in advance of the appellate court’s decision and that counsel’s

role ends upon issuance of that decision. As the Fifth Circuit has explained, citing the

Supreme Court’s decision in Ross: “[t]he constitutionally secured right to counsel ends

when the decision by the appellate court is entered.” Moore,

313 F.3d at 882

The dissent adopts the contrary view partially espoused by the Sixth Circuit,

concluding that the right to appellate counsel encompasses a duty to “notify a defendant of

the outcome of his direct appeal.” Diss. Op. 71. While this may be the ethically appropriate

course, it is not a constitutionally required one. Neither the dissent’s nor the Sixth Circuit’s

reasoning is persuasive otherwise and finds no support from the Supreme Court.

In Smith v. Ohio Department of Rehabilitation & Corrections,

463 F.3d 426

, 432–

33 (6th Cir. 2006), the court held that a § 2254 petitioner’s procedural default of a claim

was excused because appellate counsel had rendered ineffective assistance by “fail[ing] to

notify him promptly of the [state] Court of Appeals decision denying his claims,” which

led to his untimely filing of a notice of appeal to the state supreme court. The court

recognized that “[t]here can be a constitutional claim of ineffective assistance only at a

stage of the proceedings when there is a right to counsel under the Sixth Amendment.” Id.

at 433. But the court declared that the petitioner’s “claim does not relate to his lawyer’s

performance regarding” discretionary relief, but rather to “[counsel’s] representation . . .

during his direct appeal.” Id.

To support its view, the Sixth Circuit failed to consider any of the foregoing

principles concerning why the right to counsel on a direct appeal exists. Instead, it relied

37 on inapposite principles from Flores-Ortega and similar cases governing trial counsel’s

duties to prepare a defendant to take an initial appeal as of right. Id. at 433–35. For the

reasons already detailed, that’s a false analogy to the end of a first appeal of right and the

initiation of any discretionary appeals. The constitutional basis necessitating client–counsel

communication to facilitate the defendant’s decision whether to take that initial appeal as

of right—during which time the right to counsel continues unabated—does not exist after

the decision on direct appeal. What remains is simply the Sixth Circuit’s ipse dixit

declaration that appellate counsel’s responsibilities do not end “the moment the court of

appeals hands down its decision.” Id. at 433. Therefore, nothing in Smith casts doubt on

the proper application of the Supreme Court’s relevant case law discussed earlier.

In consequence, even if Folkes’ § 2254 petition had raised a claim of ineffective

assistance of counsel based on appellate counsel’s failure to inform him of the outcome of

his direct appeal of right, it would not support the granting of habeas relief. Folkes’ claim

had “once been presented by a lawyer and passed upon by an appellate court,” which

fulfilled all constitutional duties of his counsel. Douglas,

372 U.S. at 356

The dissenting opinion’s further view that Folkes’ counsel had a duty to inform

Folkes about the existence of his next, discretionary appellate options has no support in the

case law of the Supreme Court or any court of appeals. The constitutional right to effective

assistance of counsel does not extend to any attorney–client discussion about additional

proceedings available to the client after the first appeal of right. Filing a petition for

rehearing in the South Carolina Court of Appeals is a solely discretionary proceeding,

38 meaning the constitutional right of counsel does not extend to it. Accordingly, counsel’s

failure to consult with Folkes about it does not implicate his constitutional right to effective

assistance of counsel.

Leaving the Sixth Circuit’s approach for later, all other courts of appeals to consider

similar claims have held that because the Constitution does not guarantee a right to

effective assistance of counsel relating to a discretionary appeal, IAC claims are not

cognizable based on appellate counsel’s mistaken advice or failure to advise about an

unsuccessful appellant’s opportunities for subsequent, discretionary relief. For example, in

Jackson v. Johnson,

217 F.3d 360

, 364–65 (5th Cir. 2000), the Fifth Circuit rejected a

defendant’s claim that counsel was ineffective for failing to file—and failing to inform him

of his right to file—a motion for rehearing of the direct appeal because that motion

“come[s] after the appellate court has passed on the claims[] [and] there can be no question

that the granting of a motion for rehearing lies entirely within the discretion of a court of

appeals.” The Fifth Circuit explained that under Ross and Wainwright, “a criminal

defendant has no constitutional right to counsel on matters related to filing a motion for

rehearing following the disposition of his case on direct appeal.”

Id. at 365

For the same reasons, in Pena v. United States,

534 F.3d 92

, 94–95 (2d Cir. 2008)

(per curiam), the Second Circuit denied relief to a federal petitioner claiming ineffective

assistance of appellate counsel “for failing to notify him of his right to file” a petition for

writ of certiorari from the Supreme Court of the United States. Like Folkes, the petitioner

testified he would have petitioned for a writ of certiorari if he had been aware of the ability

to do so, and that appellate “counsel’s failure to inform him of the opportunity ‘denied his

39 right to have a lawyer prepare and submit a petition.’”

But the court rejected petitioner’s

argument that a duty to consult was part of the “right to the effective assistance of counsel

on first-tier appeal”—its “last step”—rather than being “the first step of the subsequent

discretionary appeal.”

at 95–96 (quoting Chalk,

311 F.3d at 529

). Calling that argument

“ingenious, but wrong,” id. at 96 (emphasis omitted) (quoting Chalk,

311 F.3d at 529

), the

Second Circuit recounted the previously discussed Supreme Court case law regarding the

interconnectedness of IAC claims to the constitutional right to counsel and the different

treatment of claims surrounding the initial appeal as of right and subsequent, discretionary

appeals,

at 95–96. In particular, the court observed that the right to counsel exists for an

initial appeal as of right to protect a defendant from “the prejudice that might ensue from

an improperly pursued initial appeal” in which a court adjudicates the merits of issues

presented to it and “performs the role of ‘error-correction.’” Id. at 95 (citation omitted).

After the decision in the direct appeal, however, “the harm done by a certiorari petition

drafted without the aid of an effective lawyer is unlikely to resemble” that level of prejudice

and thus is not constitutionally required. Id. Accordingly, the court concluded that no IAC

claim could be predicated on counsel’s failure to inform the petitioner that he had the

opportunity to pursue further, discretionary appeals. Id. at 96.

These courts of appeals decisions, among others, properly applied existing Supreme

Court precedent and demonstrate why Folkes would not be entitled to habeas relief even if

his claim encompassed his counsel’s failure to consult with him about the availability of

additional, discretionary appeals. See also Ahumada v. United States,

994 F.3d 958

, 960–

61 (8th Cir. 2021) (rejecting IAC claim based on counsel’s failure “to communicate” about

40 the process for filing a petition for rehearing because “[t]here is no constitutional right to

counsel for discretionary appeals” such as rehearing, so “[a habeas petitioner cannot claim

ineffective assistance of counsel” for matters related to pursuing that relief); Miller v.

Keeney,

882 F.2d 1428

, 1430–33 (9th Cir. 1989) (holding that a petitioner could not

establish an ineffective assistance of appellate counsel based on “incomplete” and possibly

even constitutionally deficient advice about whether to pursue a subsequent, discretionary

appeal because the “constitutional right to counsel . . . c[a]me to an end” once the decision

issued in the initial, direct appeal).

The dissenting opinion purports to adopt the solitary view of the Sixth Circuit as

support for its conclusion that the Constitution requires “an appellate attorney . . . to inform

his client of the existence of and deadlines for collateral relief, even though counsel had no

duty to file the application itself.” Diss. Op. 71–72. To do so, it relies on Gunner v. Welch,

749 F.3d 511

(6th Cir. 2014), in which the Sixth Circuit found that appellate counsel had

a limited duty to advise his client about certain matters related to the filing of his petition

for state post-conviction relief. But Gunner provides an incomplete picture of the Sixth

Circuit’s relevant case law, and the dissent acknowledges that “Gunner is not controlling

Sixth Circuit law,” but merely provides “logically persuasive” reasoning for the dissent’s

own position. Diss. Op. 72 n.8. To be sure, Gunner has no bearing on how the Sixth Circuit

would resolve whether counsel had a duty to consult with a petitioner like Folkes about an

option to pursue additional, discretionary appeals. Thus, not even binding Sixth Circuit

case law would agree with the dissent’s conclusion that Folkes’ counsel had a duty to

consult about any subsequent, discretionary appeals. Simply put, Gunner lacks the

41 “logical[] persuasive[ness]” the dissenting opinion bestows on it because it addressed

appellate counsel’s duty with respect to a different type of post-conviction proceeding than

is at issue in this case and, consequently, it failed to grapple with relevant Supreme Court

case law.

In Gunner, an Ohio state prisoner raised claims in his § 2254 petition that would

ordinarily have been procedurally defaulted. Id. at 515. The prisoner argued that the default

should be excused because appellate counsel had been ineffective in failing to notify him

of the filing deadlines for state post-conviction relief. Id. Ohio’s postconviction relief

system operates somewhat unusually from other states in that certain types of ineffective

assistance of trial counsel claims (including this prisoner’s) must be raised in a state

petition for post-conviction relief filed before the decision in the direct appeal has been

issued. Accordingly, the deadline for filing his petition ran from the time the trial transcript

is filed in the direct appeal. See

Ohio Rev. Code Ann. § 2953.21

(A)(1)(a)(i), (2)(a). The

prisoner did not know the transcript filing date or its implications for a petition alleging

ineffective assistance and, as a result, his state petition for post-conviction relief was

untimely. Gunner,

749 F.3d at 515

The issue before the Sixth Circuit was whether these circumstances excused the

prisoner’s procedural default of the affected claim.

at 515–16. The court held that it did,

recognizing that the prisoner’s state appellate counsel had a duty to consult with his client

about when the trial transcript had been docketed in the direct appeal and the consequences

of that filing date on the deadline for filing his petition for post-conviction relief.

Id. at 517

42 In so holding, the Sixth Circuit rejected the state’s argument that counsel did not

have a duty to inform the prisoner about the state collateral proceedings because the

Constitution did not guarantee a right to counsel during those proceedings.

at 518–19.

The court relied on Martinez v. Ryan,

566 U.S. 1

, 8–9 (2012), in which the Supreme Court

recognized, but did not answer, the question of whether the Constitution “require[s] states

to provide counsel in initial-review collateral proceedings because ‘in [these] cases . . .

state collateral review is the first place a prisoner can present a challenge to his

conviction.’” (alterations in original) (emphasis added) (citation omitted). The Martinez

Court reiterated that Douglas’ reasoning for why the right to counsel existed in a direct

appeal of right “may” also apply when “the initial-review collateral proceeding[]” is “a

prisoner’s ‘one and only appeal’ as to an ineffective-assistance claim.”

Id.

(emphasis

added) (citation omitted); see Coleman,

501 U.S. at 755

(declining to resolve whether an

exception to the rule “that there is no right to counsel in state collateral proceedings” exists

when “state collateral review is the first place a prisoner can present a challenge to his

conviction”). But see Pennsylvania v. Finley,

481 U.S. 551, 555

(1987) (“We have never

held that prisoners have a constitutional right to counsel when mounting collateral attacks

upon their convictions, and we decline to so hold today. . . . We think that since a defendant

has no federal constitutional right to counsel when pursuing a discretionary appeal on direct

review of his conviction, a fortiori, he has no such right when attacking a conviction that

has long since become final upon exhaustion of the appellate process.” (internal citation

omitted)).

43 Citing Martinez, the Sixth Circuit concluded that the prisoner had a right to counsel

during his state post-conviction relief proceeding because, under Ohio law, that proceeding

was the first opportunity for him to present his IAC claim. Gunner, 749 F.3d. at 518–19.

In its view, the Supreme Court’s suggestion that the right to counsel may exist when an

IAC claim can only be brought in an initial-review collateral proceeding provided a

“complete answer to the . . . argument that petitioner cannot complain of [counsel’s] failure

to advise him of the filing deadline for an initial-review collateral proceeding because that

proceeding is one ‘for which there is no right to any attorney under the Constitution.’” Id.

at 519.

Gunner’s Martinez-based reasoning for why a duty to consult existed plainly does

not apply here. Folkes has no Martinez claim and has never asserted otherwise. Nor could

he: his underlying claim was raised, albeit unsuccessfully, in his initial appeal as of right.

Regardless of what aspect of appellate counsel’s conduct is considered, it is all in the

context of Folkes’ desire to pursue a second presentation of an issue the state court

previously rejected, i.e., filing for a subsequent, discretionary appeal. Thus, to the extent

Gunner’s holding that a duty to consult existed because a right to counsel existed during

the proceeding about which counsel had a constitutional duty to consult, it has no bearing

on this case.

That said, Gunner did indicate that it would find a constitutional right to counsel

existed independently from the “complete answer” Martinez provided. Id. Specifically, the

court indicated it would have rejected the state’s argument “even before” Martinez. Id.

Acknowledging the Supreme Court’s holding in Wainwright that an IAC claim could not

44 be based on counsel’s failure to file for discretionary relief, the Sixth Circuit declared that

Wainwright involved “an altogether different question from whether a defendant can

complain about the failure of counsel to advise him of relief that may be available to him

or of the necessity to proceed expeditiously if he wishes to obtain such relief.” Id. Rather

than explaining why that was so, the court set aside the constitutional right to counsel and

noted that the prisoner “would have very likely have been provided” a right to counsel

during the state post-conviction proceeding under “Ohio law and practice.” Id. This

rationale is unpersuasive for two reasons.

First, Gunner’s alternative pronouncement lacks a reasoned explanation for why

this “different question” than Wainwright should be answered differently. Id. It does not

address any of the relevant Supreme Court precedent or explain how it concluded that an

IAC claim could be based on conduct relating to a proceeding during which no

constitutional right to counsel exists. The court’s only explanation addresses an entirely

different issue: whether other sources, such as state law and agency principles, provided a

right to counsel. But that is irrelevant to the question of whether a petitioner can assert an

IAC claim, which requires a petitioner to show that counsel’s conduct fell below the

Constitution’s requirements. United States v. Palacios,

982 F.3d 920, 923

(4th Cir. 2020)

(“To succeed on an ineffective assistance of counsel claim, the movant must show that

counsel performed in a constitutionally deficient manner and that the deficient performance

was prejudicial.”).

Second, quite apart from Gunner’s lack of persuasiveness on this point, an even

more forceful barrier prohibits reliance on it: controlling Sixth Circuit precedent. Gunner

45 is not the only—or first—Sixth Circuit case to consider whether counsel had a duty to

consult with a client about an appellate proceeding other than the initial appeal as of right.

In several published opinions decided before Gunner, the Sixth Circuit held that appellate

counsel does not have a duty to “consult” about a proceeding when the Constitution does

not guarantee right to counsel during that proceeding. For example, in Tolliver v. Sheets,

594 F.3d 900, 929

(6th Cir. 2010), the court rejected a § 2254 petitioner’s argument that

his procedural default of a claim should be excused because appellate counsel was

ineffective for “faili[ng] to warn him about the ninety-day deadline” to file for discretionary

reopening of his direct appeal “or even to tell him in time about the possibility of filing”

such a motion. Id. at 929. 13 The court observed that the petitioner had “no constitutional

right to counsel,” let alone a right to “effective counsel,” in pursuing reopening of his direct

appeal. Id. (emphasis omitted). As such, “any poor advice he received from an attorney

[related to his filing a motion to reopen] cannot establish cause for his default.” Id.; see

Scuba v. Brigano,

527 F.3d 479

, 488–89 (6th Cir. 2007) (holding similarly regarding

counsel’s failure to timely file motion to reopen); see also Carter v. Mitchell,

693 F.3d 555, 565

(6th Cir. 2012) (holding the same as Scuba, after Martinez was decided).

13 Tolliver and the other Sixth Circuit cases mentioned in this paragraph specifically considered Ohio’s appellate proceedings, in which a motion to reopen the direct appeal is considered a “‘separate collateral’ proceeding” from the initial appeal of right. Tolliver,

594 F.3d at 929

(citation omitted); see Lopez v. Wilson,

426 F.3d 339, 351

(6th Cir. 2005) (en banc) (holding that a motion to reopen is “part of the collateral, postconviction process rather than direct review” such that no constitutional right to counsel exists at that stage); cf. Gerth v. Warden, Allen Oakwood Corr. Inst.,

938 F.3d 821

, 831 (6th Cir. 2019) (holding that no right to counsel exists during the reopened appeal either because that proceeding is also not the initial appeal of right contemplated by Douglas).

46 The Sixth Circuit adheres to the well-recognized principle that a later panel decision

of the court cannot conflict with an earlier decision except in limited circumstances that do

not apply here. Darrah v. City of Oak Park,

255 F.3d 301, 310

(6th Cir. 2001) (“[W]hen a

later decision of this court conflicts with one of our prior published decisions, we are still

bound by the holding of the earlier case.”); see United States v. Elbe,

774 F.3d 885, 891

(6th Cir. 2014) (“A panel of this court may not overturn binding precedent because a

published panel decision ‘remains controlling authority unless an inconsistent decision of

the United States Supreme Court requires modification of the decision or this Court sitting

en banc overrules the prior decision.’” (citation omitted)). Thus, to the extent the decision

in Gunner conflicts with these prior, binding precedents, future Sixth Circuit panels are not

bound by Gunner.

The Sixth Circuit itself recognized this tension between Gunner and the court’s prior

cases (Tolliver, Scuba, etc.), albeit in an unpublished opinion, and concluded that Gunner’s

holding was limited to a Martinez context. McClain v. Kelly,

631 F. App’x 422

, 429–38

(6th Cir. 2015) (analyzing Supreme Court and Sixth Circuit precedents predating Gunner

and holding that “to the extent . . . that Gunner announced a rule independent of Martinez,

applying its rule to the [motion to reopen] context would conflict with binding circuit

precedent,” such as Scuba and Tolliver, which recognized there is no duty to consult or

advise about a proceeding when there is no right to counsel during that proceeding).

Contrary to the dissenting opinion’s discussion, Gunner (and the Sixth Circuit more

broadly) provides no persuasive reasoning to support the conclusion that the Constitution

47 required Folkes’ appellate counsel to consult with him about how to raise an issue already

rejected by a state appellate court in another subsequent, discretionary appeal.

****

What’s left of the dissenting opinion is its idiosyncratic application of the Supreme

Court’s case law. The dissenting opinion erroneously draws on principles articulated in the

context of trial counsel’s constitutional duties relating to the initial appeal as of right to

find novel constitutional duties that appellate counsel has relating to a subsequent,

discretionary appeal. But appellate counsel has no duties related to a subsequent,

discretionary appeal because a defendant has no constitutional right to counsel related to

those proceedings. The Supreme Court has drawn a bright line that places conduct looking

forward to a subsequent, discretionary appeal outside the scope of a criminal defendant’s

constitutional right to counsel. Consequently, even were we to conclude that Folkes’

§ 2254 petition encompassed the full panoply of claims the district court relied on to grant

relief, we would be compelled to reverse. Doing so faithfully applies Supreme Court

precedent, which also aligns us with every court of appeals’ (including the Sixth Circuit’s)

understanding of that precedent. 14

14 The dissent’s remaining reasoning to affirm can be distilled to its subjective view that the district court must be permitted to provide relief to a poorly treated defendant. See Diss. Op. 50 (referencing the “compellingly troubling story” surrounding Ms. Robinson’s departure from the Commission and the follow-up letter to Folkes); id. at 65 (opining that federal courts should not “draw . . . harsh lines where we are not truly obligated to do so” or “sit by though clear injustice stares us in the face due to a self-imposed, unnecessarily strict application of procedural rules”). But the principles we apply here respect the district court’s proper role in the process as neutral arbiter of the claims presented rather than an advocate in favor of un-raised challenges of one party, no matter how sympathetic. They (Continued) 48 V.

For the reasons stated, we reverse the district court’s judgment and remand with

instructions to deny Folkes’ § 2254 petition.

REVERSED AND REMANDED WITH INSTRUCTIONS

also respect Congress’ rules established in AEDPA, which were intended to respect the function of state courts in vindicating federal rights. See Burt v. Titlow,

571 U.S. 12, 19

(2013). No matter how short of best or ethical practices Ms. Robinson’s failure to notify Folkes she was withdrawing from representing him or the Commission’s letter to Folkes may have fallen, that conduct was not the basis for any constitutional claim Folkes presented in his state PCR application for relief, it was not the claim the state PCR court decided, and—most relevantly—it was not the ground for relief asserted in Folkes’ § 2254 petition. That other conduct cannot now form the basis for relief.

49 WYNN, Circuit Judge, dissenting:

If, as my good colleagues in the majority posit, the only issue properly before us

was whether Folkes’s appellate counsel was ineffective for failing to file a rehearing

petition, I would concur in the judgment, as the state postconviction relief court’s finding

on that point is not “contrary to” or an “unreasonable application of” federal law. Majority

Op. at 31. But instead, the issue that we confront in this appeal is whether Folkes’s

ineffective-assistance-of-counsel claim, which necessarily incorporated a duty-to-consult 1

argument, was fairly presented to the state court, and properly before the district court.

Confronting this issue, the district court recognized that the facts in this matter tell a

compellingly troubling story.

It is undisputed that Folkes, an indigent defendant, was abandoned, without notice,

by his lawyer before his appeal was resolved. And not only was he left in the dark about

the outcome of his direct appeal, but he was also misinformed of the status of his case and

his remaining rights. Because the district court correctly addressed the issue, used the

proper standard of review, and came to the correct decision as to counsel’s constitutional

duties, I would affirm.

1 It is important to define what “consult” means in this context. Traditionally, courts have defined “consult” to mean “advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant’s wishes.” Roe v. Flores-Ortega,

528 U.S. 470, 471

(2000). However, for purposes of this dissent, I use the term “consult” in a more pared-down sense—referring only to counsel’s duty to inform the client about the court’s resolution of his claim and advise him of his next step for appeal.

50 I.

In 2008, a jury found Folkes guilty of assault and battery with intent to kill. The trial

court sentenced him to life in prison without parole pursuant to South Carolina’s “three

strikes” law. See Folkes v. Nelsen (Folkes II), No. 2:19-CV-0760-RMG,

2021 WL 62577

at *1 (D.S.C. Jan. 7, 2021);

S.C. Code Ann. § 17-25-45

(2015); Response Br. at 3. Folkes

challenged his conviction via direct appeal. On September 24, 2010, the South Carolina

Court of Appeals affirmed his conviction in a one-paragraph, per curiam opinion. State v.

Folkes, No. 2010-UP-420,

2010 WL 10080232

, at *1 (S.C. Ct. App. Sept. 24, 2010).

Like all South Carolina criminal defendants, Folkes had the option to pursue

discretionary review of the Court of Appeals’ ruling—first by filing a petition for rehearing

in that court, and then by seeking certiorari from the state Supreme Court. S.C. App. Ct. R.

242; see Douglas v. State,

631 S.E.2d 542, 543

(S.C. 2006). Under South Carolina

procedure, the state Supreme Court will not review a Court of Appeals’ decision “until the

petition for rehearing or reinstatement has been acted on by the Court of Appeals.” S.C.

App. Ct. R. 242(c). Though facing a life sentence, Folkes did not pursue further review.

The reason that he did not pursue further review is now apparent. During his state

appeal, Folkes was represented by Celia Robinson, an attorney for the South Carolina

Commission of Indigent Defense (“the Commission”). Robinson wrote Folkes’s appellate

brief. However, she left the Commission on September 14, ten days before the Court of

Appeals issued its decision. No one ever informed Folkes of Robinson’s departure.

Robinson never officially withdrew as Folkes’s counsel, and no one else from the

Commission formally took over his case. Then, on September 28, two weeks after

51 Robinson resigned and four days after the Court of Appeals’ decision, Folkes received a

letter bearing Robinson’s signature and typed on Commission letterhead. 2 The letter

explained that the Court of Appeals had denied his petition for writ of certiorari and that

Folkes had “exhausted [his] state court remedies.” J.A. 777. The letter further explained

that the clock was ticking on his time to file a federal habeas petition. This information was

patently false, as no petition for rehearing or writ of certiorari had ever been filed on

Folkes’s behalf, let alone denied. Significantly, the letter was not from Robinson at all, but

rather was sent by a paralegal who used the incorrect form letter and forged Robinson’s

signature.

After the time to continue with his direct appeal had passed, Folkes filed a pro se

application in state court for postconviction relief. This application was later amended and

expanded by counsel. In his application, Folkes raised over twenty allegations of

ineffective assistance of counsel. Ground 3 of his amended application asserted a claim

based on the failure to file a petition for rehearing. The state postconviction relief (“PCR”)

court conducted an evidentiary hearing at which Folkes, Robinson, and the Commission’s

chief appellate defender, Robert Dudek, testified. At this hearing the facts leading up to,

and resulting in, the failure to file a rehearing petition were examined at length. Indeed,

2 It is not clear from the record whether or when Folkes received the opinion of the South Carolina Court of Appeals. The district court suggested that Folkes was not timely informed of the adverse appellate court decision, at least by any attorney. Folkes II,

2021 WL 62577

, at *8 (“[T]here is no record evidence that any licensed attorney assumed the duties of substitute counsel, including the most basic duties of appellate counsel of informing the Petitioner of the adverse decision, of his right to seek further appellate review, and of the consequences of failing to do so.”); see

id.

at *8–10.

52 much of the testimony at the state evidentiary hearing focused on Robinson’s early

departure, Folkes’s lack of subsequent legal representation, and the erroneous letter.

Dudek confirmed that Robinson left the Commission before the state appellate

opinion was issued. He explained that when an attorney leaves, the “cases are [usually]

reassigned,” J.A. 696, though that did not happen here. He acknowledged that the forged

letter “obviously” “contains an error because it refers to denial of the petition for writ of

certiorari and, in fact, this is a summary unpublished opinion of the court of appeals.” J.A.

696. And Dudek testified that he did not believe he had seen the letter before it went out.

He also admitted he had never read the case transcript and stated he had “no independent

recollection of reviewing” the South Carolina Court of Appeals’ opinion or making any

decisions in Folkes’s case. J.A. 712–14. When probed by counsel, Dudek readily agreed

that there was “nothing in [his] file to indicate that [he] did review this case after the

opinion came out.” J.A. 714.

Similarly, Folkes’s state PCR counsel questioned Robinson about the date of her

departure and whether she believed another attorney would take over her active cases.

Robinson stated that though she thought someone would review her files after she left, that

did not appear to have happened here. Robinson further explained that her paralegal signed

and sent the erroneous letter after her departure and without her knowledge. Folkes himself

testified that he never knew Robinson had stopped representing him and thought the

September 28 letter was signed by Robinson.

The two counsels and Folkes expressed that a rehearing petition should have been

filed. Robinson testified that, had she remained with the Commission, she “certainly”

53 would have filed a petition for rehearing on Folkes’s behalf, as she thought his issue “was

a winner.” J.A. 723–24. And Dudek stated that, while he “wish[ed]” rehearing had been

pursued, he had no specific recollection of reviewing Folkes’s case at the time or making

any decision regarding the merits of further review. J.A. 699–701, 713, 717. Lastly, Folkes

explained that, had he known of the option, he would have wanted to press his appeal

before the state Supreme Court.

On January 14, 2014, the state PCR court dismissed all of Folkes’s claims. In its

factual summary, the state court described these events at length. However, in dismissing

Folkes’s failure-to-file claim, the state court dealt with none of the facts described above

nor the intertwined lack-of-consultation issue. Instead, the state PCR court only addressed

the failure-to-file component. In dismissing this claim, it relied on two U.S. Supreme Court

cases, Wainwright v. Torna,

455 U.S. 586

(1982), and Ross v. Moffitt,

417 U.S. 600

(1974),

for the proposition that “[a]n individual has no constitutional right to the effective

assistance of counsel when seeking discretionary appellate review.” J.A. 800–03. The state

PCR court also cited Douglas v. State,

631 S.E.2d 542

, noting that in South Carolina,

appellate counsel has no duty “to pursue rehearing and/or certiorari following the decision

of the [South Carolina] Court of Appeals in a criminal direct appeal.” J.A. 802–03 (quoting

Douglas, 631 S.E.2d at 543–44). The state court concluded that, because Folkes’s counsel

had no state-law duty to pursue rehearing or certiorari and he had no constitutional right to

effective assistance of counsel during discretionary appellate review anyway, his failure-

to-file claim lacked merit.

54 Folkes then filed a petition for certiorari to the Supreme Court of South Carolina.

This petition outlined all the conduct leading up to the failure to file a rehearing petition,

including Robinson’s departure, Folkes’s subsequent lack of representation, and the

existence of the erroneous, forged letter. The Supreme Court of South Carolina transferred

the appeal to the South Carolina Court of Appeals, which denied the petition on October

16, 2018.

Thereafter, Folkes filed a pro se federal habeas petition, raising the same claims

previously rejected by the state PCR court. Recognizing the severe injustice reflected in

the facts and the intertwined nature of the duty to consult and the duty to file, Judge Gergel

posed a series of factual and legal questions to the parties and ordered further briefing as

to Ground 3. Folkes v. Nelsen (Folkes I), No. 2:19-CV-0760-RMG,

2020 WL 728698

, at

*4 (D.S.C. Feb. 12, 2020); see Folkes II,

2021 WL 62577

, at *5–7. The parties provided

answers and additional briefs.

Judge Gergel understood Ground 3 to “assert[] a claim for ineffective assistance of

appellate counsel from the time of the adverse decision of the South Carolina Court of

Appeals on September 24, 2010[,] until the issuance of remittitur on October 18, 2010.”

Majority Op. at 8 (quoting Folkes II,

2021 WL 62577

, at *4). Finding this issue to have

been raised but not adjudicated in the state PCR court, Judge Gergel undertook de novo

review. See

id. at 9

; Folkes II,

2021 WL 62577

, at *9–10. Ultimately, Judge Gergel

concluded that Folkes had been deprived of effective assistance of counsel at a critical

stage of his direct appeal and was prejudiced by that failure. Folkes II,

2021 WL 62577

, at

*8–10.

55 The majority disagrees, arguing that this expanded interpretation of Ground 3 was

neither properly raised in Folkes’s § 2254 petition nor fairly presented to the state court.

Majority Op. at 17–21. Consequently, the majority asserts that the district court reversibly

erred by considering the claim and impermissibly “circumvent[ing] [the Antiterrorism and

Effective Death Penalty Act of 1996 (‘AEDPA’)] framework.” Id. at 21. The majority

further asserts that even if this issue was properly before us, these events do not amount to

a deprivation of Folkes’s right to effective assistance of counsel, since he had no right to

counsel at the time any error occurred. See id. at 32–34.

The majority errs by considering Folkes’s pro se petition in a vacuum and by

disregarding the extensive and egregious facts clearly implicating a limited duty to consult.

This failure was properly before the state PCR court and the district court. Because the

state PCR court declined to adjudicate the failure-to-consult issue on the merits, the district

court was correct to review the issue de novo. Moreover, because the failures of counsel

occurred during the tail end of Folkes’s first appeal as of right, at which time there is a

constitutional right to counsel, I agree with the district court’s conclusion that Folkes

demonstrated ineffective assistance of counsel.

II.

I turn first to the issue of whether the failure-to-consult argument was properly

before the state PCR Court. The duty to file an appeal, in this instance, includes filing a

petition for rehearing at the appellate court because that is a required step under South

Carolina law before certiorari may be sought. See S.C. App. Ct. R. 242(c)–(d). Because

56 this Court has stated that counsel’s duty to file an appeal and the duty to consult are

intertwined, see Gordon v. Braxton,

780 F.3d 196, 200

(4th Cir. 2015), the failure-to-

consult argument was fairly before the state court.

A “§ 2254 petitioner is required to ‘exhaust’ all state court remedies before a federal

district court can entertain his claims.” Matthews v. Evatt,

105 F.3d 907, 910

(4th Cir.

1997) (quoting

28 U.S.C. § 2254

(b)–(c)), overruled on other grounds by United States v.

Barnette,

644 F.3d 192

(4th Cir. 2011); Picard v. Connor,

404 U.S. 270, 275

(1971)

(collecting cases). Thus, before we may hear a claim, the petitioner must show that the

relevant issues were “fairly presented” to the state courts. Matthews,

105 F.3d at 911

;

Mallory v. Smith,

27 F.3d 991, 994

(4th Cir. 1994) (explaining that petitioner has the

burden to make this showing).

“A claim is fairly presented when the petitioner presented to the state courts the

‘“substance” of his federal habeas corpus claim.’” Matthews,

105 F.3d at 911

(quoting

Anderson v. Harless,

459 U.S. 4, 6

(1982) (per curiam) (citation omitted)). To meet this

requirement, a petitioner must “do more than scatter some makeshift needles in the

haystack of the state court record.” Mallory,

27 F.3d at 995

(quoting Martens v. Shannon,

836 F.2d 715, 717

(1st Cir. 1988)). “To satisfy his burden, the petitioner must show that

‘both the operative facts and the controlling legal principles [were] presented to the state

court.’” Gordon,

780 F.3d at 201

(quoting Jones v. Sussex I State Prison,

591 F.3d 707, 713

(4th Cir. 2010)); Mallory, 27 F.3d at 994–95 (stating that a claim “must be presented

face-up and squarely” and that a “habeas petitioner cannot simply apprise the state court of

the facts underlying a claimed constitutional violation,” but “must also explain how those

57 alleged events establish a violation of his constitutional rights” (first quoting Martens,

836 F.2d at 717

, then citing Anderson,

459 U.S. at 6

)).

Our decision in Gordon v. Braxton is illustrative here. In Gordon, after failing to

timely file a direct appeal, Gordon filed a pro se habeas petition in Virginia state court for

ineffective assistance of counsel arising from his sentencing hearing.

780 F.3d at 199

Gordon later amended the petition to add a sixth claim alleging his trial counsel was

ineffective since he “failed to file an appeal when asked to do so.”

On this claim, the

state PCR court found that Gordon failed to show ineffective assistance since he had merely

inquired about an appeal, instead of directly requesting one.

Id. at 200

. The state court’s

decision thus focused on the failure to file an appeal, “but said nothing about counsel’s

duty to consult.”

His petition for appeal to the Supreme Court of Virginia was denied.

Thereafter, Gordon filed a pro se habeas petition in federal district court.

The

district court dismissed his petition.

On appeal, this Court reversed. We noted that

“Gordon’s claim implicate[d] two related duties entrusted to criminal defense attorneys”:

the duty to file an appeal when so instructed and the duty to consult with a client, even if

no appeal is expressly requested, “when a rational defendant would want to appeal or [the]

client expresses an interest in appealing.”

“Dereliction in either duty,” we advised,

“constitutes deficient performance.”

The State claimed that Gordon failed to exhaust his consultation claim because his

state court petition only mentioned a failure-to-file claim.

We disagreed and held that

the failure-to-consult issue had been fairly presented to the state court.

at 200–02. We

58 found the failure-to-consult issue implicit in the failure-to-file claim, noting that the two

duties fell along a “spectrum” and were often addressed together.

Id. at 201

(citations

omitted). We further explained that facts alleged in the parties’ filings, such as Gordon’s

inquiry “about what could be done after” sentencing, were sufficient to trigger counsel’s

duty to consult.

Moreover, we noted that the “parties’ filings before the state court

referred to Strickland, Flores-Ortega,” and a state Supreme Court decision all of which

discussed the duty to file and the duty to consult.

(citing Strickland v. Washington,

466 U.S. 668

(1984) and Roe v. Flores-Ortega,

528 U.S. 470

(2000)). Thus, because of the

related nature of these duties and the presence of illustrative facts and legal authority in the

record, we found the failure-to-consult theory to have been properly presented. See

id.

201–02.

The facts here are similar. In his state habeas petition, Folkes asserted an ineffective-

assistance-of-counsel claim for appellate counsel’s failure to file a petition for rehearing,

his next step for appeal. As in Gordon, while the exact language of Folkes’s petition did

not separately assert the failure-to-consult issue, a review of the surrounding facts clearly

implicated questions regarding the duty to file and the duty to consult. In Gordon, the

petitioner indicated an interest in an appeal.

Id.

In this case, before he could even express

such an interest, Folkes received a forged letter suggesting that an appeal had already been

filed on his behalf and been denied. In other words, the failure to consult here interfered

with Folkes’s basic understanding of where his case stood and any attempt to request a

rehearing he could or would have made.

59 Tellingly, Dudek and Robinson admitted that they believed a rehearing petition

would have been appropriate and, as Folkes was facing life in prison, it is certainly

reasonable to believe that Folkes would have wished to pursue any appeals available to

him. In fact, Folkes confirmed that he would have wanted to pursue such an appeal. In

short, the facts before the state court implicated a duty to consult since “there [was] reason

to think . . . that a rational defendant would want to appeal” the decision. Flores-Ortega,

528 U.S. at 471

Both the facts and the failure-to-consult argument were thus squarely presented to

the state court within Ground 3 of Folkes’s petition. Like the petitioner in Gordon, Folkes

cited to Strickland and described the egregious facts indicating a failure-to-consult issue

throughout his state-court filings. See Attach. #2 to Return and Mem. to Pet. for Writ of

Habeas Corpus at 281–89, Folkes II,

2021 WL 62577

(No. 2:19-CV-0760-RMG). The facts

implicating the duty to consult were hardly “scatter[ed] . . . makeshift needles in the

haystack of the state court record.” Mallory,

27 F.3d at 995

(quoting Martens,

836 F.2d at 717

). Facts demonstrating counsel’s early departure, Folkes’s lack of subsequent

representation, and the forged letter were front and center at the state PCR court evidentiary

hearing. Thus, the state court was in no way left to divine the failure-to-consult issue from

“[o]blique references . . . lurking in the woodwork,” or “vague whispers . . . [of] a federal

constitutional violation.”

at 995–96. The failure-to-consult aspect of Ground 3 stared

the state PCR court directly in the eyes.

Because the failure-to-consult argument was properly before the state PCR court as

part of Ground 3, Folkes exhausted his state remedies.

60 III.

For similar reasons, the failure-to-consult argument was also properly before the

district court. As noted above, the duty to file and the duty to consult are closely

intertwined, such that arguments raising either one of these duties may exist under one

ineffective-assistance-of-counsel claim through implication, even if one is not specifically

invoked. See Gordon, 780 F.3d at 200–202, 202 n.2. For this very reason, we rejected the

State’s argument in Gordon that the petitioner should have identified counsel’s failure to

consult as a separate claim.

For the following reasons, we should not depart from that

logic now.

To begin, the situation here is akin to that in Gordon. Although, like in Gordon, the

language of Ground 3 only specifically mentioned a failure to file, extensive facts

developed in the record and noted in the state PCR court’s decision clearly implicated

counsel’s duty to consult. So, also like in Gordon, Folkes’s claim here effectively

incorporates a failure-to-consult argument for relief. This notion is further supported by the

fact that, in this case, the duty-to-consult and the duty-to-file theories arise from the same

series of facts, all of which were before the state court when it made its decision. See

Attach. #2 to Return and Mem. to Pet. for Writ of Habeas Corpus at 281–89, Folkes II,

2021 WL 62577

(No. 2:19-CV-0760-RMG). Moreover, both parties have acknowledged

the close relationship between these two duties, as even the State’s counsel at oral argument

initially described these issues as “intertwined” and “part and parcel” of the same claim.

61 Oral Arg. at 3:20–3:32, 4:57–5:20, https://www.ca4.uscourts.gov/OAarchive/mp3/21-

6217-20210917.mp3. 3

Additionally, even if raising a failure-to-file claim would not be enough, on its own,

for a counseled individual to show that he preserved his failure-to-consult argument,

Folkes, like the petitioner in Gordon, filed his § 2254 petition pro se. And “[a] document

filed pro se is ‘to be liberally construed.’” Erickson v. Pardus,

551 U.S. 89, 94

(2007) (per

curiam) (quoting Estelle v. Gamble,

429 U.S. 97, 106

(1976)); United States v. Brown,

797 F. App’x 85

, 89 (4th Cir. 2019) (unpublished but orally argued) (noting that courts “are

obliged to liberally construe filings by pro se litigants”); Fitz v. Terry,

877 F.2d 59

, No.

88-7328,

1989 WL 64157, at *1

(4th Cir. 1989) (per curiam) (“Initially, pro se petitions

are to be given a liberal construction.”). Certainly, this generosity is not without limits.

Courts need not anticipate arguments from fleeting or obscure references and should not

“seek[] out the strongest arguments and most successful strategies for a party.” Beaudett v.

City of Hampton,

775 F.2d 1274, 1278

(4th Cir. 1985). However, we have previously noted

that “liberal construction requires active interpretation in some cases,” Fitz,

877 F.2d 59

1989 WL 64157, at *2

(quoting Franklin v. Rose,

765 F.2d 82, 85

(6th Cir. 1985) (per

curiam)), and that “litigants with meritorious claims should not be tripped up in court on

technical niceties,” Beaudett,

775 F.2d at 1278

3 He later backtracked and stated that they were different issues. Oral Arg. at 6:45– 7:35.

62 Liberally construing Folkes’s pro se petition, as we must, we should find that he

sufficiently raised the failure-to-consult theory.

The first section of the majority opinion focuses on strict adherence to procedural

rules. Relying primarily on Samples v. Ballard,

860 F.3d 266

(4th Cir. 2017), the majority

holds that Folkes never properly raised the failure-to-consult argument as a separate claim

in his § 2254 petition. Majority Op. at 11–21. According to the majority, we should strictly

construe the language of Folkes’s pro se petition and only consider the exact wording—

“fail[ure] to file a Petition for Rehearing”—when determining the scope of his claim. Id.

at 4 (quoting J.A. 679); see id. at 19. However, this interpretation stretches Samples too far

and undercuts the reasoning of our earlier decision in Gordon. 4

First, the facts giving rise to our decision in Samples are not similar to those before

us now. In Samples, this Court considered whether a magistrate judge abused their

discretion in refusing to hear new ineffective-assistance-of-counsel claims admittedly

raised for the first time in objections to the magistrate’s proposed findings and

recommendations. Samples, 860 F.3d at 268–270, 274–76. That is simply not the context

we have here.

4 These opinions need not conflict, but to the extent the majority believes they do, when there are “conflicts between panel opinions, application of the basic rule that one panel cannot overrule another requires a panel to follow the earlier of the conflicting opinions.” McMellon v. United States,

387 F.3d 329, 333

(4th Cir. 2004).

63 Second, to the extent Samples stands for the proposition that petitioners, even pro

se petitioners, should state the claimed grounds of relief discretely, see

at 274–75, this

general principle cannot override Gordon’s holding that these duties are so intertwined that

raising one necessarily implicates the other. The majority stresses that in Samples, we

explained that the petitioner’s “express reliance on [his initial] four claims of ineffective

assistance of counsel” were “to the exclusion of other claims of ineffective assistance of

counsel.”

at 275 (citing Mayle v. Felix,

545 U.S. 644, 661

(2005), for the proposition

that different habeas claims “must be pleaded discretely”); see Majority Op. at 13–14, 17–

19. Thus, the majority concludes that Folkes defaulted on the failure-to-consult theory by

not raising it as a separate claim. Majority Op. at 17–21. But this conclusion stretches

Samples beyond its context and, in doing so, runs counter to Gordon. Gordon, 780 F.3d at

200–02. Consequently, Samples does not control in this case.

Lastly, the majority contends that the Supreme Court decision in Wainwright

involved “a claim identical” to that at issue here, thus prohibiting the application of

Gordon’s reasoning to the duties of appellate counsel in wrapping up a direct appeal.

Majority Op. at 27. I disagree. Wainwright held that a defendant could not be “deprived of

the effective assistance of counsel by his retained counsel’s failure to file the application

timely” because he had “no constitutional right to counsel” for a discretionary appeal. 455

U.S. at 587–88. But the Court in Wainwright had no reason to discuss any limited duty of

consultation because the defendant’s counsel “promised him that he would seek review in

the Florida Supreme Court.” Id. at 589 (Marshall, J., dissenting). Thus, in Wainwright, it

appears that counsel spoke with his client about the opportunity and need to appeal. See id.

64 By contrast, here, neither Robinson nor any other attorney ever spoke with Folkes

about the outcome of his direct appeal or the chance to file a petition for rehearing. Folkes

II,

2021 WL 62577

, at *4 (“What is undisputed is that . . . no attorney advised [Folkes] of

the adverse decision of the Court of Appeals or of his right to seek further appellate

review.”). Indeed, no lawyer was officially representing Folkes at all during this time.

Therefore, I disagree that Wainwright forecloses a limited duty to consult or severs all ties

between the duty to consult and the duty to file at the appellate stage.

The majority also faults Folkes for not using precise language or adhering strictly

to all § 2254 filing requirements. Majority Op. at 17–21. And the majority’s belief that it

is tightly bound by these procedural rules is understandable. There are certainly reasons to

require petitions, even pro se petitions, to adhere to these standards. But we should hesitate

to draw such harsh lines where we are not truly obligated to do so. Courts should not be

forced to sit by though clear injustice stares us in the face due to a self-imposed,

unnecessarily strict application of procedural rules. The district court exercised discretion

and common sense to address the injustice clearly present in the facts before it. Because

Folkes’s claim included the failure-to-consult theory, we should too.

IV.

Having found that the claim was properly presented under these extraordinary facts,

the next step is to determine whether the state court adjudicated the failure-to-consult issue

on the merits. It did not.

65 Under AEDPA, a federal court may only grant a state prisoner habeas relief “with

respect to any claim that was adjudicated on the merits” if the state court’s decision “was

contrary to . . . clearly established [f]ederal law”; “involved an unreasonable application”

of such law; or “was based on an unreasonable determination of the facts” in light of the

record before the state court.

28 U.S.C. § 2254

(d); see, e.g., Harrington v. Richter,

562 U.S. 86, 100

(2011). However, if a state court fails to adjudicate the merits of a claim, then

the “gloves come off” and federal courts may review the claim de novo. Valentino v.

Clarke,

972 F.3d 560, 576

(4th Cir. 2020) (“[I]f a state court shuns its primary

responsibility for righting wrongful convictions and refuses to consider claims of error, the

weighty concerns of federalism and comity are diminished.”); see Gordon,

780 F.3d at 202

Whether the state court adjudicated the failure-to-consult issue on the merits “is a

case-specific inquiry,” Winston v. Pearson,

683 F.3d 489, 496

(4th Cir. 2012), and “a legal

question that we review de novo,” Valentino,

972 F.3d at 576

. If a claim has been presented

and denied by a state court, “it may be presumed that the state court adjudicated the claim

on the merits in the absence of any indication . . . to the contrary,” even if it did not give

reasons for its opinion. Harrington,

562 U.S. at 99

. The petitioner bears the burden of

“overcoming this ‘strong but rebuttable’ presumption.” Valentino,

972 F.3d at 576

(quoting

Johnson v. Williams,

568 U.S. 289, 301

(2013)). However, this presumption is not

insurmountable and “may be overcome when there is reason to think some other

explanation for the state court’s decision is more likely.” Harrington, 562 U.S. at 99–100.

Here, Folkes met this burden. The facts before the state PCR court “clearly

implicated [counsel’s] duty to consult, which the state court did not address at all.” Gordon,

66 780 F.3d at 203–04. While the state court acknowledged the facts implicating a duty to

consult and discussed appellate counsel’s duty when seeking discretionary review, it said

“nothing at all” in its analysis about Robinson’s departure prior to the issuance of the Court

of Appeals’ opinion, the fact that no lawyer informed Folkes of the outcome of his appeal,

or the misinformation provided by the forged form letter. Id. at 202 (finding that the state

court failed to adjudicate the failure-to-consult issue on the merits since it (1)

“unreasonably truncated further factual development” on that issue and (2) “said nothing

at all about [petitioner’s] assertion that [counsel] failed to consult with him”). And the cases

upon which the state court relied do not clearly define what duties appellate counsel owes

to an indigent defendant before the ink dries on their direct appeal opinion, let alone in the

weeks before any opinion is issued. See Porter v. Zook,

898 F.3d 408, 425

(4th Cir. 2018)

(finding the state habeas court failed to address a claim on the merits where it “did not

recognize the governing legal principle[s]” and failed to recognize the distinction between

two separate claims).

The notable lack of analysis on this issue gives “reason to think some other

explanation for the state court’s decision is more likely” than an assumption that it

adjudicated it on the merits. Harrington, 562 U.S. at 99–100. This is particularly true when

one considers the state court’s repeated reference only to the failure to file the petition

itself, excluding all conduct leading up to and effectuating that failure. The combination of

67 these considerations indicates that, contrary to implicitly adjudicating the issue, the state

PCR court never decided the failure-to-consult issue at all. 5

Consequently, the state PCR court failed to adjudicate the claim on the merits.

Because the state PCR court did not adjudicate the failure-to-consult issue on the

merits, the district court, and this Court, owe “no deference to the state court’s ruling.”

Gordon,

780 F.3d at 204

. Instead, we must review de novo the question of whether

counsel’s failure to consult constituted ineffective assistance.

Id. at 202

However, before reaching the merits of this argument, this Court must first

determine, as the district court did, whether any right to counsel exists at the time the

alleged failure occurred. If such a right does exist, then Folkes must demonstrate that

counsel’s failure was objectively unreasonable and resulted in prejudice. Bostick v.

Stevenson,

589 F.3d 160, 166

(4th Cir. 2009) (citing Strickland, 466 U.S. at 688–90). I turn

first to the foundational issue of whether Folkes had any constitutional right to

representation at the time of appellate counsel’s failure to consult with him.

To have a Sixth Amendment claim for ineffective assistance of counsel, a defendant

must first have the right to counsel. Wainwright, 455 U.S. at 587–88 (explaining that a

5 The State argues otherwise. But notably, most of the cases cited by the State to give support for the notion that the state PCR court considered the failure-to-consult issue and adjudicated it reasonably, appear nowhere in the state PCR court’s analysis of the issue.

68 defendant who has “no constitutional right to counsel . . . [cannot] be deprived of the

effective assistance of counsel”). A defendant is entitled to effective assistance of counsel

during a direct appeal as of right, just as he is so entitled at trial. 6 E.g., Smith v. Robbins,

528 U.S. 259

, 275–76 (2000); Douglas v. California,

372 U.S. 353

, 357–58 (1963); Tisdale

v. State,

594 S.E.2d 166, 167

(S.C. 2004). But a criminal defendant has no constitutional

right to counsel in the pursuit of “discretionary appeals” beyond a “first appeal as of right.”

Moffitt,

417 U.S. at 607, 612, 619

; see Wainwright,

455 U.S. at 587

The majority posits that Supreme Court precedent establishes that the right to

counsel on appeal truly pertains only to counsel’s duty to present the client’s case on appeal

and mandates that said duty terminates before a defendant even knows the outcome of his

first appeal. Majority Op. at 24–30, 32–38. I disagree.

Supreme Court precedent certainly establishes that a criminal defendant (1) has a

constitutional right to have an appellate lawyer file a brief and support him in presenting

his case during his direct appeal, see, e.g., Evitts v. Lucey,

469 U.S. 387, 394, 396

(1985),

and (2) has no right to have counsel file for a discretionary appeal, Wainwright,

455 U.S. 6

The Sixth Amendment, made applicable to the States via the Fourteenth Amendment, establishes a defendant’s right to counsel at the trial level and guarantees the right to effective assistance of counsel. Evitts v. Lucey,

469 U.S. 387, 392

(1985). The right of an indigent criminal defendant to counsel at the appellate level, by contrast, is grounded in the Equal Protection and Due Process Clauses of the Fourteenth Amendment. United States v. Marshall,

872 F.3d 213, 217

(4th Cir. 2017). Despite this difference, where “a convicted defendant elects to appeal, he retains the Sixth Amendment right to representation by competent counsel.” McCoy v. Ct. of Appeals of Wis.,

486 U.S. 429, 436

(1988); accord Evitts,

469 U.S. at 396

(“A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.”).

69 at 587–88. But this sets out only a floor and a ceiling—and what duties may exist in the

space between these two parameters is not as settled as the majority suggests. 7

As the district court acknowledged, whether the duty to consult—in this case to

notify and advise a defendant of an adverse appellate decision and his remaining

recourses—constitutes part of a direct appeal or the first step of a discretionary appeal,

remains an open and debated question. Folkes II,

2021 WL 62577

, at *9. Indeed, our sister

circuits have taken conflicting positions on this issue.

Several circuits have adopted an approach in line with that espoused by the majority

and found that counsel is not required either to notify their client of an adverse appellate

decision or to advise them of the existence of remaining appeals or other avenues of relief.

See, e.g., Miller v. Keeney,

882 F.2d 1428

, 1430–33 (9th Cir. 1989) (rejecting an

ineffective-assistance claim based on appellate counsel’s incorrect advice on subsequent

appeals resulting in defendant’s forfeiture thereof, explaining that when counsel gave

defendant faulty advice, “she was no longer acting as counsel for his first appeal as of right;

that appeal was long since gone, and with it went [defendant]’s constitutional right to the

7 It is true that many of the Supreme Court’s cases “dealing with the right to counsel—whether at trial or on appeal—have often focused on the defendant’s need for an attorney to meet the adversary presentation of the prosecutor.” Evitts, 469 U.S. at 394–95 n.6. But appellate representation requires more than simply filing a brief and then running for the hills. After all, another “aspect of counsel’s role” is “that of [an] expert professional whose assistance is necessary in a legal system governed by complex rules and procedures for the defendant to obtain a decision[.]”

The question at issue here is simply where to draw the line. The majority would end appellate counsel’s duties the second the court enters its decision, even though a defendant has not yet obtained the results. As explained below, I do not believe this line must be drawn with same the brushstroke as the docket entry.

70 effective assistance of counsel”); Pena v. United States,

534 F.3d 92

, 94–96 (2d Cir. 2008)

(rejecting the argument that a first-tier appeal “encompasses a requirement that his attorney

inform him of the possibility of certiorari review and assist him with filing a petition” as

“ingenious, but wrong” (quoting Chalk v. Kuhlmann,

311 F.3d 525, 529

(2d Cir. 2002)));

Moore v. Cockrell,

313 F.3d 880

, 881–82 (5th Cir. 2002) (rejecting a defendant’s claim

that his appellate counsel was ineffective for “failing to notify him timely of the outcome

of his direct appeal,” thereby preventing him from filing a timely discretionary appeal,

because the “constitutionally secured right to counsel ends when the decision by the

appellate court is entered”); cf. Steele v. United States,

518 F.3d 986, 988

(8th Cir. 2008)

(finding no constitutional ineffective-assistance-of-counsel claim where the appellate

attorney sent a letter to the defendant informing her of his decision not to file a petition for

writ of certiorari, but not informing her of the procedure and time limits for filing a

certiorari petition pro se).

The Sixth Circuit, however, has leaned away from such a harsh rule, finding that the

Constitution requires counsel to notify a defendant of the outcome of his direct appeal and

that a failure to do so “constitutes constitutionally deficient performance.” Smith v. Ohio

Dep’t of Rehab. & Corr.,

463 F.3d 426, 435

(6th Cir. 2006); see

id. at 433

. In Gunner v.

Welch, a Sixth Circuit panel extended this right to hold that an appellate attorney had a

constitutional duty to inform his client of the existence of and deadlines for collateral relief,

71 even though counsel had no duty to file the application itself. 8

749 F.3d 511

, 517–19 (6th

Cir. 2014). The Fourth Circuit has yet to decide this issue, but the district court found the

Sixth Circuit’s reasoning in Smith persuasive. Because a defendant is entitled to effective

assistance throughout his entire first appeal as of right, I agree.

The Supreme Court has recognized that the right to representation is a “fundamental

component of our criminal justice system” and that “[l]awyers in criminal cases ‘are

necessities, not luxuries.’” United States v. Cronic,

466 U.S. 648, 653

(1984). In fact, “[o]f

all the rights that an accused person has, the right to be represented by counsel is by far the

most pervasive for it affects his ability to assert any other rights he may have.”

Id.

at 654

(quoting Walter V. Schaefer, Federalism and State Criminal Procedure,

70 Harv. L. Rev. 1

, 8 (1956)). The appointment of counsel is not intended to be a “sham” or token tip of the

hat to the constitutional requirement.

Id. at 654

. Thus, the right to counsel necessarily

ensures the right to effective assistance of counsel at all critical stages.

Id. at 654, 659

; see

Penson v. Ohio,

488 U.S. 75, 88

(1988).

8 The majority distinguishes Gunner by noting that it (1) discussed a right to initial review on collateral proceedings for which the Supreme Court in Martinez v. Ryan recognized that there “may” be a constitutional right to counsel, and (2) is not controlling Sixth Circuit precedent. Majority Op. at 43 (emphasis omitted) (quoting Martinez v. Ryan,

566 U.S. 1

, 8–9 (2012)); see

id.

at 43–48. But, as the majority admits, the Gunner panel stated that it would find the same duty “even before the holding in Martinez.”

749 F.3d at 519

; see Majority Op. at 44–45. Moreover, while the majority is correct that Gunner is not controlling Sixth Circuit law, Majority Op. at 45–48, it need not be for the reasoning employed by the Gunner panel to be logically persuasive—which is the sole question we must consider in looking to out-of-circuit precedent anyway.

72 It does not automatically follow that because a defendant has no right to counsel in

pursuing a discretionary appeal, he has no right to counsel in the conclusion of his direct

appeal. Because a combination of the Sixth Circuit’s approach in Smith and the panel’s

reasoning in Gunner accounts for this narrow distinction, those views are the most

persuasive among those expressed by our sister circuits. As the Sixth Circuit has repeatedly

recognized, appellate counsel’s duties do not end after filing briefs or even after the opinion

is issued. Instead, the Sixth Circuit has explained that “[b]ecause a defendant is entitled to

effective assistance of counsel on direct appeal, such an individual must be accorded

effective assistance of counsel throughout all phases of that stage of the criminal

proceedings.” Smith,

463 F.3d at 433

(quoting White v. Schotten,

201 F.3d 743

, 752–53

(6th Cir. 2000), overruled on other grounds by Lopez v. Wilson,

426 F.3d 339, 341

(6th

Cir. 2005) (en banc)).

Consequently, I believe this duty encompasses notifying a defendant of the outcome

of a proceeding and advising the client about the existence of further appeals. See Gunner,

. The “Constitution requires ‘that counsel make objectively reasonable

choices,’ . . . not only during the legal proceeding for which the counsel represents the

client, but also after the judicial proceeding has concluded in determining whether an

appeal should be filed.” Smith, 463 F.3d at 433–34 (quoting Flores-Ortega,

528 U.S. at 479

). So, where counsel “delay[s] in informing [a] defendant of the decision on his first

appeal of right” and “fail[s] to communicate to his client how to proceed with further

appeals, it cannot fairly be said that [the defendant] truly had his first appeal of right.”

Gunner,

(internal quotations omitted). Though the duty to consult and the

73 duty to file are closely intertwined and often considered in tandem, they are distinct legal

obligations—counsel may violate one without running afoul of the other. See

id. at 519

Thus, while a defendant cannot “complain of the failure of counsel to file an application

for relief to which the Constitution did not entitle him, . . . that is an altogether different

question from whether a defendant can complain about the failure of counsel to advise him

of relief that may be available to him or of the necessity to proceed expeditiously if he

wishes to obtain such relief.”

This is precisely the situation we have before us now.

At a minimum, the scope of a direct appeal includes a constitutional duty of defense

counsel to notify a defendant of the ultimate resolution of that direct appeal. See Smith,

463 F.3d at 433

. 9 “The court’s ultimate decision regarding a particular legal proceeding is part

of that legal proceeding, and [defense] counsel’s duties in representing a client during that

legal proceeding include the duty of informing her client of the outcome of the proceeding.”

Id.; cf. Ex parte Wilson,

956 S.W.2d 25, 27

(Tex. Crim. App. 1997) (discussing state code,

state case precedent, and U.S. Supreme Court precedent and finding that since “the scope

of the right to counsel is governed by the right to which it attaches[, i]t makes sense that

counsel on direct appeal must inform a defendant of the result of the appeal”). Accordingly,

9 In finding that a defendant did not require an attorney to pursue discretionary appeals, the Supreme Court noted that a defendant at such a stage will have access to the relevant materials—including the disposition of the Court of Appeals—required to file a petition. See Ross,

417 U.S. at 615

(“At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case.”). While a defendant may benefit from counsel at any stage, he is sufficiently equipped with these materials to file a petition on his own. But the issue still remains: without notice of an adverse decision, there is nothing for a pro se defendant to appeal.

74 “a decision cannot be logically separated from the proceeding itself; it is the necessary end

point of a single process.” Gunner v. Welch, No. 3:09 CV 3009,

2011 WL 10467929

, at *8

(N.D. Ohio Mar. 29, 2011), report and recommendation adopted, No. 3:09 CV 03009,

2013 WL 774154

(N.D. Ohio Feb. 28, 2013), rev’d and remanded on other grounds,

749 F.3d 511

(6th Cir. 2014). “The mouth and the source are different points, but manifestly a

single river. As such, if the [C]onstitution requires counsel when a defendant journeys on

the river, counsel’s responsibilities include, in essence, making the full trip.”

Failing to

acknowledge counsel’s duty to inform a defendant of an appellate court’s ultimate

resolution of his case essentially allows counsel to hurl his client overboard before reaching

the safety of the docks. 10 This cannot be consistent with what our Constitution requires.

Similarly, the right to counsel on direct appeal includes some duty to consult, even

if in a more limited fashion than what is required at the trial stage. As such, counsel must

inform a defendant of the next stage of appeals and any corresponding procedural

requirements, even if we do not require them to offer any advice on the merits of pursuing

10 A defendant who is uninformed of the appellate court’s decision, through no fault of his own, cannot reasonably be expected to timely pursue an appeal of his own accord. After all, if a defendant is not notified by anyone of the outcome of his case, he does not even know that there is anything to appeal—let alone the date on which his time to appeal began to run. See Smith,

463 F.3d at 434

(“The only way that [the defendant] could have learned of the unpublished decision of the Ohio Court of Appeals affirming his conviction was if his counsel notified him. When she failed to do so, [the defendant] was without any means of notice of the decision and thus did not and could not know that the . . . deadline for filing a notice of appeal . . . had started to run.”).

75 further relief. 11 See Gunner,

(“[J]ust as the debt collector was obligated to

inform his principal of the necessity to take immediate legal steps to collect the debt, even

though he was not obligated to take those legal steps, [counsel] was obligated to

communicate comparable information to petitioner.”). Criminal law is complex. The

majority sets the bar too high by requiring a pro se, indigent, and imprisoned defendant,

who is without knowledge that the direct appeal has ended and under the reasonable belief

that he is represented by counsel, to retain alternative counsel 12 and file a timely appeal.

Requiring counsel to merely inform a defendant of when their next ship will depart

is a far cry from requiring counsel to serve as the captain of that ship. See

(explaining

that where appellate counsel “knew or should have known that this proceeding had to be

brought within 180 days of the date on which the trial transcript was filed with the Ohio

11 Compare Paris v. Turner, No. 97–4129,

1999 WL 357815

, at *3 (6th Cir. May 26, 1999) (unsigned order) (finding ineffective assistance of counsel sufficient to excuse procedural default where petitioner’s counsel “on his appeal of right gave him no guidance on how to further appeal and failed to develop the legal issues that would most likely allow [him] to succeed” and noting that “it would be unjust to blame a layman” for appellate counsel’s failure since “[t]hey did not inform him that he was in danger of procedural default and as a layman it would not be evident to him that his claim might procedurally expire while in the hands of the Public Defender”), with Hale v. Burt,

645 F. App’x 409, 417

(6th Cir. 2016) (“There is no principled difference between having counsel represent a defendant during a second, discretionary appeal and having counsel advise a defendant on whether or not to seek a second, discretionary appeal, and a criminal defendant does not have a constitutional right to counsel to pursue second, discretionary state appeals.”). 12 At the PCR hearing, Dudek testified that the South Carolina Court of Appeals “no longer accept[s] pro se petitions for rehearing.” J.A. 698–99. Robinson concurred, stating that the appeals court “at some point . . . stopped accepting” pro se rehearing petitions. J.A. 717–18. Neither party challenged this interpretation of state procedural rules in briefing. Assuming this is true, Folkes needed to retain alternative counsel to file a brief on his behalf—something he could only do if he knew it was necessary. 76 Court of Appeals, and he also knew that his client would surely have not known when the

trial transcript was filed or of the necessity to take immediate legal steps,” he was

“obligated to communicate” that information to the petitioner, even though he had no

obligation to pursue the next steps himself); see also

id. at 519

. In short, counsel should be

required, as part of a defendant’s direct appeal, to at least inform his client of what the

immediate next step may be, as well as any applicable time limits or procedural

requirements. See

at 517–19.

Adopting a contrary approach leads to unsettling results. A rule that releases

appellate counsel from all constitutional obligations the moment an opinion is issued, or in

this case ten days before that point, seems unduly harsh and out of step with the duties

required of counsel in parallel circumstances. What sense does it make to equip an indigent

defendant with counsel, who zealously pursues an appeal, only to leave him in the dark

about the outcome? Or to only inform a defendant sitting in prison, facing a lifetime behind

bars, of the outcome of his direct appeal so late that any further review is foreclosed? The

constitutional right to appellate counsel must cover more than merely filing the briefs and

allowing counsel to depart without a word. Otherwise, an indigent defendant has no

meaningful recourse as we would effectively put the onus on criminal defendants to be

ready to fend for themselves at all times, since if counsel withdraws without notice, it is

the defendant whose rights are sacrificed. That is precisely what happened here.

The foregoing discussion shows why the Sixth Amendment requires counsel to

notify an indigent defendant of the outcome of his direct appeal and advise the defendant

77 of the next potential avenue for appeal. Thus, because there is a right to counsel during all

stages of the direct appeal, the next question is whether Folkes has successfully showed he

was deprived of effective assistance of counsel. He has.

To prove ineffective assistance of counsel, a petitioner “must show [(1)] that

counsel’s performance was . . . objectively unreasonable under prevailing professional

norms and (2) that petitioner was prejudiced by that deficient performance.” Bostick,

589 F.3d at 166

(citing Strickland, 466 U.S. at 688–90).

Under the first Strickland prong, a court must ask “whether counsel’s assistance was

reasonable considering all the circumstances.” Strickland,

466 U.S. at 688

. The rules

reflected in the American Bar Association standards “are guides to determining what is

reasonable,” though they are not dispositive.

Id.

at 688–69. Our review of counsel’s

performance “must be highly deferential.”

Id. at 689

Here, there can be no question that appellate counsel’s actions were objectively

unreasonable. Before a decision was even issued, appellate counsel left her job and failed

to inform either Folkes or the court of her departure, despite ethical obligations to do so.

See S.C. App. Ct. R. 264. The record suggests that no one at the Commission reviewed

Folkes’s case, let alone informed him of a change in representation, leaving him

constructively unrepresented during the tail end of his appeal. Then when an unpublished

per curiam opinion came down, no attorney informed Folkes of the adverse decision

against him or consulted with him at all. Folkes II,

2021 WL 62577

, at *4 (“What is

undisputed is that neither Mr. Dudek nor any other attorney moved to be substituted as

78 Petitioner’s counsel upon Ms. Robinson’s departure and that no attorney advised Petitioner

of the adverse decision of the Court of Appeals or of his right to seek further appellate

review.”); see Standards for Crim. Just.–Def. Function § 4-9.2(i) (Am. Bar Ass’n 2017),

https://www.americanbar.org/groups/criminal_justice/standards/DefenseFunctionFourth

Edition/ (stating that “[i]f appellate counsel’s representation ends but further appellate

review is possible, appellate counsel should advise the client of further options and

deadlines, such as for a petition for certiorari”) (saved as ECF opinion attachment);

Gunner,