 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 4, 2016            Decided December 6, 2016

                        No. 15-3030

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

        LARRY A. GOOCH, JR., ALSO KNOWN AS GOO,
                     APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:04-cr-00128)


    Paul S. Rosenzweig, appointed by the court, argued the
cause and filed the briefs for appellant.

     Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Elizabeth Trosman
and Elizabeth H. Danello, Assistant U.S. Attorneys. Suzanne
G. Curt, Assistant U.S. Attorney, entered an appearance.

   Before: KAVANAUGH and WILKINS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge WILKINS.
                               2
     WILKINS, Circuit Judge: Appellant Larry Gooch, Jr. is
currently serving a prison sentence resulting from convictions
for a number of crimes, including four felony murders. We
upheld those convictions on direct appeal. See United States
v. Gooch, 665 F.3d 1318 (D.C. Cir. 2012). In a subsequent
motion to the District Court, under 28 U.S.C. § 2255, Gooch
alleged ineffective assistance of counsel at trial. The District
Court denied Gooch’s motion but issued a certificate of
appealability as to his claim of ineffective assistance of trial
counsel in conducting cross-examination of a police detective.

     After concluding that we have jurisdiction to consider
this appeal, we affirm the District Court’s denial of Gooch’s
§ 2255 motion.

                               I.

    In 2007, Gooch was convicted of numerous crimes in
connection with his involvement in the “M Street Crew”
gang. Gooch appealed to this Court and his conviction was
upheld. Gooch later filed a pro se motion under 28 U.S.C.
§ 2255 collaterally attacking his conviction on a number of
grounds, all alleging ineffective assistance of counsel. This
motion was denied by the District Court in a March 7, 2014
opinion. See United States v. Gooch, 23 F. Supp. 3d 32
(D.D.C. 2014).

     On March 31, 2014, Gooch, acting pro se, submitted a
filing to the District Court, entitled “Request for Extension of
Time,” asking the District Court to grant an “extension of
time of 60-days to file a Certificate of Appealability.” His
request stated that, “[b]ecause Mr. Gooch is unlearned in the
law, he will require more time to properly research and
prepare his Certificate of Appealability” and requested “an
extension of time of 60 days within which to file his
                                   3
Certificate of Appealability.” 1 J.A. 174. After receiving
Gooch’s filing, the District Court issued a certificate of
appealability on April 3, 2014 with respect to Gooch’s claim
of ineffective assistance of trial counsel in conducting a cross-
examination of a detective at trial. The District Court
construed Gooch’s “Request for Extension of Time” as a
motion for extension of time to file a notice of appeal under
Federal Rule of Appellate Procedure 4(a)(5)(A)(i) and granted
“an extension to file within sixty days of this Certificate.”
J.A. 177.

     In the midst of what the District Court later referred to as
“downsizing, job sharing and sequestration,” the Clerk’s
Office apparently failed to mail Gooch a copy of the District
Court’s certificate and order. J.A. 212. On January 26, 2015
– nearly 10 months after Gooch filed his “Request for
Extension of Time” – Gooch filed a letter inquiring about the
status of his earlier request. The District Court construed this
letter as a motion for extension of time to file a notice of
appeal under Federal Rule of Appellate Procedure 4(a)(5) or,
alternatively, as a motion to reopen the time to appeal under
Rule 4(a)(6). In a January 28, 2015 Order, the Court denied
the motion.

     After filing additional motions with the District Court in
February 2015, Gooch filed a motion for leave to appeal with
this Court on April 27, 2015. On June 15, 2015, the
Government filed a motion to dismiss Gooch’s appeal for lack
of a certificate of appealability.



1
  Presumably, Gooch was referring to filing an application for a
certificate of appealability, as the certificate itself is issued by the
District Court.       See RULES GOVERNING SECTION 2255
PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS 11(a).
                               4
                               II.

    We begin, as we must, with the question of whether we
have jurisdiction to hear Gooch’s appeal.

     Under Rule 3 of the Federal Rules of Appellate
Procedure, “[a]n appeal permitted by law as of right from a
district court to a court of appeals may be taken only by filing
a notice of appeal with the district clerk within the time
allowed by Rule 4.” FED. R. APP. P. 3(a)(1). Under Rule 4, in
a civil case to which the United States is a party, a notice of
appeal is considered timely if it is filed “within 60 days after
entry of the judgment or order appealed from.” 2 FED. R. APP.
P. 4(a)(1)(B). The timely filing of a notice of appeal is
“mandatory and jurisdictional”; no appeal can be heard unless
the requirements for filing a notice of appeal have been met.
United States v. Palmer, 296 F.3d 1135, 1143 (D.C. Cir.
2002) (quoting Browder v. Dir., Dep’t of Corr., 434 U.S. 257,
264 (1978)).

     Gooch made only one filing in the 60 days following the
District Court’s denial of his § 2255 motion: his “Request for
Extension of Time.” Although this document was not styled
as a notice of appeal, it nonetheless may satisfy Rule 3 if it is
the “functional equivalent” of what the rule requires. Smith v.
Barry, 502 U.S. 244, 248 (1992). In order to serve as the
“functional equivalent” of a notice of appeal, the document
must contain the contents required by Rule 3(c) and
“specifically indicate the litigant’s intent to seek appellate
review.” Id. at 248-50.


2
  Appeals of § 2255 motions are governed by Rule 4(a), which
applies to civil cases, rather than Rule 4(b), which applies to
criminal cases. See United States v. Palmer, 296 F.3d 1135, 1142-
43 (D.C. Cir. 2002).
                               5
     Rule 3(c)(1) contains three requirements, each of which
is satisfied or excused in this case. First, the filing must
“specify the party . . . taking the appeal by naming each one in
the caption or body of the notice.” FED. R. APP. P. 3(c)(1)(A).
The “Request for Extension of Time” identified Gooch in the
caption and therefore meets this requirement. Second, the
filing must “designate the judgment, order, or part thereof
being appealed,” FED. R. APP. P. 3(c)(1)(B), which was
accomplished by the document’s explicit reference to the
District Court’s denial of Gooch’s § 2255 motion on March 7,
2014. While the “Request for Extension of Time” does not
“name the court to which the appeal is taken,” – which is the
third and final requirement, FED. R. APP. P. 3(c)(1)(C) –
failures to meet this requirement are excused where there is
only one court to which the appeal can be taken, which is the
case here. See Anderson v. District of Columbia, 72 F.3d 166,
168-69 (D.C. Cir. 1995) (per curiam).

     The remaining question is whether the “Request for
Extension of Time” sufficiently expresses an intent to appeal.
Gooch’s filing contained the following statements and
request:

    1. On March 7, 2014, this Honorable Court denied
    Mr. Gooch’s motion pursuant to 28 U.S.C. § 2255. In
    its denial, the Court did not hold that it would not
    issue a Certificate of Appealability. He has 14 days
    to file COA.

    2. Because Mr. Gooch is unlearned in the law, he
    will require more time to properly research and
    prepare his Certificate of Appealability.

    WHEREFORE, for the foregoing reasons, in the
    interest of justice and principles of equity and
                               6
    fairness, Mr. Gooch respectfully requests that this
    Honorable Court GRANT an extension of time of 60
    days within which to file his Certificate of
    Appealability.

J.A. 174.

     Although the document refers to Gooch preparing and
filing “his Certificate of Appealability,” it appears to mean an
application for a certificate of appealability because the
certificate itself is prepared and issued by the court. See
RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE
UNITED STATES DISTRICT COURTS 11(a) (“The district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” (emphasis added)). In
his filing, Gooch notes that the District Court “did not hold
that it would not issue a Certificate of Appealability,” and
requests additional time “within which to file his Certificate
of Appealability” because “he will require more time to
properly research and prepare his Certificate of
Appealability.” These statements clearly evince Gooch’s
intent to obtain a certificate of appealability. As the only
purpose of such a certificate is to pursue an appeal, Gooch’s
intent to pursue an appeal can reasonably be inferred from his
intent to file an application for the certificate.

     This inference is in line with the Supreme Court’s
instruction to “liberally construe” the notice of appeal
requirement of Rule 3. Smith, 502 U.S. at 248. We also must
liberally construe documents filed pro se. Erickson v. Pardus,
551 U.S. 89, 94 (2007). Moreover, our conclusion is
consistent with decisions of other Courts of Appeals that have
found that a request for an extension of time to file an
application for a certificate of appealability can serve as the
functional equivalent of a notice of appeal where an intent to
                               7
appeal can be reasonably inferred from the request. See Clark
v. Cartledge, 829 F.3d 303, 306-07 (4th Cir. 2016); Rountree
v. Balicki, 640 F.3d 530, 536 (3d Cir. 2011); Wells v. Ryder,
591 F.3d 562, 565 (7th Cir. 2010).

         The Government asserts that a motion for extension of
time in which to apply for a certificate of appealability can
never qualify as the functional equivalent of a notice of
appeal, because “[t]hey are governed by wholly separate
provisions – one by 28 U.S.C. § 2253 (the Antiterrorism and
Effective Death Penalty Act), and the other by the Federal
Rules of Appellate Procedure.” Appellee Br. 16. The
Government cites no authority in support of this contention
and, as noted above, it directly contradicts the decisions of the
other Courts of Appeals to have considered this question. The
Supreme Court’s instruction in Smith v. Barry was clear: “the
notice afforded by a document, not the litigant’s motivation in
filing it, determines the document’s sufficiency as a notice of
appeal.” 502 U.S. at 248. Gooch’s motivation in filing the
“Request for Extension of Time” – his desire to obtain an
extension to apply for a certificate of appealability under
AEDPA – is irrelevant. Instead, we look to whether than
document affords notice of his intent to appeal. The
Government’s position elevates form over substance and has
nothing to commend it.

     We therefore find that Gooch’s “Request for Extension of
Time,” which was filed within the time period specified by
Rule 4, constitutes the functional equivalent of a notice of
appeal. Accordingly, because the District Court issued a
certificate of appealability as to Gooch’s claim of ineffective
assistance of counsel in cross-examining a witness, we have
jurisdiction under 28 U.S.C. § 2253(a) to consider the merits
of his appeal.
                              8
                             III.

     The standard we apply in considering ineffective
assistance of counsel claims was articulated in Strickland v.
Washington, 466 U.S. 668 (1984):

    A convicted defendant’s claim that counsel’s
    assistance was so defective as to require reversal of a
    conviction or death sentence has two components.
    First, the defendant must show that counsel’s
    performance was deficient. This requires showing
    that counsel made errors so serious that counsel was
    not functioning as the “counsel” guaranteed the
    defendant by the Sixth Amendment. Second, the
    defendant must show that the deficient performance
    prejudiced the defense. This requires showing that
    counsel’s errors were so serious as to deprive the
    defendant of a fair trial, a trial whose result is
    reliable. Unless a defendant makes both showings, it
    cannot be said that the conviction or death sentence
    resulted from a breakdown in the adversary process
    that renders the result unreliable.

Id. at 687. In sum, the defendant must show both that
counsel’s performance was deficient and that the defendant
suffered prejudice.

     At Gooch’s trial, defense counsel cross-examined a
police detective about why Gooch had ceased frequenting an
area where he was typically seen:

    Q. [Gooch] use[d] to be out there all the time until he
    became wanted but he was down there every day all
    the time 18th and M, right in those four blocks,
    right?
                               9

    A. Yes.

    Q. Now that’s a bit different from disappearing from
    some shooting in the alley[,] isn’t it?

    A. No.

    Q. Why not?

    A. Because he shot the people, they put a warrant out
    for him and he disappeared.

Trial Tr. 48:5-14 (Feb. 21, 2007, a.m. session), J.A. 139.

     Gooch claims on appeal that the open-ended question
employed by defense counsel – “Why not?” – constitutes
deficient performance. It may be that the testimony of the
police officer that Gooch “shot the people” was the result of
an improvident question by Gooch’s defense counsel.
However, separate from the question of whether counsel’s
performance was deficient, Gooch bears the burden of
affirmatively showing prejudice – that is, “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. For these purposes, “[a]
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “If the defendant fails to
demonstrate prejudice, we may affirm the conviction without
deciding whether counsel’s performance was deficient.”
United States v. Udo, 795 F.3d 24, 30 (D.C. Cir. 2015).

    Gooch has not carried his burden of demonstrating
prejudice. The evidence tying Gooch to the murders of
Calvin Cooper and Yolanda Miller was substantial and likely
                                  10
had a much greater influence on the jury than this single,
fleeting remark made by the testifying detective during the
three-month-long trial. As we noted when this case was
before us on direct appeal, two individuals – a fellow gang
member and a police officer – witnessed Gooch fleeing the
scene of the murders. Gooch, 665 F.3d at 1323. The murder
weapon was later retrieved from near the crime scene and
Gooch’s fingerprint was found on it. Id. In fact, Gooch
confessed to the murders, telling one gang member that he
had killed Cooper and telling another that he had killed both
Cooper and Miller. Id. The evidence at trial also established
a motive for the murders – “the ‘word on the street’ was that
Cooper and Miller were ‘snitching’ and ‘stealing stashes’” –
and Gooch’s role as the “muscle” for the gang “enforcing the
gang’s rules, engaging in violence, and punishing disloyalty
to the gang.” Id. at 1322-23.

     Against the backdrop of this evidence, Gooch has not
shown “a reasonable probability” that the result of his trial
would have been different without the allegedly deficient
open-ended questioning by defense counsel on cross-
examination. As a result, Gooch’s claim of ineffective
assistance of counsel must be rejected. 3



3
   Section 2255(b) requires an evidentiary hearing “[u]nless the
motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). The
District Court concluded that Gooch is not entitled to relief and did
not hold an evidentiary hearing. Especially where, as here, “the
judge deciding the section 2255 motion also presided at petitioner’s
trial, the [trial] court’s decision not to hold a hearing is ‘generally
respected as a sound exercise of discretion.’” United States v.
Toms, 396 F.3d 427, 437 (D.C. Cir. 2005) (quoting United States v.
Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996)). We see no abuse of
                                11
                               ***

    For the foregoing reasons, we affirm the District Court’s
decision denying Gooch’s § 2255 motion.

                                                    So ordered.




that discretion here.   Accordingly, Gooch is not entitled to an
evidentiary hearing.
