                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


ANDREW MARK HUDSON,                   
            Petitioner-Appellant,
                 v.                               No. 99-7314
J. R. HUNT; NORTH CAROLINA,
             Respondents-Appellees.
                                      
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
              Terrence W. Boyle, Chief District Judge.
                       (CA-99-12-5-HC-BO)

                      Argued: November 2, 2000

                      Decided: December 20, 2000

      Before WILKINSON, Chief Judge, and WILKINS and
                   MOTZ, Circuit Judges.



Reversed and remanded by published opinion. Judge Wilkins wrote
the opinion, in which Chief Judge Wilkinson and Judge Motz joined.


                             COUNSEL

ARGUED: Lathrop B. Nelson, III, Appellate Litigation Clinic, UNI-
VERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Vir-
ginia, for Appellant. John Gibbes Barnwell, Assistant Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees. ON BRIEF: Neal L. Walters,
Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL
2                          HUDSON v. HUNT
OF LAW, Charlottesville, Virginia, for Appellant. Michael F. Easley,
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellees.


                             OPINION

WILKINS, Circuit Judge:

   Andrew Mark Hudson appeals an order of the district court deny-
ing his petition for habeas corpus relief, see 28 U.S.C.A. § 2254
(West 1994 & Supp. 2000). We granted a certificate of appealability,
see 28 U.S.C.A. § 2253(c) (West Supp. 2000), limited to the issue of
whether Hudson’s attorneys were constitutionally deficient for failing
to file a direct appeal of Hudson’s convictions and sentence. In light
of the recent decision of the Supreme Court in Roe v. Flores-Ortega,
120 S. Ct. 1029 (2000), we conclude that counsel were constitution-
ally deficient for failing to consult with Hudson regarding an appeal.
Accordingly, we reverse the decision of the district court and remand
for a determination of whether Hudson was prejudiced by his attor-
neys’ deficient performance.

                                  I.

   In February 1998, Hudson was convicted by a North Carolina jury
of possession of cocaine and maintenance of a dwelling for keeping,
using, and selling controlled substances. Following the jury verdict,
Hudson pled guilty to being a habitual offender. Hudson did not
appeal his convictions or sentence.

   In October 1998, Hudson filed a pro se motion for appropriate
relief (MAR) in state court. Among other things, Hudson claimed that
trial counsel, John Duke and Geoffrey Hulse, were ineffective for fail-
ing to file a direct appeal. Hudson stated that "having stood trial by
jury . . . [he] assumed counsel would appeal." J.A. 28 (emphasis omit-
ted). The MAR court denied relief, stating that Hudson’s motion
"consist[ed] only of general and conclusory allegations" and did not
satisfy the requirements of North Carolina law. State v. Hudson, No.
95 C.R.S. 18514, slip op. at 1 (N.C. Gen. Ct. of Justice Oct. 29,
1998).
                           HUDSON v. HUNT                              3
   Thereafter, Hudson filed this federal habeas action, again proceed-
ing pro se. As in his MAR, Hudson included a claim that counsel
were ineffective for failing to file a direct appeal. The State moved
for summary judgment and submitted affidavits from Hudson’s for-
mer attorneys in support of the motion. In pertinent part, Duke’s affi-
davit stated as follows:

    During [a] conference [following Hudson’s conviction and
    before his plea to being a habitual felon] Mr. Hudson asked
    us whether or not he could appeal from the case. I specifi-
    cally told Mr. Hudson that I was past retirement age, and
    that I did not do any appellate work, and that I was not in
    a position to appeal the decision. Mr. Hulse also stated that
    he would not be in a position to appeal the case either. I told
    Mr. Hudson that I did not do any post-conviction matters,
    and that I had not done any appellate work in several years.

J.A. 62. The pertinent portion of Hulse’s affidavit stated as follows:

    . . . Mr. Hudson, being a habitual felon, was well aware of
    his right to appeal at the end of any jury trial. In addition to
    his own knowledge as to how the appeal process works,
    there was a discussion in the backroom of the courtroom
    after he was found guilty . . . that Mr. Duke did not handle
    appeals and that I was not interested in handling the appeal
    because I did not feel that there was anything to appeal. It
    is my recollection that at no time did Mr. Hudson indicate
    that he wanted to appeal, he was just questioning whether he
    had a right to appeal. . . . At no time did anyone indicate to
    me that I was to pursue an appeal . . . .

J.A. 63-64. Hudson submitted a responsive affidavit, in which he
stated:

       Upon . . . talking with my two attorneys’ [sic] in the back
    confence [sic] room I had ask [sic] did I have the right to
    an appeal. Geff Hulse said because he was getting two years
    off my sentence I didn’t have that right. But I still request
    it [sic] an appeal, and wanted them to present that informa-
    tion before the court.
4                             HUDSON v. HUNT
J.A. 95.

  The district court denied relief, reasoning that Hudson’s attorneys
had informed him of his appellate rights and that they did not do
appellate work. The court also concluded that "[t]he trial transcript
support[ed]" counsel’s assertion that Hudson did not inform them that
he wanted to appeal. J.A. 102.

                                     II.

   Before turning to the question of whether Hudson’s constitutional
rights were violated, we first consider our standard of review.
Because Hudson filed his federal habeas petition after the April 24,
1996 enactment of the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the amend-
ments to 28 U.S.C.A. § 2254 effected by § 104 of the AEDPA govern
the resolution of this appeal. See Slack v. McDaniel, 120 S. Ct. 1595,
1602 (2000). As amended by the AEDPA, § 2254 instructs in perti-
nent part that we may not grant habeas relief with respect to claims
"adjudicated on the merits in State court proceedings" unless the state
court decision "was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the Supreme
Court of the United States." 28 U.S.C.A. § 2254(d)(1). Here, how-
ever, the MAR court did not deny Hudson relief on the merits of his
ineffective assistance of counsel claim, but rather dismissed it for fail-
ure to comply with state procedural rules.1 Because the claim was not
    1
    It thus appears that this claim is procedurally defaulted. See Coleman
v. Thompson, 501 U.S. 722, 729-30 (1991). Ordinarily, we are precluded
from considering the merits of a defaulted claim absent a showing of
cause and prejudice or a fundamental miscarriage of justice. See Harris
v. Reed, 489 U.S. 255, 262 (1989). However, the rule that a federal court
will not consider a defaulted claim is not a jurisdictional one; hence, a
state may waive a default by failing to assert it in federal court. See
Yeatts v. Angelone, 166 F.3d 255, 260-61 (4th Cir.), cert. denied, 526
U.S. 1095 (1999). Nevertheless, we possess discretion to decline to con-
sider the merits of a defaulted claim notwithstanding the State’s failure
to assert the default. See id. at 261-62. In determining whether to exer-
cise this discretion, the court should consider, inter alia, whether the fail-
ure to raise the default was intentional or inadvertent; the complexity of
                            HUDSON v. HUNT                              5
adjudicated on the merits, our review is de novo. See Fisher v. Lee,
215 F.3d 438, 445 (4th Cir. 2000).

   The Sixth Amendment entitles a criminal defendant to effective
assistance of counsel on direct appeal. See Restrepo v. Kelly, 178 F.3d
634, 639 (2d Cir. 1999) (citing Evitts v. Lucey, 469 U.S. 387, 396
(1985)). The adequacy of counsel’s performance on direct appeal is
judged according to the test set forth in Strickland v. Washington, 466
U.S. 668 (1984): The petitioner must demonstrate that counsel’s per-
formance fell below an objective standard of reasonableness and that
he suffered prejudice as a result. See United States v. Mikalajunas,
186 F.3d 490, 493 (4th Cir. 1999), cert. denied, 120 S. Ct. 1283
(2000).

   Roe v. Flores-Ortega clarified the application of the Strickland
standard to a claim that an attorney was constitutionally deficient for
failing to file a notice of appeal. In the absence of a direct instruction
from the defendant to appeal,2 the question of whether counsel’s fail-
ure to appeal is constitutionally deficient depends upon "whether
counsel in fact consulted with the defendant about an appeal." Roe,
120 S. Ct. at 1035. The Court emphasized that it "employ[ed] 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. If counsel
has consulted with the defendant, the failure to file an appeal is defi-

the default issue vis a vis the complexity of the merits; and whether the
petitioner has had an opportunity to address the question of default and
to assert cause and prejudice or a miscarriage of justice to excuse the
default. See id. at 262.
   At oral argument, the State expressly declined to assert the default as
a ground for our decision, in spite of acknowledging that the claim was
defaulted. Thus, the State’s failure to raise the default was unquestion-
ably intentional. We therefore decline to recognize the default of Hud-
son’s claim. See id. (cautioning that "when a state intentionally has
declined to pursue the defense for strategic reasons, the court should be
circumspect in addressing the issue").
   2
     Hudson argues only that counsel were constitutionally deficient for
failing to consult with him regarding an appeal.
6                           HUDSON v. HUNT
cient only if it contradicts the defendant’s instruction to appeal. See
id. If, on the other hand, counsel has failed to consult, the court must
consider whether this failure constitutes deficient performance. See id.
In making this determination, a court should consider whether "(1)
. . . a rational defendant would want to appeal (for example, because
there are nonfrivolous grounds for appeal), [and] (2) . . . [whether]
this particular defendant reasonably demonstrated to counsel that he
was interested in appealing."3 Id. at 1036.

   If the court determines that counsel was ineffective for failing to
consult with the defendant regarding an appeal, it must then deter-
mine whether counsel’s deficient performance prejudiced the defen-
dant. In order to show prejudice, "a defendant must demonstrate that
there is a reasonable probability that, but for counsel’s deficient fail-
ure to consult with him about an appeal, he would have timely
appealed." Id. at 1038. In determining whether a defendant has made
this showing, it will often be "highly relevant" whether there are non-
frivolous grounds for appeal or the defendant promptly expressed a
desire to appeal. Id. at 1039. Importantly, while the prejudice inquiry
to some extent overlaps the deficiency inquiry, they are not coexten-
sive. See id. For example, a defendant may establish deficient perfor-
mance by demonstrating that he indicated an interest in appealing
(thereby triggering a duty to consult); however, "such evidence alone
is insufficient to establish that, had the defendant received reasonable
advice from counsel about the appeal, he would have instructed coun-
sel to file an appeal." Id. Also, a mere inability to identify nonfrivo-
lous grounds for appeal does not automatically preclude a defendant
from showing prejudice, particularly when a habeas petition is filed
by an indigent, pro se defendant. See id. at 1040 (explaining that "it
is unfair to require an indigent, perhaps pro se, defendant to demon-
strate that his hypothetical appeal might have had merit before any
advocate has ever reviewed the record in his case in search of poten-
tially meritorious grounds for appeal").

   Here, it is clear that Hudson’s attorneys did not consult with him
regarding an appeal and that their failure to do so was constitutionally
    3
   The Court expressly declined to impose any bright-line test, noting
that the circumstances may be such that even a failure to consult would
not render counsel’s performance deficient. See id. at 1036.
                           HUDSON v. HUNT                             7
deficient. The undisputed facts demonstrate that Hudson inquired
about his right to appeal, thereby triggering a duty to consult. Hud-
son’s attorneys failed to fulfill this obligation. Rather, they simply
informed him that they did not do appellate work and would not
appeal his case. There was no discussion of the costs and benefits of
an appeal. And, it should go without saying that Hulse was deficient
in assuming that Hudson was aware of his appellate rights because he
had previously been involved with the criminal justice system.

   Having determined that Hudson’s attorneys were constitutionally
deficient for failing to consult with him regarding an appeal, we con-
clude that the appropriate course is to remand for the district court to
decide in the first instance whether Hudson was prejudiced by his
counsel’s deficient performance.

                                  III.

  In sum, we conclude that Hudson’s attorneys were constitutionally
deficient for failing to consult with him regarding the filing of an
appeal. We therefore reverse the decision of the district court and
remand for further proceedings not inconsistent with this opinion.

                                         REVERSED AND REMANDED
