                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-6570


MARVIN SUMNER,

                 Petitioner - Appellant,

           v.

KEITH DAVIS, Warden,

                 Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cv-00112-RLW)


Argued:   March 25, 2009                   Decided:   July 28, 2009


Before NIEMEYER and GREGORY, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.


Affirmed by unpublished opinion.   Senior Judge Siler wrote the
opinion, in which Judge Niemeyer joined. Judge Gregory wrote a
dissenting opinion.


ARGUED: David G. Maxted, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina, for Appellant.    Leah A. Darron, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON BRIEF: James E. Coleman, Jr., Jennifer E. Brevorka, Jonathan
S. Tam, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina,
for Appellant.     Robert F. McDonnell, Attorney General of
Virginia, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
SILER, Senior Circuit Judge:

       Defendant Marvin Sumner appeals the district court’s denial

of his petition for a writ of habeas corpus.                He argues that the

district court erred in concluding that he failed to demonstrate

ineffective assistance of counsel on appeal.                 For the following

reasons, we affirm the district court.



                                       I.

       In 2004, Sumner was convicted of discharging a weapon in

public in violation of Va. Code Ann. § 18.2-280 and possession

of a firearm by a convicted felon in violation of Va. Code Ann.

§ 18.2-108.2.        The charges arose out of an incident in July

2004: two witnesses - Kerri Cole and Carlton Outland - allegedly

saw Sumner come out of his apartment, fire a gun three times,

turn and fire another shot, and walk behind the building.                    Then,

they   heard   two   more     shots.         They   later   described     Sumner’s

appearance     to   Officer    Cintron       and    identified   Sumner    as   the

shooter.     In addition, Officer Cintron recovered two .45 caliber

shell casings where Sumner had allegedly been standing and one

.45 caliber shell casing on Sumner’s person after arresting him

for littering and drinking in public.                The arrest occurred after

Cintron saw Sumner walking down the street drinking a beer and

then throwing the beer bottle on the ground.



                                         3
      The state trial court overruled Sumner’s motion to suppress

the shell casing found on his person.                After conviction, Sumner

appealed,     arguing    insufficiency        of   the    evidence.        His   brief

explained the intended scope of the argument: the evidence was

insufficient and the motion to suppress the cartridge should

have been granted.          However, defense counsel failed to include

the Fourth Amendment claim in the question presented.

      The Court of Appeals of Virginia affirmed, finding that the

“direct and corroborating circumstantial evidence was sufficient

to prove possession of a firearm and discharging a firearm in

public   beyond     a   reasonable     doubt.”       It    also    found    Sumner’s

failure to include his Fourth Amendment issue in his questions

presented, as required by Virginia Supreme Court Rules 5A:12(c)

and 5A:20(c), barred consideration of that issue on appeal.                         A

three-judge panel of the Court of Appeals of Virginia affirmed.

Sumner   appealed.          His     defense    counsel      presented      the   same

arguments but amended the question presented to include both the

sufficiency of the evidence and Fourth Amendment claims.                           In

2006, the Supreme Court of Virginia denied further review.

      Sumner thereafter filed a petition for a writ of habeas

corpus in the Supreme Court of Virginia claiming ineffective

assistance of counsel.            He argued that defense counsel’s failure

to   follow   the   state    court     rules   -   because    of    counsel      error

rather than strategic considerations - precluded direct review

                                         4
of   his   Fourth       Amendment         claim     in    his     pro    se    memorandum           in

support of the petition.                   He did not argue that he suffered

prejudice from his counsel’s conduct.                           The court dismissed the

petition because Sumner failed to satisfy both the “performance”

and “prejudice” prongs of Strickland v. Washington, 466 U.S.

668, 687 (1984): (1) “the selection of issues to address on

appeal     is    left    to    the   discretion           of     appellate        counsel,         and

counsel need not address every possible issue on appeal” and (2)

Sumner     “does       not    attempt      to     demonstrate           that      the    excluded

argument had merit or would have been successful had it been

included in the questions presented.”

      In   2007,       Sumner    filed      a     petition       for    a     writ      of    habeas

corpus in the federal district court pursuant to 28 U.S.C. §

2254.       He     claimed      that      (1)     he     was     entitled         to    effective

assistance       of    counsel    on      direct       appeal;     (2)      his    counsel         was

ineffective       by    failing      to    follow        state    court       rules;         (3)   the

State violated his due process rights by imposing a sanction on

him for his counsel’s error; and (4) the State violated his

Fourth Amendment rights through an illegal search and seizure.

The district court denied the petition.                          It determined that only

the second claim was properly before the court; the other three

had been procedurally defaulted because they were not raised

before the state court.                   It concluded that Sumner “failed to

demonstrate that appellate counsel was deficient or that he was

                                                5
prejudiced   by    the    omission      of       an   appellate    challenge      to    the

Circuit Court’s denial of the motion to suppress.”



                                         II.

      We review the “district court’s decision on a petition for

writ of habeas corpus based on a state court record” de novo.

Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir. 2003).                             Under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

we review state court legal and factual determinations under a

limited and highly deferential standard: an application for a

writ of habeas corpus shall not be granted unless the state

court decision upon which it is based (1) “was contrary to, or

involved   an    unreasonable         application        of,   clearly        established

Federal law, as determined by the Supreme Court of the United

States” or (2) involved “an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.”      State court factual findings “shall be presumed to

be   correct,”    and    “[t]he       applicant       shall    have     the    burden    of

rebutting the presumption of correctness by clear and convincing

evidence.”        28    U.S.C.    §    2254(d)-(e);         see   also    Lawrence       v.

Branker, 517 F.3d 700, 707-08 (4th Cir. 2008).

      Sumner must show that the state court’s determinations were

“objectively      unreasonable”         to       prevail.         See    Miller-El       v.

Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S.

                                             6
362, 409 (2000).     It is not sufficient for the state court’s

decision to be erroneous or incorrect.        See Branker, 517 F.3d at

708 (citing Williams, 529 U.S. at 409-11).         The phrase “clearly

established Federal law” refers to the “holdings, as opposed to

the dicta, of [the Supreme] Court’s decisions as of the time of

the relevant state-court decision.”         Id. (citing Williams, 529

U.S. at 412).



                                  III.

     Sumner argues that his counsel was ineffective by failing

to preserve his Fourth Amendment claim and that prejudice should

be   presumed   because   the   error    effectively   precluded   direct

appellate review of his entire appeal.           However, the district

court properly denied his petition for habeas corpus because the

Supreme Court of Virginia did not unreasonably apply federal law

as determined by the United States Supreme Court by concluding

that Sumner was required to show prejudice and failed to do so.

     The Supreme Court has held that to establish ineffective

assistance of counsel, a defendant must show both that (1) his

counsel’s performance was deficient or “fell below an objective

standard of reasonableness” in light of prevailing professional

norms and (2) the deficient performance prejudiced the defendant

or “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

                                    7
been different.”       Strickland v. Washington, 466 U.S. 668, 687-

88, 694 (1984).        Furthermore, a court need not address both

“performance”    and    “prejudice”        if   the    defendant    makes    an

insufficient showing on one, and “[i]f it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.”                  Id. at 697.

However,   in   certain    contexts,       prejudice    is    presumed.     For

example, “[a]ctual or constructive denial of the assistance of

counsel altogether is legally presumed to result in prejudice.”

Id. at 692; see also Roe v. Flores-Ortega, 528 U.S. 470, 482-83

(2000) (citing United States v. Cronic, 466 U.S. 648, 658-59

(1984)) (providing that prejudice is presumed when a defendant

is deprived of the appellate proceeding altogether, which he

wanted at the time and to which he had a right).

      The facts in this case, unlike those contemplated in Cronic

and   Flores-Ortega,      did   not   completely       deny   Sumner   of   the

appellate process.        Although counsel’s error precluded direct

appellate review of an aspect of Sumner’s insufficiency of the

evidence claim, Sumner did not suffer complete forfeiture of

desired appellate proceedings.         Counsel’s conduct is more aptly

characterized as a “deficient performance” or “attorney error”

that is “subject to [the] general requirement that the defendant

affirmatively prove prejudice.”        Strickland, 466 U.S. at 693.



                                       8
       The       Supreme    Court     of    Virginia          and    the     district       court

reasonably         concluded    that    Sumner         failed       to    show     that    he   was

prejudiced by counsel’s failure to include his Fourth Amendment

claim in the question presented. *                      The Supreme Court has found

that “[i]f an officer has probable cause to believe that an

individual has committed even a very minor criminal offense in

his presence, he may, without violating the Fourth Amendment,

arrest the offender.”               Atwater v. City of Lago Vista, 532 U.S.

318,       354   (2001).       In   this    case,       Officer          Cintron    saw    Sumner

walking down the street drinking a beer and then throwing the

bottle on the ground.               He found the .45 caliber shell casing in

Sumner’s         pocket    pursuant    to    a       lawful    arrest       for    drinking     in

public and littering.               See Chimel v. California, 395 U.S. 752,

763    (1969).        In    addition,       even      without       the    challenged       shell

casing, there was ample eyewitness testimony of his guilt.



                                                                                          AFFIRMED




       *
       Sumner only argues that prejudice should be presumed; he
does not argue, in the alternative, that he could otherwise
establish prejudice.

                                                 9
GREGORY, Circuit Judge, dissenting:

      This     case    is   not    as       simple     as    the    majority    opinion

suggests.      Marvin Sumner’s counsel failed to properly set forth

the primary basis of his appeal in the “Questions Presented”

portion   of    his    brief.          We    must    now    determine     whether    this

omission effectively denied him an appeal when it resulted in a

procedural default of the entire claim.                     If so, then the Supreme

Court   has    instructed       that    we    may    presume     prejudice     and   find

ineffective assistance of counsel.                   Under the facts of this case

and   governing       Supreme     Court      precedent,      I     am   convinced    that

Sumner’s counsel was indeed ineffective and that his petition

for a writ of habeas corpus should be granted.



                                             I.

      A more detailed rendering of the facts is necessary for a

full consideration of this case:                    On July 11, 2004, two people,

Kerri Cole and Carlton Outland, claim to have seen Sumner come

out of his apartment, raise a gun, and fire it three times.

They assert that it was not completely dark outside, that the

parking lot and apartment complex were well-lit, and that the

only obstacle between them and Sumner was a chain-link fence.

Cole recounted that, after Sumner fired the first shots, Sumner

saw Cole, walked between two apartments, raised his hand, and

fired a fourth shot before he went behind the building.

                                             10
      Cole    and     Outland       relayed        what    occurred        to     one    Officer

Cintron.        They     described         Sumner’s        physical        appearance        and

clothing, stating that he was wearing a blue jersey with the

number “11.”        Police detained Sumner at a nearby 7-11.                            Cole and

Outland identified Sumner as the person who fired the gun, even

though Sumner was wearing a black jersey with the number “71.”

Cintron returned to the scene of the firings and recovered two

.45-caliber shell casings.

      While    Cintron     returned         to      the    shooting         scene,       another

officer      released     Sumner.           Upon      learning        of     this,       Cintron

followed Sumner and allegedly saw him toss a beer bottle onto

the   ground.          Cintron       arrested        Sumner     for        littering,       then

searched him and found a .45-caliber shell casing in his pocket.

Sumner    admitted      that    he    was      a    convicted      felon,         and    Cintron

confirmed      this     with    a    background           check.       Sumner        was    then

arrested for possession of a firearm by a convicted felon and

for discharging a firearm in a public place.

      Sumner was convicted, and the Virginia Court of Appeals

affirmed      the     conviction,      finding        that    there         was    sufficient

evidence to support it.                However, Sumner’s counsel failed to

identify      his     Fourth        Amendment        claim—that        the        .45-caliber

cartridge     was     obtained       via   a    pretextual,        illegal         search    and

seizure—in the Questions Presented, as required by the Virginia



                                               11
Supreme Court, * even though his appeal was primarily based on

this claim.          The only claim stated in the Questions Presented

was the following:          “Did the trial court err in finding evidence

of possession of a firearm by a convicted felon and discharging

a   firearm      necessary    to   support        a   conviction   under      [Virginia

law]?”        (J.A. 58.)     Thus, the Court of Appeals deemed the claim

forfeited.          The Supreme Court of Virginia denied his petition

for appeal and his petition for a writ of habeas corpus, finding

that he had demonstrated neither deficiency nor prejudice by

counsel.

        The    appellant     filed      a    habeas    petition    in   the    Eastern

District of Virginia, which ruled against him.                          The district

court       found    that    all   of       Sumner’s    claims     except     for   his

ineffective         assistance     of       counsel    (“IAC”)     claim    had     been

procedurally defaulted.              Regarding his IAC claim, the district

court found that the question of which issues to appeal was a

strategic one for counsel to make, and moreover, Sumner could

not show how he was prejudiced by counsel’s decision.



        *
       Virginia Supreme Court Rule 5A:12(c) states, in part:
“The petition for appeal shall contain the questions presented.”

     Virginia Supreme Court Rule 5A:20(c) states that the
opening brief shall contain:     “A statement of the questions
presented with a clear and exact reference to the page(s) of the
transcript, written statement, record, or appendix where each
question was preserved in the trial court.”


                                             12
                                            II.

       Criminal defendants are entitled to effective assistance of

counsel on appeals as of right.                       Evitts v. Lucey, 469 U.S. 387

(1985).     Under Strickland v. Washington, 466 U.S. 668 (1984), a

defendant     claiming        ineffective             assistance       of     counsel        must

typically     meet     both     an    objective             and    a   prejudice           prong.

Regarding     the    first     prong,           “the     defendant      must        show     that

counsel’s    representation          fell       below       an    objective        standard   of

reasonableness.”        Id. at 688.                   To meet the prejudice prong,

“[t]he     defendant     must        show        that       there      is     a     reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”                                    Id. at

694.     However, “[i]n certain Sixth Amendment contexts, prejudice

is presumed.        Actual or constructive denial of the assistance of

counsel altogether is legally presumed to result in prejudice.”

Id. at 692.

       Constructive denial of assistance of counsel was explored

more deeply in Roe v. Flores-Ortega, 528 U.S. 470 (2000).                                      In

that case, the defendant pled guilty to murder and was allowed

sixty days to appeal his sentence under California law.                                       His

attorney failed to do so despite the fact that the defendant did

not    previously     consent        to     a        failure      to   file       the   appeal.

Although    Flores-Ortega        dealt          with    a    situation        in    which     the

defendant did not expressly request that his attorney file a

                                                13
notice of appeal, the Supreme Court noted that when a defendant

does expressly make such a request, “[c]ounsel’s failure to do

so cannot be considered a strategic decision; filing a notice of

appeal is a purely ministerial task, and the failure to file

reflects inattention to the defendant’s wishes.”                   Id. at 477.

Moreover:

     [C]ounsel’s alleged deficient performance arguably led
     not to a judicial proceeding of disputed reliability,
     but   rather  to   the  forfeiture  of   a  proceeding
     itself. According to respondent, counsel’s deficient
     performance deprived him of a notice of appeal
     and, hence, an appeal altogether.       Assuming those
     allegations are true, counsel’s deficient performance
     has deprived respondent of more than a fair judicial
     proceeding; that deficiency deprived respondent of the
     appellate proceeding altogether.

Id. at 483.     In such instances, the Supreme Court has instructed

that a presumption should be applied in which a defendant need

only demonstrate that “there is a reasonable probability that,

but for counsel’s deficient failure to consult with him about an

appeal, he would have timely appealed.”                 Id. at 484; see also

Peguero   v.   United    States,    526    U.S.   23,    28   (1999)   (“[W]hen

counsel     fails   to   file   a   requested     appeal,     a   defendant   is

entitled to resentencing and to an appeal without showing that

his appeal would likely have had merit”).

     In United States v. Peak, 992 F.2d 39 (4th Cir. 1993), this

Court considered a case in which the defendant pled guilty to

distribution of crack cocaine.            He asked his attorney to appeal


                                      14
his   sentence,      but    the   attorney        failed       to   file   a   notice       of

appeal.      The    Court    held    that       “a   criminal       defense    attorney’s

failure to file a notice of appeal when requested by his client

deprives    the     defendant       of    his    Sixth    Amendment        right    to     the

assistance of counsel, notwithstanding that the lost appeal may

not have had a reasonable probability of success.”                             Id. at 42.

In explaining why this is the case, the Court noted:

      Strickland is concerned with attorney performance in
      the course of representation.     By its own text, it
      does not apply to deprivations of counsel altogether,
      which violate the Sixth Amendment without the need for
      even the most elementary judicial interpretation.   No
      one would seriously contend that a defendant need not
      have an attorney at trial if there is no “reasonable
      probability” that an attorney could win an acquittal.
      We see no reason to apply a different rule on direct
      appeal, where the defendant has the same absolute
      right to counsel he enjoys before conviction. However
      effective or ineffective Peak’s counsel was before the
      judgment of conviction, his failure to file the
      requested appeal deprived Peak of the assistance of
      counsel on direct appeal altogether.

Id.; see also Frazer v. South Carolina, 430 F.3d 696 (4th Cir.

2005)     (finding       ineffective       assistance          of    counsel       when     an

attorney failed to consult with his client regarding the filing

of an appeal); Becton v. Barnett, 920 F.2d 1190, 1195 (4th Cir.

1990)    (“The     effect    of   counsel’s          failure    to    appeal    was       that

Becton    lost     his   ability     to    protect       his    ‘vital     interests        at

stake.’      He    was     unable    to    attempt       to    demonstrate      that       his

conviction        was    unlawful        through       the      appellate       process.”

(internal citation omitted)).

                                            15
       These cases illustrate that the failure to file an appeal

results in a presumption of ineffective assistance of counsel.

This is so because the failure deprives the defendant of the

process by which his constitutional rights are reviewed and his

deprivation of liberty assessed.                        And in these circumstances,

the    defendant    need        show      only       that,    but    for     his     counsel’s

omission,    he    would        have      filed       an     appeal.         This    principle

logically applies to the present case.

       Although Sumner’s attorney did file a notice of appeal, he

omitted a critical part of the appeal:                         properly presenting the

primary issue for review in the Questions Presented.                                Because of

this    omission,        the    state          courts      deemed      the    claim       to   be

procedurally defaulted.              Since Sumner’s appeal was based almost

completely on this unperfected claim, his counsel effectively

denied Sumner the entire appeal.                      And, but for the omission of

Sumner’s counsel, his appeal would have been timely and properly

before the court.          Therefore, by his counsel’s error, Sumner was

indisputably       deprived         of    the     process       by     which    his       Fourth

Amendment rights and resultant deprivation of liberty would be

assessed, and we may presume prejudice.

       The appellees argue, and the majority finds, that Sumner’s

case is different because the above-cited cases all involved

circumstances       in     which         the     attorney       completely          failed     to

preserve    the    right       to   an    appeal,       thus    forfeiting          the   entire

                                                16
process.        However,      the    logic    underlying      the    Supreme    Court’s

precedent does not allow us to read constructive ineffective

assistance of counsel so narrowly.                   If an attorney, through his

omission and not strategy, fails to raise a critical claim on

appeal—and the appeal consists almost entirely of that claim—

then    the    attorney      has    failed    to    perfect   the    appeal    and   has

effectively denied the defendant his right to the appeal.                            See

Hernandez v. United States, 202 F.3d 486, 489 (2d Cir. 2000)

(finding       “no   basis”    for     “a    distinction      between    a     criminal

defendant whose counsel files an untimely notice of appeal, does

not file a notice of appeal, or files a timely notice and then

neglects to perfect the appeal.”); Abels v. Kaiser, 913 F.2d

821, 823 (10th Cir. 1990) (“[W]hen courts have found counsel

constitutionally          inadequate,         because       either      retained      or

appointed counsel failed to properly perfect an appeal, they do

not consider the merits of arguments that the defendant might

have made on appeal.”).

       The problem was compounded when Sumner’s counsel failed to

amend his petition to include a new question presented, even

though a party may attempt to do so prior to an action on the

petition by the Virginia Court of Appeals:                    “Although the timely

filing of a petition for appeal is jurisdictional, nothing in

the    Rules    of   Court    prevents       us    from   exercising    our    inherent

authority to allow the petitioner to present additional issues

                                             17
for our consideration when we have already acquired jurisdiction

and have not yet acted on the original petition.”                       Riner v.

Virginia, 579 S.E.2d 671, 677-78 (Va. Ct. App. 2003), aff’d, 601

S.E.2d   555    (Va.    2004).      Instead   of   attempting    to   amend    the

petition, the attorney wrote to Sumner and told him:                     “I have

never had the appellate court to [sic] reject a brief because of

the question presented or the assignment of errors.                     I believe

it would be a manifest injustice in this case for them to do

so.”     (J.A.    33.)         He   further   claimed    that,    because     “the

appellate courts operate under very strict time frames,” and the

deadline for filing the initial brief had passed, he did not

“have the ability to change anything.”              (Id.)     Given the holding

in Riner, this was simply incorrect.

       This letter is also a clear indication that the decision of

Sumner’s counsel not to include the proper Questions Presented

or to amend the Questions Presented section was not, as the

appellees contend and as the courts below found, a strategic

decision   to    which    we   grant   deference.       The   omitted    argument

accounted for four of the seven pages of his arguments section.

(J.A. 59-62.)          Sumner’s counsel intended to, and indeed did,

present the argument as part of his appeal.                   But he failed to

properly present the argument in the Questions Presented portion

of the brief.     This was not strategy.



                                        18
                               III.

     Sumner was denied consideration of the merits of his appeal

because of the error of his attorney.   Thus, he was effectively

denied an appeal altogether.    The majority does not recognize

the constitutional infirmity of this denial, and I therefore

dissent from its opinion.




                                19
