                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-6770


DAVID LOUIS RICHARDSON,

                Petitioner − Appellee,

           v.

STATE OF NORTH CAROLINA; ROBERT SMITH,

                Respondents − Appellants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
Chief District Judge. (5:07-hc-02099-FL)


Argued:   January 27, 2009                    Decided:    March 11, 2009


Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and
Arthur L. ALARCÓN, Senior Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.


Reversed and remanded        with   instructions   by   unpublished   per
curiam opinion.


ARGUED: Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants.           Mary
Elizabeth McNeill, NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellee.    ON BRIEF: Roy Cooper,
Attorney General of the State of North Carolina, Raleigh, North
Carolina, for Appellants.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     David Louis Richardson filed this 28 U.S.C.A. § 2254 (West

2006)   petition     for    a   writ   of       habeas    corpus   in    the   Eastern

District    of   North     Carolina,    contending         that    his   counsel    was

ineffective in failing to file a written notice of appeal after

a state trial judge rejected his oral notice of appeal.                             The

district     court       conditionally          granted     Richardson’s        habeas

petition,     concluding        that   Richardson’s         counsel      was    indeed

ineffective for failing to file a written notice of appeal after

the oral notice was rejected and ordering North Carolina (“the

State”) to grant Richardson an appeal within 90 days.                          For the

reasons that follow, we reverse and remand with instructions to

deny Richardson’s habeas petition.



                                        I.

     On April 5, 2006, David Louis Richardson pleaded guilty in

the Pitt County Superior Court to obtaining property by false

pretenses (“Count I”), in violation of N.C. Gen. Stat. § 14-100

(2007); felony larceny (“Count II”), in violation of N.C. Gen.

Stat. § 14-72 (2007); and to being a habitual felon (“Count

III”), in violation of N.C. Gen. Stat. § 14-7.1 (2007).                          Based

solely on his status as a habitual felon, Richardson faced a

possible    maximum   punishment       of       261   months.      Pursuant    to   the

terms of his plea agreement, however, several other outstanding

                                            2
matters against Richardson were dismissed and Count I and Count

II     were    “consolidated      into    one      habitual     felon    Level     [V]

judgment, sentencing to be in the discretion of the Court.” 1

This       provision   of   the    plea    agreement       lowered      Richardson’s

potential      term    of   imprisonment      to    151    to   191   months,     and,

accordingly, Richardson was sentenced to a term of 124 to 158

months      imprisonment—a     sentence       within      the   presumptive      range

under North Carolina law.

       After sentencing, the following exchange took place between

the trial judge and Richardson’s attorney Stephan M. Hagen:

       MR. HAG[E]N:               Your Honor, I discussed with Mr.
                                  Richardson    although    it’s   the
                                  presumptive     range    sentence—he
                                  wants to give notice of appeal. I
                                  think he’s hoping that somehow the
                                  Court of Appeals will find that my
                                  services    were    constitutionally
                                  inadequate and that he would get
                                  another bite of the apple.

       THE COURT:                 Well, he’s got to have grounds for
                                  appeal, I think, in order to note
                                  his appeal.

       MR. HAG[E]N:               All I can do—he’s asking me to
                                  give   notice    of  appeal.       Mr.
                                  Richardson   would    like  to   give
                                  notice   of   appeal.      It   is   a
                                  presumptive    range   sentence    and
                                  it’s in compliance with our plea
                                  agreement.    I, as a lawyer, don’t
                                  see grounds for an appeal but I
                                  think as a principle I always tell
       1
       Richardson thus stipulated to a prior record level of V
for purposes of sentencing.



                                          3
                        my people—they are always free to
                        try and ask the Court of Appeals
                        to   find   out   if   there    was  a
                        mistake.   If you say that you are
                        not   going    to   enter    appellate
                        entries and assign the appellate
                        defenders, I understand, but I’m
                        just—Mr. Richardson wants me to
                        say he gives notice of appeal.

     THE COURT:         I think there are certain law—some
                        law regarding—

     MR. HAG[E]N:       I think the statute says he’s not
                        entitled to appeal if the sentence
                        is within the presumptive range.

(J.A. at 86-87.)

     At this point in the dialogue, the trial judge asked

someone to read him the relevant statute concerning the

right to appeal, N.C. Gen. Stat. 15A-1444 (2007). 2     After


     2
        Of course, “it is well settled that there is no
constitutional right to an appeal.” Abney v. United States, 431
U.S. 651, 656 (1977). And, “[i]n North Carolina, a defendant’s
right to appeal in a criminal proceeding is purely a creation of
state statute.”   State v. Pimental, 568 S.E.2d 867, 869 (N.C.
Ct. App. 2002).     Under the relevant provisions of N.C. Gen.
Stat. § 15A-1444 (2007), a North Carolina defendant who has
entered a guilty plea to a felony in superior court is entitled
to appeal only four issues as a matter of right: (1) “whether
his or her sentence is supported by evidence introduced at the
trial and sentencing hearing only if the minimum sentence of
imprisonment does not fall within the presumptive range for the
defendant's prior record or conviction level and class of
offense,” § 15A-1444(a1) (emphasis added); (2) whether the
sentence imposed “[r]esults from an incorrect finding of the
defendant's prior record level under G.S. 15A-1340.14 or the
defendant's prior conviction level under G.S. 15A-1340.21,” §
15A-1444(a2)(1); (3) whether the sentence imposed “[c]ontains a
type of sentence disposition that is not authorized by G.S. 15A-
1340.17 or G.S. 15A-1340.23 for the defendant's class of offense
and prior record or conviction level,” § 15A-1444(a2)(2); or (4)
(Continued)
                               4
the relevant sections of the statute had been read to the

judge, the conversation continued:

     THE COURT:             I   don’t     see   any   grounds   for
                            appeal.

     MR. HAG[E]N:           I understand.

     THE COURT:             Does he want to withdraw his plea?

     MR. HAG[E]N:           I don’t think he wants to withdraw
                            his plea. It’s actually less than
                            the maximum you could give him
                            under the agreement.

     THE COURT:             Well, that’s up to him.       You might
                            want to ask him.

 (J.A. at 89.)

     After   Hagen     consulted   with     Richardson,   the   exchange

continued:

     THE COURT:             Does he want to withdraw his plea?

     MR. HAG[E]N:          No.

     MR. RICHARDSON:       No, sir.




whether the sentence imposed “[c]ontains a term of imprisonment
that is for a duration not authorized by G.S. 15A-1340.17 or
G.S. 15A-1340.23 for the defendant’s class of offense and prior
record or conviction level,” § 15A-1444(a2)(3). Otherwise, “the
defendant is not entitled to appellate review as a matter of
right when he has entered a plea of guilty or no contest to a
criminal charge in the superior court, but he may petition the
appellate division for review by writ of certiorari,” and “[i]f
an indigent defendant petitions the appellate division for a
writ of certiorari, the presiding superior court judge may in
his discretion order the preparation of the record and
transcript of the proceedings at the expense of the State.”   §
15A-1444(e).



                                   5
THE COURT:        Are you sure?

MR. HAG[E]N:      Yes, sir.

THE COURT:        Are   you    satisfied   with    your
                  lawyer? Sir?

MR. RICHARDSON:   I mean I’m all right, sir.

THE COURT:        Are   you   satisfied    with    your
                  lawyer?

MR. RICHARDSON:   Yeah, I’m fine.   Yes, sir.

THE COURT:        And you don’t want to withdraw
                  your plea? Because I’ll allow you
                  to withdraw it.

MR. RICHARDSON:   And if I withdraw it, then that
                  means I’ve got to go to trial.

THE COURT:        That’s up to you.

MR. RICHARDSON:   I mean I don’t want to go to
                  trial. I already know that. With
                  my record I know I can’t win.

THE COURT:        Well, yes, but tell me.     This is
                  the third time I’ve asked you and
                  you said yes twice I think.

MR. RICHARDSON:   I’m fine.    I’m fine.    I’m fine.
                  I’ll just write the       Court of
                  Appeals myself.

THE COURT:        Are you sure you don’t        want   to
                  withdraw this plea?

MR. RICHARDSON:   Yes, sir.

THE COURT:        I’ll allow you to withdraw it if
                  you want me to let you withdraw
                  the plea.

MR. RICHARDSON:   What is the maximum I can get if I
                  go to trial, sir? I mean I’m just
                  asking.



                         6
      THE COURT:             Well, your lawyer—I have always
                             found   him  to   be  very,  very
                             informed about criminal law.  Has
                             he told you?

      MR. HAG[E]N:           I keep telling him with a habitual
                             felon judgment every felony they
                             convict him of, the ones that he
                             pled guilty to today, that would
                             be two times the habitual felon
                             level 5, assuming they stay in the
                             presumptive   range,   about   300
                             months minimum. There are several
                             other felonies that are getting
                             dismissed and then this one down
                             in Craven County.

      THE COURT:             There it is.     Do you want to withdraw
                             your plea?

      MR. RICHARDSON:        No, I’ll stick with it.

      THE COURT:             And you are sure?

      MR. RICHARDSON:        I’m sure.

      THE COURT:             All right.

(J.A. at 89-91.)

      As this exchange makes clear, seeing no grounds for appeal,

the   judge   refused   to   accept   the   oral   notice   of   appeal,   to

appoint an appellate attorney, or to make appellate entries.

And, neither Hagen nor Richardson himself filed a written notice

of appeal on Richardson’s behalf.

      On February 2, 2007, Richardson filed a pro se motion for

appropriate relief (“MAR”) in the Pitt County Superior Court.

In that motion, Richardson stated:

      Defendant was not advised of his right to appeal. No
      appeal was entered in open court on his behalf and the

                                      7
       time period for doing so pursuant [to] Rule 4(a) has
       now expired.  Therefore, Defendant now move [sic] the
       court for appropriate relief from the Judgement [sic]
       . . . .

(J.A. at 95-96).        The MAR court summarily denied Richardson’s

claims for relief.         Richardson then filed a pro se petition for

writ of certiorari with the North Carolina Court of Appeals,

which was also denied.

       On May 18, 2007, Richardson filed a pro se § 2254 petition

in the Eastern District of North Carolina, alleging that his

sentence was illegal, that he received ineffective assistance of

counsel, that he was denied his right to appeal, and that the

state court did not have jurisdiction over him.                The State filed

a motion for summary judgment arguing that Richardson’s claims

were   without    merit.       The   district   court   granted    the    State’s

motion for summary judgment with respect to all of Richardson’s

claims except his claim that his counsel failed to file a notice

of appeal at Richardson’s request.              The district court ordered

an evidentiary hearing to consider Richardson’s contention that

his trial counsel failed to note an appeal on his behalf, but

ultimately vacated that order after the State produced a copy of

the    stenographic        transcript     of    Richardson’s      guilty    plea

proceeding.

       On   May   2,   2008,    the     district   court   issued    an    order

conditionally granting Richardson’s habeas petition, concluding


                                         8
that “Hag[e]n’s failure to file a notice of appeal on behalf of

petitioner was per se ineffective assistance of counsel.”                          (J.A.

at 170.)     The order stated that the writ would not issue if the

State granted Richardson a belated appeal within 90 days.

     The State appealed, and we possess jurisdiction pursuant to

28 U.S.C.A. §§ 1291 and 2253 (West 2006).



                                            II.

                                             A.

     We review de novo the district court’s decision to grant

Richardson’s § 2254 petition based on the state court record,

applying the same standards as the district court.                           Whittlesey

v. Conroy, 301 F.3d 213, 216 (4th Cir. 2002).                         Pursuant to the

Anti-Terrorism          and    Effective      Death     Penalty       Act    (“AEDPA”),

however,    our       review    of   the   relevant     state    court      decision   is

highly constrained.            Jackson v. Johnson, 523 F.3d 273, 276 (4th

Cir. 2008).           We may not grant a petition for habeas relief in

cases    where    a    state     court     considered    a    claim    on    its   merits

unless     the        decision       was   “contrary      to,     or     involved      an

unreasonable application of, clearly established Federal law, as

determined       by    the     Supreme     Court   of   the     United      States.”   28

U.S.C.A. § 2254(d)(1).

     A state court’s decision is contrary to clearly established

federal law “if the state court arrives at a conclusion opposite

                                             9
to that reached by [the Supreme] Court on a question of law or

if the state court decides a case differently than [the Supreme]

Court      has     on    a    set    of   materially      indistinguishable              facts.”

Williams v. Taylor, 529 U.S. 362, 413 (2000).                                 And, a state

court’s decision involves an unreasonable application of federal

law when the state court “correctly identifies the governing

legal      rule    [from       the   Supreme      Court’s     cases]        but    applies     it

unreasonably to the facts of a particular . . . case,” id. at

407-08, or “applies a precedent in a context different from the

one    in    which       the    precedent        was    decided       and    one    to    which

extension         of    the    legal      principle      of     the    precedent         is   not

reasonable [or] fails to apply the principle of a precedent in a

context where such failure is unreasonable,” Robinson v. Polk,

438 F.3d, 350, 355 (4th Cir. 2006) (internal quotation marks and

citation omitted).               “The state court’s application of clearly

established federal law must be ‘objectively unreasonable,’ for

a ‘federal habeas court may not issue the writ simply because

that       court       concludes     in    its    independent         judgment      that      the

relevant         state-court         decision         applied     clearly          established

Federal law erroneously or incorrectly.’” 3 Jackson, 523 F.3d at


       3
       We also note that the deference we owe the MAR court’s
denial of Richardson’s ineffective assistance of counsel claim
is not lessened by the fact that the MAR court denied the claim
in a summary order without explaining its rationale.    Bell v.
Jarvis, 236 F.3d 149, 158 (4th Cir. 2000) (en banc) (“[W]e may
(Continued)
                                                 10
277   (quoting   Williams,       529   U.S.      at   409,    411).     “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. (quoting

Williams, 529 U.S. at 412).

                                            B.

      On   appeal,   the    State      contends        that    Richardson      is   not

entitled   to    habeas    relief      on    his      ineffective     assistance     of

counsel claim because the MAR court’s denial of that claim was

neither contrary to, nor involved an unreasonable application

of, clearly established federal law.                    According to the State,

Hagen was not ineffective for failing to file a written notice

of appeal after Richardson’s guilty plea because North Carolina

procedural   rules   do    not    require        or   express   a     preference    for

written notice and the trial court had already refused to accept

oral notice.     Richardson counters that his counsel’s failure to

file a written notice of appeal after the trial court rejected

the oral notice constitutes ineffective assistance of counsel

and that the MAR court’s denial of his ineffective assistance of




not presume that [the] summary order is indicative of a cursory
or haphazard review of [the] petitioner’s claims.    Rather, the
state court decision is no less an adjudication of the merits of
the claim and must be reviewed under the deferential provisions
of § 2254(d)(1).” (internal quotation marks and citation
omitted)).


                                            11
counsel    claim      was       contrary     to,       or     involved          an    unreasonable

application of, the United States Supreme Court’s decisions in

Strickland       v.   Washington,           466       U.S.    668     (1984),         and     Roe    v.

Flores-Ortega, 528 U.S. 470 (2000).

     Before       resolving        this      dispute,          we     review         the    relevant

Supreme Court case law.

     In        Strickland,       the      Supreme        Court        held       that       criminal

defendants        have      a     Sixth      Amendment             right        to     “reasonably

effective” legal assistance, 466 U.S. at 687, and announced the

following test:          A defendant claiming ineffective assistance of

counsel must show (1) that counsel's representation “fell below

an objective standard of reasonableness,” id. at 688, and (2)

that counsel’s deficient performance prejudiced the defendant,

id. at 692.

     In        Flores-Ortega,          the        Supreme          Court     held          that     the

Strickland       test     applies       to    claims,          like       Richardson’s,           that

counsel was constitutionally ineffective for failing to file a

notice    of     appeal.         Flores-Ortega,              528    U.S.    at       477.      As   to

Strickland’s first prong, the Court noted that “a lawyer who

disregards specific instructions from the defendant to file a

notice     of    appeal     acts       in    a     manner          that    is    professionally

unreasonable,” but that “a defendant who explicitly tells his

attorney not to file an appeal plainly cannot later complain

that,     by    following        his    instructions,               his    counsel          performed

                                                 12
deficiently.”        Id. at 477.         In cases where the defendant does

not    provide      the    attorney     with    explicit     instructions         about

whether to file an appeal, the Flores-Ortega Court explained

that “whether counsel has performed deficiently by not filing a

notice of appeal is best answered by first asking a separate,

but antecedent, question: whether counsel in fact consulted with

the defendant about an appeal,” id. at 478, and 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 (for example,

because there are nonfrivolous grounds for appeal), or (2) that

this   particular         defendant    reasonably      demonstrated    to    counsel

that he was interested in appealing,” id. at 480.

       As to Strickland’s second prong, the Flores-Ortega Court

observed     that    a     presumption     of    prejudice       applies    when     an

attorney’s    deficient       performance       “deprives    a   defendant    of    an

appeal that he otherwise would have taken, the defendant has

made out a successful ineffective assistance of counsel claim

entitling him to an appeal.”             Id. at 484.       Of course, “whether a

given defendant has made the requisite showing will turn on the

facts of a particular case.”                Id. at 485.          “[E]vidence that

there were nonfrivolous grounds for appeal or that the defendant

in question promptly expressed a desire to appeal will often be

highly relevant in making [the prejudice] determination,” id. at

                                          13
485, and “a defendant's inability to specify the points he would

raise [on appeal] . . . will not foreclose the possibility that

he can satisfy the prejudice requirement where there are other

substantial reasons to believe that he would have appealed,” id.

at 486 (internal quotation marks and citation omitted).

                                          C.

                                          1.

       The ultimate question that we must answer in this appeal—

the same question the district court faced below—is whether the

MAR   court’s      denial     of    Richardson’s    ineffective      assistance    of

counsel claim was contrary to, or an unreasonable application

of, Strickland.         On the record before us, we conclude that it

was not.

       In   this      case,        consistent    with      the    Supreme    Court’s

instruction     in     Flores-Ortega,       Richardson’s         counsel    consulted

with his client about an appeal and attempted to carry out the

explicit instructions of his client by orally noticing an appeal

at    the   sentencing      hearing.       The     trial     court   rejected    that

notice.

       Richardson first complains that the trial court improperly

rejected his oral notice of appeal because it saw no grounds for

appeal.       On     this   point,      Richardson      is   correct;      the   North

Carolina appellate procedures do not require a notice of appeal

to state the grounds for appeal. See N.C. R. App. P. 4(b).

                                          14
Nevertheless, to the extent that Richardson’s claim for habeas

relief rests on the state court’s erroneous application of state

law, it must fail.                Estelle v. McGuire, 502 U.S. 62, 67-68

(1991) (“[F]ederal habeas corpus relief does not lie for errors

of state law. . . . [W]e reemphasize that it is not the province

of     a      federal      habeas        court      to         reexamine        state-court

determinations       on     state-law        questions.”         (internal        citations

omitted)).

                                             2.

       Richardson’s        more    nuanced      argument       for    habeas      relief    is

that    his    counsel’s     conduct      was      ineffective        as    a    matter     of

federal       constitutional       law    because,       if     counsel     had     filed    a

written notice of appeal with the clerk of the Superior Court,

“[t]he jurisdiction of the trial court with regard to [his] case

[would have been] divested,” N.C. Gen. Stat. § 15A-1448(a)(3)

(2007), and his appeal would have proceeded despite the trial

court’s       erroneous     rejection      of      his    earlier      oral      notice     of

appeal.       The MAR court implicitly determined that Richardson’s

counsel’s conduct—that is, his failure to end-run the court’s

erroneous rejection of oral notice with a written notice—“fell

[within] an objective standard of reasonableness,” Strickland,

466    U.S.    at   688,    and    we    fail     to     see    how   the     MAR   court’s

determination       that     Richardson           did    not     receive        ineffective



                                             15
assistance     of   counsel   was   contrary   to,   or   an   unreasonable

application of, clearly established Federal law.

        In so holding, we first emphasize that this case involves

the North Carolina Rules of Appellate Procedure, not the Federal

Rules    of   Appellate   Procedure   (“FRAP”).      In   concluding   that

Richardson’s counsel was required to file written notice after

the oral notice was rejected, the district court relied on McCoy

v. United States, No. 3:06CV313-V-02, 2006 WL 2241156 (W.D.N.C.

Aug. 3, 2006) (unpublished).        In McCoy, the district court found

that trial counsel provided ineffective assistance of counsel by

failing to file a written notice of appeal after the petitioner

attempted to file oral notice of appeal but was told by the

judge that he had to file a written notice of appeal within 10

days.     Id. at *1-2.    McCoy, however, was decided under the FRAP

not the North Carolina Rules of Appellate Procedure, and thus

any reliance on McCoy in the case before us is misplaced.

        Unlike the FRAP, which do not provide for oral notice of

appeal, see Fed. R. App. P. 3(a)(1) (“An 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.” (emphasis added)), North

Carolina Rule of Appellate Procedure 4(a) provides that “[a]ny

party entitled by law to appeal from a judgment or order of a

superior or district court rendered in a criminal action may

                                      16
take appeal by (1) giving oral notice of appeal at trial, or (2)

filing notice of appeal with the clerk of superior court . . .

.” 4    N.C. R. App. P. 4(a) (emphasis added).                             Importantly, this

rule gives a criminal defendant the option to file a notice of

appeal either orally or in writing, but it neither expresses a

preference for written notice over oral notice nor mandates that

courts     must    treat      a   written      notice         differently        than     an    oral

notice—and        the   parties         have     not      pointed         us     to    any     other

provision of North Carolina law that does so.                                   Thus, although

counsel in McCoy was certainly ineffective for failing to file a

written notice of appeal given that the FRAP provide only for

written       notice,      we     would     find         it    difficult         to     say     that

Richardson’s       counsel’s           failure      to    file      written       notice       falls

below an objective standard of reasonableness.                                 But we need not

go     that    far,     for       it    certainly         was       not     an        unreasonable

application       of    Strickland        for       the       MAR   court      to      reach    that

conclusion.        This is so because the North Carolina Rules give

criminal defendants the option of filing either oral or written

notice.




       4
       In North Carolina, “[n]otice of appeal shall be given
within the time, in the manner and with the effect provided in
the rules of appellate procedure.”    N.C. Gen. Stat. § 15A-
1448(b).



                                               17
       Second,      we     note    that    after    the     court      rejected           the   oral

notice of appeal, the court asked Richardson repeatedly if he

wished to withdraw his guilty plea in light of the fact that the

court was not going to enter a notice of appeal.                                In response,

Richardson himself told the court, “I’m fine.                                 I’m fine.          I’m

fine.       I’ll just write the Court of Appeals myself.”                                 (J.A. at

90.)        And, as noted above, Richardson did ultimately file a

petition for writ of certiorari, but it was denied.                                  Under these

circumstances, we think that Richardson’s statement relieved his

counsel      of     any     further       obligations           respecting       Richardson’s

appeal—it      indicated          Richardson’s       desire       to    forego        a    written

notice of appeal in favor of Richardson filing a petition for a

writ of certiorari with the appellate division, which was his

appropriate remedy under § 15A-1444(e).                          Cf. Flores-Ortega, 528

U.S. at 477 (“[A] defendant who explicitly tells his attorney

not to file an appeal plainly cannot later complain that, by

following           his       instructions,               his         counsel          performed

deficiently.”).

       In    sum,     we     are    mindful        that     “courts       must       judge       the

reasonableness of counsel’s challenged conduct on the facts of

the     particular         case,    viewed    as     of         the    time     of     counsel’s

conduct,” and that “judicial scrutiny of counsel’s performance

must be highly deferential.”                   Flores-Ortega, 528 U.S. at 477

(internal quotation marks and citations omitted).                                Here, Hagen

                                              18
consulted with Richardson and attempted to enter an oral notice

of appeal on his behalf but it was rejected; North Carolina law

gives   defendants       the    option    to     file    either   oral    or   written

notice of appeal and does not provide for different treatment of

oral    and    written         notices;    and     Richardson         himself,      when

questioned by the court, accepted that his appropriate remedy

was not to file a notice of appeal, but to petition for a writ

of certiorari.      On these facts, and under the highly deferential

AEDPA standard, we simply cannot say that the MAR court’s denial

of   Richardson’s    ineffective          assistance       of   counsel    claim     was

contrary      to,   or    an     unreasonable           application      of,   clearly

established federal law.



                                          III.

       For the foregoing reasons, we reverse the district court’s

judgment granting the writ of habeas corpus based on ineffective

assistance     of   counsel      and     remand    with     instructions       to   deny

Richardson’s § 2254 petition.



                                   REVERSED AND REMANDED WITH INSTRUCTIONS




                                           19
