                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-7040


JEROME STEVEN GORDON,

                Petitioner – Appellant,

           v.

DANIEL BRAXTON, Warden,

                Respondent – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:12-cv-00834-LO-TRJ)


Argued:   December 9, 2014                 Decided:   March 3, 2015


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Reversed and remanded by published opinion.     Judge Diaz wrote
the opinion, in which Judge Niemeyer and Judge Wynn joined.


ARGUED: Christopher Ryan Ford, MAYER BROWN, LLP, Washington,
D.C., for Appellant.    Donald Eldridge Jeffrey, III, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.    ON BRIEF: Mark R. Herring, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
DIAZ, Circuit Judge:

     We granted a certificate of appealability in this case to

consider    the    district   court’s       dismissal     of   Jerome    Steven

Gordon’s petition for a writ of habeas corpus.                 Gordon alleges

that his trial counsel was ineffective for failing to file a

notice of appeal when instructed to do so and for not consulting

with him about an appeal.         We hold that (1) Gordon properly

exhausted    his   state   remedies;       (2)   the   state   court    did   not

adjudicate Gordon’s claim on the merits; (3) the district court

consequently owed no deference to the state court’s denial of

Gordon’s petition; and (4) the district court applied the wrong

standard in deciding whether to hold an evidentiary hearing.                  We

therefore reverse and remand.



                                   I.

     In 2009, Gordon pleaded no contest in a Virginia circuit

court to one count each of carnal knowledge and soliciting the

production of child pornography, pursuant to a plea agreement

that did not include a waiver of appellate or post-conviction

rights.     The court sentenced him to thirty-five years in prison

with eight years suspended.        Mufeed W. Said represented Gordon

at the plea and sentencing hearings.             Gordon did not timely file

a direct appeal.



                                       2
      Gordon did, however, pursue collateral relief.                                In state

court,     he     filed    a    pro        se   habeas      corpus      petition    alleging

ineffective       assistance          of    counsel    at    his     sentencing     hearing.

While his petition was pending, Gordon moved for leave to amend,

seeking to add another ineffective-assistance-of-counsel claim,

this one alleging that his attorney failed to file an appeal

when asked to do so and that Gordon wrote to Said “asking for an

appeal, but never got any response.” 1                      J.A. 71.      He requested an

evidentiary hearing and appointment of counsel.                              Gordon later

filed     a     motion    to    supplement           his    petition     with     additional

supporting facts, including that he asked Said “about a possible

appeal.”      J.A. 86.

      The warden moved to dismiss the petition and attached an

affidavit from Said.             Gordon opposed the motion and again moved

for   leave      to    amend.         To    these     filings      he   attached    a   sworn

“Affidavit.”           The state court granted Gordon’s various motions

for leave to amend but denied Gordon’s request for counsel and,

without an evidentiary hearing, dismissed Gordon’s petition.

      All told, Gordon’s petition raised six claims.                               The state

court     concluded       on    the    first     five--all      related      to    counsel’s

performance       at     the   sentencing        hearing--that          Gordon     failed   to


      1
       Gordon also filed a pro se motion for a delayed appeal
with the Court of Appeals of Virginia, which denied the motion.



                                                 3
show deficient performance and prejudice.                  On the sixth claim,

the court found that Gordon had not shown deficient performance

because Gordon had merely inquired about an appeal, not directly

requested one.        The state court addressed counsel’s duty to file

an   appeal    when    directed     to   do    so,   but   said   nothing       about

counsel’s duty to consult.          The Supreme Court of Virginia denied

Gordon’s petition for appeal.

      Gordon then filed a pro se habeas corpus petition in the

district     court.       Without   an    evidentiary      hearing,      the    court

dismissed      Gordon’s     petition       based     on    the    state    court’s

reasoning.      Gordon appealed, and we granted a certificate of

appealability to consider “whether, in light of Roe v. Flores-

Ortega, 528 U.S. 470 (2000), and United States v. Cooper, 617

F.3d 307 (4th Cir. 2010), counsel was ineffective for not filing

a notice of appeal.”        Order, Gordon v. Braxton, No. 13-7040 (4th

Cir. Feb. 7, 2014).

      Our review of the district court’s dismissal of Gordon’s

habeas petition is de novo.              Teleguz v. Pearson, 689 F.3d 322,

327 (4th Cir. 2012).



                                         II.

      To prevail on an ineffective-assistance-of-counsel claim, a

defendant must show (1) that his counsel’s performance “fell

below   an    objective    standard      of    reasonableness”     and    (2)    that

                                          4
counsel’s deficient performance prejudiced him.                   Strickland v.

Washington,    466    U.S.     668,   687-88      (1984).        Gordon’s    claim

implicates    two    related    duties       entrusted   to    criminal     defense

attorneys.     First, counsel must file a notice of appeal when

instructed by her client to do so.               Flores-Ortega, 528 U.S. at

477.     Second, even if the client does not expressly request an

appeal, counsel must consult with her client about an appeal

when a rational defendant would want to appeal or her client

expresses an interest in appealing.               Cooper, 617 F.3d at 313.

Dereliction    in    either    duty   constitutes    deficient      performance.

See Flores-Ortega, 528 U.S. at 477, 480; Cooper, 617 F.3d at

313.     A defendant establishes prejudice when he demonstrates a

reasonable probability that he would have filed an appeal “but

for” counsel’s failure to file or consult.                    Flores-Ortega, 528

U.S. at 484.        The defendant need not show that his appeal has

merit.    Id. at 486.

                                       A.

       We begin with the warden’s argument that Gordon did not

exhaust his state remedies.            The warden does not dispute that

Gordon properly alleged that Said failed to file a notice of

appeal.     But, according to the warden, Gordon did not exhaust

his contention that Said failed to consult with him about an

appeal because Gordon did not identify it as a separate claim.

We disagree.

                                         5
      State      prisoners      like       Gordon        must     exhaust      their     state

remedies before filing a habeas petition in federal court.                                   28

U.S.C. § 2254(b).          The purpose of the exhaustion requirement is

to “giv[e] the State the opportunity to pass upon and correct

alleged violations of its prisoners’ federal rights.”                               Jones v.

Sussex    I    State     Prison,      591     F.3d       707,    712    (4th      Cir.   2010)

(quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)).

      A   habeas       petitioner      meets       the    exhaustion       requirement       by

“‘fairly       present[ing]’         his    claim        in    each    appropriate       state

court . . . , thereby alerting that court to the federal nature

of the claim.”          Reese, 541 U.S. at 29 (quoting Duncan v. Henry,

513   U.S.      364,    365    (1995)).            To     satisfy      his     burden,      the

petitioner      must    show    that       “both    the       operative    facts     and    the

controlling       legal    principles         [were]          presented      to   the    state

court.”        Jones, 591 F.3d at 713 (alteration omitted) (quoting

Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)).

      We hold that Gordon fairly presented the failure-to-consult

issue in state court.                In its decision granting the warden’s

motion    to    dismiss,      the     state    court          determined     that   Gordon’s

petition raised the issue of counsel’s duty to file a notice of

appeal,    but     found      that    Gordon       never       expressly      requested      an

appeal.       Rather, said the court, Gordon “merely ‘asked [counsel]

is there anything else we can do from this point . . . .’”                                 J.A.

126 (alterations in original) (quoting Gordon’s affidavit).                                But

                                              6
by inquiring about what could be done after being sentenced,

Gordon was    indicating      his    interest    in   appealing      which,    at   a

minimum,    triggered    counsel’s     separate       duty    to   consult.     The

state court, however, said nothing at all about this aspect of

Said’s performance.

     In addition, the parties’ filings before the state court

referred to Strickland, Flores-Ortega, and Miles v. Sheriff, 581

S.E.2d 191 (Va. 2003).          As noted earlier, Strickland provides

the familiar test for a federal Sixth Amendment ineffective-

assistance-of-counsel claim.          466 U.S. at 687-88.           Flores-Ortega

discusses both the duty to consult and the duty to file as

falling along a “spectrum.”          528 U.S. at 477.          And in Miles, the

Supreme Court of Virginia discusses Strickland and Flores-Ortega

in detail and mentions both the duty to consult and the duty to

file.     581 S.E.2d at 194.        This is not unusual, as courts often

address    both    the   duty   to    consult     and    duty      to   file   when

petitioners allege that they were denied their right to appeal

because of counsel’s ineffective assistance.

     For example, in United States v. Poindexter, the petitioner

alleged that “his attorney rendered constitutionally ineffective

assistance when he failed to file a timely notice of appeal

after being unequivocally instructed to do so.”                    492 F.3d 263,

265 (4th Cir. 2007).       We remanded for an evidentiary hearing and

directed     the   district     court       to   first       “determine    whether

                                        7
Poindexter        unequivocally      instructed      his     attorney    to    file    a

notice of appeal,” and, if not, “determine if Poindexter met his

burden” on a failure-to-consult theory.                    Id. at 273;     see also,

e.g., Thompson v. United States, 504 F.3d 1203, 1206 (11th Cir.

2007) (finding no clear error in the district court’s decision

to credit counsel’s testimony that his client did not expressly

request      an      appeal    and   then       discussing    counsel’s       duty    to

consult); Gomez-Diaz v. United States, 433 F.3d 788, 792 (11th

Cir.    2005)     (finding     the   pleadings      unclear    as   to   whether      the

petitioner expressly requested an appeal but concluding that the

pleadings, if true, supported counsel having a duty to consult);

United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir.

2000)      (declining     to   decide     whether     the    petitioner       expressly

requested       an    appeal    because     the    record     showed     that,   at    a

minimum, the petitioner expressed an interest in appealing that

triggered counsel’s duty to consult).

       Thus, on these facts, we reject the warden’s contention

that Gordon failed to present his failure-to-consult theory and

hold, instead, that Gordon exhausted his state remedies. 2


       2
       The warden also contends that Gordon did not raise his
failure-to-consult argument in the district court.       But if
anything, Gordon made this argument more directly in the federal
forum.   In his filings in the district court, he wrote that he
“expressly communicated to his attorney his desire to appeal”
and cited Poindexter, 492 F.3d 263, for three propositions: “1.
his attorney had a duty to consult under Flores-Ortega; 2. his
(Continued)
                                            8
                                         B.

        We next consider what standard of review applies to the

state    court’s     dismissal     of   Gordon’s    petition.       The    district

court looked to the highly deferential standard in 28 U.S.C.

§ 2254(d), as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”).                We review this choice de novo.

Winston v. Kelly (Winston I), 592 F.3d 535, 544 (4th Cir. 2010).

        Section 2254(d) prohibits federal courts from granting a

state     prisoner’s      habeas    petition      unless   the     state    court’s

decision to deny the petition (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)

“was    based   on   an   unreasonable        determination   of   the     facts    in

light of the evidence presented in the State court proceeding.”

However,     the     state   court’s      decision     must      qualify     as    an

“adjudicat[ion] on the merits” to trigger AEDPA deference.                         Id.

If it does not so qualify, review in the federal courts is de



attorney failed to fulfill his consultation obligations; 3. he
was prejudiced by his attorney’s failure to fulfill these
obligations.”   J.A. 183 (underline added).   Gordon also wrote,
verbatim, “On October 20, 2009, Mr. Gordon asks Mr. Said about
challenging, his conviction(s) and or sentence during a [meeting
in the holding cell] after being sentence. . . .       Two weeks
later, Gordon wrote to his lawyer, informing his attorney that
he ‘wanted to appeal’ his conviction(s) and or sentence.”    Id.
(ellipsis added).   Accordingly, Gordon preserved this issue for
our review.



                                          9
novo.     Winston v. Pearson (Winston II), 683 F.3d 489, 499 (4th

Cir. 2012).

       A claim is not “adjudicated on the merits” when the state

court makes its decision “on a materially incomplete record.”

Winston    I,    592       F.3d    at    555.         A    record         may    be     materially

incomplete “when a state court unreasonably refuses to permit

‘further development of the facts’ of a claim.”                                 Winston II, 683

F.3d at 496 (quoting Winston I, 592 F.3d at 555).                                         In this

circumstance,         we    do     not   offend        the      principles         of    “comity,

finality, and federalism” that animate AEDPA deference because

the state court has “passed on the opportunity to adjudicate

[the] claim on a complete record.”                        Winston I, 592 F.3d at 555,

557.

       We hold that the state court did not adjudicate Gordon’s

claim    on     the    merits      because       it       (1)    unreasonably           truncated

further    factual         development     on        Gordon’s     contention            that   Said

failed to file an appeal and (2) said nothing at all about

Gordon’s      assertion          that    Said        failed     to    consult         with     him.

Specifically, the state court considered only Gordon’s formally

titled    “Affidavit”         in    determining           that       no    conflict       existed

between Gordon’s and Said’s accounts.                           As we discussed above,

the state court found that Gordon’s “own affidavit indicates

that he merely ‘asked [counsel] is there anything else we can do

from this point . . . .’” J.A. 126 (alterations in original).

                                                10
        Gordon’s      argument,        however,      rests    on     allegations       made

throughout his filings, asserting that he in fact asked Said

(orally    and     in    writing)       to    pursue    an    appeal.        The    warden

counters that we should accord no weight to these allegations

because they are “unsworn.”              We disagree.

        Virginia requires habeas petitioners to use a form, the

contents of which are produced in the Code.                             Va. Code Ann.

§ 8.01-655 (2014).              If the petitioner does not substantially

comply with the form, the court is “entitle[d] . . . to return

such petition to the prisoner pending the use of and substantial

compliance       with     such       form.”         § 8.01-655(A).         Among      other

requirements, the form must be verified before a notary or other

officer authorized to administer oaths.                     § 8.01-655(B).

        Gordon signed his petition attesting that the facts therein

were true to the best of his information and belief, but he was

not sworn.       Nonetheless, the state court did not return Gordon’s

petition to him because of this defect, nor did it refuse to

consider    the       allegations       in    the    petition      because     they   were

unsworn.

     Moreover, Gordon was pro se, and Virginia courts in habeas

corpus proceedings “do not expect or require high standards of

legal    draftsmanship          of   petitioners       filing      petitions    pro    se.”

Strickland       v.     Dunn,    244    S.E.2d       764,    767    (Va.   1978).        We

therefore think it proper to consider both Gordon’s affidavit

                                              11
and his unsworn petition in determining whether the state court

adjudicated Gordon’s claim on the merits.

       The record in this case sets up a classic factual dispute.

Gordon alleged that he asked Said to file an appeal shortly

after sentencing and again later in writing.                      As to the former,

Gordon alleged in his petition that he had a conversation with

Said      “right    after    the     sentencing         hearing     was      completed,

requesting an appeal.”            J.A. 105.          And in his affidavit, Gordon

asserted: “After sentencing I spoke briefly with Mr. Said about

the time, I just receive[d].              I asked Mr. Said is there anything

else we can do from this point and Mr. Said just simply shook

his head in a no position.”            J.A. 111.

       Although in his affidavit Said insisted that Gordon never

expressly        requested   an     appeal,      a    letter   Said    sent     to   the

Virginia State Bar (attached to his affidavit) suggests that

Said had some communication with Gordon or his family about an

appeal.           Specifically,      the      letter      stated      that     “[a]fter

sentencing[,] Mr. Gordon and his family contacted me regarding

post-conviction motions.            I indicated to them very clearly that

I   had    not    been   retained    to     do   post[-]conviction        motions     or

appeals.”        J.A. 95 (emphasis added).

       Gordon also alleged that he sent Said a letter in which he

told Said that he “wanted to have an appeal filed concerning his

case.”       J.A.    109,    114.      In     his     affidavit,      Gordon    further

                                            12
described       that    letter:          “About   two     weeks         later     [after

sentencing], I wrote to Mr. Said explain[in]g the discomfort in

the time I receive[d] and asking him are you sure there isn’t

anything that you can do and if you want more money, I will pay

you.    I never got any response back from Mr. Said.”                    J.A. 111.

       Said, in his affidavit, denied receiving such a letter and

attached two November 2009 letters from Gordon requesting that

Said send Gordon a number of documents.                  But Gordon was adamant

that a different letter, not in the record, was the one where he

requested       an   appeal.        To     support    this   contention,          Gordon

submitted a billing invoice from Said that referenced “[r]eview

of 13 letters sent to Office by Mr. Gordon.”                 J.A. 119.

       Rather    than   hold   an    evidentiary        hearing    to     develop     the

record and resolve this credibility contest, the state court

focused    on    one    line   in    Gordon’s        affidavit,        while    ignoring

Gordon’s allegations in his papers that he asked Said to file an

appeal.     In any event, at a minimum, Gordon’s affidavit clearly

implicated Said’s duty to consult, which the state court did not

address   at     all.    And   Said’s       response     that     he    had     not   been

retained for post-conviction motions or appeals would be, by

itself, insufficient to discharge this duty.                    See Flores-Ortega,

528 U.S. at 478 (defining “consult” as “advising the defendant

about the advantages and disadvantages of taking an appeal, and

making a reasonable effort to discover the defendant’s wishes”).

                                           13
As a result, the state court did not adjudicate Gordon’s claim

on the merits, and the district court owed no deference to the

state court’s ruling.

                                 C.

     Having held that the district court should have reviewed

the state court’s decision de novo, we turn to the district

court’s denial of an evidentiary hearing.         We review this ruling

for abuse of discretion.      Conaway v. Polk, 453 F.3d 567, 582

(4th Cir. 2006).       Because the district court did not hold an

evidentiary hearing, “we must evaluate the petition under the

standards governing motions to dismiss made pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure.            Accordingly,

we are obliged to accept a petitioner’s well-pleaded allegations

as true, and we are to draw all reasonable inferences therefrom

in the petitioner’s favor.”    Id. (citation omitted).

     AEDPA   Section    2254(e)(2)    restricts    a    federal   court’s

ability to hold an evidentiary hearing, but those restrictions

apply only when the habeas petitioner “has failed to develop the

factual basis of a claim in State court proceedings.”               This

failure occurs when a state prisoner does not act diligently to

develop the record in state court.      Williams v. Taylor, 529 U.S.

420, 437 (2000).   “Diligence will require in the usual case that

the prisoner, at a minimum, seek an evidentiary hearing in state

court in the manner prescribed by state law.”          Id.

                                 14
     The       district     court    did    not    reach     Section     2254(e)(2)’s

requirements because it summarily denied Gordon’s request for an

evidentiary hearing with a citation to Cullen v. Pinholster, 131

S. Ct. 1388 (2011).           Gordon v. Braxton, No. 1:12cv834, 2013 WL

2047818, at *8 (E.D. Va. May 14, 2013).                    Pinholster held that a

Section        2254(d)(1)     determination         (that     the     state    court’s

decision was contrary to, or an unreasonable application of, the

Supreme Court’s clearly established federal law) must be made on

the basis of the record before the state court.                        131 S. Ct. at

1398.

     However, as discussed above, Section 2254(d)(1) does not

apply     to    Gordon’s     claim    because       the     state     court   did     not

adjudicate it on the merits.                Pinholster did not substantively

engage     with       the   adjudication-on-the-merits               requirement;      it

included nothing more than “the terse acknowledgement that the

habeas petitioner’s claims had been adjudicated on the merits in

state-court       proceedings.”            Winston    II,      683    F.3d    at     501.

Therefore, Pinholster does not foreclose an evidentiary hearing.

     In effect, the district court’s error in applying AEDPA

deference       led    it   to   conclude         mistakenly     that    it    had     no

discretion to grant a hearing.               We therefore think it proper to

remand for the district court to exercise its discretion in the

first instance on this question.



                                           15
                                     III.

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

dismissal    of    Gordon’s    petition        and    remand    for    further

proceedings.

                                                      REVERSED AND REMANDED




                                      16
