Donald Herrington v. Chadwick Dotson

99 F.4th 705

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 30, 2024
• Docket: 22-6272
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6272

DONALD HERRINGTON,

Plaintiff – Appellant,

v.

CHADWICK DOTSON, Director of the Department of Corrections,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, Senior District Judge. (1:16-cv-00412-AJT-MSN)

Argued: January 24, 2024 Decided: April 30, 2024

Before NIEMEYER, AGEE and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded with instructions by published opinion. Judge Agee wrote the opinion in which Judge Niemeyer and Judge Thacker joined.

ARGUED: Madeline Killen, Nikolai Morse, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Craig Stallard, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: J. Scott Ballenger, Catherine E. Stetson, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Jason S. Miyares, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 2 of 31

AGEE, Circuit Judge:

Donald Herrington brought a 28 U.S.C. § 2254 habeas petition challenging his state

criminal convictions. He argued (1) that the state trial court violated his Sixth Amendment

right to counsel and (2) that his appellate counsel was ineffective for failing to bring two

meritorious arguments on direct appeal, a Sixth Amendment claim and an erroneous jury

instruction claim. The district court rejected both arguments and denied Herrington’s

petition. He appeals.

Because we conclude that Herrington clearly, unequivocally, and knowingly waived

his right to counsel, we affirm that aspect of the district court’s decision. We also affirm

the district court’s decision as to the ineffective assistance of counsel argument regarding

Herrington’s Sixth Amendment claim. However, because Respondent 1 concedes that

Herrington meets the standard for ineffective assistance of counsel for his jury instruction

argument, we reverse that part of the district court’s decision and remand with instructions

to issue a writ of habeas corpus unless, within a reasonable period of time the district court

shall deem appropriate, Herrington is afforded a new state court appeal in which he may

raise this claim that was erroneously omitted from his original appeal.

The named respondent is Chadwick Dotson, the Director of the Virginia 1

Department of Corrections. For ease of reference, we refer to Dotson as “Respondent.” 2 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 3 of 31

I.

A.

Prior to the criminal proceedings underlying this appeal, Herrington was involved

in a different criminal proceeding that is, in part, relevant to this case. In 2008, the

Commonwealth of Virginia charged Herrington with several minor drug crimes and he

desired assistance with his defense. Believing he was unable to afford a private attorney,

Herrington filled out indigency forms, demonstrated his entitlement to court-appointed

counsel, and was appointed an attorney. Herrington was eventually acquitted of all charges.

Thereafter, in 2011, the Commonwealth charged Herrington with five counts of

perjury, three counts of obtaining money by false pretenses, three counts of filing false or

fraudulent income tax returns, two counts of failure to file an income tax return, and two

counts of drug possession. The perjury counts all related to Herrington’s failure to disclose

certain rental income in the indigency forms that he filled out in order to receive appointed

counsel for his 2008 charges.

At a hearing on the new charges before a Virginia trial court on December 20, 2011,

Herrington appeared without counsel. The trial court immediately inquired about

Herrington’s desire to be represented by counsel:

The court: So, Mr. Herrington, what we need to do is talk about what you intend to do about an attorney. And your choices are to hire your own attorney. If you’re eligible, you can be considered for Court appointed counsel, or you can proceed without an attorney. What would you like to do? Herrington: Well, I think we’re just going to proceed without an attorney, and then if I can get the funds together to get

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an attorney, I will do so, but I don’t want to hold up the Court, and all those perjuries are from getting a Public Defender, and I’m too scared to fill out that form for this fact that she’s going to give me a perjury charge.

J.A. 225–26.

The court then listed the offenses with which Herrington was charged and the

potential prison sentences they carried, omitting only that the charges also carried

mandatory periods of supervised release. In light of that information, the court probed

further, “[a]nd you’re telling me that you want to proceed without an attorney?” J.A. 227.

Herrington responded, “Well, I don’t want to hold up the Court.” J.A. 227. The court

reassured Herrington that it was more concerned with Herrington receiving counseled

representation if he wanted it. After Herrington confirmed that he could “get the funds

together to hire an attorney” with a little extra time, J.A. 227, the court agreed to give

Herrington six weeks to hire an attorney.

Herrington reappeared six weeks later on February 3, 2012, again without an

attorney. During the hearing, the following exchange occurred:

The court: Do you intend to hire an attorney? Herrington: I do. The court: When are you planning on doing that? Herrington: When I have the funds to do so. The court: Well, you’re out of time, Mr. Herrington. Herrington: Okay, that’s fine. The court: Your case was indicted on December 5th, you had a previous arraignment date of December 20th, and the Court continued your case until today giving you six weeks to hire an attorney. Have you made any efforts toward hiring an attorney?

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Herrington: I have, your Honor. .... The court: All right. And you have not retained any attorneys to date? Herrington: I have not. The court: Have you previously filled out a request for Court- appointed counsel, Mr. Herrington? Herrington: I will not be doing that, Your Honor. I would rather represent myself.

J.A. 232–33.

The court again listed Herrington’s charges, emphasizing their seriousness and the

potential for imprisonment. It asked Herrington, “do you understand that if you want to

represent yourself on these charges that the same rules would apply to you as would apply

to an attorney?” J.A. 234. Herrington responded, “[y]es.” J.A. 234. The court then asked

Herrington about his educational background. Herrington confirmed that he had only a

high school education and had no legal background. Concerned, the court continued:

The court: All right. Do you think that you are qualified to represent yourself in these cases? Herrington: Probably not to the fullest extent, but I’m gonna give it my best shot. The court: Do you understand that the Court will give you an opportunity and has given you the opportunity to hire counsel? Herrington: Yes. The court: But you’re indicating that you don’t want to do that? Herrington: Well, I just -- like I was trying to say, I just haven’t had the money to do it. And I am filing my tax returns and I do expect to get about five-thousand-dollars back real soon. Also, the Commonwealth, when they raided my home, do have some titles and things that they’re holding in their possession, which I’m hoping that, you

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know, since the warrant was invalid that those items are going to be returned very shortly to me.

J.A. 234–36.

Eventually, the court decided to give Herrington additional time—until March 26,

2012 (nearly two months)—to hire an attorney, despite Herrington’s assurances that he was

“prepared to go forward and represent [him]self.” J.A. 237.

Prior to the expiration of this additional time, Herrington filed multiple pro se

motions and indicated to the court that he intended to proceed without an attorney. As a

result, on February 21, 2012, the court conducted another hearing and the following

exchange occurred:

The court: [Y]ou intend to proceed without an attorney; is that correct? Herrington: Yeah. I’m willing to waive my right to an attorney. After talking to attorneys, I think there’s a high probability that I will be representing myself on this case as it’s just really document heavy. The court: Okay. Well, Mr. Herrington, the time to make that decision is now. Herrington: Okay.

J.A. 245.

The trial court thereafter explained that it would not give Herrington another two

months to hire an attorney if he had no intention of doing so. The court again recited

Herrington’s charges and asked him to confirm that he understood that he faced, inter alia,

thirteen felony charges that carried the potential for time in the penitentiary. Herrington

stated that he understood “[f]ully” and that he was aware of the sentencing range for each

of the charges. J.A. 247. The interaction continued:

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The court: Do you intend to hire an attorney? Herrington: I have talked to attorneys, and like I said, it’s -- the attorneys that I’ve talked to just -- no one really wants to take this case. It’s too document heavy, and I haven’t found counsel that’s really willing to take this case. It’s turning into a problem for me. I am prepared to represent myself and all the consequences that go with it. The court: Well, the issue really, Mr. Herrington, isn’t whether you’re prepared. It’s whether that’s what you are asking the Court to do, to allow you to waive your right to counsel because you want to represent yourself on these felony charges. Is that what you want to do? Herrington: Yes, it is.

J.A. 248–49. The court asked whether Herrington wouldn’t rather adhere to the original

hearing date of March 26 so that he could find an attorney. Herrington responded that he

did not want more time, “[he] would like to represent [him]self,” and he was “waiving” his

right to counsel. J.A. 249. Confirming, the court asked:

The court: So you’re asking this Court to allow you to waive your right to counsel on thirteen felonies and two misdemeanors; is that correct? Herrington: That’s correct.

J.A. 249–50.

Herrington then reviewed a form that indicated that he intended to waive his right

to an attorney. He confirmed that he understood the form and that he was agreeing to

undertake “all of the responsibilities and the role that an attorney would have,” including

examining witnesses and making procedural decisions. J.A. 251. The hearing went on:

The court: Do you feel qualified to represent yourself in a court of law on these serious felony charges? Herrington: No.

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The court: Well, then why would you give up your right to an attorney and proceed without an attorney? Herrington: I just -- it seems like there’s -- it’s becoming a conflict with, you know, my right to a speedy trial and finding representation, having the money to [hire] an attorney, having my house raided, everything of value taken from me so I can’t really sell anything to get an attorney because the Commonwealth has it. I can’t really get a job because I can’t leave the State of Virginia which I belong to a union that’s in Maryland. So I’ve really been restricted in my abilities to get money, raise money, and hire an attorney. .... The court: Well, those aren’t necessarily related, Mr. Herrington. Let’s talk about this because you have an absolute right to be represented by counsel. You also have an absolute right to represent yourself in these proceedings. But if you cannot afford an attorney and you meet the standards of indigency as set by the Supreme Court, an attorney will be appointed to represent you. Now, you haven’t asked to be considered for Court-appointed counsel, is that right? Herrington: I’m not going to meet the standard, Your Honor, with the -- The court: Did you not just tell me that you’re not working? Herrington: I’m getting unemployment. .... [A]nd then I have some rental income that I do receive. . . . [S]o that’s what all these perjuries are for is that I did not consider that [rental income] in my last time for obtaining an attorney. All the perjuries are basically for obtaining an attorney. The court: So these charges are arising out of prior applications that you made? Herrington: For attorneys, yes, they are. The court: And that is why you are declining to fill out an application [for Court-appointed counsel here?] Herrington: Absolutely.

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.... The court: All right. I understand that. So that leaves us with two options and that is either for you to hire an attorney or for you to go forward and represent yourself.

J.A. 252–55.

Herrington explained that he wanted the court to consider his motions, particularly

a motion that explained that the Commonwealth’s search of his home was unconstitutional

because it did not have a warrant. Herrington hoped that success on that motion would

result in a return of his property which would help him hire an attorney. But the court stated

that if he proceeded with his motions, the court would not hear those same motions again

if later represented by counsel. Herrington stated that he understood and asked the court to

proceed on his motions without counsel. The court again explained that if Herrington

“want[ed] to wait to be represented by counsel, [he could] do that.” J.A. 258. Herrington

again declined the opportunity, confirming his understanding of the consequences of such

a waiver. The court finally accepted Herrington’s waiver and considered his pro se motions.

Sometime before his trial on the 2011 charges, Herrington was charged in a separate

case for a different crime. In that case, Herrington was represented by court-appointed

counsel. When the trial court in this case found out about the representation in the separate

case, the following interaction occurred:

The court: You still want to go forward without an attorney? Herrington: Uh-huh. I do. The court: Now, clearly, you qualified for court-appointed counsel on the new charge. Herrington: I did not. The court: Well, the Judge appointed you an attorney.

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Herrington: As a means to an end. The court: So there must be some reason for that. So I would have to think that there is at least a chance that you would qualify, or that this Court would appoint counsel if you want it on these charges, but you do not want that? Herrington: No. The court: No? Herrington: No, thank you. I’m prepared to represent myself.

J.A. 318–19.

Thereafter, throughout the remainder of the proceedings, the court repeatedly

verified that Herrington still wanted to waive his right to counsel. See J.A. 321–22

(confirming waiver before considering certain motions); J.A. 325 (asking Herrington if he

“intend[ed] to continue with [his] waiver” one week before trial); J.A. 329 (reminding

Herrington that he had a right to an attorney and confirming that he wanted to represent

himself on the first day of his trial). Herrington confirmed his desire to represent himself

each time.

Herrington thus proceeded to trial pro se. After both sides finished presenting

evidence, Herrington realized that Virginia treats the attempt of a crime as a lesser included

offense of every substantive charge and that he could therefore be convicted of an attempt

to obtain money by false pretenses even though he was charged only with the completed

crime of obtaining money by false pretenses. Because he did not know that prior to the

close of evidence, he had not prepared a defense to attempt, arguing only that he never

received any money. And, at that point, it was too late to make such a defense.

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Ultimately, the jury acquitted Herrington of the two drug possession charges and

one perjury charge; convicted him of three counts of the lesser included offense of

attempting to obtain money by false pretenses (acquitting him of the related completed

offense); and convicted him of the remaining charges. The Virginia trial court then

sentenced Herrington to twelve years’ imprisonment.

B.

Herrington then received court-appointed counsel to appeal his state convictions on

the 2011 charges. After limited interactions with Herrington, appellate counsel filed a brief

raising one issue—that the trial court abused its discretion when sentencing Herrington—

and simultaneously filed an Anders 2 brief asking to withdraw as Herrington’s counsel.

Herrington filed a pro se supplemental brief, identifying 134 alleged errors in the record.

The Court of Appeals of Virginia affirmed the trial court’s judgment. See J.A. 117–

20. It first rejected Herrington’s sentencing argument and then determined that the issues

identified in Herrington’s pro se supplement were waived because he failed to support them

with legal argument or citations. The Supreme Court of Virginia subsequently refused

Herrington’s pro se petition to appeal.

Thereafter, Herrington filed a pro se petition for a writ of habeas corpus in the

Supreme Court of Virginia. He argued, inter alia, that the trial court violated his Sixth

2 Anders v. California, 386 U.S. 738 (1967). Counsel is permitted to submit an Anders brief when, after fully performing his duty to represent his client, counsel determines that the appeal is “so frivolous that counsel should be permitted to withdraw.” Penson v. Ohio, 488 U.S. 75, 82 (1988) (citation omitted). 11 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 12 of 31

Amendment right to counsel and that his appellate counsel was ineffective for failing to

bring multiple meritorious issues on appeal.

The Supreme Court of Virginia dismissed the petition. See J.A. 166–73. Relevant

here, the court concluded that Herrington’s Sixth Amendment claim was barred under

Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974), 3 because it was non-jurisdictional and, as

such, was inappropriately being brought for the first time in a habeas petition. The court

also rejected Herrington’s ineffective assistance of counsel claim, summarily stating that

Herrington satisfied neither the performance nor the prejudice prongs of the Strickland4

test. It reasoned that the record “demonstrates that counsel properly filed a petition for

appeal pursuant to Anders,” J.A. 171, and “[t]he selection of issues to address on appeal is

left to the discretion of appellate counsel,” J.A. 173.

C.

Herrington then filed this pro se § 2254 habeas petition in federal court, raising

fifteen assignments of error. The district court dismissed Herrington’s petition, reasoning

in relevant part that Herrington’s Sixth Amendment claim was procedurally defaulted

because the Supreme Court of Virginia refused to consider its merits under Slayton and

that the Supreme Court of Virginia correctly concluded that Herrington failed to meet the

3 Slayton held that a state habeas petitioner cannot raise a non-jurisdictional claim for the first time in a habeas petition if it could have been presented at trial or on direct appeal. 205 S.E.2d at 682. 4 Strickland v. Washington, 466 U.S. 668 (1984). The Strickland test requires the plaintiff to show that (1) his attorney’s “performance was deficient” and (2) “the deficient performance prejudiced the defense.” Id. at 687. 12 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 13 of 31

Strickland standard for his ineffective assistance of counsel claims. Herrington v. Clarke,

1:16-cv-412 (AJT/MSN), 2017 WL 1362032, at *4, *10–11 (E.D. Va. Feb. 10, 2017). The

district court did not, however, consider the merits of any of the arguments Herrington

alleged his appellate counsel should have raised.

Herrington appealed to this Court. We vacated in part the district court’s decision

and remanded the case back to the district court. Herrington v. Clarke, 699 F. App’x 158,

161 (4th Cir. 2017) (per curiam). We first concluded that the Supreme Court of Virginia

may have erroneously held that Herrington’s Sixth Amendment claim was procedurally

defaulted based on Slayton, reasoning that the Sixth Amendment “stands as a jurisdictional

bar to a valid conviction.” Id. at 160 (emphasis added) (citation omitted). We therefore

remanded the issue for the district court to consider the merits in the first instance.

We also determined that the Supreme Court of Virginia and the district court

erroneously failed to address the merits of the claims Herrington argued that his appellate

counsel should have raised. Id. at 161. Accordingly, we vacated the district court’s decision

as to the ineffective assistance claim and remanded for a determination on its merits.

On remand, the district court again dismissed Herrington’s petition. Herrington v.

Clarke, 1:16-cv-412 (AJT/MSN), 2020 WL 5809994, at *1 (E.D. Va. Sept. 29, 2020).

Regarding the Sixth Amendment claim, the district court explained that “[a] review of the

trial court transcripts makes clear that [Herrington’s] waiver was knowing, intelligent, and

voluntary.” Id. at *3. As to the ineffective assistance of counsel claim, the district court

concluded that none of the issues Herrington identified would have been successful in his

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state appeal, so he did not suffer any prejudice from his counsel’s failure to raise them.

Both decisions will be discussed in more detail below.

Herrington timely appealed, arguing again that the Virginia trial court violated his

Sixth Amendment right to counsel and that his appellate counsel was ineffective for failing

to make multiple meritorious arguments in his direct appeal. We issued a certificate of

appealability on both issues and appointed Herrington counsel to assist him with his appeal.

We have jurisdiction to consider these arguments pursuant to 28 U.S.C. § 1291.

II.

We review a district court’s habeas decision de novo, applying the standards set

forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Tyler v.

Hooks, 945 F.3d 159, 165 (4th Cir. 2019).

Under AEDPA, federal courts can award habeas relief only if the adjudication of an

issue raised in state court and decided on the merits “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or . . . resulted in a decision that

was based on an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d). However, where the state court did

not reach the merits of the petitioner’s claims and “instead ruled on procedural grounds,”

we review the state court’s decision de novo. Bostick v. Stevenson, 589 F.3d 160, 163 (4th

Cir. 2009).

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III.

We begin with Herrington’s Sixth Amendment claim. “The Sixth Amendment

guarantees to a criminal defendant the right to the assistance of counsel before he can be

convicted and punished by a term of imprisonment.” United States v. Ductan, 800 F.3d

642, 648 (4th Cir. 2015) (citing U.S. Const. amend. VI). Although this right is

“fundamental to our system of justice” and “critical to the ability of the adversarial system

to produce just results,” it is “equally clear that the Sixth Amendment also protects a

defendant’s affirmative right to self-representation.” Id. (citation omitted). These two

rights are “inescapably in tension” because the invocation of the right to self-representation

requires the defendant to waive his right to counsel. Id. at 649. Nonetheless, because of the

importance of the right to counsel, “representation by counsel is the default position,” and

lower courts must “indulge in every reasonable presumption against the relinquishment of

the right to counsel.” Id. (cleaned up).

“Accordingly, an effective assertion of the right to self-representation (and thus

waiver of the right to counsel) requires:” (1) “that a defendant knowingly and intelligently

forgo the benefits of counsel after being made aware of the dangers and disadvantages of

self-representation,” and (2) that the waiver be “clear and unequivocal.” Id. at 649–50

(cleaned up).

Herrington argues that the Virginia trial court violated his Sixth Amendment rights

for three reasons: (1) he was erroneously forced to choose between his Fifth and Sixth

Amendment rights; (2) his waiver was not made knowingly and intelligently; and (3) his

waiver was not clear and unequivocal. We address each argument in turn.

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Herrington first contends that the Virginia trial court improperly required him to

choose between his Fifth and Sixth Amendment rights. To support his position, Herrington

relies on a line of cases in which other circuit courts of appeal concluded that defendants

cannot be forced to either supply incriminating information in an indigency form or forgo

appointed counsel altogether. See, e.g., United States v. Gravatt, 868 F.2d 585, 589 (3d

Cir. 1989); United States v. Moore, 671 F.2d 139, 140 (5th Cir. 1982); United States v.

Anderson, 567 F.2d 839, 840–41 (8th Cir. 1977); see also United States v. Branker, 418

F.2d 378, 380 (2d Cir. 1969) (“The defendant should enjoy his constitutional rights to

counsel . . . without running the risk that thereby he may be incriminating himself with

respect to the charges pending against him.”).

Each of those cases involved a defendant charged with tax evasion who desired

court-appointed counsel but explicitly objected to filling out indigency forms on Fifth

Amendment self-incrimination grounds. Each defendant contended that if he filled out the

indigency forms necessary to receive appointed counsel, he would have provided the

prosecutor with incriminating evidence of his underlying tax evasion charges in violation

of his Fifth Amendment rights. Consequently, the defendant had to choose whether to give

up his right to an attorney under the Sixth Amendment or his right against self-

incrimination under the Fifth Amendment. Our sister circuits decided that requiring such a

choice was improper. See, e.g., Branker, 418 F.2d at 380 (“The defendant should enjoy his

constitutional rights to counsel and to appeal and the means of supporting his assertion of

these rights by his own testimony without running the risk that thereby he may be

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incriminating himself with respect to the charges pending against him.”). To avoid

requiring such a choice, the circuit courts mandated an alternative in these situations, such

as allowing the defendant to fill out the indigency form in camera and sealing the

defendant’s answers or prohibiting the prosecutor from using the information provided in

the form. 5

Herrington contends that those cases are directly applicable here. He argues that,

like those defendants, the reason he did not obtain a court-appointed attorney is because he

feared that filling out the indigency form necessary to receive counsel “would necessarily

provide evidence that he was guilty of the various perjury and tax evasion charges he was

facing” in violation of his Fifth Amendment rights. Opening Br. 24. Thus, under the above-

discussed principles, Herrington asserts that the trial court was required to allow him to fill

out the forms without the Commonwealth being able to use the information provided

therein.

The district court rejected Herrington’s position, explaining that the record shows

that Herrington was not forced to choose between his Fifth and Sixth Amendment rights

because Herrington—who only ever expressed a fear of receiving new perjury charges—

5 Citing this line of cases, we previously noted that a trial court properly avoided this constitutional-choice issue by offering a tax-evasion defendant the option to fill out his indigency forms in camera and then sealing his answers so that they could not be used against him in his underlying trial. See United States v. Davis, 958 F.2d 47, 49 n.4 (4th Cir. 1992) (“Because Fifth and Sixth Amendment concerns are intertwined when court appointed counsel is sought by a defendant charged with an income tax violation . . . , we feel compelled to note that the district court avoided any serious Fifth Amendment challenge by conducting an ex parte examination . . . and informing [the defendant] that . . . his answers would be sealed.”). 17 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 18 of 31

“could easily have averted the possibility of later perjury charges simply by being honest

and thorough in his responses to the questionnaire.” Herrington, 2020 WL 5809994, at *9.

The district court also reasoned that, “[b]y hiring his own attorney—as the record suggests

[Herrington] intended and could afford to do—[Herrington’s] rights under both the Fifth

and Sixth Amendments would have been protected.” Id. at *10. Moreover, the district court

explained that Herrington “flatly rejected [the trial court’s] eventual suggestion that [it]

would consider appointing him counsel irrespective of his financial circumstances or

decision not to answer the indigency questionnaire.” Id. We agree.

Unlike the defendants in the above-discussed cases on which Herrington relies,

nothing in the record suggests that Herrington chose not to apply for court-appointed

counsel due to a fear of providing the Commonwealth with incriminating evidence

regarding his then-pending charges. He instead expressed only a fear of his financial

information being used against him to support future perjury charges.

In his first hearing before the Virginia trial court, Herrington stated that his current

perjury charges stemmed from “getting a Public Defender, and [he was] too scared to fill

out [the indigency] form for the fact that [the prosecutor’s] going to give me a perjury

charge.” J.A. 226 (emphasis added). In the next relevant interaction, Herrington explained:

Herrington: [S]o that’s what all these perjuries are for is that I did not consider [my rental income] in my last time for obtaining an attorney. All the perjuries are basically for obtaining an attorney. The court: So these charges are arising out of prior applications that you made? Herrington: For attorneys, yes, they are.

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The court: And that is why you are declining to fill out an application -- Herrington: Absolutely.

J.A. 254. Both interactions indicate that Herrington feared receiving a future perjury

charge; not that he had any fears regarding his then-pending charges. And there is no

contention in the record that anything Herrington might have reported in a new indigency

form would relate back to his existing underlying charges.

The cases on which Herrington relies do not support providing him an alternative to

the standard indigency procedures in this situation. They provide only that a defendant

should not have to choose between providing incriminating evidence for his underlying

case and receiving court-appointed counsel. See, e.g., Anderson, 567 F.2d at 840

(explaining that the defendant did not want to provide information that “related to the

underlying cause of action” because to do so would violate “his Fifth Amendment right

against self-incrimination”); Gravatt, 868 F.2d at 587–88 (noting that the defendant

affirmatively objected to filling out the financial form because disclosure of that

information would provide evidence for his underlying trial). It is unreasonable to proffer

that the trial court should be required to exempt Herrington from the consequences of

providing false information—such as receiving new perjury charges unrelated to his

underlying charges—so that he can obtain court-appointed counsel.

Indeed, in at least one of the cases on which Herrington relies, the court explicitly

foreclosed Herrington’s position. In explaining that a defendant should be allowed to fill

out his indigency form with the promise of immunity from its use in his underlying trial,

the Third Circuit explicitly noted that the defendant could still be charged with perjury in 19 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 20 of 31

the future if he provided false information in the form. See Gravatt, 868 F.2d at 591

(“Whichever method is chosen[—sealing the defendant’s answers or providing him

immunity—]the defendant may be required to provide the necessary financial information

under the penalty of perjury.”); see also Anderson, 567 F.2d at 840 (stating that the trial

court “should have given [the defendant] an opportunity to disclose the required financial

information to the trial court for it to review in camera” and, after that review “the financial

data should be sealed and not made available for the purpose of tax prosecution” (emphasis

added)). This makes clear that providing the defendant with an alternative is meant only to

ensure that he is not required to provide the prosecution with evidence for its case in the

underlying trial. Thus, the cases on which Herrington relies simply do not support his

position. 6

Moreover, even assuming that Herrington feared providing the Commonwealth with

information about his pending charges, the trial court gave Herrington a way to protect

both his Fifth and Sixth Amendment rights. The court offered to appoint Herrington

counsel regardless of his financial situation. After discovering that he was appointed

counsel in a separate proceeding, the court stated, “I would have to think that there is at

least a chance that you would qualify [for court-appointed counsel], or that this Court

6 That these cases are inapplicable is especially clear given that Herrington made it plain that the real reason he rejected court-appointed counsel was that he did not think he would qualify for it. See J.A. 253 (Herrington stating that he was “not going to meet the standard” for court-appointed counsel); J.A. 318 (Herrington denying that he qualified for court-appointed counsel in his separate case, stating instead that he was appointed counsel “[a]s a means to an end”). 20 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 21 of 31

would appoint counsel if you want it on these charges, but you do not want that?” J.A. 319.

(emphasis added). Herrington responded, “[n]o.” J.A. 319.

The court’s use of the word “or” indicates that the court would have appointed

Herrington counsel regardless of whether he was entitled to appointed counsel—either

Herington would qualify for counsel or¸ even if he didn’t, the court would nonetheless

appoint him counsel. See Va. Code § 19.2-159.B (stating that where the accused does not

meet the income standards for court-appointed counsel, does not employ counsel, and

refuses to waive his right to counsel, the court may nonetheless appoint counsel when “the

ends of justice so require”). This second option indicates that Herrington could have

received court-appointed counsel without filling out the indigency form (as is what

apparently occurred in his separate proceeding). But Herrington refused the court’s offer.

Herrington cannot now genuinely complain that he was forced to choose between his Fifth

and Sixth Amendment rights.

Herrington also asserts that his waiver was not made knowingly because he was not

informed that (1) his charges carried the potential for supervised release and (2) he could

be convicted of attempt for any of the underlying charges without an amendment to the

indictment. Not so.

As noted, a defendant’s waiver of his Sixth Amendment right to counsel must be

made knowingly and intelligently. This means that the defendant must make his choice

“with eyes open.” Iowa v. Tovar, 541 U.S. 77, 88 (2004) (citation omitted). “The Supreme

Court has not prescribed any formula or script to be read to a defendant who states that he

21 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 22 of 31

elects to proceed without counsel.” United States v. Roof, 10 F.4th 314, 359 (4th Cir. 2021)

(cleaned up). The trial court must simply “assure itself that the defendant knows the charges

against him, the possible punishment and the manner in which an attorney can be of

assistance.” Id. (citation omitted). “Such a determination is made by examining the record

as a whole and evaluating . . . the circumstances . . . known to the trial court at the time.”

Id. (cleaned up).

The district court rejected Herrington’s argument that his Sixth Amendment waiver

was entered unknowingly, reasoning that the Virginia trial court warned Herrington

multiple times of the seriousness of his charges, the potential for imprisonment, and the

dangers of self-representation, yet he persistently insisted on proceeding pro se.

Herrington, 2020 WL 5809994, at *3. We agree with the district court.

To start, the Virginia trial court went out of its way to ensure that Herrington was

aware of the severity of his charges and the potential punishments, repeating that

information in detail at least three separate times. See J.A. 226–27, 233–34, 246–47. In so

doing, the court consistently emphasized the potential maximum terms of imprisonment.

See, e.g., J.A. 226 (the court noting Herrington’s charge for obtaining money by false

pretense carried the potential “of up to twenty years in prison” and the perjury charges

carried the potential for “up to ten years in prison”). True, the trial court did not specify

that the charges also carried terms of supervised release, but Herrington himself

represented that he read the indictment and was “aware of the range of punishment on each

of [his] charges.” J.A. 315; see also J.A. 247–48 (Herrington affirming that he was “aware

of the sentence range for each of [his] charges”). So, to the extent the trial court was

22 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 23 of 31

required to ensure that Herrington knew of the possibility of supervised release before

accepting his waiver, it appears Herrington had that knowledge by his own admission. See

United States v. Fore, 169 F.3d 104, 108 (2d Cir. 1999) (concluding that the defendant

knowingly waived his right to counsel despite the fact that the trial court did not inform

him of his potential for supervised release because it had “no doubt” that the defendant was

“clearly aware of the significant penalties he would face if convicted” and a “detailed

discussion of every allowable component of a potential punishment could detract” from

the court’s overall duty to warn the defendant of the consequences of self-representation

(cleaned up)).

Additionally, the trial court repeatedly warned Herrington of the dangers of self-

representation. It explained that he would “be held to the same rules and the same standards

as if [he] had counsel,” J.A. 248, and that he would “be taking on all of the responsibilities

and the role that an attorney would have” such as “decisions concerning procedure and the

best way to approach or try a case,” J.A. 250. The trial court emphasized that self-

representation was “a big risk” and the court needed to ensure that Herrington

“underst[ood] the consequences.” J.A. 238.

The trial court was not required to detail every risk or explain every potential

defense or lesser included offense of a particular charge. 7 It just had to ensure that

7 To argue to the contrary, Herrington relies on our decision in Lord v. United States Government, in which we stated that a valid waiver “must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole (Continued) 23 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 24 of 31

Herrington was aware of the risks of self-representation. See Iowa, 541 U.S. at 89

(“Although a defendant need not himself have the skill and experience of a lawyer in order

competently and intelligently to choose self-representation, he should be made aware of

the dangers and disadvantages of self-representation, so that the record will establish that

he knows what he is doing[.]” (citation omitted)). And it did that here on several occasions.

In the face of such warnings, Herrington assured the court that he was “prepared to

represent [him]self and [undertake] all the consequences that go with” such representation.

J.A. 249.

We therefore conclude that Herrington knowingly waived his right to counsel and

accepted the risks accompanying that decision with open eyes.

Herrington next contends that he did not clearly and unequivocally waive his right

to counsel. He asserts that he expressed considerable hesitation about representing himself

and that he made it clear that he wanted an attorney but was having difficulty finding one

that would take his case. Although it is true that Herrington expressed an initial desire to

hire an attorney and indicated to the trial court that he was having trouble finding one, the

matter.” 412 F.2d 499, 502–03 (4th Cir. 1969) (citation omitted). However, more recently we have clarified that a trial court need not perform such a “searching or formal inquiry” of the defendant’s knowledge before concluding that a defendant’s waiver is knowing and intelligent. Ductan, 800 F.3d at 649 (citation omitted). The defendant simply must be informed of the charges and possible punishments and “made aware that he will be on his own in a complex area where experience and professional training are greatly to be desired.” United States v. King, 582 F.2d 888, 890 (4th Cir. 1978). 24 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 25 of 31

evidence overwhelmingly demonstrates that Herrington subsequently waived his right to

counsel.

Indeed, Herrington clearly and unequivocally expressed his desire to proceed

without counsel no less than nine times in the face of multiple opportunities to change his

mind. See J.A. 237 (“I’m prepared to go forward and represent myself[.]”); J.A. 245 (The

court: “[Y]ou intend to proceed without an attorney; is that correct? Herrington: “Yeah.

I’m willing to waive my right to an attorney.”); J.A. 249 (“I am prepared to represent

myself and all the consequences that go with it.”); J.A. 249 (“I would like to represent

myself, Your Honor. I’m waiving my right.”); J.A. 249–50 (The court: “So you’re asking

this Court to allow you to waive your right to counsel on thirteen felonies and two

misdemeanors; is that correct?” Herrington: “That’s correct.”); J.A. 318 (The court: “You

still want to go forward without an attorney?” Herrington: “Uh-huh. I do.”); J.A. 322 (The

court: “And you want to continue with that waiver, Mr. Herrington?” Herrington: “Yes.”);

J.A. 325 (The court: “You fully intend to represent yourself on these felony charges?”

Herrington: “I do, Your Honor.”); J.A. 329 (The court: “But you want to go forward today

representing yourself?” Herrington: “I do.”). And, at a later hearing in July 2012,

Herrington even acknowledged that he previously waived his right to counsel. See J.A.

321–22 (The court: “You have previously waived your right to be represented by counsel,

correct?” Herrington: “Yes.”).

Not only do these interactions demonstrate unmistakable expressions by Herrington

to proceed without counsel, but they also show that the trial court went out of its way to

ensure that Herrington actually intended such a result. See McCormick v. Adams, 621 F.3d

25 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 26 of 31

970, 978 (9th Cir. 2010) (explaining that a “repeated insistence of self-representation” in

the face of the trial court persistently revisiting the issue “confirm[s] the validity” of a

waiver (emphasis omitted)). Regardless of Herrington’s clear statements expressing a

desire to represent himself, the trial court continued to probe and confirm that he

understood the consequences of such a decision. And in response, Herrington consistently

and explicitly waived his right to an attorney. Then, going a step further, the trial court

offered Herrington the option of receiving appointed counsel without regard to his financial

situation, as discussed above. But Herrington declined that offer, choosing instead to

represent himself. Such repeated rejection negates any suggestion that Herrington only

waived his right to counsel because he was having trouble finding an attorney that would

take his case.

If that were not enough, we are further convinced that Herrington unequivocally

waived his right to counsel given that he also refused the Virginia trial court’s offer of

additional time to obtain an attorney. At the February 3rd hearing, the court gave

Herrington until March 26th to find an attorney. Three weeks later, Herrington informed

the court that he wanted to proceed pro se, so the court held another hearing on February

21st to confirm his decision. At that hearing, due to Herrington’s hesitation, the court told

him that he could take the agreed upon time—until March 26th—to hire an attorney,

assuring Herrington it was not concerned with being delayed. But Herrington declined to

do so. In fact, he expressly rejected the offer and affirmatively stated that he was waiving

his right to counsel. See J.A. 249 (rejecting the court’s offer to “keep this case on the docket

26 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 27 of 31

for March 26th” and stating instead “I would like to represent myself, Your Honor. I’m

waiving my right”).

Moreover, Herrington consistently rejected the trial court’s implication that he

desired additional time to hire an attorney, repeatedly stating that he had been willing to

represent himself since his initial hearing. See J.A. 245 (“I was willing to go forward to

represent myself [since the initial hearing], but you wanted me to get an attorney, and I

said I would try.”); J.A. 255–56 (“I did not ask for additional time. I said I was willing to

go forward. You asked if I wanted to hire an attorney. I said I would like to hire an attorney.

You said I’m going to give you time to do that.”). Given that Herrington complained of the

district court’s grant of additional time to find an attorney, it seems dubious, to say the

least, to now suggest that he never clearly waived his right to counsel.

At bottom, any initial hesitation on Herrington’s part cannot defeat the

overwhelming evidence demonstrating that he later unmistakably expressed a desire to

represent himself. 8

8 Herrington’s circumstances are different than those in which we have concluded that the defendant did not unequivocally waive his right to counsel. For example, in Ductan, the defendant informed the trial court only that he did not want a court-appointed attorney and explicitly told the court that “he did not want to represent himself.” 800 F.3d at 645. Nonetheless, the district court concluded that the defendant waived his right to counsel by rejecting court-appointed counsel. On appeal, we disagreed, reasoning that although the defendant had put the trial court “in an undeniably difficult position,” id. at 651, the court should have “insist[ed] on appointed counsel against [the] defendant’s wishes in the absence of an unequivocal request to proceed pro se,” id. at 652. Thus, our focus has consistently been on the existence of an explicit waiver of the right to counsel. See Fields v. Murray, 49 F.3d 1024, 1033 (4th Cir. 1995) (“Most significantly, . . . Fields never once expressed any desire to represent himself.”). And we continue to adhere to that requirement. In this case, we simply conclude that it was met. 27 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 28 of 31

****

In the face of various warnings and multiple opportunities to change his mind,

Herrington repeatedly clearly, unequivocally, and intelligently waived his right to counsel.

As a result, the trial court properly chose not to “thrust counsel upon [him], against his

considered [and explicit] wish.” Ductan, 800 F.3d at 648 (citation omitted). We therefore

affirm the district court’s decision as to Herrington’s Sixth Amendment claim.

IV.

Herrington lastly contends that his appellate counsel was ineffective. In considering

this claim, we apply the “highly deferential” Strickland two-part test, requiring Herrington

to show both (1) that counsel’s deficient performance “fell below an objective standard of

reasonableness” and (2) prejudice, “meaning that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Crockett v. Clarke, 35 F.4th 231, 242 (4th Cir. 2022) (cleaned up).

Herrington argues that he meets this standard because his appellate counsel failed

to argue that the jury was erroneously instructed on the requirements for a conviction for

failure to file a tax return. He contends that, applying the proper law, he is actually innocent

of that crime. 9

9 Herrington also argues that his counsel was ineffective for failing to bring a Sixth Amendment argument. For the reasons just discussed, we conclude that his counsel’s failure was without prejudice. See supra Part III. 28 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 29 of 31

By way of background, at Herrington’s trial, the jury was instructed that an

individual is required to file a state tax return if that person’s income is over $11,250. The

evidence showed that, in 2009, Herrington received $16,736 in unemployment income and

$9,543 in rental income. Applying the instruction, the jury convicted Herrington of failing

to file a tax return in 2009.

However, the parties now agree that the jury was improperly instructed. Respondent

concedes that a state tax return was required in 2009 only if a person’s adjusted gross

income was over $11,250 and that adjusted gross income does not include unemployment

income. Excluding his unemployment income, Herrington received only $9,543 in 2009,

less than the amount mandating a tax return. So, the parties agree that Herrington is actually

innocent of the crime of failing to file a state tax return in 2009. 10

As a result, the parties also agree that Herrington’s appellate counsel’s performance

fell below an objective standard of reasonableness and his error was prejudicial because,

but for his error, the result of Herrington’s direct appeal would have been different. The

parties therefore acknowledge that Herrington is entitled to some sort of relief. The exact

remedy, however, is disputed.

Herrington asserts that, because Respondent concedes the merit of his claim, the

Court should grant his petition and vacate his conviction. Respondent contends that the

10 Respondent did not make this concession before the district court and actually disputed the merits of Herrington’s argument. For its part, the district court agreed with Respondent and concluded that Herrington’s ineffective assistance of counsel argument was therefore without merit. 29 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 30 of 31

Court should instead allow the Virginia Court of Appeals to determine the proper remedy

in the first instance.

We believe Respondent has the better argument. When a § 2254 petitioner brings a

successful claim for ineffective assistance of appellate counsel, the petitioner is entitled

only to have the opportunity for the state courts to review the merits of the claims that

appellate counsel failed to raise. Payne v. Stansberry, 760 F.3d 10, 18 (D.C. Cir. 2014)

(explaining that the “appropriate relief” in these circumstances “is to afford [the petitioner]

a belated appeal on the issue that counsel ineffectively failed to present”); Roe v. Delo, 160

F.3d 416, 420 (8th Cir. 1998) (same). As the Sixth Circuit explained, “[t]his remedy avoids

unnecessarily interfering with [Virginia’s] interest in correcting its own errors.” Mapes v.

Tate, 388 F.3d 187, 194 (6th Cir. 2004). The Virginia Court of Appeals can, in the first

instance, determine whether vacatur of Herrington’s conviction is necessary and, if it is,

whether resentencing is required.

Although we could consider making those determinations ourselves, “the prevailing

interests of federalism and comity demand that federal courts exercise restraint when

issuing a writ of habeas corpus.” Id. (italics omitted); see also Williams v. Taylor, 529 U.S.

420, 436 (2000) (“[W]e have been careful to limit the scope of federal intrusion into state

criminal adjudications and to safeguard the States’ interest in the integrity of their criminal

and collateral proceedings.”). Thus, we reverse this aspect of the district court’s decision

and remand with directions to issue a writ of habeas corpus unless, within a reasonable

period of time set by the district court, Herrington is afforded a new appeal in Virginia in

30 USCA4 Appeal: 22-6272 Doc: 70 Filed: 04/30/2024 Pg: 31 of 31

which he may raise his erroneous jury instruction argument omitted from his original

appeal.

For the foregoing reasons, the judgment of the district court is affirmed in part,

reversed in part, and remanded with instructions.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS