State Petitioner Gets Hearing on Whether He Asked His Lawyer to Appeal

Clayton v. Ward, 2009 WL 2462362 (8/13/09) (unpub'd) - Remand for an evidentiary hearing on whether the petitioner asked his lawyer to appeal. The d. ct. was wrong to reject the claim on the ground that the petitioner did not have any meritorious appeal issues. The merits of the appeal don't matter. A defendant's ability to file his own notice of appeal also doesn't matter, contrary to what the state court thought. The state's arguments as to why the petitioner's assertion that he requested an appeal is incredible are factual contentions best addressed by the d. ct. after holding a hearing.