United States v. Larry Gooch, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2016 Decided December 6, 2016

No. 15-3030

UNITED STATES OF AMERICA,

APPELLEE

v.

LARRY A. GOOCH, JR., ALSO KNOWN AS GOO,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cr-00128)

Paul S. Rosenzweig, appointed by the court, argued the

cause and filed the briefs for appellant.

Peter S. Smith, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Elizabeth Trosman

and Elizabeth H. Danello, Assistant U.S. Attorneys. Suzanne

G. Curt, Assistant U.S. Attorney, entered an appearance.

Before: KAVANAUGH and WILKINS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

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WILKINS, Circuit Judge: Appellant Larry Gooch, Jr. is

currently serving a prison sentence resulting from convictions

for a number of crimes, including four felony murders. We

upheld those convictions on direct appeal. See United States

v. Gooch, 665 F.3d 1318 (D.C. Cir. 2012). In a subsequent

motion to the District Court, under 28 U.S.C. § 2255, Gooch

alleged ineffective assistance of counsel at trial. The District

Court denied Gooch’s motion but issued a certificate of

appealability as to his claim of ineffective assistance of trial

counsel in conducting cross-examination of a police detective.

After concluding that we have jurisdiction to consider

this appeal, we affirm the District Court’s denial of Gooch’s

§ 2255 motion.

I.

In 2007, Gooch was convicted of numerous crimes in

connection with his involvement in the “M Street Crew”

gang. Gooch appealed to this Court and his conviction was

upheld. Gooch later filed a pro se motion under 28 U.S.C.

§ 2255 collaterally attacking his conviction on a number of

grounds, all alleging ineffective assistance of counsel. This

motion was denied by the District Court in a March 7, 2014

opinion. See United States v. Gooch, 23 F. Supp. 3d 32

(D.D.C. 2014).

On March 31, 2014, Gooch, acting pro se, submitted a

filing to the District Court, entitled “Request for Extension of

Time,” asking the District Court to grant an “extension of

time of 60-days to file a Certificate of Appealability.” His

request stated that, “[b]ecause Mr. Gooch is unlearned in the

law, he will require more time to properly research and

prepare his Certificate of Appealability” and requested “an

extension of time of 60 days within which to file his

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Certificate of Appealability.” 1 J.A. 174. After receiving

Gooch’s filing, the District Court issued a certificate of

appealability on April 3, 2014 with respect to Gooch’s claim

of ineffective assistance of trial counsel in conducting a cross-

examination of a detective at trial. The District Court

construed Gooch’s “Request for Extension of Time” as a

motion for extension of time to file a notice of appeal under

Federal Rule of Appellate Procedure 4(a)(5)(A)(i) and granted

“an extension to file within sixty days of this Certificate.”

J.A. 177.

In the midst of what the District Court later referred to as

“downsizing, job sharing and sequestration,” the Clerk’s

Office apparently failed to mail Gooch a copy of the District

Court’s certificate and order. J.A. 212. On January 26, 2015

– nearly 10 months after Gooch filed his “Request for

Extension of Time” – Gooch filed a letter inquiring about the

status of his earlier request. The District Court construed this

letter as a motion for extension of time to file a notice of

appeal under Federal Rule of Appellate Procedure 4(a)(5) or,

alternatively, as a motion to reopen the time to appeal under

Rule 4(a)(6). In a January 28, 2015 Order, the Court denied

the motion.

After filing additional motions with the District Court in

February 2015, Gooch filed a motion for leave to appeal with

this Court on April 27, 2015. On June 15, 2015, the

Government filed a motion to dismiss Gooch’s appeal for lack

of a certificate of appealability.

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Presumably, Gooch was referring to filing an application for a

certificate of appealability, as the certificate itself is issued by the

District Court. See RULES GOVERNING SECTION 2255

PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS 11(a).

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II.

We begin, as we must, with the question of whether we

have jurisdiction to hear Gooch’s appeal.

Under Rule 3 of the Federal Rules of Appellate

Procedure, “[a]n 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.” FED. R. APP. P. 3(a)(1). Under Rule 4, in

a civil case to which the United States is a party, a notice of

appeal is considered timely if it is filed “within 60 days after

entry of the judgment or order appealed from.” 2 FED. R. APP.

P. 4(a)(1)(B). The timely filing of a notice of appeal is

“mandatory and jurisdictional”; no appeal can be heard unless

the requirements for filing a notice of appeal have been met.

United States v. Palmer, 296 F.3d 1135, 1143 (D.C. Cir.

2002) (quoting Browder v. Dir., Dep’t of Corr., 434 U.S. 257,

264 (1978)).

Gooch made only one filing in the 60 days following the

District Court’s denial of his § 2255 motion: his “Request for

Extension of Time.” Although this document was not styled

as a notice of appeal, it nonetheless may satisfy Rule 3 if it is

the “functional equivalent” of what the rule requires. Smith v.

Barry, 502 U.S. 244, 248 (1992). In order to serve as the

“functional equivalent” of a notice of appeal, the document

must contain the contents required by Rule 3(c) and

“specifically indicate the litigant’s intent to seek appellate

review.” Id. at 248-50.

2

Appeals of § 2255 motions are governed by Rule 4(a), which

applies to civil cases, rather than Rule 4(b), which applies to

criminal cases. See United States v. Palmer, 296 F.3d 1135, 1142-

43 (D.C. Cir. 2002).

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Rule 3(c)(1) contains three requirements, each of which

is satisfied or excused in this case. First, the filing must

“specify the party . . . taking the appeal by naming each one in

the caption or body of the notice.” FED. R. APP. P. 3(c)(1)(A).

The “Request for Extension of Time” identified Gooch in the

caption and therefore meets this requirement. Second, the

filing must “designate the judgment, order, or part thereof

being appealed,” FED. R. APP. P. 3(c)(1)(B), which was

accomplished by the document’s explicit reference to the

District Court’s denial of Gooch’s § 2255 motion on March 7,

2014. While the “Request for Extension of Time” does not

“name the court to which the appeal is taken,” – which is the

third and final requirement, FED. R. APP. P. 3(c)(1)(C) –

failures to meet this requirement are excused where there is

only one court to which the appeal can be taken, which is the

case here. See Anderson v. District of Columbia, 72 F.3d 166,

168-69 (D.C. Cir. 1995) (per curiam).

The remaining question is whether the “Request for

Extension of Time” sufficiently expresses an intent to appeal.

Gooch’s filing contained the following statements and

request:

1. On March 7, 2014, this Honorable Court denied

Mr. Gooch’s motion pursuant to 28 U.S.C. § 2255. In

its denial, the Court did not hold that it would not

issue a Certificate of Appealability. He has 14 days

to file COA.

2. Because Mr. Gooch is unlearned in the law, he

will require more time to properly research and

prepare his Certificate of Appealability.

WHEREFORE, for the foregoing reasons, in the

interest of justice and principles of equity and

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fairness, Mr. Gooch respectfully requests that this

Honorable Court GRANT an extension of time of 60

days within which to file his Certificate of

Appealability.

J.A. 174.

Although the document refers to Gooch preparing and

filing “his Certificate of Appealability,” it appears to mean an

application for a certificate of appealability because the

certificate itself is prepared and issued by the court. See

RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE

UNITED STATES DISTRICT COURTS 11(a) (“The district court

must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant.” (emphasis added)). In

his filing, Gooch notes that the District Court “did not hold

that it would not issue a Certificate of Appealability,” and

requests additional time “within which to file his Certificate

of Appealability” because “he will require more time to

properly research and prepare his Certificate of

Appealability.” These statements clearly evince Gooch’s

intent to obtain a certificate of appealability. As the only

purpose of such a certificate is to pursue an appeal, Gooch’s

intent to pursue an appeal can reasonably be inferred from his

intent to file an application for the certificate.

This inference is in line with the Supreme Court’s

instruction to “liberally construe” the notice of appeal

requirement of Rule 3. Smith, 502 U.S. at 248. We also must

liberally construe documents filed pro se. Erickson v. Pardus,

551 U.S. 89, 94 (2007). Moreover, our conclusion is

consistent with decisions of other Courts of Appeals that have

found that a request for an extension of time to file an

application for a certificate of appealability can serve as the

functional equivalent of a notice of appeal where an intent to

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appeal can be reasonably inferred from the request. See Clark

v. Cartledge, 829 F.3d 303, 306-07 (4th Cir. 2016); Rountree

v. Balicki, 640 F.3d 530, 536 (3d Cir. 2011); Wells v. Ryder,

591 F.3d 562, 565 (7th Cir. 2010).

The Government asserts that a motion for extension of

time in which to apply for a certificate of appealability can

never qualify as the functional equivalent of a notice of

appeal, because “[t]hey are governed by wholly separate

provisions – one by 28 U.S.C. § 2253 (the Antiterrorism and

Effective Death Penalty Act), and the other by the Federal

Rules of Appellate Procedure.” Appellee Br. 16. The

Government cites no authority in support of this contention

and, as noted above, it directly contradicts the decisions of the

other Courts of Appeals to have considered this question. The

Supreme Court’s instruction in Smith v. Barry was clear: “the

notice afforded by a document, not the litigant’s motivation in

filing it, determines the document’s sufficiency as a notice of

appeal.” 502 U.S. at 248. Gooch’s motivation in filing the

“Request for Extension of Time” – his desire to obtain an

extension to apply for a certificate of appealability under

AEDPA – is irrelevant. Instead, we look to whether than

document affords notice of his intent to appeal. The

Government’s position elevates form over substance and has

nothing to commend it.

We therefore find that Gooch’s “Request for Extension of

Time,” which was filed within the time period specified by

Rule 4, constitutes the functional equivalent of a notice of

appeal. Accordingly, because the District Court issued a

certificate of appealability as to Gooch’s claim of ineffective

assistance of counsel in cross-examining a witness, we have

jurisdiction under 28 U.S.C. § 2253(a) to consider the merits

of his appeal.

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III.

The standard we apply in considering ineffective

assistance of counsel claims was articulated in Strickland v.

Washington, 466 U.S. 668 (1984):

A convicted defendant’s claim that counsel’s

assistance was so defective as to require reversal of a

conviction or death sentence has two components.

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance

prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable. Unless a defendant makes both showings, it

cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process

that renders the result unreliable.

Id. at 687. In sum, the defendant must show both that

counsel’s performance was deficient and that the defendant

suffered prejudice.

At Gooch’s trial, defense counsel cross-examined a

police detective about why Gooch had ceased frequenting an

area where he was typically seen:

Q. [Gooch] use[d] to be out there all the time until he

became wanted but he was down there every day all

the time 18th and M, right in those four blocks,

right?

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A. Yes.

Q. Now that’s a bit different from disappearing from

some shooting in the alley[,] isn’t it?

A. No.

Q. Why not?

A. Because he shot the people, they put a warrant out

for him and he disappeared.

Trial Tr. 48:5-14 (Feb. 21, 2007, a.m. session), J.A. 139.

Gooch claims on appeal that the open-ended question

employed by defense counsel – “Why not?” – constitutes

deficient performance. It may be that the testimony of the

police officer that Gooch “shot the people” was the result of

an improvident question by Gooch’s defense counsel.

However, separate from the question of whether counsel’s

performance was deficient, Gooch bears the burden of

affirmatively showing prejudice – that is, “a reasonable

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

result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. For these purposes, “[a]

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “If the defendant fails to

demonstrate prejudice, we may affirm the conviction without

deciding whether counsel’s performance was deficient.”

United States v. Udo, 795 F.3d 24, 30 (D.C. Cir. 2015).

Gooch has not carried his burden of demonstrating

prejudice. The evidence tying Gooch to the murders of

Calvin Cooper and Yolanda Miller was substantial and likely

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had a much greater influence on the jury than this single,

fleeting remark made by the testifying detective during the

three-month-long trial. As we noted when this case was

before us on direct appeal, two individuals – a fellow gang

member and a police officer – witnessed Gooch fleeing the

scene of the murders. Gooch, 665 F.3d at 1323. The murder

weapon was later retrieved from near the crime scene and

Gooch’s fingerprint was found on it. Id. In fact, Gooch

confessed to the murders, telling one gang member that he

had killed Cooper and telling another that he had killed both

Cooper and Miller. Id. The evidence at trial also established

a motive for the murders – “the ‘word on the street’ was that

Cooper and Miller were ‘snitching’ and ‘stealing stashes’” –

and Gooch’s role as the “muscle” for the gang “enforcing the

gang’s rules, engaging in violence, and punishing disloyalty

to the gang.” Id. at 1322-23.

Against the backdrop of this evidence, Gooch has not

shown “a reasonable probability” that the result of his trial

would have been different without the allegedly deficient

open-ended questioning by defense counsel on cross-

examination. As a result, Gooch’s claim of ineffective

assistance of counsel must be rejected. 3

3

Section 2255(b) requires an evidentiary hearing “[u]nless the

motion and the files and records of the case conclusively show that

the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). The

District Court concluded that Gooch is not entitled to relief and did

not hold an evidentiary hearing. Especially where, as here, “the

judge deciding the section 2255 motion also presided at petitioner’s

trial, the [trial] court’s decision not to hold a hearing is ‘generally

respected as a sound exercise of discretion.’” United States v.

Toms, 396 F.3d 427, 437 (D.C. Cir. 2005) (quoting United States v.

Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996)). We see no abuse of

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***

For the foregoing reasons, we affirm the District Court’s

decision denying Gooch’s § 2255 motion.

So ordered.

that discretion here. Accordingly, Gooch is not entitled to an

evidentiary hearing.