Frank D. FRAZER, Petitioner-Appellee, v. State of SOUTH CAROLINA; Henry Dargan McMaster, Attorney General for South Carolina, Respondents-Appellants, 430 F.3d 696

Affirmed by published opinion. Judge DUNCAN wrote the majority opinion, in which Judge DIANA GRIBBON MOTZ joined. Judge DIANA GRIBBON MOTZ, wrote a separate concurring opinion. Judge LUTTIG wrote a dissenting opinion. OPINION DUNCAN, Circuit Judge. South Carolina appeals the district court’s order granting relief on Frank Frazer’s petition for a writ of habeas corpus. The court granted relief solely as to Frazer’s claim that his attorney failed to consult with him regarding a direct appeal following his sentencing on state trafficking charges in 1994, and that as a result he lost his right to appeal.

Although the state courts that reviewed this claim concluded that the Sixth Amendment did not require Frazer’s counsel to consult with him regarding an appeal, the district court found this conclusion was unreasonable under Strickland v. Washington, 464 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny. For the following reasons, we affirm. I. In March 1994, a South Carolina grand jury indicted Frazer for trafficking, possessing a weapon during the commission of a crime of violence, and possessing a controlled substance with intent to distribute.

At a change of plea and sentencing hearing on March 22, 1994, Frazer pleaded guilty to the first two charges. It is undisputed that Frazer and the state assumed that the trial judge would apply concurrent five-year sentences. However, the court imposed consecutive five-year sentences and a fine of $100,000, despite the fact that the maximum fine for Frazer’s convictions was $25,000. As Jack Howie, Frazer’s counsel, subsequently acknowledged, Frazer did not expect to receive consecutive sentences, and Frazer immediately expressed his surprise and discontent.

After, the judge announced Frazer’s sentence, Frazer asked Howie to see “about having time run together.” J.A. 189. Despite a prior assurance that he would “file the necessary paperwork” if something went wrong at sentencing, J.A. 178, Howie’s only effort to that end was an informal oral motion for reconsideration, which the court denied without order or other elaboration. At no time either before or after the denial of the motion for reconsideration did Howie ' ascertain whether Frazer wished to appeal.

As a result, the period for noting an appeal passed without a notice of appeal being filed, a fact Frazer did not learn-until after he wrote Howie to express his continuing dissatisfaction and desire to pursue an appeal. Frazer filed a state application for post-conviction relief (“PCR”) on February 10, 1997. His application alleged that he received ineffective assistance of counsel, that his plea had not been knowing and voluntary, and that the trial court lacked jurisdiction to accept the guilty plea.

Following an evidentiary hearing at which Howie testified, the PCR court concluded that it was appropriate to adjust Frazer’s fine from $100,000 to $25,000 (the amount both parties agreed was the maximum for the trafficking charge), but that Frazer was otherwise not entitled to relief. The PCR court noted that, although .Howie “never informed him of his right to appeal,” there was nothing in the record or the hearing “to indicate that [Frazer] conveyed to his trial attorney a desire to appeal until it was too late.” J.A. 209. The PCR court’s order issued on September 17, 1999.

Frazer appealed the PCR court’s decision to the South Carolina Supreme Court by petition for certiorari dated June 12, 2000. The South Carolina Supreme Court summarily denied Frazer’s petition on May 30, 2002. On March 7, 2003, Frazer'filed the underlying pro se application- for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Frazer’s application renewed the five issues presented to the South Carolina Supreme Court.

His § 2254 application was referred to a magistrate judge who recommended denying relief on all claims, finding no error in the PCR court’s reasoning that Howie was under no Sixth Amendment obligation to consult with Frazer regarding an appeal. Frazer filed timely objections to this recommendation. Following a de novo review, the district court found that Howie had an obligation under Strickland to consult with Frazer regarding an appeal.

While acknowledging that Frazer never formally demanded an appeal until after the appeal period had expired, the district court noted [t]he undisputed evidence shows that, immediately after sentencing, Frazer and Howie agreed that Howie would seek review of the sentence. Howie assured Frazer that he “would file the necessary paperwork” to have the sentence modified, and Frazer did not hear from Howie again until Frazer contacted him about the status of his appeal. J.A. 114.

The district court specifically noted that “Frazer reasonably demonstrated to Howie that he was interested in seeking review of the sentence,” and that “there were non-frivolous grounds for appeal.” Id. at 115. The district court’s order granting habeas relief on this claim was entered on February 12, 2004, and South Carolina noted a timely appeal. II. A district court’s decision to grant habeas relief is reviewed de novo. Allen v. Lee, 366 F.3d 319, 323 (4th Cir. 2004) (en banc), cert. denied, 543 U.S. 906, 125 S.Ct. 208, 160 L.Ed.2d 182 (2004).

As with the district court, our review of a habeas petitioner’s claims is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (the “AEDPA”).

In relevant part, the AEDPA provides that: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits unless the adjudication of the claim— (1) 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 (2) 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); see also Williams v.

Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (discussing § 2254(d)). The phrase “clearly established Federal law, as determined by the Supreme Court of the United States” requires that federal courts assess the validity of the inmate’s claims based on the holdings of the Supreme Court “as of the time of the relevant state-court decision.” Id. at 412, 120 S.Ct. 1495.

A state habeas court unreasonably applies clearly established Federal law when it “identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. A. The legal principle applicable to claims of ineffective assistance of counsel are set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland establishes the extent and nature of counsel’s obligations to the defendant and a two-part test for assessing whether counsel has proved ineffective in discharging those obligations.

First, the defendant must prove that his counsel’s efforts were objectively unreasonable when measured against prevailing professional norms. Id. at 688-90, 104 S.Ct. 2052. Second, the defendant must demonstrate that counsel’s performance, if deficient, was also prejudicial. Id. at 694, 104 S.Ct. 2052. This generally requires the defendant to demonstrate by a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. Id.

The two-part test of Strickland that defendants must satisfy in order to prevail on an ineffective assistance of counsel claim unquestionably qualifies as “clearly established” federal law under § 2254(d). Williams, 529 U.S. at 391, 120 S.Ct. 1495 (“It is past question that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.’ ”). In Roe v.

Flores-Ortega, 528 U.S. 470, 477-80, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court applied Strickland to hold that counsel’s duty to consult with the defendant generally requires counsel to discuss with the defendant whether to pursue an appeal. 528 U.S. at 477-80, 120 S.Ct. 1029. The Court then followed the two-part test of Strickland to assist courts in establishing whether the particular failure to consult regarding an appeal amounted to ineffective assistance.

However, because Flores-OHega issued after Frazer’s state-court conviction became final, we must take up the threshold issue of whether we are relying on that decision in violation of the non-retroactive principle announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Horn v. Banks, 536 U.S. 266, 271-72, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (per curiam) (noting federal habeas courts must take up an analysis under Teague where necessary before addressing the merits of the defendant’s claims under the standards of the AEDPA). B.

Under Teague, a state prisoner collaterally attacking his conviction may not rely on a new constitutional rule announced after his conviction became final. Teague, 489 U.S. at 310-11, 109 S.Ct. 1060. A new rule is one which “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or “was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060. As the Supreme Court has noted, these are guidelines rather than rigidly applied criteria, and no single test is determinative. See Gilmore v.

Taylor, 508 U.S. 333, 340, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993) (noting the “dictated by” test is meaningful in a “majority of cases”). Applying these guidelines to Flores-Ortega demonstrates that it does not present a new constitutional rule under Teague. Rather, Flores-Ortega simply crystalizes the application of Strickland to the specific context presented by Frazer’s claim. Flores-Ortega, 528 U.S. at 476-81, 120 S.Ct. 1029. In making this tailored analysis, the Supreme Court relied exclusively on the principles announced in Strickland and other cases defining the role of counsel in the appellate process.

See id. Indeed, the Court’s conclusions in Flores-Ortega are dictated by its prior conclusions that:

a) the defendant has ultimate authority to make the fundamental decision as to whether to take an appeal, Jones v. Barnes, 463 U.S. at 751, 103 S.Ct. 3308, and

b) counsel’s obligation to assist the defendant includes a duty “to consult with the defendant on important decisions,” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The necessity of counsel’s consultation with the defendant regarding the fundamental decision of whether to appeal is clear from Strickland and cases preceding it that address the nature of the defendant’s right to a direct appeal. A defendant has a right to pursue a direct appeal, even if frivolous, which counsel must assist as “an active advocate in behalf of his client.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Although counsel need not press particular issues of the defendant’s choosing, by implication counsel must consult with the defendant to identify whether there are any meritorious issues to appeal. Barnes, 463 U.S. at 752, 103 S.Ct. 3308. Indeed, a discussion with the defendant regarding a direct appeal and what issues to pursue (if any) is critical, as “multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” Id. (internal quotations omitted).

The defendant’s need for the assistance of an advocate who can “examine the record with a view to selecting the most promising issues for review,” id., cannot be overstated, and is a necessary component of the “particular dut[y] to consult with the defendant on important decisions” identified in Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Flores-Ortega’s distillation that counsel generally (but not invariably) has a duty to consult with his client regarding whether to pursue an appeal is thus dictated by Strickland.

As such, the Court did not break new ground for Teag-ue purposes with respect to counsel’s duty to consult. Flores-Ortega’s formulation of the prejudice prong of Strickland likewise presents nothing new under Teague. The Flores-Ortega Court noted explicitly that its tailoring of Strickland’s prejudice prong to better suit the context of an attorney’s obligation to consult regarding an appeal “breaks no new ground,” as it “mirrors the prejudice inquiry applied in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and Rodriquez v.

United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969).” 528 U.S. at 485, 120 S.Ct. 1029. Because the Court did not impose on defense counsel a new duty and did not believe it was postulating a new rule regarding prejudice, Flores-Ortega introduces no element or consideration that federal courts would be foreclosed from applying retroactively. Indeed, South Carolina does not argue to the contrary, as it did not raise the issue in its briefs and expressly disclaimed it at oral argument.

Finally, both the procedural posture in which Flores-Ortega arose and the Supreme Court’s disposition of the case confirm that it did not announce a new rule for habeas purposes. Flores-Ortega involved a collateral attack on a state court sentence under 28 U.S.C. § 2254. See 528 U.S. at 473-74, 120 S.Ct. 1029. The very fact that the Supreme Court addressed the merits of the petition — and remanded for further proceedings — in the face of the limitations imposed by Teague demonstrates that the controlling legal principle discussed in Flores-Ortega was not a new rule. See Penry v.

Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (“Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions.”) Had the principle not been clearly established, the Supreme Court, as well as all lower Federal courts, would have been precluded by Teague from granting the relief requested by the petitioner in Flores-Ortega.

Accordingly, we join the Third Circuit in holding that Flores-Ortega does not constitute a new rule for the purposes of Teague. Lewis v. Johnson, 359 F.3d 646, 657 (3d Cir.2004); but see Daniel v. Cockrell, 283 F.3d 697, 707-08 (5th Cir.2002) (assuming, without deciding, that Flores-Ortega announced a “new” rule for Teague purposes), abrogated in part, United States v. Grammas, 376 F.3d 433, 438 (5th Cir.2004). Neither Teague nor § 2254(

d) forecloses an examination of Frazer’s entitlement to habeas relief under Strickland and its most directly applicable progeny, Flores-Ortega. C. The dissent, and the dissent alone, asserts that we cannot rely on the elaboration of Strickland in Flores-Ortega in evaluating Frazer’s claim of ineffective assistance of counsel. Although South Carolina nowhere makes this argument, the dissent posits on its behalf that because Flores-Ortega issued after the PCR court rendered its decision, the AEDPA forecloses any recourse to Flores-Ortega in evaluating Frazer’s claim. While § 2254(

d) does limit the availability of federal habeas relief to claims that rely on “clearly established Federal law,” the dissent’s insistence on divorcing the Teague and

Section 2254(

d) analysis in this case is misguided. The Supreme Court has made clear that “whatever would qualify as an old rule under our Teague jurisprudence will constitute ‘clearly established Federal law, as determined by the Supreme Court of the United States’ under § 2254(d)(1).” Williams, 529 U.S. at 412, 120 S.Ct. 1495 (emphasis added). III. Assessing Frazer’s claim under these precedents, we agree with the district court that the “state PCR court’s decision constituted an unreasonable application of Strickland.” J.A. 112.

The PCR court denied habeas relief without considering whether Howie had a duty to consult with Frazer regarding an appeal that was distinct from the generic obligation to apprise Frazer of that right. The PCR court’s failure to assess the extent of Howie’s duty to consult under the circumstances, despite having identified Strickland, as the relevant paradigm in which to assess Frazer’s claim, demonstrates an unreasonable application of that paradigm.

As noted above, Strickland requires that the inmate demonstrate counsel’s performance was objectively unreasonable and that he was prejudiced by this unreasonable performance. Strickland, 466 U.S. at 688-90, 94, 104 S.Ct. 2052. The Flores-Ortega Court explained that the Sixth Amendment generally, but not invariably, requires counsel to consult with the defendant regarding a direct appeal. 528 U.S. at 477-80, 120 S.Ct. 1029. Significantly, the PCR court determined only that Frazer’s counsel was under no constitutional obligation to inform him of his right to appeal under the circumstances of this case.

Counsel’s obligation to consult, however, is distinct from the duty to inform. See id. at 688, 104 S.Ct. 2052 (identifying “more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution” (emphasis added)). Therefore, when confronted with a claim that counsel rendered ineffective assistance in failing to consult with the defendant regarding an appeal, a court must conduct a three-step inquiry.

The threshold consideration is whether the defendant had independently decided whether to appeal and communicated that decision to counsel. If the defendant has affirmatively requested an appeal, counsel’s assistance to the defendant in making that decision is obviously unnecessary. See id. at 477, 120 S.Ct. 1029. Indeed, long before Strickland, the Supreme Court held that the “fundamental decision” of whether to appeal rests with the defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Where, as here, the defendant has not specifically requested an appeal, counsel is under a professional obligation to “consult” with the defendant regarding that fundamental decision, unless the circumstances demonstrate that consultation is unnecessary. Flores-Ortega, 528 U.S. at 478-79, 120 S.Ct. 1029. If counsel fails to consult, the defendant may demonstrate prejudice by showing that a rational defendant would want to appeal. The defendant may do this by demonstrating either that

a) there were non-frivolous issues for appeal, or

b) he had adequately indicated his interest in appealing. Id. at 480, 120 S.Ct. 1029. The mere presence of non-frivolous issues to appeal is generally sufficient to satisfy the defendant’s burden to show prejudice. Id. at 486, 120 S.Ct. 1029. Attempting to demonstrate prejudice based on a reasonably obvious interest in pursuing an appeal, however, necessitates an additional showing “that, had the defendant received reasonable advice from counsel about the appeal, he would have instructed his counsel to file an appeal.” Id. A.

After reviewing the factual determinations of the PCR court and according them the deference required by § 2254(e), we find the denial of relief on Frazer’s habeas claim unreasonably applied Strickland and its progeny. As noted above, after accepting Frazer’s guilty plea, the trial court proceeded immediately to sentencing, and imposed consecutive sentences as well as a statutorily impermissible fine. The PCR court found that Frazer did not explicitly request an appeal at that time, and it is undisputed that Howie never discussed that possibility with Frazer.

Nevertheless, the PCR court found no Sixth Amendment violation, citing Carey v. Leverette, 605 F.2d 745 (4th Cir.1979), for the proposition that “there is no constitutional requirement that necessitates that trial counsel inform a criminal defendant of his right to appeal, following a guilty plea.” J.A. 209. That this result is objectively unreasonable in light of the dictates of Strickland is made abundantly clear by Flores-Ortega.

While Flores-Ortega echoes the holding in Carey that there is no per se rule requiring counsel to consult with his client regarding a direct appeal, Carey does not delineate the circumstances under which such a duty would apply. Flores-Ortega does, however, illustrate that when there are non-frivolous issues to appeal or the defendant has manifested an interest in appealing, Strickland requires that counsel consult with the defendant in deciding whether to go forward. Flores-Ortega, 528 U.S. at 478-79, 120 S.Ct. 1029. Significantly, this duty applies even if the defendant has pled guilty.

Although there may be fewer issues to appeal under such circumstances, so long as the defendant retains an appeal of right, counsel’s obligation remains the same. See id. at 480, 120 S.Ct. 1029. The PCR court’s reliance on our decision in Carey as determinative of Frazer’s claim is unreasonable even without the benefit of Flores-Ortega. Carey’s holding conflicts with the subsequent decisions in Strickland and Jones, which

a) require counsel to assist the defendant with all important decisions, and

b) identify the decision whether to pursue a direct appeal as an important decision that ultimately lies with the defendant. The duty to consult identified in Strickland, is broader than the narrow obligation to inform a defendant of his right to appeal. As Strickland itself makes clear, [representation of a criminal defendant entails certain basic duties.

Counsel’s function is to assist the defendant, ... [which includes] the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. 466 U.S. at 688, 104 S.Ct. 2052. Strickland itself indicates that the duty to consult and the duty to inform are “particular,” and therefore distinct obligations on counsel.

It is therefore inadequate to simply analyze whether Howie discharged his duty to inform Frazer of his right to appeal; Howie had a separate obligation to consult regarding an appeal as well. Although the PCR court did not have the benefit of Flores-Ortega and its synthesis of the holdings in Strickland and Barnes, the two later decisions were available to the PCR court and the rules contained therein were clearly established at the time the PCR court reached its decision. B. We turn now to whether Frazer can satisfy the requirements that the Flores-Ortega Court distilled from Strickland.

In order to demonstrate prejudice from Howie’s failure to consult, Frazer must show that a rational defendant in his position would want to appeal. He may do so by either identifying non-frivolous issues that could have been appealed or by showing that he adequately expressed an interest in pursuing an appeal. Flores-Ortega, 528 U.S. at 480, 120 S.Ct. 1029. We conclude that Frazer has shown both. 1. We agree with the district court that Frazer could have pursued two non-frivolous issues on appeal.

As stated above, Frazer’s guilty plea exposed him to a statutory-maximum fine of $25,000, and all parties (including South Carolina) expected that Frazer’s sentences for the two counts to which he was pleading guilty would be concurrent. However, the court imposed a fine of $100,000 and, without a request from the prosecution, consecutive sentences — actions Frazer felt were imper-missibly motivated. The trial court also refused to revisit its decision in response to Howie’s oral motion for reconsideration.

South Carolina responds that three procedural obstacles would have prevented Frazer from pressing these issues on appeal, and that therefore Howie had no duty to consult. We consider these in turn. a. First, South Carolina contends that Frazer’s guilty plea automatically foreclosed appellate review of all issues that did not relate to the trial court’s subject matter jurisdiction. However, this assertion overstates the holdings of the decisions on which it is based.

Although there is some broad language in South Carolina case law to the effect that “a guilty plea generally constitutes a waiver of non-jurisdictional defects and claims of violations of constitutional rights,” State v. Passaro, 350 S.C. 499, 567 S.E.2d 862, 866 (2002) (citing Rivers v. Strickland, 264 S.C. 121, 213 S.E.2d 97, 98 (1975)), the general rule appears to be that “a plea of guilty, voluntarily and understandingly made, constitutes a waiver of non-jurisdie-tional defects and defenses ... prior to the plea,” Rivers, 213 S.E.2d at 98 (emphasis added).

Moreover, in South Carolina, “[sentencing, although often combined with the admission of guilt in a hearing, is a separate issue from guilt and a distinct phase of the criminal process,” Easter v. State, 355 S.C. 79, 584 S.E.2d 117, 119 (2003), which bolsters our conclusion that defendants cannot be expected to forego subsequent errors at sentencing simply by pleading guilty. In fact, the South Carolina Supreme Court has corrected a sentence on direct appeal that both parties agreed exceeded the statutory maximum, despite the defendant’s failure to raise a sentencing objection at trial.

Johnston, 510 S.E.2d at 425 (noting that “the State has conceded in its briefs and oral argument that the trial court committed error by imposing an excessive sentence.”). Consequently, we are not persuaded that Frazer’s guilty plea foreclosed an appeal as South Carolina argues. Moreover, South Carolina proffers no case supporting the proposition that a virtually contemporaneous motion for reconsideration is insufficient to preserve an objection for review. To the contrary, several South Carolina cases indicate that presenting an issue to the trial court for its initial determination is all that is necessary.

See, e.g., State v. Johnston, 333 S.C. 459, 510 S.E.2d 423, 425 (1999) (stating that if an “issue was not raised below and did not involve subject matter jurisdiction,” the defendant could not raise it for the first time on appeal (emphasis added)); State v. Williams, 303 S.C. 410, 401 S.E.2d 168, 169 (1991) (noting that it is the failure to “interpose[] a timely objection at sentencing in order to have [an] issue ruled upon by the circuit court in the first instance” that forecloses further review (emphasis added)); State v.

Woodruff, 300 S.C. 265, 387 S.E.2d 453, 454 n. 1 (1989) (“Matters not passed upon by the trial court will not be reviewed.” (emphasis added)). And to the extent that ambiguity exists regarding preservation of error in such circumstances, it suggests the existence of another non-frivolous issue for appeal. South Carolina further argues that an affidavit Frazer signed just prior to pleading guilty, in which he acknowledged his right to appeal, relieved Howie of any obligation to consult with Frazer regarding an appeal.

Frazer’s “Affidavit of Defendant for Guilty Plea” does reflect his understanding of his right to appeal. However, that document is insufficient to relieve Howie of his obligations under Strickland and Flores-Ortega, as an attorney’s duty to consult requires more than informing the defendant that he has the right to appeal. The term consult “convey[s] a specific meaning — advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” Flores-Ortega, 528 U.S. at 478, 120 S.Ct. 1029 (emphasis added).

Simply demonstrating that the defendant was actually or constructively aware of his right to appeal is insufficient to relieve defense counsel of his obligations under Flores-Ortega. Finally, South Carolina argues that the only issue Frazer could have raised on appeal is now frivolous, as the PCR court remedied this error by reducing the fine. Even assuming for the sake of argument that this is indeed the only issue Frazer could have pressed on appeal, we disagree. Both parties agree that the fine exceeded the statutory maximum when it was imposed by the trial court.

In establishing whether counsel had an obligation to consult given the circumstances, Flores-Ortega asks only whether the defendant would have elected to proceed with an appeal following that consultation. It is therefore the presence of error in the conviction or sentence at the time the decision to appeal is to be made that is determinative. The correction of the error in a separate proceeding is irrelevant to the issue of counsel’s obligation to consult. b. Turning to whether there existed non-frivolous issues for appeal, we note at least two: the excessive fine and the imposition of consecutive sentences.

With respect to the first, South Carolina’s acknowledgment that Frazer’s fine exceeded the statutory maximum indicates that Frazer could have pressed it on appeal. As noted above, there is precedent allowing South Carolina defendants to present an otherwise unpreserved sentencing error where “the State has conceded in its briefs and oral argument that the trial court committed error.” Johnston, 510 S.E.2d at 425. Consequently, the excessive fine presents a non-frivolous issue that triggered Howie’s duty to consult.

Second, the district court noted that Frazer arguably could have challenged the trial court’s decision to impose consecutive sentences. South Carolina correctly notes that in South Carolina, trial judges have “broad discretion in sentencing within statutory limits,” and that neither of Frazer’s custodial sentences exceeded the relevant statutory maximum. However, there is an exception to this rule where there are “facts supporting an allegation of prejudice” against the defendant. Garrett v. State, 320 S.C. 353, 465 S.E.2d 349, 350 (1995).

Here, the trial court’s decision to impose consecutive sentences took both parties by surprise, and Frazer’s sentencing took place just one day after “a heated [pre-trial] hearing” in which “thing[s] really kind of went [s]outh.” J.A. 183-84. Describing this hearing as “brutal,” Howie noted that “any adverse ruling we could have had” from the judge that sentenced Frazer the following day, “we got.” Id. at 184. Under these circumstances, we are not persuaded that an assertion by Frazer that his sentence was “the result of partiality [or] prejudice” would be frivolous.

Garrett, 465 S.E.2d at 350 (internal quotations omitted). 2. In the alternative, Frazer may show prejudice under Flores-Ortega by demonstrating an interest in an appeal and showing that a consultation with his counsel would not have dissuaded him from pursuing it. It is uncontested that, immediately following sentencing, Frazer indicated his unhappiness with his consecutive sentences and asked Howie to see about “having [them] run together.” J.A. 128. It was in fact Frazer’s indication of dissatisfaction that prompted Howie to make his oral motion for reconsideration.

Given that Frazer need only demonstrate an interest in appealing, Flores-Ortega, 528 U.S. at 480, 120 S.Ct. 1029, Frazer meets the initial requirement for demonstrating prejudice in this manner. However, Frazer must also show that the resulting consultation would have galvanized that interest into a desire to go forward, rather than dissuading him. See id. at 486, 120 S.Ct. 1029. We find Frazer’s letter to Howie satisfies this secondary showing.

Frazer was clearly dissatisfied that the district court refused to reconsider its sentencing decisions, and expressed his dissatisfaction both as the sentencing hearing concluded and in subsequent communications with Howie. Because Frazer’s interest in an appeal was unwavering and ongoing, we find it adequately reflects both his interest in an appeal and an intent to pursue them at all costs. Frazer’s tenacity in pursuing habeas relief only bolsters this conclusion. IV.

Because we agree with the district court that, in light of Strickland and Flores-Ortega, Frazer’s counsel had an obligation to consult with him regarding an appeal, and that Frazer was prejudiced by his counsel’s failure to do so, we find the PCR court unreasonably applied federal law in rejecting this claim. Accordingly, we affirm the district court’s grant of habeas relief. AFFIRMED. . Frazer had previously filed a PCR application on October 31, 1995, btit withdrew it voluntarily the following year.

When Frazer refiled his PCR petition, the PCR court initially dismissed Frazer’s application as successive, but the South Carolina Supreme Court permitted Frazer to re-file it. . In addition to his claim regarding Howie’s failure to consult, Frazer contended that: 1) the trial court lacked jurisdiction to accept his guilty plea; 2) his indictment was defective; 3) Howie had also been ineffective by failing to adequately consult with him prior to his change of plea; 4) his plea was not knowingly and voluntarily entered; and 5) that his sentencing was vindictive.

The district court dismissed claims 1) through 3) with prejudice, and dismissed claims 4) and 5) without prejudice. Neither South Carolina nor Frazer contests the district court's resolution of these issues. . There is an exception to this rule: "a federal court may, but need not, decline to apply Teague if the State does not argue it.” Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). Although we opt to apply Teague here, South Carolina’s failure to address the matter in its opening briefs to this court could provide adequate grounds to forego this inquiry altogether.

See, e.g., Pleasurecraft Marine Engine Co. v. Thermo Power Corp., 272 F.3d 654, 657 (4th Cir.2001); Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir.2004) (declining to apply Teague sua sponte where it was mentioned by the state "only in passing”), cert. denied, 543 U.S. 892, 125 S.Ct. 102, 160 L.Ed.2d 156 (2004); see also Noland v. French, 134 F.3d 208, 212 (4th Cir.1998) (noting the Teague rule is in the nature of an affirmative defense); Royal v.

Taylor, 188 F.3d 239, 247 (4th Cir.1999) ("Because in the district court the Commonwealth failed to raise the [affirmative defense] of ... default with respect to these claims (indeed it affirmatively asserted that the claims had been decided on the merits), it has waived its right to pursue the matter on appeal.” (emphasis added)). .The non-retroactivity rule of Teague is subject to two exceptions not applicable here.

"The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe, ... or addresses 'substantive categorical guarante[e] accorded by the Constitution,’ such as a rule 'prohibiting a certain category of punishment for a class of defendants because of their status or offense.' ” Saffle v. Parks, 494 U.S. 484, 494, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (citations omitted).

"The second exception is for 'watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. at 495, 110 S.Ct. 1257. . In Lewis v. Johnson, the Third Circuit noted that Strickland established a rule of "general applicability" necessitating a case-by-case assessment, and that the proposition that "a defendant requires the advice of counsel to make an informed decision respecting his right to appeal [] was hardly novel” when the habeas applicant’s state-court conviction became final. 359 F.3d at 655, 656.

Affording Frazer the benefit of Flores-Ortega comports with the Supreme Court's emphasis that a given constitutional rule be applied uniformly and consistently within each class of appeal, so as to avoid an unjust disparity in the treatment of similarly situated defendants. . Although Williams tells us that an old rule under Teague constitutes "clearly established” federal law for purposes of § 2254(d)(1), we recognize that the converse is not necessarily true.

This is so because a rule may be announced after a defendant's conviction becomes final, which is the relevant point for purposes of a Teague analysis, but before the relevant state court decision, which is determinative for purposes of consideration under § 2254(d)(1). That latter scenario is not the case here, however. Our analysis is governed by Strickland, which pre-dated both the conviction and PCR court review. .We recognize that the PCR court's decision is the relevant state-court decision for purposes of 28 U.S.C. § 2254(d). .

Because the dissent rejects the relevance of Flores-Ortega, its analysis of the merits asks only whether Frazer explicitly requested that Howie file an appeal and whether Howie was obliged to inform Frazer of that right. Post at 731. However, we believe it clear based on Strickland and Barnes that this is an incomplete analysis, and this conclusion is reinforced by Flores-Ortega. The dissent’s insistence that we ignore Flores-Ortega’s distillation of Strickland and Barnes given the procedural posture of this appeal is, as noted above, unpersuasive. .

Flores-Ortega offers two examples where counsel would be relieved of a duty to consult by circumstance. Flores-Ortega notes that where a defendant consults with counsel; counsel advises the defendant that a guilty plea probably will lead to a 2 year sentence; the defendant expresses satisfaction and pleads guilty; the court sentences the defendant to 2 years’ imprisonment as expected and informs the defendant of his appeal rights; the defendant does not express any interest in appealing, and counsel concludes that there are no nonfrivolous grounds for appeal.

Under these circumstances, it would be difficult to say that counsel is professionally unreasonable, as a constitutional matter, in not consulting with such a defendant regarding an appeal. Or, for example, suppose a sentencing court's instructions to a defendant about his appeal rights in a particular case are so clear and informative as to substitute for counsel’s duty to consult. In some cases, counsel might then reasonably decide that he need not repeat that information.

We therefore reject a bright-line rule that counsel must always consult with the defendant regarding an appeal. 528 U.S. at 479-80, 120 S.Ct. 1029 (internal quotations and citations omitted). . Interestingly, South Carolina does not contend that we are barred from considering Frazer’s claim in light of Flores-Ortega. Indeed, South Carolina asserts that Carey is consistent with Flores-Ortega. For the reasons stated, we disagree. Carey presumes that counsel need not inform or consult with his defendant regarding the right to appeal.

Flores-Ortega, however, states the opposite: that "in the vast majority of cases, counsel [will] ha[ve] a duty to consult with a defendant about an appeal." 528 U.S. at 481, 120 S.Ct. 1029. . See also Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (holding entry of guilty plea waives challenges to “the deprivation of constitutional rights that occurred prior to the entry of the guilty plea ” (emphasis added)). .

The fact that there was little opportunity at sentencing to protest the judge's sentence and that the judge did not appear amenable to an objection adds weight to the argument that, under the present circumstances, an oral motion for reconsideration could suffice to pre- ■ serve review. Frazer’s sentencing hearing concluded as follows: "The sentence on the trafficking in cocaine; you be [sic] incarcerated for a period for ten years and pay a fine of one hundred thousand dollars. Sentence on the possession of a weapon during a violent crime, that you be incarcerated for a period of five years to run consecutive.

I'm recommending counseling and treatment for drug abuse. And I will tell you this, that if you had gone to trial on the charges it's my firm belief that you would have been convicted of the charges and I would have given you every day that I could have based on what I- consider to be a trial without merit.” J.A. 137. Frazer's sentencing adjourned immediately following these statements, without an opportunity for final comments or objections.

Generally, if a defendant “had no opportunity to object to or comment” on particular aspects of his sentence, his failure to press a contemporaneous objection would not result in the waiver of subsequent review. United States v. Warden, 291 F.3d 363, 365 n. 1 (5th Cir.2002). . Indeed, at argument counsel for South Carolina conceded that Howie had not consulted with Frazer within the meaning of Flores-Ortega. . We note that it appears this would also be insufficient as a matter of South Carolina law. In re Anonymous Member of the Bar, 303 S.C. 306, 400 S.E.2d 483 (1991); White v.

State, 263 S.C. 110, 208 S.E.2d 35, 39 (1974) (noting that even though there is “a reasonable basis for trial counsel's conclusion or assumption that the defendant was fully aware of his appeal rights, counsel should not have rested upon that assumption”). . See S.C.Code Ann. §§ 44-53-370, 44-53-375. . Because the dissent's analysis of the merits of Frazer's claim is predicated on its conclusion that Flores-Ortega does not apply, its analysis is largely irrelevant. We therefore forego taking up its contentions regarding the merits of Frazer’s claim as doing so would not advance the resolution of this appeal.