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.
2

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 
3

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 crossexamination 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.

 1 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).
4

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).
5

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 
6

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 
7

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.
8

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? 
9

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 
10

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 crossexamination. 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 
11

***

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.