528 U.S. 470 (2000)
The State of California charged Lucio Flores-Ortega with one count of murder, two counts of assault, and a personal use of a deadly weapon enhancement allegation.1 In October 1993, Flores-Ortega appeared in Superior Court with his court-appointed public defender Nancy Kops and a Spanish language interpreter.2 He pleaded guilty to second-degree murder pursuant to a California rule permitting a defendant to deny committing the crime while admitting sufficient evidence to convict.3
On November 10, 1993, the Superior Court sentenced Flores-Ortega to 15 years to life in state prison.4 After pronouncing sentence, the trial judge informed Flores-Ortega that he could file an appeal within 60 days from that date and that counsel would be appointed if he lacked funds for representation.5
Although Kops wrote "bring appeal papers" in her file, no notice of appeal was filed within the 60 days allowed by state law.6 During the first 90 days after sentencing, Flores-Ortega was in lockup undergoing evaluation and unable to communicate with counsel.7 On March 24, 1994, Flores-Ortega attempted to file a notice of appeal, which the Superior Court Clerk rejected as untimely.8 Flores-Ortega's efforts to obtain habeas relief from California's appellate courts, including allegations that Kops had not filed a notice of appeal as promised, were unsuccessful.9
Flores-Ortega then filed a federal habeas petition under 28 U.S.C. § 2254 alleging constitutionally ineffective assistance of counsel based on Kops' failure to file a notice of appeal on his behalf after promising to do so.10 The United States District Court for the Eastern District of California referred the matter to a Magistrate Judge, who ordered an evidentiary hearing on whether Kops promised to file a notice of appeal.11 At the hearing's conclusion, the Magistrate Judge found that there was no consent to the failure to file a notice of appeal, that Flores-Ortega had little or no understanding of the appeal process, that there had been a conversation after sentencing where Flores-Ortega understood Kops would file, but that Flores-Ortega had not carried his burden of showing Kops made that promise.12 The Magistrate Judge recommended denial of the petition, and the District Court adopted the recommendation and denied relief.13
The Court of Appeals for the Ninth Circuit reversed and remanded with instructions to issue a conditional habeas writ unless the state court allowed a new appeal.14 The Supreme Court granted certiorari to resolve a conflict in the lower courts regarding counsel's obligations to file a notice of appeal.15
Whether the two-part test announced in Strickland v. Washington applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal?16
In Strickland v. Washington the Court held that a defendant claiming ineffective assistance of counsel must show both that counsel's representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant.17 The Court today holds that this test applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal.18
Yes. The Court applied the Strickland framework to the claim brought by Lucio Flores-Ortega that his court-appointed counsel Nancy Kops performed deficiently by failing to file a notice of appeal after his guilty plea to second-degree murder.19 The established facts establish that Flores-Ortega was sentenced to fifteen years to life.20 The trial judge advised him of the sixty-day appeal window.21 Kops wrote bring appeal papers in her file yet no notice was filed.22 Flores-Ortega remained in lockup for the first ninety days after sentencing and therefore could not communicate with counsel.23 The Magistrate Judge found no consent by Flores-Ortega to the omission and no promise by Kops.24 Yet the Ninth Circuit had granted relief under a per se rule.25 The Court rejected that per se approach and required the circumstance-specific Strickland inquiry instead.26
Application of the rule to these facts therefore begins with an assessment of whether Kops's conduct was objectively reasonable under all the circumstances known to her at the time and, if deficient, whether the deficiency actually caused Flores-Ortega to lose his appeal.27
The two-part Strickland test applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal.28
Related opinions on this issue
Justice Breyer wrote separately to emphasize that the question presented concerned the filing of a "notice of appeal following a guilty plea. " In that context he agreed with the Court.29 He also joined its opinion, which in his view makes clear that counsel does "almost always" have a constitutional duty to consult with a defendant about an appeal after a trial.30
Cf. post this page (Souter, J., concurring in part and dissenting in part); cf. ante, at 479-481.
Whether counsel performs deficiently by failing to file a notice of appeal when the defendant has neither instructed counsel to file nor instructed counsel not to file an appeal?31
When the defendant has neither instructed counsel to file an appeal nor instructed counsel not to file an appeal, counsel's failure to file is not per se deficient.32 Instead the court must first ask whether counsel consulted with the defendant about an appeal and, if not, whether the failure to consult itself was objectively unreasonable under all the circumstances.33
No. Counsel does not perform deficiently in every case simply by failing to file a notice of appeal when the defendant has not clearly conveyed his wishes.34 The established facts show that Flores-Ortega and Kops had some conversation after sentencing in which Flores-Ortega understood Kops would file a notice.35 Yet the Magistrate Judge could not find that Kops had promised to do so.36 Kops had no specific recollection of any such request.37
Because the record does not reveal whether Kops advised Flores-Ortega of the advantages and disadvantages of an appeal, it is impossible to determine on these facts whether her performance was deficient under the circumstance-specific standard.38 It is also impossible to determine whether she made a reasonable effort to discover his wishes.39
Counsel does not perform deficiently in every case by failing to file a notice of appeal when the defendant has neither instructed counsel to file nor instructed counsel not to file an appeal.40
Related opinions on this issue
Justice Souter joined Part II-B of the opinion but dissented from Part II-A.41 He would have held that in the aftermath of sentencing Flores-Ortega's lawyer was obliged to consult with her client about the availability and prudence of an appeal.42 He concluded that failure to do so violated Strickland's standard of objective reasonableness.43 Souter dissented from the majority's refusal to adopt an almost bright-line rule requiring consultation in nearly all cases after a guilty plea that has not obviously waived claims of error.44
He stressed that the decision to appeal rests with the defendant and that a lawyer owes a duty of effective assistance at the appellate stage.45 Because the decision cannot be made intelligently without appreciating possible grounds for review and potential risks, a lay defendant needs help.46 Souter relied on ABA standards requiring counsel to advise on the meaning of the judgment, the right to appeal, possible grounds, and probable outcome.47
He noted that no strategic choice is involved in deciding whether to give any advice before the chance to appeal is lost.48 Souter also emphasized Flores-Ortega's lack of English and sophistication, finding that most defendants are incapable of rational judgments about appeal without guidance.49 Conditioning the duty on whether a rational defendant would want to appeal substitutes a harmless-error rule for a showing of reasonable professional conduct.50
He concluded that the majority's approach erodes the principle that a decision about appeal is validly made only by a defendant with a fair sense of what he is doing.51
Whether counsel has a duty to consult with the defendant about an appeal when the defendant has neither instructed counsel to file an appeal nor instructed counsel not to file an appeal?52
Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think that a rational defendant would want to appeal, for example because there are nonfrivolous grounds for appeal.53 Counsel also has such a duty when this particular defendant reasonably demonstrated to counsel that he was interested in appealing.54 Courts must take into account all information counsel knew or should have known.55 This includes whether the conviction followed a trial or a guilty plea and whether the defendant received the sentence bargained for.56
Yes. On the facts of this case the duty to consult turns on whether a rational defendant in Flores-Ortega's position would have wanted to appeal or whether Flores-Ortega himself reasonably demonstrated interest in appealing.57 The established facts indicate that Flores-Ortega pleaded guilty pursuant to a West plea.58 He received the bargained-for dismissal of the deadly-weapon allegation and the assault charges.59
He was sentenced to fifteen years to life.60 The Magistrate Judge found that Flores-Ortega had little or no understanding of the appeal process.61 These facts must be weighed to decide whether Kops had a duty to consult and, if so, whether she satisfied it.62
Counsel has a duty to consult with the defendant about an appeal when there is reason to think a rational defendant would want to appeal or the defendant reasonably demonstrated interest in appealing.63
Related opinions on this issue
Justice Ginsburg joined Justice Souter's opinion because the test articulated by Justice Souter provides clearer guidance to lower courts and to counsel.64 She also joined because she thought it plain that the duty to consult was not satisfied in this case.65 This case presents the question whether, after a defendant pleads guilty or is convicted, the Sixth Amendment permits defense counsel simply to walk away, leaving the defendant uncounseled about his appeal rights.66
The Court is not deeply divided on this question. Both the Court and Justice Souter effectively respond: hardly ever.67
Whether a defendant claiming ineffective assistance from counsel's failure to file a notice of appeal must demonstrate a reasonable probability that he would have timely appealed but for counsel's deficient performance to establish prejudice?68
To show prejudice from counsel's deficient failure to consult about an appeal, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient performance, he would have timely appealed.69 When counsel's deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective-assistance claim entitling him to an appeal.70
Yes. Flores-Ortega must show a reasonable probability that, but for Kops's deficient failure to consult, he would have timely appealed.71 The established facts reveal that Flores-Ortega attempted to file a notice four months after sentencing.72 His state habeas petitions were unsuccessful.73
The Magistrate Judge found he had little understanding of the appeal process.74 Whether these facts establish the requisite reasonable probability that he would have appealed had Kops consulted him remains to be determined on remand under the proper standard.75
A defendant claiming ineffective assistance from counsel's failure to file a notice of appeal must demonstrate a reasonable probability that he would have timely appealed but for counsel's deficient performance to establish prejudice.76