FindLaw Criminal Law Summaries

INEFFECTIVE ASSISTANCE OF COUNSEL — FAILURE TO FILE NOTICE OF APPEAL

Case: Roe v. Flores-Ortega

Issue: 1. What is the proper framework for evaluating an ineffective assistance of counsel claim based on counsel's failure to file a notice of appeal without the defendant's consent? 2. Is defense counsel deficient for not filing a notice of appeal when the defendant has not clearly conveyed his wishes one way or another?

Facts: Ortega pled guilty, through a Spanish language interpreter, to second-degree murder and was sentenced to 15 years. At his sentencing, he was told he had 60 days to file an appeal. He had a conversation with his counsel, Nancy Kops, after his sentencing. Kops wrote "bring appeal papers" in her file. Ortega was put in lockup for 90 days and was unable to communicate with counsel. He did not file an appeal until four months after sentencing. The Superior Court Clerk rejected the appeal as untimely. Ortega sought and was denied state habeas relief. He then filed a federal habeas petition, alleging constitutionally ineffective assistance of counsel based on his counsel’s failure to file a timely appeal. Ortega alleged that counsel had promised to file an appeal, although Kops did not recollect such a conversation. The federal district judge assigned the case to a magistrate judge. After a hearing, the magistrate held that Ortega did not consent to the failure to file an appeal. (The magistrate found that Ortega and Kops had a conversation, after the sentencing hearing, in which Ortega understood that Kops would file an appeal, but in which Kops did not understand that she had been requested to do so.) The magistrate judge, citing the bright-line rule of  United States. v. Stearns, 68 F.3d 328 (9th Cir. 1995), noted that in the United States Court of Appeals for the Ninth Circuit, a defendant who does not consent to counsel's failure to file an appeal is entitled to relief, but ruled that Stearns did not apply retroactively to Ortega. The district court agreed. The Ninth Circuit reversed, holding that Stearns did apply retroactively, and remanded to the district court with instructions to issue a conditional habeas writ unless the state court allowed Ortega a new appeal. The Supreme Court granted certiorari to resolve a split in the circuits regarding counsel's obligation to file a notice of appeal.

Holding:

1. The two part test of  Strickland v. Washington, 466 U.S. 668 (1984), for determining ineffective assistance of counsel [(1) did counsel’s performance "[fall] below an objective standard of reasonableness" and (2) did the deficient performance prejudiced the defendant] applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal.

2(A). If counsel has "consulted" with the defendant (that is, if counsel has "advis[ed] the defendant about the advantages and disadvantages of an appeal, and [made] a reasonable effort to discover the defendant's wishes"), "[c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." (In other words, failure to file a notice of appeal, when the defendant has not clearly conveyed his wishes one way or the other, will not constitute deficient performance under the first prong of Strickland if counsel has "consulted" with the defendant.) Failing to follow the defendant's express instructions, after consultation, is also prejudicial per se under Strickland's second prong.

2(B). If counsel has not "consulted" with the defendant, counsel has fallen below a constitutionally imposed duty to consult (and has thereby fallen below the objective standard of reasonableness under Strickland's first prong), "when there is reason to think either (1) that a rational defendant would want to appeal . . . or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." To "show prejudice in these circumstances," under Strickland's second prong, "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed."

Reasoning: The standard for evaluating any ineffectiveness of counsel claim is the test established in  Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, counsel is ineffective if (1) counsel’s performance "fell below an objective standard of reasonableness" and (2) the deficient performance prejudiced the defendant. Strickland established the test under which all ineffectiveness of counsel claims must be evaluated. To determine whether the failure to file an appeal is objectively below a standard of reasonableness, the Court distinguished between cases where a defendant expressly states that he wishes to appeal and when he does not. In the first case, if counsel disregards specific instructions from the defendant to file an appeal, he has acted in a professionally unreasonable (and prejudicial) manner per se. If, however, clear instructions are not given by the defendant, a circumstance-specific analysis must be made to determine whether this failure was reasonable. "In those cases . . . we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal." Once counsel consults with the defendant, counsel is not acting in a professionally unreasonable manner by failing to file an appeal in the absence of express instructions. In many instances, counsel must consult with the defendant about whether to file an appeal. Counsel has a constitutionally imposed duty to consult with the defendant about an appeal (and to follow his express wishes after such a consultation) when (1) the rational defendant would want to appeal (e.g., when there are nonfrivolous grounds for appeal) or (2) the defendant reasonably demonstrated to counsel that he was interested in appealing. The Court noted that a guilty plea may be a "highly relevant factor" in deciding whether counsel had a duty to consult with the defendant since guilty pleas may reduce the scope of appealable issues and/or signal that the defendant wishes to stop judicial proceedings. Thus, a case in which the defendant has pled guilty, been informed of his right to appeal, and failed to state that he wishes to appeal may be a case in which it is not professionally unreasonable to fail to consult with the defendant on his right to appeal.

The second prong of the Strickland test requires the defendant to show that the performance of counsel prejudiced him. To establish prejudice in a case of improper non-consultation, the defendant must show that but for counsel’s deficient failure to consult with him about an appeal, he would have filed a timely appeal. As before, this showing depends on the particular circumstances of a case and does not follow a brightline rule. Factors which tend to show prejudice, however, include whether there are nonfrivolous grounds for appeal and whether the defendant showed any interest in filing an appeal.

Because the federal district court did not apply the Strickland test to Ortega’s case, the Court remanded the case for hearings on whether "Kops had a duty to consult with respondent (either because there were potential grounds for appeal or because respondent expressed interest in appealing), whether she satisfied her obligations, and, if she did not, whether respondent was prejudiced thereby."

Other Opinions: Justice Breyer concurred in the opinion, emphasizing that the question as it was presented applied only to filing a notice of appeal following a guilty plea. He also emphasized that the Court’s opinion makes it clear that counsel "almost always" has a constitutional duty to consult with a defendant regarding an appeal.

Justices Souter, Stevens, and Ginsburg concurred with the majority regarding its holding that a defendant must show prejudice resulting from the failure to file an appeal. These justices dissented, however, from the holding that counsel does not necessarily have an obligation to consult with the defendant regarding an appeal. The dissent conceded Strickland’s holding that ineffectiveness of counsel claims must be evaluated on a case-by-case basis, but argued that this applies only to strategic choices by lawyers. The decision whether or not consult with a defendant about an appeal cannot be characterized as strategic and should almost always follow a bright-line rule. Finally, the dissent noted that to condition the duty to consult on whether a rational defendant would want to appeal substitutes a "harmless error rule for a showing of reasonable professional conduct" and ignores the fact that most defendants cannot make rational decisions about appealing without guidance from counsel.

Comments: The Court noted that "[a] notice of appeal is generally a one-sentence document stating that the defendant wishes to appeal from the judgment," and that "[f]iling such a notice is a purely ministerial task that imposes no great burden on counsel." Indeed, consulting with one’s client about filing such a notice is the criminal law equivalent of asking a shopper whether he wants paper or plastic. The Court’s failure to mandate a bright-line rule of consultation is therefore something of a mystery, particularly since the remedy for the failure is simply to grant the defendant the right to appeal anew. This opinion is a classic example of Justice O’Connor’s fact-based, case-by-case approach to constitutional litigation.

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