Counsel has a constitutional duty to consult with a defendant regarding an appeal when there is reason to believe a rational defendant would want to appeal.
A defendant alleges ineffective assistance of counsel after his attorney failed to file a notice of appeal. The Court addresses whether counsel has a constitutional duty to consult with a defendant regarding an appeal. The Court holds that counsel has a duty to consult with the defendant when there is reason to believe a rational defendant would want to appeal or when the defendant demonstrates an interest in appealing. To show prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient failure to consult, he would have timely appealed. The Court vacates the judgment and remands the case.
At page 477 Judging counsel's performance regarding notice of appeal526 citing cases“a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.”
- Gary Tassone v. State of Rhode Island, 352 A.3d 577 (R.I. 2026).published([C]ourts must ‘judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct’ * * *.)
- Higuera v. United States, No. 1:22-cv-00551 (D.N.M. May 22, 2025). (We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.)
- Jones v. United States, No. 3:22-cv-00609 (M.D. Fla. Mar. 27, 2025).([A]dequate consultation requires informing a client about his right to appeal, advising the client about the advantages and disadvantages of taking an appeal, and making a reasonable effort to determine whether the cli…)
- Higuera v. United States, No. 1:22-cv-00551 (D.N.M. Mar. 14, 2025). Flores-Ortega, 528 U.S. at 480 (“[A] highly relevant factor in this inquiry will be whether the conviction follows a . . . guilty plea, [] because a guilty plea . . . may indicate that the defendant seeks an end to judicial proceedings.”).
- Qashou v. United States of Am. (INMATE 2), No. 3:21-cv-00660 (M.D. Ala. Feb. 3, 2025). See Flores-Ortega, 528 U.S. at 487 (“Assuming, arguendo, that there was a duty to consult in this case[.]”).
- Gross v. United States, No. 4:24-cv-04076 (D.S.D. Dec. 16, 2024).(An attorney's failure to file a notice of appeal upon the client's request constitutes ineffective assistance of counsel, and no specific showing of prejudice is required.)
- Sanchez Ramos v. United States, No. 2:23-cv-14247 (S.D. Fla. Oct. 11, 2024). (An attorney who fails to file an appeal on behalf of a client who specifically requests it acts in a professionally unreasonable manner per se.)
- Balenti v. United States, 750 F. Supp. 3d 1305 (D. Utah 2024). The record contains no evidence about whether 32 Id. 33 Id. 34 Id. 35 Id. 36 Parker, 720 F.3d at785 n.3; see also Flores-Ortega, 528 U.S. at 479-80 (“Or, for example, suppose a sentencing court’s instructions to a defendant about his appea…
- Nunley v. United States of Am. (INMATE 4), No. 2:23-cv-00430 (M.D. Ala. Apr. 15, 2024). As to the second prong of Strickland, it was held that prejudice is presumed in such cases and that the petitioner may have a new appeal with no further showing. 4 Flores-Ortega, 528 U.S. at 483 (“The ... denial of the entire judicial proc…
- State of New Jersey v. Rasuan Thompson, No. A-1552-21 (N.J. Super. Ct. App. Div. Mar. 7, 2024).unpublished(a lawyer who disregards specific instructions from a criminal defendant to file a notice of appeal acts in a manner that is professionally unreasonable.)
Show 211 more citing cases
- Moore v. United States, No. 2:20-cv-00085 (E.D. Tenn. Feb. 27, 2023).(a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.)
- King v. United States, No. 1:21-cv-23858 (S.D. Fla. Oct. 12, 2022).([A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.)
- Neal v. United States, No. 3:21-cv-50101 (N.D. Ill. July 14, 2022).([A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.)
- United States v. Sloan, No. 21-5033 (10th Cir. Dec. 3, 2021).unpublished([A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.)
- Williams v. Unknown, No. 1:20-cv-00255 (E.D. Va. Feb. 11, 2021).(At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently.)
- State v. George E. Savage, 2020 WI 93, 951 N.W.2d 838.published([A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.)
- Clinton Folkes v. Warden Nelsen, 34 F.4th 258 (4th Cir. 2022).published
- Rodriguez v. United States, No. 5:23-cv-04032 (N.D. Iowa July 30, 2025).
- Marlon Mack v. State of Alaska, 523 P.3d 1235 (Alaska Ct. App. 2023).published
- Michael Shane McCormick, Sr. v. United States, 72 F.4th 130 (6th Cir. 2023).published
- Thomas v. United States, 93 F.4th 62 (2d Cir. 2024).published
- Wells v. United States, No. 5:21-cv-00051 (S.D. Ga. June 3, 2024).
- Scott v. United States, No. 1:19-cv-03322 (S.D.N.Y. Aug. 4, 2023).
- Dority v. United States, No. 1:23-cv-00323 (W.D. Mich. Oct. 4, 2024).
- McBride v. United States, No. 1:22-cv-00524 (W.D. Mich. Oct. 23, 2024).
- Sanders v. United States, No. 1:21-cv-00563 (E.D. Wis. Apr. 4, 2022).
- Allen v. United States, No. 1:20-cv-00234 (S.D. W. Va. June 7, 2022).
- United States v. Ganeous, No. 2021-0242 (D.D.C. Nov. 6, 2024).published
- Joseph v. United States, No. 2:23-cv-00043 (S.D. Ga. Dec. 13, 2024).
- United States v. Ibarra, No. 23-40372 (5th Cir. Feb. 25, 2025).unpublished
- Gomez v. United States, No. 2:20-cv-08012 (N.D. Ala. Mar. 6, 2025).
- Phenix v. United States, No. 4:22-cv-00825 (E.D. Mo. Mar. 14, 2025).
- Gomez Munoz v. United States, No. 3:24-cv-00811 (N.D. Tex. Apr. 30, 2025).
- Dudley v. United States, No. 3:24-cv-01014 (N.D. Tex. June 4, 2025).
- People v. Morris, 2025 IL App (2d) 240359-U.unpublished
- Massengill v. United States, No. 1:23-cv-01037 (W.D. Tenn. Oct. 10, 2025).
- Verduzco-Vega, No. 2:24-cv-00084 (N.D. Tex. Oct. 8, 2025).
- Thomas Kelly Ballard, III v. United States of Am., No. 1:22-cv-01226 (W.D. Tenn. Apr. 2, 2026).
- Hennings, No. 1:25-cv-01299 (W.D. Tenn. June 24, 2026).
- Neal, No. 3:25-cv-00283 (E.D. Tenn. Aug. 31, 2026).
At page 480 Defining counsel's duty to consult about appeal265 citing cases“counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either ... that a rational defendant would want to appeal (for example, because there are nonfriviolous grounds for appeal), or ... that this particular defendant reasonably demon…”
- State of New Jersey v. Jemar O. May, No. A-3825-23 (N.J. Super. Ct. App. Div. Apr. 16, 2026).unpublished See Flores-Ortega, 528 U.S. at 489 ("[I]f a defendant requests counsel to file an appeal, a lawyer who fails to do so is, without more, ineffective.").
- Higuera v. United States, No. 1:22-cv-00551 (D.N.M. May 22, 2025). Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (“We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.”).
- Higuera v. United States, No. 1:22-cv-00551 (D.N.M. Mar. 14, 2025). ([A] highly relevant factor in this inquiry will be whether the conviction follows a . . . guilty plea, [] because a guilty plea . . . may indicate that the defendant seeks an end to judicial proceedings.)
- Qashou v. United States of Am. (INMATE 2), No. 3:21-cv-00660 (M.D. Ala. Feb. 3, 2025). See Flores-Ortega, 528 U.S. at 487 (“Assuming, arguendo, that there was a duty to consult in this case[.]”).
- Sanchez Ramos v. United States, No. 2:23-cv-14247 (S.D. Fla. Oct. 11, 2024). It is well-settled law that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); see also Gomez-…
- Dorta-Hernandez v. United States, No. 1:24-cv-02773 (S.D.N.Y. Oct. 7, 2024). Dorta-Hernandez asserts, however, that defense counsel did not “consult” with him “about filing an appeal or even a notice of appeal.” (ECF 171 at 10.) Dorta-Hernandez notes, correctly, that the term “consult” in this context has a “specif…
- Commonwealth v. Parrish, M., Aplt., 273 A.3d 989 (Pa. 2022).published See Roe, 528 U.S. at 478 (“If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express in…
- United States v. Orozco-Sanchez, 804 F. App'x 952 (10th Cir. 2020).unpublished (the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea)
- Brian McCalla v. United States, No. 16-15623 (11th Cir. Apr. 11, 2018).unpublished
- Clinton Folkes v. Warden Nelsen, 34 F.4th 258 (4th Cir. 2022).published
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- State v. Jeminez, 853 S.E.2d 265 (N.C. Ct. App. 2020).published
- United States v. Anthony Vetri, No. 23-1208 (3d Cir. Sept. 5, 2024).unpublished
- In re L.J., 2024 IL App (4th) 240750-U.unpublished
- Wisham v. United States, No. 3:23-cv-00027 (S.D. Ill. June 26, 2024).
- Woods v. United States, No. 4:20-cv-01248 (E.D. Mo. Sept. 27, 2024).
- Modestin v. Nogan, No. 2:21-cv-02059 (D.N.J. Apr. 24, 2024).
- Churchill v. United States, No. 2:18-cv-00295 (E.D. Wis. Oct. 19, 2022).
- Perdue v. United States, No. 1:20-cv-00216 (N.D. W. Va. Sept. 12, 2022).
- Com. v. Fyock, S., No. 598 WDA 2021 (Pa. Super. Ct. Nov. 12, 2021).unpublished
- Peo v. Williams, No. 23CA0863 (Colo. Ct. App. Feb. 6, 2025).unpublished
- Birdsong v. United States, No. 3:22-cv-00020 (M.D. Tenn. Feb. 11, 2025).
- Christopher Whittaker v. Commonwealth of Kentucky, No. 2023-SC-0521 (Ky. Feb. 20, 2025).unpublished
- Davis v. State, 852 S.E.2d 517 (Ga. 2020).published
- Short v. United States Am., No. 1:24-cv-03976 (S.D.N.Y. Apr. 10, 2025).
- Dhar v. United States, No. 3:25-cv-00064 (D. Conn. Apr. 16, 2025).
- Croskery v. United States, No. 1:24-cv-00189 (D. Haw. Aug. 19, 2025).
- Pinckney v. State, 914 S.E.2d 803 (Ga. 2025).published
- People v. Bueso (Wilmer), 77 Misc. 3d 137(A) (N.Y. App. Term. 2022).unpublished
- Irizarry, No. 1:23-cv-00237 (S.D.N.Y. Oct. 17, 2025).
- United States v. Joshua Saunders, No. 25-3634 (6th Cir. June 26, 2026).unpublished
- Porter, No. 4:25-cv-00154 (E.D. Mo. Aug. 20, 2026).
- Aso Pola v. United States, 778 F.3d 525 (6th Cir. 2015).published
- Preston Grimes v. Superintendent Graterford SCI, 619 F. App'x 146 (3d Cir. 2015).unpublished
- Howard Levy v. United States, 665 F. App'x 820 (11th Cir. 2016).unpublished
- Rojas-Medina v. United States, 924 F.3d 9 (1st Cir. 2019).published
- State v. Varela, 425 P.3d 267 (Ariz. Ct. App. 2018).published
- Rojas-Medina v. United States, 290 F. Supp. 3d 145 (2018).published
- People v. Moore, 2022 IL App (1st) 220919-U.unpublished
- People v. Moore, 2023 IL App (1st) 220919, 225 N.E.3d 125.published
- Black v. USA - 2255, No. 1:19-cv-00063 (D. Md. Oct. 25, 2019).
- GORDON v. United States, No. 1:14-cv-06760 (D.N.J. Jan. 28, 2020).
- United States v. Sloan, No. 4:18-cr-00205 (N.D. Okla. Feb. 22, 2021).
- Sanders v. United States, No. 1:21-cv-00563 (E.D. Wis. May 11, 2022).
- Dolphus v. United States, No. 1:19-cv-00151 (N.D. W. Va. July 19, 2022).
- Coddington v. Langley, 77 F. App'x 869 (6th Cir. 2003).unpublished“We ... reject a bright-line rule that counsel must always consult with the defendant regarding an appeal.”
- Davis v. State, 2011 OK CR 7, 246 P.3d 1097.published“We therefore reject a bright-line rule that counsel must always consult with the defendant regarding an appeal.”
- Flores-Ortega v. Roe, 39 F. App'x 604 (9th Cir. 2002).unpublished“a highly relevant factor ... will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the…”
At page 484 Establishing actual prejudice for ineffective assistance of counsel claims264 citing cases“to show prejudice in these circumstances, 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.”
- Smith-Johnson, No. 3:23-cv-03914 (S.D. Ill. May 7, 2026).([F]ailure to take an appeal, despite the defendant’s request, is ineffective assistance without regard to the probability of success on appeal.)
- Dixon, No. 3:21-cv-01437 (S.D. Ill. Jan. 8, 2026). ([F]ailure to take an appeal, despite the defendant’s request, is ineffective assistance without regard to the probability of success on appeal.)
- Blake, No. 3:22-cv-02814 (S.D. Ill. Dec. 30, 2025).([F]ailure to take an appeal, despite the defendant’s request, is ineffective assistance without regard to the probability of success on appeal.)
- Santana-Aviles, No. 3:25-cv-01335 (D.P.R. Dec. 18, 2025). ([a]s the Supreme Court recently explained, the familiar Strickland standard applies to claims of ineffective assistance of counsel in connection with the failure of trial counsel to pursue an appeal)
- State of New Jersey v. C.L., No. A-0917-23 (N.J. Super. Ct. App. Div. Apr. 15, 2025).unpublished([W]hen counsel's constitutionally deficient performance deprives a defendant of an appeal that [they] otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitlin…)
- Hicks v. United States, No. 7:25-cv-02564 (S.D.N.Y. Mar. 31, 2025).([W]hen counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling hi…)
- Higuera v. United States, No. 1:22-cv-00551 (D.N.M. Mar. 14, 2025). Flores-Ortega, 528 U.S. at 480 (“[A] highly relevant factor in this inquiry will be whether the conviction follows a . . . guilty plea, [] because a guilty plea . . . may indicate that the defendant seeks an end to judicial proceedings.”).
- Qashou v. United States of Am. (INMATE 2), No. 3:21-cv-00660 (M.D. Ala. Feb. 3, 2025). See Flores-Ortega, 528 U.S. at 487 (“Assuming, arguendo, that there was a duty to consult in this case[.]”).
- Bailey v. Douglas, No. 2:23-cv-11715 (E.D. Mich. May 22, 2024).(when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him…)
- Hero Tiera Smith v. Warden Baylor Womens Correct, No. 21-1880 (3d Cir. Feb. 27, 2024).unpublished Id. at 485–86; see also id. at 486 (“It is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit”).
Show 190 more citing cases
- State v. Blanke, 2023 UT App 113, 537 P.3d 654.published(If the defendant cannot demonstrate that, but for counsel’s deficient performance [in failing to file a notice of appeal without consent], he would have appealed, counsel’s deficient performance has not deprived him of…)
- Macon v. United States, No. 3:23-cv-00085 (W.D. Wis. July 11, 2023). ([W]hen counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim . . . .)
- Williams v. United States, No. 2:20-cv-08009 (N.D. Ala. Mar. 27, 2023).(when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant [is] entitl[ed] . . . to an appeal)
- Commonwealth v. Parrish, M., Aplt., 273 A.3d 989 (Pa. 2022).published See Roe, 528 U.S. at 478 (“If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express in…
- Hales v. United States, No. 1:19-cv-00432 (S.D. Miss. Apr. 24, 2020). United States v. Tapp, 491 F.3d 263, 265-66 (5th Cir. 2007); see also Roe, 528 U.S. at 478 (“Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.…
- United States v. Orozco-Sanchez, 804 F. App'x 952 (10th Cir. 2020).unpublished See Flores-Ortega, 528 U.S. at 480 (“the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea”).
- State of New Jersey v. Donnell Jones, No. A-3396-14T3 (N.J. Super. Ct. App. Div. June 20, 2016).unpublished
- State v. Jones, 139 A.3d 1234 (N.J. Super. Ct. App. Div. 2016).published
- Castillo v. Florida, Sec'y of DOC, 722 F.3d 1281 (11th Cir. 2013).published
- Dentley v. United States, No. 3:18-cv-00093 (M.D. Tenn. Sept. 23, 2021).
- Honie v. Powell, 58 F.4th 1173 (10th Cir. 2023).published
- Kassay v. United States, No. 3:21-cv-00405 (N.D. Ind. July 1, 2022).
- Davis v. State, 335 A.3d 950 (Md. 2025).published
- Coyle v. State, 335 A.3d 923 (Md. 2025).published
- Zepeda v. State, 274 P.3d 11 (Idaho Ct. App. 2012).published
- Jamie Johnson v. United States, 364 F. App'x 972 (6th Cir. 2010).unpublished
- Randy L. McKinney v. State, 396 P.3d 1168 (Idaho 2017).published
- Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011).published
- Ringold v. State, 823 S.E.2d 342 (Ga. 2019).published
- Dyson v. Cain, No. 3:99-cv-00294 (M.D. La. Dec. 8, 2022).
- Silas v. United States, No. 1:18-cv-00403 (S.D. Miss. June 26, 2019).
- MASSIE v. United States, No. 2:20-cv-01476 (W.D. Pa. Mar. 31, 2021).
- Wells v. United States, No. 5:21-cv-00051 (S.D. Ga. June 3, 2024).
- Allen v. United States, No. 1:20-cv-00234 (S.D. W. Va. June 7, 2022).
- Joseph v. United States, No. 2:23-cv-00043 (S.D. Ga. Dec. 13, 2024).
- United States v. Ibarra, No. 23-40372 (5th Cir. Feb. 25, 2025).unpublished
- Gomez Munoz v. United States, No. 3:24-cv-00811 (N.D. Tex. Apr. 30, 2025).
- Dudley v. United States, No. 3:24-cv-01014 (N.D. Tex. June 4, 2025).
- People v. Morris, 2025 IL App (2d) 240359-U.unpublished
- Verduzco-Vega, No. 2:24-cv-00084 (N.D. Tex. Oct. 8, 2025).
- In re Brian Pelletier, No. 234 (Vt. Super. Ct. Mar. 13, 2012).published
- Quincy Jones v. State, 840 S.E.2d 117 (Ga. Ct. App. 2020).published
- Sanchez v. United States, No. 4:18-cv-08001 (N.D. Ala. May 26, 2021).
- Louis Mercado v. Sec'y, Florida Dep't of Corr., 119 F.4th 1261 (11th Cir. 2024).published
- Collier v. State, 834 S.E.2d 769 (Ga. 2019).published
- Reed, No. 4:25-cv-00638 (E.D. Mo. June 30, 2026).
- State v. Chetty, 272 P.3d 918 (Wash. Ct. App. 2012).published
- State v. Ammons, 984 N.W.2d 330 (Neb. Ct. App. 2022).published
- Com. v. Foster, E., No. 2003 MDA 2016 (Pa. Super. Ct. Oct. 13, 2017).unpublished
- Com. v. Martinez, D., No. 1639 EDA 2017 (Pa. Super. Ct. Mar. 19, 2018).unpublished
- Com. v. Miller, D., No. 835 EDA 2017 (Pa. Super. Ct. July 26, 2018).unpublished
- Com. v. Wilson, W., No. 1779 WDA 2017 (Pa. Super. Ct. Jan. 30, 2019).unpublished
- United States v. DeWald, 822 F. App'x 768 (10th Cir. 2020).unpublished
- United States v. Henderson, No. 2019-0131 (D.D.C. Nov. 10, 2021).published
- United States v. Eric Clancy, No. 22-1032 (3d Cir. Nov. 17, 2022).unpublished
- Caffery v. United States, No. 5:19-cv-08049 (N.D. Ala. Sept. 27, 2022).
- Haney v. United States, No. 3:18-cv-05021 (W.D. Mo. Sept. 26, 2018).
- Rucker v. United States, No. 2:17-cv-00142 (E.D. Tenn. Nov. 19, 2019).
- Croskery v. United States, No. 1:24-cv-00189 (D. Haw. Aug. 19, 2025).
- People v. Sharp, 2015 IL App (1st) 130438.published
- Arthur Franklin Miller, Jr. v. State, No. 05-14-01065-CR (Tex. App. Apr. 26, 2017).published
- Miller, Arthur Franklin Jr., No. PD-0891-15 (Tex. Crim. App. May 23, 2018).published
- Scott Schmidt v. Brian Foster, No. 17-1727 (7th Cir. Dec. 20, 2018).published
- Ezequiel Lopez-Quintero v. Michael A. Dittmann, 2019 WI 58, 928 N.W.2d 480.published
- State v. Carson, 151 A.3d 963 (N.J. 2016).published
- Peo v. Harris, No. 23CA2067 (Colo. Ct. App. Sept. 18, 2025).unpublished
- Robert Lincoln v. John Palakovich, 384 F. App'x 193 (3d Cir. 2010).unpublished
- United States v. Gregory Bell, 795 F.3d 88 (D.C. Cir. 2015).published
- Ex Parte Jose Eduardo Torres, No. 03-14-00169-CR (Tex. App.—Austin Apr. 29, 2015).unpublished
- People v. Lopez, 2015 IL App (1st) 142260, 41 N.E.3d 664.published
- Aghaegbuna Odelugo v. State, No. 01-12-00521-CR, 2015 WL 1062560 (Tex. App.—Houston [1st Dist.] Mar. 10, 2015).unpublished
- Ex Parte Dustin Wayne Glenn, No. 01-14-00195-CR (Tex. App.—Houston [1st Dist.] Feb. 26, 2015).unpublished
- Donald Dockery, Applicant-Appellant v. State of Iowa, No. 13-2067 (Iowa Ct. App. Jan. 27, 2016).published
- People v. Lamar, 2015 IL App (1st) 130542.published
- Glenn, Ex Parte Dustin Wayne, No. PD-0353-15 (Tex. Crim. App. May 1, 2015).published
- Glenn, Ex Parte Dustin Wayne, No. PD-0352-15 (Tex. Crim. App. May 4, 2015).published
- State of New Jersey v. Marcus Perkins, 157 A.3d 471 (N.J. Super. Ct. App. Div. 2017).published
- Deanthony D. Kirkland, Applicant-Appellant v. State of Iowa, No. 16-0642 (Iowa Ct. App. Sept. 13, 2017).published
- Burch, Dan Dale, No. PD-1137-16 (Tex. Crim. App. Nov. 15, 2017).published
- State of New Jersey Vs. Maxie Cintron(10-06-0497, Burlington Cnty. & Statewide), No. A-3874-15T4 (N.J. Super. Ct. App. Div. Dec. 1, 2017).unpublished
- Shawn Deshay Hoosman v. State of Iowa, No. 17-1277 (Iowa Ct. App. Aug. 15, 2018).published
- Cornell Reynolds v. Randall Hepp, 902 F.3d 699 (7th Cir. 2018).published
- Flores-Castillo v. Barr, 790 F. App'x 937 (10th Cir. 2019).unpublished
- United States v. Wright, 945 F.3d 677 (2d Cir. 2019).published
- Joshua M. Wren v. Reed Richardson, No. 2017AP000880-W (Wis. Dec. 26, 2019).published
- Holly Lynn Harrison v. State, 595 S.W.3d 879 (Tex. App.—Houston [14th Dist.] 2020).published
- Wali Muhammad v. State of Tennessee, No. W2019-01198-CCA-R3-PC (Tenn. Crim. App. May 19, 2020).published
- Dustin Clinton Delp v. Commonwealth of Virginia, 843 S.E.2d 758 (Va. Ct. App. 2020).published
- Demetrius Edwards v. Sherry Burt, 823 F. App'x 326 (6th Cir. 2020).unpublished
- People v. Custer, 2020 IL App (3d) 160202-B.published
- State of New Jersey Vs. William Lee (16-05-0427, Cumberland Cnty. & Statewide), No. A-0405-19 (N.J. Super. Ct. App. Div. Feb. 9, 2021).unpublished
- Goullette v. State, No. 47576 (Idaho Ct. App. Mar. 3, 2021).unpublished
- Bangura v. United States, 248 A.3d 119 (D.C. 2021).published
- Roderick Lewis v. Dushan Zatecky, 993 F.3d 994 (7th Cir. 2021).published
- United States v. Monique Lozoya, 19 F.4th 1217 (9th Cir. 2021).published
- State of Iowa v. George Davis, 969 N.W.2d 783 (Iowa 2022).published
- People v. Luna, 2022 IL App (1st) 200203-U.unpublished
- Dijonis D. Burkett Brown v. State of Iowa, 978 N.W.2d 816 (Iowa Ct. App. 2022).published
- Shaid Juarico-Cervantes v. United States, No. 22-1497 (6th Cir. May 23, 2023).unpublished
- State v. Ammons, 990 N.W.2d 897 (Neb. 2023).published
- State v. Bluemel, 2023 UT App 142, 540 P.3d 756.published
- State v. Tisinger, No. 1510007181, 2024 WL 1757229 (Del. Super. Ct. Apr. 23, 2024).published
- People v. Sanabria, 2021 IL App (1st) 190827, 188 N.E.3d 378.published
- Davis v. Jones, No. 3:20-cv-00274 (D. Alaska Mar. 17, 2021).
- Silvene v. United States, No. 1:19-cv-23746 (S.D. Fla. Oct. 27, 2020).
- Gibson v. United States, No. 1:19-cv-00420 (D. Haw. Oct. 16, 2019).
- Fiene v. Schweinzger, No. 1:07-cv-04861 (N.D. Ill. May 28, 2021).
- Carpenter v. United States, No. 1:20-cv-07359 (N.D. Ill. May 7, 2024).
- Delacruz v. United States, No. 1:19-cv-00536 (N.D. Ind. Feb. 13, 2020).
- Aso Pola v. United States, 778 F.3d 525 (6th Cir. 2015).published
At page 478 Rejection of bright-line rule regarding counsel's duty to consult defendant125 citing casesIf counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.
- Olajumoke, No. 1:24-cv-07661 (S.D.N.Y. Nov. 4, 2025). (If [C]ounsel has consulted with [Petitioner], the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow [Petitioner’s] express instruct…)
- Dorta-Hernandez v. United States, No. 1:24-cv-02773 (S.D.N.Y. Oct. 7, 2024). (We employ the term ‘consult’ to convey 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.)
- Hero Tiera Smith v. Warden Baylor Womens Correct, No. 21-1880 (3d Cir. Feb. 27, 2024).unpublished Id. at 485–86; see also id. at 486 (“It is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit”).
- Nix v. USA (tv2), No. 3:17-cv-00214 (E.D. Tenn. Mar. 13, 2023). Mich. Mar. 31, 2014); see also Flores-Ortega, 528 U.S. at 479-80 (“[I]t would be difficult to say” that counsel’s failure to consult was “professionally unreasonable” where “a sentencing court’s instructions to a defendant about his appeal…
- Commonwealth v. Parrish, M., Aplt., 273 A.3d 989 (Pa. 2022).published (If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instruct…)
- United States v. Jeffrey Valenta, No. 20-1673 (3d Cir. Jan. 28, 2022).unpublished (In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, . . . the question whether counsel has performed deficiently by not filing a notice of appeal [turns…)
- Hales v. United States, No. 1:19-cv-00432 (S.D. Miss. Apr. 24, 2020). (Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.)
- State v. Ray, 2020 UT 12, 469 P.3d 871.published See Flores-Ortega, 528 U.S. at 481 (“The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.”).
- Spence v. United States, 68 F. App'x 669 (6th Cir. 2003).unpublished
- Timothy Neill, Jr. v. United States, 937 F.3d 671 (6th Cir. 2019).published
Show 115 more citing cases
- Aweis Haji-Mohamed v. United States, No. 21-5733 (6th Cir. Sept. 22, 2023).unpublished
- Aweis Haji-Mohamed v. United States, No. 21-5733 (6th Cir. Feb. 26, 2024).unpublished
- State v. Quackenbush, 2005 WI App 2, 692 N.W.2d 340.published
- United States v. James Cheevers, No. 19-55484 (9th Cir. May 5, 2022).unpublished
- Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011).published
- Ringold v. State, 823 S.E.2d 342 (Ga. 2019).published
- Silas v. United States, No. 1:18-cv-00403 (S.D. Miss. June 26, 2019).
- Michael Shane McCormick, Sr. v. United States, 72 F.4th 130 (6th Cir. 2023).published
- Thomas v. United States, 93 F.4th 62 (2d Cir. 2024).published
- Gomez v. United States, No. 2:20-cv-08012 (N.D. Ala. Mar. 6, 2025).
- Massengill v. United States, No. 1:23-cv-01037 (W.D. Tenn. Oct. 10, 2025).
- Hennings, No. 1:25-cv-01299 (W.D. Tenn. June 24, 2026).
- Neal, No. 3:25-cv-00283 (E.D. Tenn. Aug. 31, 2026).
- People v. Frazier, 552 U.S. 1071 (2007).published
- In Re Resendiz, 19 P.3d 1171 (Cal. 2001).published
- People v. Hunt, 2016 COA 93, 412 P.3d 838.published
- In re Brian Pelletier, No. 234 (Vt. Super. Ct. Mar. 13, 2012).published
- Quincy Jones v. State, 840 S.E.2d 117 (Ga. Ct. App. 2020).published
- Com. v. Harris, C., No. 1230 EDA 2021 (Pa. Super. Ct. Aug. 31, 2022).unpublished
- State of New Jersey v. Zakeer Roberts, No. A-1583-21 (N.J. Super. Ct. App. Div. Mar. 4, 2024).unpublished
- Troy R. Stroud v. United States, No. 2:22-cv-03789 (C.D. Cal. July 18, 2023).
- Sanchez v. United States, No. 4:18-cv-08001 (N.D. Ala. May 26, 2021).
- Nevarez-Ledezma v. United States, No. 2:20-cv-01144 (D.N.M. June 28, 2021).
- Bishop v. Mcginley, No. 2:19-cv-01461 (E.D. Pa. July 14, 2021).
- Gamble v. United States, No. 2:16-cv-02527, 2020 WL 475832 (W.D. Tenn. Jan. 29, 2020).
- Peo v. Ray, No. 19CA1377 (Colo. Ct. App. Jan. 27, 2022).
- Louis Mercado v. Sec'y, Florida Dep't of Corr., 119 F.4th 1261 (11th Cir. 2024).published
- BUSH-ROWLAND v. United States, No. 3:21-cv-19652 (D.N.J. Sept. 9, 2024).unpublished
- Collier v. State, 834 S.E.2d 769 (Ga. 2019).published
- McDaniel v. State, 857 S.E.2d 479 (Ga. 2021).published
- Cobbs v. United States, No. 1:23-cv-00825 (D.N.M. May 7, 2025).
- Groce, No. 3:22-cv-04296 (D.N.J. Jan. 16, 2026).unpublished
- Reed, No. 4:25-cv-00638 (E.D. Mo. June 30, 2026).
- Coddington v. Langley, 77 F. App'x 869 (6th Cir. 2003).unpublished“If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instruct…”
At page 481 Determining reasonableness versus strategy in counsel's performance111 citing casesThe relevant question is not whether counsel's choices were strategic, but whether they were reasonable.
- State of Alabama v. Albert Mack III; Albert Mack III v. State of Alabama (Appeal from Tuscaloosa Circuit Court: CC-93-1204.60), No. CR-2023-0284 (Ala. Crim. App. Dec. 20, 2024).published(The relevant question is not whether counsel's choices were strategic, but whether they were reasonable.)
- State v. Green, 2023 UT 10, 532 P.3d 930.published(The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.)
- Padillow v. Crow, No. 21-5064 (10th Cir. June 1, 2022).unpublished(The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.)
- People v. Rodriguez, 2021 IL App (1st) 181729-U.unpublished He is not required to show a reasonable probability that he would have prevailed on any issue in the appeal—the standard erroneously applied by the circuit court in the proceedings below—or to “specify the points he would raise were his ri…
- Reyes v. Sec'y, Dep't of Corr., No. 5:17-cv-00231 (M.D. Fla. June 30, 2020).(The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.)
- State v. Ray, 2020 UT 12, 469 P.3d 871.published (The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.)
- Richard Thompson v. United States, 481 F.3d 1297 (11th Cir. 2007).published
- Richard Thompson v. United States, No. 05-16970 (11th Cir. Mar. 14, 2007).published
- Tanner v. McDaniel, 493 F.3d 1135 (9th Cir. 2007).published
- State v. Quackenbush, 2005 WI App 2, 692 N.W.2d 340.published
Show 101 more citing cases
- Ringold v. State, 823 S.E.2d 342 (Ga. 2019).published
- People v. Hunt, 2016 COA 93, 412 P.3d 838.published
- Robert Leroy Bryan v. Gary Gibson, Warden, Oklahoma State Penitentiary, 276 F.3d 1163 (10th Cir. 2001).published
- Hedrick v. Warden of Sussex I State Prison, 570 S.E.2d 840 (Va. 2002).published
- Chandler v. United States, 193 F.3d 1297 (11th Cir. 1999).published“The relevant question is not whether counsel's choices were strategic, but whether they were reasonable.”
At page 483 Presumption of prejudice for denial of judicial proceeding111 citing casesThe ... denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, ... demands a presumption of prejudice.
- Santana-Aviles, No. 3:25-cv-01335 (D.P.R. Dec. 18, 2025). When counsel’s actions deprive a defendant of an appeal he would otherwise have taken, the error rises to the level of “constitutionally deficient performance” and the petitioner “has made out a successful ineffective assistance of counsel…
- Olajumoke, No. 1:24-cv-07661 (S.D.N.Y. Nov. 4, 2025). See Zapata v. United States, 193 F. App’x 40, 42 (2d Cir. 2006) (summary order) (upholding the district court’s finding that counsel who conferred with defendant in person after sentencing sufficiently fulfilled his duty to consult); see a…
- Fidel Antonio Blandon Vasquez v. the State of Texas, No. 01-23-00722-CR (Tex. App.—Houston [1st Dist.] June 24, 2025).unpublished([P]roving a better outcome from a proceeding never had is so speculative as to be unworkable.)
- Garrett v. United States of Am. (INMATE 3), No. 3:24-cv-00242 (M.D. Ala. June 20, 2024).(The . . . denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, . . . demands a presumption of prejudice.)
- Nunley v. United States of Am. (INMATE 4), No. 2:23-cv-00430 (M.D. Ala. Apr. 15, 2024). (The ... denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, ... demands a presumption of prejudice.)
- Mack v. State of SC, 858 S.E.2d 160 (S.C. 2021).published See United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993) (noting "Strickland is concerned with attorney performance in the course of representation" and "does not apply to deprivations of counsel altogether," which occurs when counsel fa…
- Spence v. United States, 68 F. App'x 669 (6th Cir. 2003).unpublished
- Davis v. State, 335 A.3d 950 (Md. 2025).published
- Chavez v. United States, No. 1:21-cv-01195 (D.N.M. Aug. 30, 2022).
- Ringold v. State, 823 S.E.2d 342 (Ga. 2019).published
Show 99 more citing cases
- Marlon Mack v. State of Alaska, 523 P.3d 1235 (Alaska Ct. App. 2023).published
- Scott v. United States, No. 1:19-cv-03322 (S.D.N.Y. Aug. 4, 2023).
- Dority v. United States, No. 1:23-cv-00323 (W.D. Mich. Oct. 4, 2024).
- McBride v. United States, No. 1:22-cv-00524 (W.D. Mich. Oct. 23, 2024).
- Massengill v. United States, No. 1:23-cv-01037 (W.D. Tenn. Oct. 10, 2025).
- Hennings, No. 1:25-cv-01299 (W.D. Tenn. June 24, 2026).
- Commonwealth v. Marinho, 981 N.E.2d 648 (Mass. 2013).published
- Peo v. Williams, No. 23CA0863 (Colo. Ct. App. Feb. 6, 2025).unpublished
- People v. Sharp, 2015 IL App (1st) 130438.published
- Arthur Franklin Miller, Jr. v. State, No. 05-14-01065-CR (Tex. App. Apr. 26, 2017).published
- Miller, Arthur Franklin Jr., No. PD-0891-15 (Tex. Crim. App. May 23, 2018).published
- Scott Schmidt v. Brian Foster, No. 17-1727 (7th Cir. Dec. 20, 2018).published
- Ezequiel Lopez-Quintero v. Michael A. Dittmann, 2019 WI 58, 928 N.W.2d 480.published
- Swinney, Timothy Aaron, No. PD-0217-21 (Tex. Crim. App. Mar. 2, 2022).published
- State v. Carson, 151 A.3d 963 (N.J. 2016).published
- Bermudez-Ayala v. Bondi, No. 24-1033 (9th Cir. July 8, 2025).unpublished
- Peo v. Harris, No. 23CA2067 (Colo. Ct. App. Sept. 18, 2025).unpublished
- Sanders v. United States, No. 1:21-cv-00563 (E.D. Wis. May 11, 2022).
At page 476 Establishing ineffective assistance of counsel under sixth amendment94 citing casesopportunity to appeal
- Santana-Aviles, No. 3:25-cv-01335 (D.P.R. Dec. 18, 2025). When counsel’s actions deprive a defendant of an appeal he would otherwise have taken, the error rises to the level of “constitutionally deficient performance” and the petitioner “has made out a successful ineffective assistance of counsel…
- Hales v. United States, No. 1:19-cv-00432 (S.D. Miss. Apr. 24, 2020). United States v. Tapp, 491 F.3d 263, 265-66 (5th Cir. 2007); see also Roe, 528 U.S. at 478 (“Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.…
- United States v. Orozco-Sanchez, 804 F. App'x 952 (10th Cir. 2020).unpublished See Flores-Ortega, 528 U.S. at 480 (“the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea”).
- Disciplinary Bd. v. Howe, 2001 ND 7.published
- Castillo v. Florida, Sec'y of DOC, 722 F.3d 1281 (11th Cir. 2013).published
- Ballard v. United States, No. 1:23-cv-00216 (D. Idaho Dec. 14, 2023).
- United States v. Angulo, No. 01-40960 (5th Cir. Dec. 9, 2002).unpublished
- Collins Iris Gaston v. United States, 237 F. App'x 495 (11th Cir. 2007).unpublished
- Marcial Cuero v. United States, 269 F. App'x 893 (11th Cir. 2008).unpublished
- United States v. Ruiz, 304 F. App'x 351 (5th Cir. 2009).unpublished
Show 80 more citing cases
- Collins Iris Gaston v. United States, 318 F. App'x 750 (11th Cir. 2008).unpublished
- Richard Thompson v. United States, 481 F.3d 1297 (11th Cir. 2007).published
- Richard Thompson v. United States, No. 05-16970 (11th Cir. Mar. 14, 2007).published
- Devine v. United States, 520 F.3d 1286 (11th Cir. 2008).published
- Zepeda v. State, 274 P.3d 11 (Idaho Ct. App. 2012).published
- Tanner v. McDaniel, 493 F.3d 1135 (9th Cir. 2007).published
- State v. Quackenbush, 2005 WI App 2, 692 N.W.2d 340.published
- Jamie Johnson v. United States, 364 F. App'x 972 (6th Cir. 2010).unpublished
- Keys v. United States, 545 F.3d 644 (8th Cir. 2008).published
- Randy L. McKinney v. State, 396 P.3d 1168 (Idaho 2017).published
- United States v. James Cheevers, No. 19-55484 (9th Cir. May 5, 2022).unpublished
- Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011).published
- Ringold v. State, 823 S.E.2d 342 (Ga. 2019).published
- Williams v. United States, No. 3:21-cv-00188 (N.D. Ind. June 13, 2022).
- Dyson v. Cain, No. 3:99-cv-00294 (M.D. La. Dec. 8, 2022).
- Silas v. United States, No. 1:18-cv-00403 (S.D. Miss. June 26, 2019).
- Herrera v. United States, No. 1:19-cv-10637 (S.D.N.Y. May 13, 2021).
- Ferreira-Rosario v. United States, No. 1:19-cv-03175 (S.D.N.Y. June 14, 2021).
- PRIDGEN v. United States, No. 2:19-cv-00142 (W.D. Pa. Oct. 25, 2019).
- MASSIE v. United States, No. 2:20-cv-01476 (W.D. Pa. Mar. 31, 2021).
- Gross v. United States, No. 6:16-cv-00071 (N.D. Tex. July 29, 2019).
- Rodriguez v. United States, No. 5:23-cv-04032 (N.D. Iowa July 30, 2025).
- Commonwealth v. Ricardo Lopez, 270 N.E.3d 577 (Mass. App. Ct. 2025).published
At page 479 Evaluating attorney duty to consult regarding appeals69 citing cases[W]hile States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.
- Branham v. Stirling, No. 0:23-cv-00745 (D.S.C. Feb. 25, 2025).([W]hile States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one general requirement: that counsel m…)
- Sanchez Ramos v. United States, No. 2:23-cv-14247 (S.D. Fla. Oct. 11, 2024). It is well-settled law that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); see also Gomez-…
- Balenti v. United States, 750 F. Supp. 3d 1305 (D. Utah 2024). (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…)
- Nix v. USA (tv2), No. 3:17-cv-00214 (E.D. Tenn. Mar. 13, 2023). ([I]t would be difficult to say” that counsel’s failure to consult was “professionally unreasonable” where “a sentencing court’s instructions to a defendant about his appeal rights in a particular case 24 are so clear a…)
- United States v. Mejia, No. 2010-0256 (D.D.C. May 26, 2021).published([T]he decision to appeal rests with the defendant[.])
- Davis v. State, 335 A.3d 950 (Md. 2025).published
- Ringold v. State, 823 S.E.2d 342 (Ga. 2019).published
- PRIDGEN v. United States, No. 2:19-cv-00142 (W.D. Pa. Oct. 25, 2019).
- Gross v. United States, No. 6:16-cv-00071 (N.D. Tex. July 29, 2019).
- Commonwealth v. Ricardo Lopez, 270 N.E.3d 577 (Mass. App. Ct. 2025).published
Show 59 more citing cases
- Marlon Mack v. State of Alaska, 523 P.3d 1235 (Alaska Ct. App. 2023).published
- Michael Shane McCormick, Sr. v. United States, 72 F.4th 130 (6th Cir. 2023).published
- Thomas v. United States, 93 F.4th 62 (2d Cir. 2024).published
- United States v. Ganeous, No. 2021-0242 (D.D.C. Nov. 6, 2024).published
- Gomez Munoz v. United States, No. 3:24-cv-00811 (N.D. Tex. Apr. 30, 2025).
- Dudley v. United States, No. 3:24-cv-01014 (N.D. Tex. June 4, 2025).
- Sanchez v. United States, No. 4:18-cv-08001 (N.D. Ala. May 26, 2021).
- State v. Chetty, 272 P.3d 918 (Wash. Ct. App. 2012).published
- Fadhel Hentif v. Barack Obama, 733 F.3d 1243 (D.C. Cir. 2013).published
- Commonwealth v. Marinho, 981 N.E.2d 648 (Mass. 2013).published
- State v. Ammons, 984 N.W.2d 330 (Neb. Ct. App. 2022).published
- Lleras v. United States, No. 3:17-cv-00347 (W.D.N.C. July 1, 2019).
- Roland v. United States, No. 5:18-cv-00063 (W.D.N.C. Oct. 17, 2019).
- Sanders v. United States, No. 3:18-cv-00327 (W.D.N.C. June 1, 2020).
- Keyes v. United States, No. 4:19-cv-00580 (E.D. Tex. Nov. 10, 2021).
- Matthew Joseph Brown v. United States of Am., No. 5:24-cv-02048 (C.D. Cal. Sept. 1, 2026).
At page 482 Determining prejudice for ineffective assistance of counsel claims45 citing cases[T]he right to the 13 effective assistance of counsel is recognized not for its own sake, but because of the effect it has 14 on the ability of the accused to receive a fair trial . . . .
- (HC) Rice v. Paramo, No. 1:18-cv-00111 (E.D. Cal. Feb. 28, 2022).([T]he right to the 13 effective assistance of counsel is recognized not for its own sake, but because of the effect it has 14 on the ability of the accused to receive a fair trial . . . .)
- United States v. Orozco-Sanchez, 804 F. App'x 952 (10th Cir. 2020).unpublished See Flores-Ortega, 528 U.S. at 480 (“the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea”).
- Davis v. State, 335 A.3d 950 (Md. 2025).published
- United States v. DeWald, 822 F. App'x 768 (10th Cir. 2020).unpublished
- Keith Alan Ogburn v. State (Idaho Ct. App. 2012).unpublished
- Sumner v. Davis, 340 F. App'x 937 (4th Cir. 2009).unpublished
- Lenz v. Warden of the Sussex I State Prison, 579 S.E.2d 194 (Va. 2003).published
- State v. Heath, 588 S.E.2d 738 (Ga. 2003).published
- Mintun v. State, 168 P.3d 40 (Idaho Ct. App. 2007).published
- Schlueter v. Varner, No. 03-3928 (3d Cir. Sept. 14, 2004).published
Show 35 more citing cases
- Smith v. Mahoney, No. 94-99003 (9th Cir. Mar. 5, 2010).published
- Arthur Franklin Miller, Jr. v. State, No. 05-14-01065-CR (Tex. App. Apr. 26, 2017).published
- State of New Jersey Vs. Michael Gomes (13-09-1698, Hudson Cnty. & Statewide), No. A-0361-15T1 (N.J. Super. Ct. App. Div. Mar. 22, 2017).unpublished
- Daniel Lado v. State of Iowa, 804 N.W.2d 248 (Iowa 2011).published
At page 486 Unfairness of requiring proof of hypothetical appeal merit38 citing casesit is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal. Rather, we require the defendant to demonstrate that…
- Dixon, No. 3:21-cv-01437 (S.D. Ill. Jan. 8, 2026). “When a defendant in a criminal case specifically instructs a lawyer to file a notice of appeal, the lawyer’s failure to do so deprives the defendant of the Sixth Amendment right to counsel, regardless of whether an appeal was likely to su…
- State v. Hembree, 2025 UT App 166, 581 P.3d 570.published([I]t is unfair to require an indigent, perhaps pro se, defendant to demonstrate that [a] hypothetical appeal might have had merit before any advocate has ever reviewed the record in his [or her] case in search of poten…)
- Hero Tiera Smith v. Warden Baylor Womens Correct, No. 21-1880 (3d Cir. Feb. 27, 2024).unpublished (It is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit)
- People v. Rodriguez, 2021 IL App (1st) 181729-U.unpublished (it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meri…)
- Mims v. United States, No. 2:18-cv-08019 (N.D. Ala. Sept. 23, 2021). ([I]t is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit . . . Rather, we require the defendant to demonstrate that, but for counsel’s deficient…)
- Mack v. State of SC, 858 S.E.2d 160 (S.C. 2021).published ([I]t is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially me…)
- Disciplinary Bd. v. Howe, 2001 ND 7.published
- United States v. Haight, 1 F. App'x 636 (9th Cir. 2001).unpublished
- Keys v. United States, 545 F.3d 644 (8th Cir. 2008).published
- Collier v. State, 834 S.E.2d 769 (Ga. 2019).published
Show 27 more citing cases
- Commonwealth v. Marinho, 981 N.E.2d 648 (Mass. 2013).published
- State v. Ammons, 984 N.W.2d 330 (Neb. Ct. App. 2022).published
- Miller, Arthur Franklin Jr., No. PD-0891-15 (Tex. Crim. App. May 23, 2018).published
- Swinney, Timothy Aaron, No. PD-0217-21 (Tex. Crim. App. Mar. 2, 2022).published
At page 485 Determining prejudice for ineffective assistance of counsel claims36 citing cases“As with all applications of the Strickland test, the question whether a given defendant has made the requisite showing will turn on the facts of a particular case”
- Disciplinary Bd. v. Howe, 2001 ND 7.published
- United States v. Gentry, 429 F. Supp. 2d 806 (W.D. La. 2006).published
- Honie v. Powell, 58 F.4th 1173 (10th Cir. 2023).published
- Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011).published
- Ringold v. State, 823 S.E.2d 342 (Ga. 2019).published
- Gross v. United States, No. 6:16-cv-00071 (N.D. Tex. July 29, 2019).
- Verduzco-Vega, No. 2:24-cv-00084 (N.D. Tex. Oct. 8, 2025).
- People v. Frazier, 552 U.S. 1071 (2007).published
- In Re Resendiz, 19 P.3d 1171 (Cal. 2001).published
- Smith v. Mahoney, No. 94-99003 (9th Cir. Mar. 5, 2010).published
Show 26 more citing cases
- Bermudez-Ayala v. Bondi, No. 24-1033 (9th Cir. July 8, 2025).unpublished
- Ex Parte Jose Eduardo Torres, No. 03-14-00169-CR (Tex. App.—Austin Apr. 29, 2015).unpublished
- Salazar v. Johnson, No. 98-20270 (5th Cir. Dec. 26, 2000).unpublished
- Danny Hendricks v. Kelly Lock, Superintendent of Cent. Missouri Corr. Ctr., 238 F.3d 985 (8th Cir. 2001).published
At page 471 Presumption of prejudice when counsel is denied14 citing casesfinding that the presence of "nonfrivolous grounds for appeal" is "highly relevant" in determining whether the defendant was prejudiced under Strickland
- Douglas McClain v. Bennie Kelly, 631 F. App'x 422 (6th Cir. 2015).unpublished
- Timothy Neill, Jr. v. United States, 937 F.3d 671 (6th Cir. 2019).published
- State of New Jersey Vs. Bobseus Williams (90-10-4782, 90-12-2548, 90-12-2549 & 91-02-0795, Essex Cnty. & Statewide) (Consol.), No. A-0222-18T1/A-0226-18T4 (N.J. Super. Ct. App. Div. Dec. 12, 2019).unpublished
- Clinton Folkes v. Warden Nelsen, 34 F.4th 258 (4th Cir. 2022).published
- Aweis Haji-Mohamed v. United States, No. 21-5733 (6th Cir. Sept. 22, 2023).unpublished
- Aweis Haji-Mohamed v. United States, No. 21-5733 (6th Cir. Feb. 26, 2024).unpublished
- Torres v. Shinn, No. 3:17-cv-08227 (D. Ariz. Feb. 11, 2021).
- Hoang 285629 v. Skipper, No. 1:21-cv-00101 (W.D. Mich. Feb. 8, 2023).
- Diaz v. United States, No. 1:14-cv-07016 (E.D.N.Y. June 19, 2020).
- Dentley v. United States, No. 3:18-cv-00093 (M.D. Tenn. Sept. 23, 2021).
Show 4 more citing cases
- Hawkins v. Andrewjeski, No. 2:22-cv-00225 (E.D. Wash. Apr. 19, 2023).
- United States v. Antonio Flores-Bustos, No. 23-30000 (9th Cir. Feb. 28, 2025).unpublished
- People v. Wilson, 2026 IL App (3d) 240609-U.unpublished
- Jimenez-Ventura, No. 1:23-cv-04428 (S.D.N.Y. Aug. 18, 2026).
120 S. Ct. at 1035 Counsel's duty to advise defendant on appeal11 citing cases[A] defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice.
- Sidney E. Scott v. James McDonough, 218 F. App'x 954 (11th Cir. 2007).unpublished
- John C. Wims v. United States, 225 F.3d 186 (2d Cir. 2000).published
- Disciplinary Bd. v. Howe, 2001 ND 7.published
- Miller v. United States, 150 F. Supp. 2d 871 (E.D.N.C. 2001).published
- State v. Francis, 2014-Ohio-443, 8 N.E.3d 371.published
- Zvonko Sarlog v. United States, 422 F. App'x 399 (6th Cir. 2011).unpublished
- Brian McCalla v. United States, No. 16-15623 (11th Cir. Apr. 11, 2018).unpublished
- Kenneth Lee Doss v. State of Iowa, 961 N.W.2d 701 (Iowa 2021).published
- United States v. Haight, 1 F. App'x 636 (9th Cir. 2001).unpublished
- Brian Edward Smith v. the State of Texas, No. 02-22-00122-CR (Tex. App.—Fort Worth July 21, 2022).unpublished
Show 1 more citing case
- Ortiola v. United States, No. 1:06-cv-00037 (D. Guam Apr. 17, 2007).
At page 473 Deciding framework for ineffective assistance of counsel claim10 citing casesIn this case we must decide the proper framework for evaluating an ineffective assistance of counsel claim, based on counsel’s failure to file a notice of appeal without respondent’s consent.
- Chad Fenley Davis v. David Clarke Rushing, Attorney, & David Clarke Rushing D/B/A the Law Off. of David Rushing, No. 14-21-00741-CV (Tex. App.—Houston [14th Dist.] Mar. 9, 2023).published(In this case we must decide the proper framework for evaluating an ineffective assistance of counsel claim, based on counsel’s failure to file a notice of appeal without respondent’s consent.)
- Commonwealth v. Parrish, M., Aplt., 273 A.3d 989 (Pa. 2022).published See Roe, 528 U.S. at 478 (“If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express in…
- Sun-Times Media Grp., Inc. v. Black, 954 A.2d 380 (Del. Ch. 2008).published
- Zane Dickinson v. David Shinn, 2 F.4th 851 (9th Cir. 2021).published
- Honie v. Powell, 58 F.4th 1173 (10th Cir. 2023).published
- Ballard v. United States, No. 1:23-cv-00216 (D. Idaho Dec. 14, 2023).
- Kassay v. United States, No. 3:21-cv-00405 (N.D. Ind. July 1, 2022).
- Davis v. State, 335 A.3d 950 (Md. 2025).published
- Coyle v. State, 335 A.3d 923 (Md. 2025).published
- Derrick Loftis v. Almager, 704 F.3d 645 (9th Cir. 2012).published“The plea was entered pursuant to a California rule permitting a defendant both to deny committing a crime and to admit that there is sufficient evidence to convict him. See People v. West, 3 Cal.3d 595 , 91 Cal.Rptr. 3…”
120 S. Ct. at 1037 Distinguishing strategic from reasonable attorney conduct6 citing casesThe relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.
- William Howard Putman v. Frederick J. Head, 268 F.3d 1223 (11th Cir. 2001).published
- Barrientes v. Johnson, 221 F.3d 741 (5th Cir. 2000).published
- Castillo v. Florida, Sec'y of DOC, 722 F.3d 1281 (11th Cir. 2013).published
- United States v. Gentry, 429 F. Supp. 2d 806 (W.D. La. 2006).published
- Chandler v. United States, 193 F.3d 1297 (11th Cir. 1999).published
At page 489 Duty to consult defendant on appeal decisions5 citing cases[I]f a defendant requests counsel to file an appeal, a lawyer who fails to do so is, without more, ineffective.
- State of New Jersey v. Jemar O. May, No. A-3825-23 (N.J. Super. Ct. App. Div. Apr. 16, 2026).unpublished ([I]f a defendant requests counsel to file an appeal, a lawyer who fails to do so is, without more, ineffective.)
- Richard Thompson v. United States, 481 F.3d 1297 (11th Cir. 2007).published
- Richard Thompson v. United States, No. 05-16970 (11th Cir. Mar. 14, 2007).published
- Gomez v. United States, No. 2:20-cv-08012 (N.D. Ala. Mar. 6, 2025).
- Fadhel Hentif v. Barack Obama, 733 F.3d 1243 (D.C. Cir. 2013).published
At page 474 Ministerial nature of filing a notice of appeal4 citing casesrespondent was sentenced to 15 years to life in state prison. After pronouncing sentence, the trial judge informed respondent, "You may file an appeal within…
- Doe, SORB No. 22164 v. Sex Offender Registry Bd., No. AC 22-P-66 (Mass. App. Ct. Sept. 28, 2023).published
- Chavez v. United States, No. 1:21-cv-01195 (D.N.M. Aug. 30, 2022).
- Denis v. United States, No. 1:19-cv-08773 (S.D.N.Y. Sept. 2, 2020).
- Gills, Jr. v. United States, No. 1:19-cv-01076 (W.D. Tenn. July 6, 2022).
At page 487 Determining duty to consult regarding appeal decisions5 citing casesexplaining, "we are unable to determine whether [counsel] had a duty to consult with respondent (either because there were potential grounds for appeal or because respondent expressed interest in appealing
- Qashou v. United States of Am. (INMATE 2), No. 3:21-cv-00660 (M.D. Ala. Feb. 3, 2025). (Assuming, arguendo, that there was a duty to consult in this case[.])
- Chavez v. United States, No. 1:21-cv-01195 (D.N.M. Aug. 30, 2022).
- Tanner v. McDaniel, 493 F.3d 1135 (9th Cir. 2007).published
- Ezequiel Lopez-Quintero v. Michael A. Dittmann, 2019 WI 58, 928 N.W.2d 480.published
145 L. Ed. 2d at 997 Determining counsel's duty to advise on appeal rights3 citing cases
- State v. Jeminez, 853 S.E.2d 265 (N.C. Ct. App. 2020).published
- State v. Steele, 829 So. 2d 541 (La. Ct. App. 2002).published
- Kent A. Simmons Vs. State Pub. Def., 791 N.W.2d 69 (Iowa 2010).published
145 L. Ed. 2d at 1000 Determining duty to consult regarding appeal rights3 citing cases
- State of New Jersey v. Donnell Jones, No. A-3396-14T3 (N.J. Super. Ct. App. Div. June 20, 2016).unpublished
- State v. Jones, 139 A.3d 1234 (N.J. Super. Ct. App. Div. 2016).published
- Spence v. United States, 68 F. App'x 669 (6th Cir. 2003).unpublished
145 L. Ed. 2d at 1035 Counsel's duty when defendant instructs notice of appeal3 citing cases
- United States v. Martinez, 120 F. Supp. 2d 509 (W.D. Pa. 2000).published
- Musone v. United States, 113 F. Supp. 2d 255 (D.R.I. 2000).published
- Hart v. Walter, 2 F. App'x 766 (9th Cir. 2001).unpublished
At page 470 Ineffective assistance of counsel after guilty plea3 citing casespetition, who had pled guilty to second-degree murder under California law, sought habeus corpus relief alleging that defense counsel was ineffective for failing to file a notice of appeal after promising petitioner to do so
- Commonwealth v. Parrish, M., Aplt., 273 A.3d 989 (Pa. 2022).published See Roe, 528 U.S. at 478 (“If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express in…
- People v. Merriweather, 2013 IL App (1st) 113789.published
At page 490 “Defense counsel should advise a defendant on the meaning of the court’s judgment, of defendant’s right to appeal, and of the probable outcome of appealing.”1 citing case
- Charles Thomas Lewis v. Philip L. Johnson, Superintendent, Sci-Pittsburgh Mike Fisher, Attorney Gen. of Pennsylvania, 359 F.3d 646 (3d Cir. 2004).published“Defense counsel should advise a defendant on the meaning of the court’s judgment, of defendant’s right to appeal, and of the probable outcome of appealing.”
v.
Flores-Ortega
Lead Opinion
delivered the opinion of the Gourt.
In this case we must decide the proper framework for evaluating an ineffective assistance of counsel claim, based on counsel’s failure to file a notice of appeal without respondent’s consent.
I
The State of California charged respondent, Lucio Flores-Ortega, with one count of murder, two counts of assault, and a personal use of a deadly weapon enhancement allegation. In October 1993, respondent appeared in Superior Court with his court-appointed public defender, Nancy Kops, and a Spanish language interpreter, and pleaded guilty to second-degree murder. The plea was entered pursuant to a California rule permitting a defendant both to deny committing a crime and to admit that there is sufficient evidence to convict him. See People v. West, 3 Cal. 3d 595, 477 P. 2d 409 (1970). In exchange for the guilty plea, the state prosecutor moved to strike the allegation of personal use of a deadly weapon and to dismiss both assault charges. On November 10, 1993,[*474] respondent was sentenced to 15 years to life in state prison. After pronouncing sentence, the trial judge informed respondent, “You may file an appeal within 60 days from today’s date with this Court. If you do not have money for Counsel, Counsel will be appointed for you to represent you on your appeal.” App. 40.
Although Ms. Kops wrote “bring appeal papers” in her file, no notice of appeal was filed within the 60 days allowed by state law. See Cal. Penal Code Ann. § 1239(a) (West Supp. 2000); Cal. App. Rule 31(d). (A notice of appeal is generally a one-sentence document stating that the defendant wishes to appeal from the judgment. See Rule 31(b); Judicial Council of California, Approved Form CR-120 (Notice of Appeal-Felony) (Jan. 5, 2000), http://www.courtinfo.ca.gov/forms/ documents/er120.pdf.) Filing such a notice is a purely ministerial task that imposes no great burden on counsel. During the first 90 days after sentencing, respondent was apparently in lockup, undergoing evaluation, and unable to communicate with counsel. About four months after sentencing, on March 24, 1994, respondent tried to file a notice of appeal, which the Superior Court Clerk rejected as untimely. Respondent sought habeas relief from California’s appellate courts, challenging the validity of both his plea and conviction, and (before the California Supreme Court) alleging that Ms. Kops had not filed a notice of appeal as she had promised. These efforts were uniformly unsuccessful.
Respondent then filed a federal habeas petition pursuant to 28 U. S. C. §2254, alleging constitutionally ineffective assistance of counsel based on Ms. Kops’ failure to file a notice of appeal on his behalf after promising to do so. The United States District Court for the Eastern District of California referred the matter to a Magistrate Judge, who in turn ordered an evidentiary hearing on the limited issue of whether Ms. Kops promised to file a notice of appeal on respondent’s behalf. At the conclusion of the hearing, the Magistrate Judge found:
[*475] “The evidence in this ease is, I think, quite clear that there was no consent to a failure to file [a notice of appeal].
“It’s clear to me that Mr. Ortega had little or no understanding of what the process was, what the appeal process was, or what appeal meant at that stage of the game.
“I think there was a conversation [between Ortega and Kops] in the jail. Mr. Ortega testified, and I’m sure he’s testifying as to the best of his belief, that there was a conversation after the pronouncement of judgment at the sentencing hearing where it’s his understanding that Ms. Kops was going to file a notice of appeal.
“She has no specific recollection of that. However, she is obviously an extremely experienced defense counsel. She’s obviously a very meticulous person. And I think had Mr. Ortega requested that she file a notice of appeal, she would have done so.
“But, I cannot find that he has carried his burden of showing by a preponderance of the evidence that she made that promise.” App. 132-138.
The Magistrate Judge acknowledged that under precedent from the Court of Appeals for the Ninth Circuit, United States v. Stearns, 68 F. 3d 328 (1995), a defendant need only show that he did not consent to counsel’s failure to file a notice of appeal to be entitled to relief. The judge concluded, however, that Stearns announced a new rule that could not be applied retroactively on collateral review to respondent’s case. See Teague v. Lane, 489 U. S. 288 (1989). Thus, the Magistrate Judge recommended that the habeas petition be denied. App. 161. The District Court adopted the Magistrate’s findings and recommendation, and denied relief. Id., at 162-163.
The Court of Appeals for the Ninth Circuit reversed, reasoning that the rule it applied in Stearns — that a habeas petitioner need only show that his counsel’s failure to file a[*476] notice of appeal was without the petitioner’s consent— tracked its earlier opinion in Lozada v. Deeds, 964 F. 2d 956 (1992), which predated respondent’s conviction. 160 F. 3d 584 (1998). Because respondent did not consent to the failure to file a notice of appeal—and thus qualified for relief under Stearns—the court remanded the case to the District Court with instructions to issue a conditional habeas writ unless the state court allowed respondent a new appeal. We granted certiorari, 526 U. S. 1097 (1999), to resolve a conflict in the lower courts regarding counsel’s obligations to file a notice of appeal. Compare United States v. Tajeddini, 945 F. 2d 458, 468 (CA1 1991) (per curiam) (counsel’s failure to file a notice of appeal, allegedly without the defendant’s knowledge or consent, constitutes deficient performance); Morales v. United States, 143 F. 3d 94, 97 (CA2 1998) (counsel has no duty to file a notice of appeal unless requested by the defendant); Ludwig v. United States, 162 F. 3d 456, 459 (CA6 1998) (Constitution implicated only when defendant actually requests an appeal and counsel disregards the request); Castellanos v. United States, 26 F. 3d 717, 719-720 (CA7 1994) (same); Romero v. Tansy, 46 F. 3d 1024, 1030-1031 (CA10 1995) (defendant does not need to express to counsel his intent to appeal for counsel to be constitutionally obligated to perfect defendant’s appeal; unless defendant waived right, counsel was deficient for failing to advise defendant about appeal right); United States v. Stearns, supra, (counsel’s failure to file a notice of appeal is deficient unless the defendant consents to the abandonment of his appeal).
II
In Strickland v. Washington, 466 U. S. 668 (1984), we held that criminal defendants have a Sixth Amendment right to “reasonably effective” legal assistance, id., at 687, and announced a now-familiar test: A defendant claiming ineffective assistance of counsel must show (1) that counsel’s representation “fell below an objective standard of reasonableness,”[*477] id., at 688, and (2) that eounsers deficient performance prejudiced the defendant, id., at 694. Today we hold that this test applies to claims, like respondent’s, that counsel was constitutionally ineffective for failing to file a notice of appeal.
A
As we have previously noted, “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel.” Id., at 688-689. Rather, courts must “judge the reasonableness of counsel’s challenged conduct on the facts of the particular ease, viewed as of the time of counsel’s conduct,” id., at 690, and “[jjudicial scrutiny of counsel’s performance must be highly deferential,” id., at 689.
We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States, 395 U. S. 327 (1969); cf. Peguero v. United States, 526 U. S. 23, 28 (1999) (“[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit”). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently. See Jones v. Barnes, 463 U. S. 745, 751 (1983) (accused has ultimate authority to make fundamental decision whether to take an appeal). The question presented in this ease lies between those poles: Is counsel deficient for not filing a notice of appeal when the defendant has not clearly conveyed his wishes one way or the other?
[*478] The Courts of Appeals for the First and Ninth Circuits have answered that question with a bright-line rule: Counsel must file a notice of appeal unless the defendant specifically instructs otherwise; failing to do so is per se deficient. See, e. g., Stearns, 68 F. 3d, at 330; Lozada, supra, at 958; Tajeddini, supra, at 468. Such a rule effectively imposes an obligation on counsel in all cases either (1) to file a notice of appeal, or (2) to discuss the possibility of an appeal with the defendant, ascertain his wishes, and act accordingly. We reject this per se rule as inconsistent with Strickland’s holding that “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” 466 U. S., at 688. The Court of Appeals failed to engage in the circumstance-specific reasonableness inquiry required by Strickland, and that alone mandates vacatur and remand.
In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed defi-ciently 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. We employ the term “consult” to convey 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. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal. See supra, at 477. If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel’s failure to consult with the defendant itself constitutes deficient performance. That question lies at the heart of this ease: Under what circumstances does counsel have an obligation to consult with the defendant about an appeal?
[*479] Because the decision to appeal rests with the defendant, we agree with Justice Souter that the better practice is for counsel routinely to consult with the defendant regarding the possibility of an appeal. See ABA Standards for Criminal Justice, Defense Function 4-8.2(a) (3d ed. 1993); post, at 490-491 (opinion concurring in part and dissenting in part). In fact, California imposes on trial counsel a per se duty to consult with defendants about the possibility of an appeal. See Cal. Penal Code Ann. § 1240.1(a) (West Supp. 2000). Nonetheless, “[p]revailing norms of practice as reflected in American Bar Association standards and the like ... are only guides,” and imposing “specific guidelines” on counsel is “not appropriate.” Strickland, 466 U. S., at 688. And, while States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices. See ibid. We cannot say, as a constitutional matter, that in every case counsel’s failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient. Such a holding would be inconsistent with both our decision in Strickland and common sense. See id., at 689 (rejecting mechanistic rules governing what counsel must do). For example, suppose that 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,” id., at 691, 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[*480] 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.
We instead hold that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. See id., at 690 (foeusing on the totality of the circumstances). Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given ease can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.
Rather than the standard we announce today, Justice Souter would have us impose an “almost” bright-line rule and hold that counsel “almost always” has a duty to consult with a defendant about an appeal. Post, at 488. Although he recognizes that “detailed rules for counsel’s conduct” have no place in a Strickland inquiry, he argues that this “qualifi[*481] cation” has no application here. Post, at 491. According to Justice Souter, in Strickland we only rejected per se rules in order to respect the reasonable strategic choices made by lawyers, and that failing to consult about an appeal cannot be a strategic choice. Post, at 491-492. But we have consistently declined to impose mechanical rules on counsel— even when those rules might lead to better representation— not simply out of deference to counsel’s strategic choices, but because “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation,.. . [but rather] simply to ensure that criminal defendants receive a fair trial.” 466 U. S., at 689. The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable. See id., at 688 (defendant must show that counsel’s representation fell below an objective standard of reasonableness). We expect that courts evaluating the reasonableness of counsel’s performance using the inquiry we have described will find, in the vast majority of cases, that counsel had a duty to consult with the defendant about an appeal. We differ from Justice Souter only in that we refuse to make this determination as a per se (or “almost” per se) matter.
B
The second part of the Strickland test requires the defendant to show prejudice from counsel’s deficient performance.
1
In most cases, a defendant’s claim of ineffective assistance of counsel involves counsel’s performance during the course of a legal proceeding, either at trial or on appeal. See, e. g., id., at 699 (claim that counsel made poor strategic choices regarding what to argue at a sentencing hearing); United States v. Cronic, 466 U. S. 648, 649-650 (1984) (claim that young lawyer was incompetent to defend complex criminal[*482] case); Penson v. Ohio, 488 U. S. 75, 88-89 (1988) (claim that counsel in effect did not represent defendant on appeal); Smith v. Robbins, ante, p. 259 (claim that counsel neglected to file a merits brief on appeal); Smith v. Murray, 477 U. S. 527, 535-536 (1986) (claim that counsel failed to make a particular argument on appeal). In such circumstances, whether we require the defendant to show actual prejudice — “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—or whether we instead presume prejudice turns on the magnitude of the deprivation of the right to effective assistance of counsel. That is because “the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial,” Cronic, supra, at 658, or a fair appeal, see Penson, supra, at 88-89. “Absent some effect of challenged conduct on the reliability of the . . . process, the [effective counsel] guarantee is generally not implicated.” Cronic, supra, at 658.
We “normally apply a ‘strong presumption of reliability’ to judicial proceedings and require a defendant to overcome that presumption,” Robbins, ante, at 286 (citing Strickland, supra, at 696), by “show[ing] how specific errors of counsel undermined the reliability of the finding of guilt,” Cronic, supra, at 659, n. 26. Thus, in cases involving mere “attorney error,” we require the defendant to demonstrate that the errors “actually had an adverse effect on the defense.” Strickland, supra, at 698. See, e. g., Robbins, ante, at 287 (applying actual prejudice requirement where counsel followed all required procedures and was alleged to have missed a particular nonfrivolous argument); Strickland, supra, at 699-700 (rejecting claim in part because the evidence counsel failed to introduce probably would not have altered defendant’s sentence).
[*483] 2
In some cases, however, the defendant alleges not that counsel made specific errors in the course of representation, but rather that during the judicial proceeding he was — either actually or constructively — denied the assistance of counsel altogether. “The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage.” Cronic, supra, at 659. The same is true on appeal. See Penson, supra, at 88. Under such circumstances, “[n]o specific showing of prejudice [is] required,” because “the adversary process itself [is] presumptively unreliable.” Cronic, supra, at 659; see also Robbins, ante, at 286 (“denial of counsel altogether . . . warrants a presumption of prejudice”); Penson, supra, at 88-89 (complete denial of counsel on appeal requires a presumption of prejudice).
Today’s case is unusual in that counsel’s alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself. According to respondent, counsel’s deficient performance deprived him of a notice of appeal and, hence, an appeal altogether. Assuming those allegations are true, counsel’s deficient performance has deprived respondent of more than a fair judicial proceeding; that deficiency deprived respondent of the appellate proceeding altogether. In Cronic, Penson, and Robbins, we held that the complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because “the adversary process itself” has been rendered “presumptively unreliable.” Cronic, supra, at 659. The even more serious denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, similarly demands a presumption of prejudice. Put simply, we cannot accord any “‘presumption of reliability,’” Robbins, ante, at 286, to judicial proceedings that never took place.
[*484] 3
The Court of Appeals below applied a per se prejudice rule, and granted habeas relief based solely upon a showing that counsel had performed deficiently under its standard. 160 F. 3d, at 536. Unfortunately, this per se prejudice rule ignores the critical requirement that counsel’s deficient performance must actually cause the forfeiture of the defendant’s appeal, if the defendant cannot demonstrate that, but for counsel’s deficient performance, he would have appealed, counsel’s deficient performance has not deprived him of anything, and he is not entitled to relief. Cf. Peguero v. United States, 526 U. S. 23 (1999) (defendant not prejudiced by court’s failure to advise him of his appeal rights, where he had full knowledge of his right to appeal and chose not to do so). Accordingly, we hold that, to show prejudice in these circumstances, 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.
In adopting this standard, we follow the pattern established in Strickland and Cronic, and reaffirmed in Robbins, requiring a showing of actual prejudice (i. e., that, but for counsel’s errors, the defendant might have prevailed) when the proceeding in question was presumptively reliable, but presuming prejudice with no further showing from the defendant of the merits of his underlying claims when the violation of the right to counsel rendered the proceeding presumptively unreliable or entirely nonexistent. See Strickland, supra, at 493-496; Cronic, 466 U. S., at 658-659; Robbins, ante, at 286-287. Today, drawing on that line of cases and following the suggestion of the Solicitor General, we hold that when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.
[*485] We believe this prejudice standard breaks no new ground, for it mirrors the prejudice inquiry applied in Hill v. Lockhart, 474 U. S. 52 (1985), and Rodriquez v. United States, 395 U. S. 327 (1969). In Hill, we considered an ineffective assistance of counsel claim based on counsel’s allegedly deficient advice regarding the consequences of entering a guilty plea. Like the decision whether to appeal, the decision whether to plead guilty (i e., waive trial) rested with the defendant and, like this case, counsel’s advice in Hill might have caused the defendant to forfeit a judicial proceeding to which he was otherwise entitled. We held that “to satisfy the ‘prejudice’ requirement [of Strickland], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, supra, at 59. Similarly, in Rodriquez, counsel failed to file a notice of appeal, despite being instructed by the defendant to do so. See 395 U. S., at 328. We held that the defendant, by instructing counsel to perfect an appeal, objectively indicated his intent to appeal and was entitled to a new appeal without any further showing. Because “[tjhose whose right to an appeal has been frustrated should be treated exactly like any other appellan[t],” we rejected any requirement that the would-be appellant “specify the points he would raise were his right to appeal reinstated.” Id., at 330. See also Evitts v. Lucey, 469 U. S. 387 (1985) (defendant entitled to new appeal when counsel’s deficient failure to comply with mechanistic local court rules led to dismissal of first appeal).
As with all applications of the Strickland test, the question whether a given defendant has made the requisite showing will turn on the facts of a particular ease. See 466 U. S., at 695-696. Nonetheless, evidence that there were nonfriv-olous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination. We recognize that[*486] the prejudice inquiry we have described is not wholly dissimilar from the inquiry used to determine whether counsel performed deficiently in the first place; specifically, both may be satisfied if the defendant shows nonfrivolous grounds for appeal. See Hill, supra, at 59 (when, in connection with a guilty plea, counsel gives deficient advice regarding a potentially valid affirmative defense, the prejudice inquiry depends largely on whether that affirmative defense might have succeeded, leading a rational defendant to insist on going to trial). But, while the performance and prejudice prongs may overlap, they are not in all cases coextensive. To prove deficient performance, a defendant can rely on evidence that he sufficiently demonstrated to counsel his interest in an appeal. But such evidence alone is insufficient to establish that, had the defendant received reasonable advice from counsel about the appeal, he would have instructed his counsel to file an appeal.
By the same token, although showing nonfrivolous grounds for appeal may give weight to the contention that the defendant would have appealed, a defendant’s inability to “specify the points he would raise were his right to appeal reinstated,” Rodriquez, 395 U. S., at 330, will not foreclose the possibility that he can satisfy the prejudice requirement where there are other substantial reasons to believe that he would have appealed. See ibid.; see also Peguero, supra, at 30 (O’Connor, J., concurring) (“To require defendants to specify the grounds for their appeal and show that they have some merit would impose a heavy burden on defendants who are often proceeding pro se in an initial [habeas] motion”). We similarly conclude here that it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal. Rather, we require the defendant to demonstrate that, but for counsel’s deficient conduct, he would have appealed.
[*487] III
The court below undertook neither part of the Strickland inquiry we have described, but instead presumed both that Ms. Kops was deficient for failing to file a notice of appeal without respondent’s consent and that her deficient performance prejudiced respondent. See 160 F. 3d, at 536. Justice Souter finds Ms. Kops’ performance in this case to have been “derelict,” presumably because he believes that she did not consult with respondent about an appeal. Post, at 489. But the Magistrate Judge’s findings do not provide us with sufficient information to determine whether Ms. Kops rendered constitutionally inadequate assistance. Specifically, the findings below suggest that there may have been some conversation between Ms. Kops and respondent about an appeal, see App. 133; see also 160 F. 3d, at 535 (Ms. Kops wrote “ ‘bring appeal papers’ ” in her file), but do not indicate what was actually said. Assuming, arguendo, that there was a duty to consult in this case, it is impossible to determine whether that duty was satisfied without knowing whether Ms. Kops advised respondent about the advantages and disadvantages of taking an appeal and made a reasonable effort to discover his wishes. Cf. Strickland, supra, at 691 (“inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s ... decisions”). Based on the record before us, we are unable to determine whether Ms. 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. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Concurrence
concurring.
I write to emphasize that the question presented concerned the filing of a “notice of appeal following a guilty plea.” Pet. for Cert. i (emphasis added). In that context I agree with the Court. I also join its opinion, which, in my view, makes clear that counsel does “almost always” have a constitutional duty to consult with a defendant about an appeal after a trial. Post this page (Souter, J., concurring in part and dissenting in part); cf. ante, at 479-481.
Concurrence in Part
with whom Justice Stevens and Justice Ginsburg join, concurring in part and dissenting in part.
I join Part II-B of the Court’s opinion, but I respectfully dissent from Part II-A. As the opinion says, the crucial question in this case is whether, after a criminal conviction, a lawyer has a duty to consult with her client about the choice to appeal. The majority’s conclusion is sometimes; mine is, almost always in those cases in which a plea of guilty has not obviously waived any claims of error.[1] It is unreasonable for a lawyer with a client like respondent Plores-Ortega to walk away from her representation after trial or after sentencing without at the very least acting affir[*489] matively to ensure that the client understands the right to appeal.
Where appeal is available as a matter of right, a decision to seek or forgo review is for the convict himself, not his lawyer, Jones v. Barnes, 463 U. S. 745, 751 (1983), who owes a duty of effective assistance at the appellate stage, Evitts v. Lucey, 469 U. S. 387, 396 (1985); Penson v. Ohio, 488 U. S. 75, 85 (1988). It follows, as the majority notes, that if a defendant requests counsel to file an appeal, a lawyer who fails to do so is, without more, ineffective for constitutional purposes. But, as the Court says, a lesser infidelity than that may fail the test of lawyer competence under Strickland v. Washington, 466 U. S. 668 (1984), which governs this case. I think that the derelict character of counsel’s performance in this case is clearer than the majority realizes.
In Strickland, we explicitly noted that a lawyer has a duty “to consult with the defendant on important decisions ... in the course of the prosecution.” Id., at 688. The decision whether to appeal is one such decision. Since it cannot be made intelligently without appreciating the merits of possible grounds for seeking review, see Peguero v. United States, 526 U. S. 23, 30-31 (1999) (O’Connor, J., concurring); Rodriquez v. United States, 395 U. S. 327, 330 (1969), and the potential risks to the appealing defendant, a lay defendant needs help before deciding. If the crime is minor, the issues simple, and the defendant sophisticated, a 5-minute conversation with his lawyer may well suffice; if the charge is serious, the potential claims subtle, and a defendant uneducated, hours of counseling may be in order. But only in the extraordinary case will a defendant need no advice or counsel whatever.
To the extent that our attention has been directed to statements of “prevailing professional norms,” Strickland v. Washington, 466 U. S., at 688 (Strickland's touchstone of reasonable representation, see ibid.), they aré consistent with common sense in requiring a lawyer to consult with a[*490] client before the client makes his decision about appeal. Thus, ABA Standards for Criminal Justice 21-2.2(b) (2d ed. 1980):
“Defense counsel should advise a defendant on the meaning of the court’s judgment, of defendant’s right to appeal, on the possible grounds for appeal, and of the probable outcome of appealing. Counsel should also advise of any posttrial proceedings that might be pursued before or concurrent with an appeal. While counsel should do what is needed to inform and advise defendant, the decision whether to appeal, like the decision whether to plead guilty, must be the defendant’s own choice.”
See also ABA Standards for Criminal Justice, Defense Function 4-8.2(a) (3d ed. 1993) (stating that trial counsel “should explain to the defendant the meaning and consequences of the court’s judgment and defendant’s right of appeal” and “should give the defendant his or her professional judgment as to whether there are meritorious grounds for appeal and as to the probable results of an appeal”); id., 4-8.2, Commentary (“[C]ounsel [has the duty] to discuss frankly and objectively with the defendant the matters to be considered in deciding whether to appeal. ... To make the defendant’s ultimate choice a meaningful one, counsel’s evaluation of the case must be communicated in a comprehensible manner.... [Tjrial counsel should always consult promptly with the defendant after making a careful appraisal of the prospects of an appeal”); ABA Standards for Criminal Justice 21-3.2(b)(i).
So also the ABA Model Code of Professional Responsibility, EC 2-31 (1991), provides that: “Trial counsel for a convicted defendant should continue to represent his client by advising whether to take an appeal....” Likewise ABA Model Rule of Professional Conduct 1.3, Comment (1996): “[I]f a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client but has not been spe[*491] cifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before relinquishing responsibility for the matter.” Restatement (Third) of the Law Governing Lawyers §31(3) (Proposed Final Draft No. 1, Mar. 29,1996) embodies the same standards: “A lawyer must notify a client of decisions to be made by the client . . . and must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Indeed, California has apparently eliminated any option on a lawyer’s part to fail to give advice on the appeal decision (whether the failure be negligent or intentional). California Penal Code Ann. § 1240.1(a) (West Supp. 2000) provides that trial counsel has a duty to “provide counsel and advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal.” California thus appears to have adopted as an unconditional affirmative obligation binding all criminal trial counsel the very standard of reasonable practice expressed through the Restatement and the ABA standards.
I understand that under Strickland, “[prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable, but they are only guides,” and that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” 466 U. S., at 688-689. But that qualification has no application here.
While Strickland’s disclaimer that no particular set of rules should be treated as dispositive respects the need to defer to reasonable “strategic choices” by lawyers, id., at 690, no such strategic concerns arise in this case. Strategic choices are made about the extent of investigation, the risks of a defense requiring defendant’s testimony and exposure to cross-examination, the possibility that placing personal[*492] background information before a jury will baekfire, and so on. It is not, however, an issue of “strategy” to decide whether or not to give a defendant any advice before he loses the chance to appeal a conviction or sentence. The concern about too much judicial second-guessing after the fact is simply not raised by a claim that a lawyer should have counseled her client to make an intelligent decision to invoke or forgo the right of appeal or the opportunity to seek an appeal.
The Court’s position is even less explicable when one considers the condition of the particular defendant claiming Strickland relief here. Flores-Ortega spoke no English and had no sophistication in the ways of the legal system. The Magistrate Judge found that “[i]t’s clear... that Mr. Ortega had little or no understanding of what the process was, what the appeal process was, or what appeal meant.” App. 133. To condition the duty of a lawyer to such a client on whether, inter alia, “a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal),” ante, at 480, is not only to substitute a harmless-error rule for a showing of reasonable professional conduct, but to employ a rule that simply ignores the reality that the constitutional norm must address.[2] Most criminal defendants, and certainly this one, will be utterly incapable of making rational judgments about appeal without guidance. They cannot possibly know what a rational decisionmaker must know unless they are given the benefit of a professional assessment of chances of success and risks of trying. And they will often (indeed, usually) be just as bad off if they seek relief on habeas after failing to take a direct appeal,[*493] having no right to counsel in state postconviction proceedings. See Pennsylvania v. Finley, 481 U. S. 551, 557 (1987); Murray v. Giarratano, 492 U. S. 1, 12 (1989); cf. Peguero v. United States, 526 U. S., at 30 (O’Connor, J., concurring) (“To require defendants to specify the grounds for their appeal and show that they have some merit would impose a heavy burden on defendants who are often proceeding pro se in an initial 28 U. S. C. § 2255 motion”).
In effect, today’s decision erodes the principle that a decision about appeal is validly made only by a defendant with a fair sense of what he is doing. Now the decision may be made inadvertently by a lawyer who never utters the word “appeal” in his client’s hearing, so long as that client cannot later demonstrate (probably without counsel) that he unwittingly had “nonfrivolous grounds” for seeking review. This state of the law amounts to just such a breakdown of the adversary system that Strickland warned against. “In every ease the court should be concerned with whether ... the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” 466 U. S., at 696; see also Rodriquez v. United States, 395 U. S., at 330; Penson v. Ohio, 488 U. S., at 85.
I would hold that in the aftermath of the hearing at which Flores-Ortega was sentenced, his lawyer was obliged to consult with her client about the availability and prudence of an appeal, and that failure to do that violated Strickland’s, standard of objective reasonableness. I therefore respectfully dissent from Part II-A of the majority’s opinion.
I say "almost” always, recognizing that there can be eases beyond the margin; if a legally trained defendant were convicted in an error-free trial of an open-and-shut case, his counsel presumably would not be deficient in failing to explain the options. This is not what we have here. Nor is this a case in which the judge during the plea colloquy so fully explains appeal rights and possible issues as to obviate counsel’s need to do the same; such a possibility is never very likely and exists only at the furthest reach of theory, given a defendant’s right to adversarial representation, see Smith v. Robbins, ante, at 296-297 (Souter, J., dissenting). Finally, of course, there is no claim here that Flores-Ortega waived his right to appeal as part of his plea agreement; although he pleaded guilty, the record shows that he and the State argued before the trial court for different sentences, and he had little understanding of the legal system. The fact of the plea is thus irrelevant to the disposition of the ease.
The Court holds that a duty to consult will also be present if “this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Ante, at 480. Because for most defendants, and certainly for unsophisticated ones like Flores-Ortega who are unaware even of what an appeal means, such a demonstration will be a practical impossibility, I view the Court as virtually requiring the defendant to show the existence of some nonfrivolous appellate issue.
Concurrence in Part
concurring in part and dissenting in part.
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. The Court is not[*494] deeply divided on this question. Both the Court and Justice Souter effectively respond: hardly ever. Because the test articulated by Justice Souter provides clearer guidance to lower courts and to counsel, and because I think it plain that the duty to consult was not satisfied in this case, I join Justice Souter’s opinion.