[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 13, 2006
No. 05-15729 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 04-01918-CV-T-30-TGW
03-00124-CR-T-3
SERIJO MIQUEL,
a.k.a. Luis Montenegro,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 13, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Federal prisoner Serijo Miquel, through counsel, appeals the district court’s
order denying his § 2255 motion to vacate his sentence. We granted a certificate of
appealability on the following issue only: “[w]hether the district court erred in
failing to hold an evidentiary hearing on [Miquel]’s claim that he received
ineffective assistance of counsel based on his attorney’s failure to file a notice of
appeal, in light of this Court’s decision in Gomez-Diaz v. United States, 433 F.3d
788 (11th Cir. 2005)?” While acknowledging the fact that he entered into a
written plea agreement with a sentence appeal waiver that waived some but not all
of his appellate rights, Miquel argues that counsel was constitutionally ineffective
because he failed to file a direct appeal as requested.
The government concedes that, pursuant to our decision in Gomez-Diaz, the
district court erred by finding that Miquel had waived his claim that his counsel
was ineffective for failing to file a direct appeal. The government acknowledges
that we should remand this case for the district court to conduct an evidentiary
hearing to establish whether Miquel’s trial counsel had a duty to file a notice of
appeal from the final judgment in the district court, pursuant to Roe v. Flores-
Ortega, 528 U.S. 470, 120 S. Ct. 1029 (2000).
A district court’s legal conclusions in a 28 U.S.C. § 2255 proceeding are
reviewed de novo and its factual findings are reviewed for clear error. Lynn v.
United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Whether a defendant
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ultimately has received ineffective assistance of counsel is a mixed question of fact
and law reviewed de novo. Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir. 2000).
The legal standard governing the disposition of ineffective assistance of
counsel claims is derived from the benchmark case of Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984). In Strickland, the Supreme Court
established a two-prong test for adjudicating ineffective assistance of counsel
claims. A movant must show that counsel’s performance was deficient and that
this deficiency prejudiced the defense. Id. at 687, 104 S. Ct. at 2064.
In Flores-Ortega, the Supreme Court applied the test set forth in Strickland
and reiterated the long-established rule that a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a professionally
unreasonable manner. 528 U.S. at 476-77, 120 S. Ct. at 1034-35. The Supreme
Court further held that, even when a defendant has not specifically instructed his
counsel to file an appeal, in order to determine whether counsel performed
deficiently, a court must inquire whether counsel in fact consulted with the
defendant about an appeal. Id. at 478, 120 S. Ct. at 1035. “If so, the attorney has
only acted unreasonably if he has ignored the client’s wishes to appeal the case. If
not, the court must further inquire whether the attorney had an affirmative duty to
consult.” Gomez-Diaz, 433 F.3d at 792 (citing Flores-Ortega, 528 U.S. at 478,
120 S. Ct. at 1035). This duty to consult arises when either: (1) any rational
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defendant would want to appeal; or (2) the defendant reasonably demonstrated an
interest in appealing. Id. (citing Flores-Ortega, 528 U.S. at 480, 120 S. Ct. at
1036). “[T]o show prejudice under 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.”
Flores-Ortega, 528 U.S. at 484, 120 S. Ct. at 1038.
In Gomez-Diaz, we were presented with a case factually and procedurally
similar to the instant appeal. In that case, Gomez-Diaz pled guilty pursuant to a
written plea agreement containing a sentence appeal waiver identical to the waiver
in the instant case. 433 F.3d at 790. Gomez-Diaz did not file a direct appeal. Id.
He filed a § 2255 motion, wherein he alleged, inter alia, that his court-appointed
counsel failed to file a notice of appeal as he had requested. Id. The district court
denied the § 2255 motion without an evidentiary hearing, on the basis that Gomez-
Diaz failed to identify any ground for appeal falling within the exceptions listed in
the sentence appeal waiver. Id.
After examining the analytical framework set forth in the Supreme Court’s
decisions in Strickland and Flores-Ortega, we held that Gomez-Diaz did in fact
state a claim sufficient to entitle him to an evidentiary hearing in the district court.
Gomez-Diaz, 433 F.3d at 791-93. We remanded the case to the district court with
instructions to conduct an evidentiary hearing to determine whether Gomez-Diaz’s
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initial statements were sufficient to trigger a per se duty to appeal, and if not,
whether counsel fulfilled his constitutional duty to consult with Gomez-Diaz
regarding his desire to appeal. Id. at 792. We also held that the reasoning of
Flores-Ortega applied “with equal force” where the defendant has waived many,
but not all, of his appellate rights. Id. at 793.
Here, as in Gomez-Diaz, we conclude from the record that the district court
erred by concluding that Miquel had waived his ineffective assistance of counsel
claim. In denying Miquel’s ineffective-assistance-of-counsel claim asserted in his
§ 2255 motion, the district court found that the claim was barred because it did not
relate to the negotiation of his plea agreement and did not fall within any of the
exceptions to his appeal waiver. As conceded by the government, the district court
erred in making this finding in light of the reasoning set forth in Gomez-Diaz.
The record shows that the district court did not address this issue of
whether Miquel actually requested his attorney to file an appeal. This is an
essential first step in the analysis under Flores-Ortega and Gomez-Diaz.
Therefore, we vacate the district court’s order and remand this case to the district
court to conduct an evidentiary hearing.
VACATED AND REMANDED.
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