[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14916 OCTOBER 5, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket Nos. 03-01728-CV-TWT-1 & 01-00534-CR-TWT
ARTURO PLIEGO-DUARTE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 5, 2006)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Arturo Pliego-Duarte, a federal prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct
his sentence. After review, we vacate the district court’s order and remand for
further proceedings consistent with this opinion.
I. BACKGROUND
In 2002, pursuant to a plea agreement, Pliego-Duarte pled guilty to
conspiracy to possess with intent to distribute cocaine and methamphetamine.
Pliego-Duarte’s plea agreement contained an appeal waiver provision in which he
agreed to waive all rights to appeal his sentence or to collaterally attack his
conviction except in two circumstances: an upward departure or an appeal by the
government. Pliego-Duarte was sentenced to a term of 360 months’ imprisonment,
followed by a term of ten years of supervised release. There was no direct appeal.
In 2003, Pliego-Duarte filed a 28 U.S.C. § 2255 motion challenging his 2002
sentence. The § 2255 motion alleged, inter alia, that Pliego-Duarte was denied
effective assistance of counsel because his sentencing counsel had failed to file a
direct appeal at Pliego-Duarte’s request.
The district court held an evidentiary hearing, at which Pliego-Duarte and
his sentencing counsel, Herbert Shafer and Rebecca Guinn, testified. Shafer
testified that he had no independent recollection of whether he had a conversation
with Pliego-Duarte about his right to appeal following his sentencing. Guinn
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testified that she did have a conversation with Pliego-Duarte about his right to
appeal, that he told her he wanted to file an appeal and that she “reiterated to him
that he had waived his right to appeal and that he needed to talk to Mr. Shafer
about filing an appeal, if he wanted to do that.” On cross-examination, Guinn
testified that Pliego-Duarte asked that she file an appeal. Pliego-Duarte also
testified, stating that he advised both Shafer and Guinn to file an appeal. Pliego-
Duarte further stated that, even though Guinn reminded him that he had waived his
right to appeal, he insisted that she file an appeal.
The district court denied Pliego-Duarte’s § 2255 motion. The district court
concluded that, “because [Pliego-Duarte’s] direct appeal waiver was valid and
enforceable, he suffered no arguable prejudice from the failure of Mr. Shafer or
Ms. Guinn to file a direct appeal on his behalf.” We granted Pliego-Duarte a
certificate of appealability as to whether the district court properly denied his
§ 2255 motion as follows:
Whether the district court properly denied appellant’s claim for
ineffective assistance of counsel based on counsel’s failure to file a
direct appeal?
II. DISCUSSION
The two-pronged test of Strickland v. Washington requires a defendant
claiming ineffective assistance of counsel to show both objectively unreasonable
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performance by counsel and resulting prejudice to the defendant. 466 U.S. 668,
104 S. Ct. 2052 (1984). An attorney who fails to file an appeal on behalf of a
client after having been requested to do so per se acts in an objectively
unreasonable manner. Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029,
1035 (2000). Furthermore, prejudice is presumed under these circumstances. Id.
at 483, 120 S. Ct. at 1038.
In Gomez-Diaz v. United States, 433 F.3d 788 (11th Cir. 2005), we applied
the forgoing principles when the defendant had executed an appeal waiver.
Gomez-Diaz controls the outcome in this case.
In Gomez-Diaz, the defendant pled guilty pursuant to a plea agreement
containing an appeal waiver. Gomez-Diaz, 433 F.3d at 790. The district court
denied the defendant’s § 2255 motion alleging ineffective assistance of counsel
due to counsel’s failure to file a direct appeal. Id. We vacated and remanded,
stating that, if the evidence establishes that counsel failed to file an appeal contrary
to his client’s wishes, “prejudice is to be presumed.” Id. at 793. Under such
circumstances, the defendant is “entitled to an out-of-time appeal, regardless of
whether he can identify any arguably meritorious grounds for appeal that would fit
one of the exceptions contained in his appeal waiver.” Id. This Court rejected the
district court’s assumption that, in light of the appeal waiver, an appeal would be
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futile because the defendant had not waived all of his appellate rights. Id. at 793-
94. We also concluded that the defendant has no duty to identify potential
appellate issues that fall outside the appeal waiver. Id. at 793. Rather, to
demonstrate prejudice, the defendant need only show that “‘but for counsel’s
deficient conduct, he would have appealed.’” Id. at 793 (quoting Flores-Ortega,
528 U.S. at 486, 120 S. Ct. at 1040).
Here, Pliego-Duarte waived most, but not all, of his appellate rights in his
plea agreement. Guinn, one of Pliego-Duarte’s attorneys, admitted during the
evidentiary hearing that Pliego-Duarte had requested that she file a direct appeal on
his behalf.1 Furthermore, it is undisputed that no direct appeal was filed. In other
words, the record demonstrates that, but for Guinn’s failure, Pliego-Duarte would
have appealed. Under Gomez-Diaz, prejudice to Pliego-Duarte is presumed, and
he is entitled to an out-of-time appeal.
Accordingly, we vacate the district court’s order denying Pliego-Duarte’s
§ 2255 motion and remand for further proceedings consistent with this opinion. If,
following the perfection of an appeal by filing a notice of appeal, defense counsel
1
The government argues that the district court failed to make an express factual finding as
to whether Pliego-Duarte asked his counsel to file an appeal and urges us to remand the case to
the district court for such a factual determination. Because counsel Guinn admitted that her
client Pliego-Duarte requested that she file an appeal on his behalf and there is no contradictory
evidence or even allegation otherwise, we conclude that remand is not necessary under the
particular facts of this case.
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believes that the record shows no meritorious basis for appeal, counsel may, at that
time, file a motion to withdraw and supporting brief pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967). At that time, the Court will
evaluate whether any arguably meritorious issues exist for appeal. However, under
our Gomez-Diaz precedent, Pliego-Duarte is entitled to the perfection of an out-of-
time appeal where he has not waived all appeal rights.
VACATED AND REMANDED.
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