[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 12, 2006
No. 05-16582 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
04-01728-CV-T-17-EAJ
03-00082-CR-T-1
EDUARDO ROSERO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 12, 2006)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Federal prisoner Eduardo Rosero, proceeding pro se, appeals the district
court’s denial of his § 2255 motion to vacate, set aside, or correct his sentence. We
granted a certificate of appealability (“COA”) on the issue of whether the district
court erred by finding that appellant had waived his claim that counsel was
ineffective for failing to file a direct appeal. The government concedes the error
and requests that we remand for the district court to hold an evidentiary hearing on
this issue. We agree that the district court erred in concluding that Rosero waived
his claim, and we accordingly VACATE the district court’s denial of Rosero’s
§ 2255 motion and REMAND for the district court to determine whether Rosero’s
counsel denied him effective assistance of counsel.
I. BACKGROUND
The instant § 2255 motion stems from Rosero’s guilty plea to one count of
conspiring to possess with the intent to distribute five grams or more of cocaine
aboard a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. app. § 1903 and 21 U.S.C. § 960(b)(1)(B)(ii). R1-1. The district court
imposed a sentence of 210 months of imprisonment. In addition, Rosero’s written
plea agreement contained a sentence appeal waiver, which provided, in relevant
part, as follows:
The defendant . . . expressly waives the right to appeal
defendant’s sentence, directly or collaterally, on any
2
ground, including the applicability of the “safety valve”
provisions contained in 18 U.S.C. § 3553(f) and USSG
§ 5C1.2, except for an upward departure by the
sentencing judge, a sentence above the statutory
maximum, or a sentence in violation of the law apart
from the sentencing guidelines[.]
Exh. Folder 1-53 at 12.
In his § 2255 motion, Rosero raised several claims, including that his
counsel was ineffective for failing to file a direct appeal of his sentence.1 Rosero
indicated that none of the claims mentioned in his § 2255 motion were raised
“prior hereto based on the advi[c]e” of his counsel. R1-1 at 4.
The government responded that Rosero waived his right to appeal his
sentence, either directly or collaterally, on all of the grounds raised in his motion.
Specifically, with regard to Rosero’s ineffective assistance of counsel claim, the
government responded that this claim was waived because it did not relate to the
validity of the plea or the waiver itself. In reply, Rosero argued, inter alia, that
aside from the exceptions set forth in the plea agreement itself, he could
collaterally attack his sentence on constitutional grounds in accordance with the
Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
1
The district court initially denied Rosero’s § 2255 motion as time-barred. Rosero
subsequently filed a motion to alter or amend judgment. The district court granted Rosero’s
motion to alter or amend judgment and reopened the case so that it could address the merits of
the claims in his § 2255 motion to vacate.
3
2348 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
The district court denied Rosero’s § 2255 motion. In its order denying the
motion, the district court addressed the sequence of events at Rosero’s change of
plea hearing, noting that
the United States Magistrate Judge reviewed with Rosero the
waiver of his right to appeal, directly or collaterally his
sentence, and asked whether he had discussed this waiver with
his lawyer and if he had any questions about it. Rosero
responded affirmatively. The Court also asked if he were
agreeing to that provision freely and voluntarily as part of his
plea and he said “Yes.”
R1-11 at 2 (citations omitted). In denying the motion, the district court found that
Rosero had waived his ineffective-assistance-of-counsel claim pursuant to the
sentence appeal waiver in the plea agreement. The district court also denied
Rosero’s § 2255 motion with respect to all of the other claims, none of which are
relevant to this appeal.
Rosero then filed a notice of appeal. We granted a COA on the following
issue only: “[w]hether the district court erred by finding that appellant had waived
his claim that counsel was ineffective for failing to file a direct appeal?” R1-17.
II. DISCUSSION
The government concedes that, pursuant to our decision in Gomez-Diaz v.
United States, 433 F.3d 788 (11th Cir. 2005), the district court erred by finding that
4
Rosero had waived his claim that his counsel was ineffective for failing to file a
direct appeal. The government acknowledges that we should remand for the
district court to conduct an evidentiary hearing to establish the content of
communications between Rosero and his counsel so that the district court may
determine whether counsel complied with his constitutional duties pursuant to Roe
v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029 (2000).2
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) (per curiam). Whether a
defendant 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).
In Strickland v. Washington, the Supreme Court established a two-prong test
2
The government notes that Rosero fails to discuss Flores-Ortega and Gomez-Diaz, and
contends that Rosero’s brief instead discusses the merits of several different arguments that
hypothetically could have been raised on appeal. The government asserts that these arguments
should not be considered and that Rosero has failed to address the narrow question that we have
certified for review. While Rosero does not discuss Flores-Ortega and Gomez-Diaz, he has
maintained that his counsel was constitutionally ineffective for not filing a direct appeal despite
the sentence appeal waiver in the plea agreement. Rather than asserting the merits of specific
arguments, it appears that Rosero cites particular examples of what his counsel could have
argued if a direct appeal was filed. As we construe pro se arguments liberally, Rosero has
addressed the issue specified in the COA. See Trawinski v. United Technologies, 313 F.3d
1295, 1297 (11th Cir. 2002) (per curiam) (noting that courts construe pro se pleadings liberally).
5
for adjudicating ineffective assistance of counsel claims. 466 U.S. 668, 104 S. Ct.
2052 (1984). First, a “movant must show that counsel’s performance was
deficient.” Id. at 687, 104 S. Ct. at 2064. The proper measure of attorney
performance is “reasonableness under prevailing professional norms.” Id. at 688,
104 S. Ct. at 2065. “[C]ounsel is strongly presumed to have rendered adequate
assistance” and to have exercised reasonable professional judgment. Id. at 690,
104 S. Ct. at 2066. Second, a movant “must show that the deficient performance
prejudiced the defense.” Id. at 687, 104 S. Ct. at 2064. To prove prejudice, a
movant must show “that there is a reasonable probability” that the outcome “would
have been different” but for counsel’s unprofessional errors. Id. at 694, 104 S. Ct.
at 2068.
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 manner that is
professionally unreasonable.” 528 U.S. at 474-77, 120 S. Ct. at 1035. 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
6
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 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 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.”
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 789-90. Gomez-Diaz did not file a direct appeal.
Id. 433 F.3d at 790. He filed a § 2255 motion, wherein he alleged,
inter alia, that his court-appointed counsel failed to file a notice of appeal as he
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. at 790. We
7
granted a certificate of appealability to address the question of “[w]hether [Gomez-
Diaz] was denied effective assistance of counsel when counsel failed to file a
timely notice of appeal after appellant allegedly requested counsel to do so.” Id.
In addressing this issue, we also addressed two subsidiary questions: (1) “whether
[Gomez-Diaz’s] § 2255 motion states a claim that entitles him to an evidentiary
hearing”; and (2) if yes, “whether [Gomez-Diaz’s] limited appeal waiver precludes
the grant of relief unless he can show that he has meritorious grounds for appeal.”
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.
Id. at 791-93. Construing Gomez-Diaz’s pleadings liberally, we remanded the case
to the district court with instructions to conduct an evidentiary hearing to
determine whether Gomez-Diaz’s 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. We also held that the
reasoning of Flores-Ortega applied “with equal force” when “the defendant has
waived many, but not all, of his appellate rights.” Id. at 793.
Here, as in Gomez-Diaz, the district court erred by concluding that Rosero
8
had waived his ineffective assistance of counsel claim. In denying Rosero’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 validity of the
plea or the waiver itself. 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 in this case is insufficient to determine whether Rosero actually requested
that his attorney file an appeal. The record shows that the district court did not
address this issue. The inquiry as to whether Rosero actually requested counsel to
file an appeal, which has not taken place in this case, is an essential first step in the
analysis under Flores-Ortega and Gomez-Diaz.
III. CONCLUSION
We vacate and remand to the district court to conduct an evidentiary hearing
into: (1) whether Rosero, in fact, requested counsel to file a direct appeal to trigger
the per se duty to appeal set forth in Flores-Ortega; and (2) if not, whether counsel
fulfilled his constitutional duty to consult with Rosero by advising Rosero of the
advantages and disadvantages of filing an appeal and making a reasonable effort to
comply with Rosero’s wishes.
VACATED AND REMANDED.
9