[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 18, 2007
No. 05-16961 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
05-20726-CV-JIC
03-20441 CR-JIC
FELIX SUAREZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 18, 2007)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Federal prisoner Felix Suarez appeals the district court’s denial of his § 2255
motion to vacate, set aside or correct his sentence. We granted a certificate of
appealability on the following issue only: “[w]hether appellant was denied
effective assistance of counsel when counsel failed to file a timely notice of appeal
after appellant allegedly requested counsel to do so and whether the district court
erred in failing to hold an evidentiary hearing on the issue,” pursuant to Gomez-
Diaz v. United States, 433 F.3d 788 (11th Cir. 2005).
Suarez argues that his counsel was per se ineffective because he failed to file
a direct appeal upon request and that, at a minimum, Suarez is entitled to an
evidentiary hearing on the issue. The government concedes that, pursuant to our
decision in Gomez-Diaz, the district court erred by finding that Suarez had waived
his claim that his counsel was ineffective for failing to file a direct appeal. It
acknowledges that we should remand for the district court to conduct an
evidentiary hearing to establish whether Suarez’s trial counsel had a duty to file a
notice of appeal from the final judgment in the district court.
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
ultimately has received ineffective assistance of counsel is a mixed question of fact
2
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 seminal case of Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme
Court established a two-prong test for adjudicating ineffective-assistance-of-
counsel claims. First, a movant must show that counsel’s performance was
unreasonably deficient. Second, the movant must show that this deficiency
prejudiced the defense. Id. at 687, 104 S.Ct. at 2064.
In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029 (2000), the Supreme
Court applied the test set forth in Strickland in addressing the question of when
counsel is ineffective for failing to file a notice of appeal. The Court 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.
Id. at 476-77, 120 S.Ct. at 1034-35. The Court further held that counsel may be
ineffective even when a defendant has not specifically instructed his counsel to file
an appeal, so long as counsel had a duty to consult the defendant about his desire to
appeal. 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. at 480, 120 S.Ct. at 1036. Finally, in addition to showing
3
unreasonable deficiency, the defendant must also show that the failure to file a
notice of appeal caused prejudice. “[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. Gomez-Diaz, 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. at 790.
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. We remanded the case to the district court with instructions to
conduct an evidentiary hearing to determine whether Gomez-Diaz’s initial
4
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 793 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.
Upon review of the record, and upon consideration of the briefs of the
parties, we find that Gomez-Diaz controls this case, and vacate and remand.
Here, as in Gomez-Diaz, the district court erred by concluding that Suarez
had waived his ineffective-assistance-of-counsel claim. In that case, Gomez-Diaz
pled guilty pursuant to a written plea agreement containing a sentence appeal
waiver that, substantively, was essentially the same as the waiver in the instant
case. Gomez-Diaz, 433 F.3d at 790. In denying Suarez’s ineffective-assistance-
of-counsel claim asserted in his § 2255 motion, the district court found that the
claim was barred by Suarez’s knowing and voluntary 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 the issue of whether
Suarez 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
5
and remand to the district court to conduct an evidentiary hearing into: (1) whether
Suarez, in fact, requested counsel to file a direct appeal sufficient 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 Suarez by advising him of the advantages
and disadvantages of filing an appeal and making a reasonable effort to comply
with Suarez’s wishes.
VACATED AND REMANDED.
6