[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 18, 2007
No. 07-11209 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket Nos. 06-08031-CV-4-IPJ-HGD
04-00238-CR-4-1
AARON LEWIS McELROY,
Petitioner–Appellant,
versus
UNITED STATES OF AMERICA,
Respondent–Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 18, 2007)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Aaron Lewis McElroy, 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. We
granted a certificate of appealability on the following issue only: “Whether the
district court erred in denying appellant’s claim that his trial counsel was
ineffective for failing to file a notice of appeal after appellant allegedly requested
counsel to do so?” We agree that the district court clearly erred in denying
McElroy’s § 2255 motion on the grounds that McElroy failed to identify arguably
meritorious grounds which he could have pursued on direct appeal.
It is well-settled case 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) (applying the
“reasonably effective” legal assistance test from Strickland v. Washington, 466
U.S. 668 (1984), to a claim that counsel was ineffective for failing to file a notice
of appeal). There is a presumption of 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.”
Id. at 484. A defendant need not establish that his direct appeal would have been
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arguably meritorious; he need only show that his counsel’s constitutionally
deficient performance deprived him of an appeal he would have otherwise
taken—i.e., the defendant expressed to his attorney a desire to appeal. Id.; see also
Gomez-Diaz v. United States, 433 F.3d 788, 792 (11th Cir. 2005).
Moreover, even when a defendant has not specifically instructed his counsel
to file an appeal, his counsel may still have performed deficiently. In such
circumstances, a court must inquire “whether counsel in fact consulted with the
defendant about an appeal”—that is, whether he advised the defendant about the
advantages and disadvantages of taking an appeal while also making a reasonable
effort to discover the defendant’s wishes. Flores-Ortega, 528 U.S. at 478. If the
attorney has consulted with the defendant, “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 the affirmative duty to
consult.” Gomez-Diaz, 433 F.3d at 792 (citing Flores-Ortega, 528 U.S. at 478).
This duty to consult arises when either “(1) any rational defendant would want to
appeal, or (2) his particular client reasonably demonstrated an interest in
appealing.” Id. (citing Flores-Ortega, 528 U.S. at 480).
In the present case, the district court erroneously concluded that to satisfy
the prejudice prong of the Strickland test, McElroy was required to establish that
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he would have had an arguably meritorious claim on direct appeal. Consequently,
the district court never determined whether McElroy specifically requested that his
counsel file a notice of appeal or whether he had a duty to consult or actually
consulted with McElroy about filing an appeal. Furthermore, the record below is
insufficient to resolve the factual questions because the record contains both a
sworn affidavit from McElroy supporting his version of events and a sworn
affidavit from his trial counsel refuting McElroy’s claim that he directed his
counsel to file a notice of appeal. Thus, the district erred in failing to hold an
evidentiary hearing to establish the content —or lack thereof —of communications
between McElroy and his attorney.
Accordingly, in light of Strickland, Flores-Ortega, and Gomez-Diaz, we
vacate and remand to the district court to conduct an evidentiary hearing to
determine (1) whether McElroy, in fact, requested counsel to file a direct appeal
sufficient to trigger the per se duty to appeal; and (2) if not, whether counsel
fulfilled his constitutional duty to consult with McElroy by advising him of the
advantages and disadvantages of filing an appeal and making a reasonable effort to
comply with McElroy’s wishes.
VACATED AND REMANDED .
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