dissenting.
[¶ 36] I respectfully dissent. Under Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), Owens should be afforded an evidentiary hearing to determine whether his representation was constitutionally ineffective because of counsel’s failure to file an appeal. Therefore, I would reverse the trial court’s grant of summary judgment in favor of the State, remanding with instructions to hold an evidentiary hearing to ascertain whether Owens in fact instructed his attorney to file an appeal.
[¶ 37] In Flores-Ortega, the defendant requested counsel, but his attorney failed to file a timely notice of appeal. 120 S.Ct. at 1033. The Court stated the proper framework for evaluating a claim of ineffective assistance of counsel for failing to file an appeal is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Flores-Ortega, at 1034. Under Strickland’s two-pronged test, the defendant must show: (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defendant. Flores-Ortega, at 1034 (citing Strickland, 466 U.S. at 668, 694, 104 S.Ct. 2052). The Court stated it had long held that an attorney who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. Flores-Ortega, at 1035. Counsel’s failure to file a requested appeal cannot be considered a strategic decision; rather, because filing is purely a ministerial task, failing to file *573shows counsel’s inattention to the defendant’s wishes. Id.
[¶ 38] Under the second Strickland prong, a defendant ordinarily is required to prove prejudice by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Flores Ortega, 120 S.Ct. at 1037 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). This is because judicial proceedings are entitled to a “strong presumption of reliability” in arriving at an outcome, including a finding of guilt. Id. (quoting Strickland, at 696, 104 S.Ct. 2052). When a defendant alleges mere attorney error, the defendant must demonstrate prejudice by showing the errors actually had an adverse effect on the defense so as to undermine the reliability of a finding of guilt. Id. (citing United States v. Cronic, 466 U.S. 648, 659 n. 26, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Strickland, at 693, 104 S.Ct. 2052). However, when counsel’s deficient performance deprived a defendant of a part of the judicial proceedings, such as an appeal he wanted and to which he had a right, there is a presumption of prejudice and no specific showing of prejudice is required. Flores-Ortega, 120 S.Ct. at 1038. “Put simply, we cannot accord any ‘presumption of reliability’ to judicial proceedings that never took place.” Id. (quoting Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 764-65, 145 L.Ed.2d 756 (2000)). Therefore, the Court held that when counsel’s constitutionally deficient performance deprives a defendant of an appeal he otherwise would have taken, the defendant has made out a successful claim of ineffective assistance of counsel entitling him to an appeal. Flores-Ortega, at 1039.
[¶ 39] The Flores-Ortega Court reasoned it is unfair to require an indigent, perhaps pro se, defendant to demonstrate his hypothetical appeal might have had merit before his attorney has ever reviewed the record in search of potentially meritorious grounds for appeal. Id. at 1040. Thus, the defendant is only required to demonstrate that, but for counsel’s deficient conduct, he would have appealed. Id.; see also Rodriquez v. United States, 395 U.S. 327, 329-30, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969) (granting a new appeal when counsel failed to file a requested appeal, without requiring the defendant to make any further showing of some likelihood of success on appeal, because defendants “should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings”); Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (affirming that when counsel fails to file a requested appeal, a defendant is entitled to a new appeal without showing his appeal would likely have had merit).
[¶ 40] In light of the holding in Flores-Ortega, Owens is entitled to an evidentiary hearing regarding his claim of ineffective assistance of counsel based upon Martin’s alleged failure to comply with Owens’ request for a direct appeal. In Owens’ affidavit supporting his 3/14/00 application for post-conviction relief, Owens testified he requested Martin to appeal the conviction at their first meeting. Owens asserted he repeated his request to Martin on the day of sentencing, asking for an appeal of both the conviction and the sentence. Owens also informed the trial court in his May 16, 1996 letter that he had “every intention on appealing.” Owens claims he would have received the trial transcripts if his attorney had complied with Owens’ request for a direct appeal, but since his attorney ignored his request for a direct appeal, Owens was put in a “Catch 22”: he had the burden of proving his attorney was ineffective, yet he could not prove his case because his attorney was ineffective. Owens argued that because his attorney had no record to review, the attorney was in no position to give advice to Owens about his case.1
*574[¶ 41] Owens’ case is precisely the situation which the Flores-Ortega Court forecast would unfairly require an indigent, pro se defendant to demonstrate his hypothetical appeal might have had merit before his attorney has ever reviewed the record in search of potentially meritorious grounds for appeal. 120 S.Ct. at 1040. Owens referred to the situation as a Catch 22, and we also acknowledged the “dilemma” in which indigent applicants for post-conviction relief may find themselves when trying to prove ineffective assistance of counsel. Owens v. State, 1998 ND 106, ¶32, 578 N.W.2d 542 (concluding Owens, as an indigent applicant for post-conviction relief, had a constitutional right to a free trial transcript only by showing he was prejudiced because he would be deprived of an adequate opportunity to present his claims fairly without the transcript). However, Owens is presumptively prejudiced if Owens requested Martin to appeal, but Martin failed to file an appeal, thereby entirely depriving Owens of his right to direct appeal. See Flores-Ortega, 120 S.Ct. at 1038; see also N.D.C.C. § 29-28-03 (providing appeals to the supreme court may be taken as a matter of right). Owens’ affidavits testifying to his requests for Martin to file an appeal raise a genuine issue of material fact precluding summary disposition. See Hopfauf v. State, 1998 ND 30, ¶4, 575 N.W.2d 646; see also N.D.C.C. § 29-32.1-09(1) (authorizing summary disposition if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law). The trial court erred in denying Owens an evidentiary hearing to determine whether Owens in fact requested Martin to appeal.
[¶ 42]' The majority affirms the trial court’s summary disposition of Owens’ 3/14/00 application for post-conviction relief, concluding the “lengthy history” of this case establishes Owens had numerous opportunities in previous post-conviction proceedings but inexcusably failed to raise the issue of Martin’s failure to follow Owens’ request to appeal his conviction. I appreciate the position of the majority that N.D.C.C. § 29-32.1-12(3) and our jurisprudence interpreting that statute have made it clear multiple post-conviction hearings are not to be invited or tolerated. See, e.g., Clark v. State, 1999 ND 78, ¶¶ 21-22, 593 N.W.2d 329 (indicating we will not weaken the integrity of the criminal justice system by allowing subterfuge under the guise of a post-conviction application used as an intricate scheme to delay, prolong, or otherwise manipulate the system to a defendant’s perceived advantage). Further, a defendant who files multiple motions, identifying multiple issues, often obscures the genuine issue in a blizzard of paperwork. See Berlin v. State, 2000 ND 206, ¶6 n. 1, 619 N.W.2d 623 (stating numerous proceedings do not benefit, and may harm, the cause of an applicant for post-conviction relief).
[¶ 43] However, the reason the lengthy history of Owens’ case cannot be used to deny relief now is that much of that history was controlled by Martin, the attorney who, Owens alleges, failed to file his requested appeal. Martin was the third attorney appointed to represent Owens. Martin was his attorney at the time of sentencing and for his 1/20/97 application for post-conviction relief. When Owens filed several pro se motions and a pro se application for post-conviction relief with the trial court, he was admonished to confer and cooperate with his court-appointed attorney. Yet this attorney, Martin, did not file the allegedly requested appeal.
[¶ 44] In granting summary judgment for the State regarding Owens’ 3/14/00 application for post-conviction relief, the trial *575court indicated all the issues “have been previously reviewed at the trial level and by the North Dakota Supreme Court.... Nothing has changed.” However, never in the lengthy history of this case has the trial court squarely addressed Owens’ claims that either Runge or Martin refused his requested appeal or failed to file a direct appeal. In fact, Owens did raise the issue in his pro se 6/24/97 application, stating: “Petitioner was denied the right to appeal the conviction to the Supreme Court for review, attorney states there was no grounds for appeal.” The trial court denied this 6/24/97 application, finding the prior decision and order regarding the 1/20/97 application were “still applicable” and Owens’ claims “are still merit-less,” notwithstanding the 1/20/97 application — prepared with the assistance of Martin — did not raise the issue of Runge’s or Martin’s failure to appeal. Although the 1/20/97 application did not assert this claim, Owens, acting pro se, filed a Notice of Appeal and requested this Court to hold the appeal in abeyance to permit him to assert additional claims to the trial court which he asserted Martin failed to include despite his requests. We permitted a remand for this purpose, and on remand his amended 6/24/97 application did include the quoted language regarding the denial of an appeal.
[¶ 45] Moreover, on appeal to this Court, we affirmed the trial court’s refusal to grant Owens an evidentiary hearing on his 6/24/97 application because his “arguments are variations of his previously rejected claim of ineffective assistance of counsel.” Owens, 1998 ND 106, ¶ 42, 578 N.W.2d 542. We also dismissed Owens’ allegations the trial court should have treated his letter to the court as a notice of direct appeal and his claims of ineffective assistance of Martin in presenting the 1/20/97 application. Id. at ¶¶ 49-50. We reasoned these issues were not raised in Owens’ pro se 6/24/97 application. Id. at ¶ 50. However, Owens did raise the issue of being denied his allegedly requested appeal in his 6/24/97 application, stating: “[A]ttorney states there was no grounds for appeal.”
[¶ 46] Therefore, Owens’ claim in his 8/14/00 post-conviction relief application that Martin refused to file Owens’ requested direct appeal is not, as the majority holds, “simply a variation of his previous arguments.” Owens has never been able to get the attention of either the trial court or this Court to this specific claim in the first instance; thus, there is no misuse of the post-conviction process and no inexcusable failure to raise this argument in prior post-conviction proceedings.
[¶ 47] For the above reasons, I would remand, instructing the trial court to hold an evidentiary hearing to ascertain whether Owens in fact instructed Martin to file a direct appeal. If so, Martin’s failure to appeal is professionally unreasonable, under the first prong of the Strickland test. See Flores-Ortega, 120 S.Ct. at 1035; Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Under the second prong of Strickland, prejudice is presumed if counsel’s constitutionally deficient performance deprived Owens of an appeal he otherwise would have taken. See Flores-Ortega, at 1039; Strickland, at 694, 104 S.Ct. 2052. If the evidentiary hearing discloses such facts, Owens has made out a successful claim of ineffective assistance of counsel entitling him to a direct appeal. See Flores-Ortega, at 1039.
[¶ 48] MARY MUEHLEN MARING, J., concurs.. Kitchen v. United States, 2T1 F.3d 1014 (7th Cir.2000), contrary to the position of the ma*574jority, is in accord. In Kitchen, the defendant had a direct appeal of his conviction and sentence. He had "the benefit of a lawyer’s services in constructing potential appellate arguments.” Id. at 1021, citing Castellanos v. United States, 26 F.3d 717, 720 (7th Cir.1994). The missing appeal for which the Seventh Circuit found no showing of prejudice was a separate appeal from the denial of a motion for new trial.