Roe v. Flores-Ortega
528 U.S. 470 (2000)
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Rule of Law:
To establish ineffective assistance of counsel for failure to file a notice of appeal, a defendant must show that counsel's failure to consult with them about an appeal was professionally unreasonable and that there is a reasonable probability they would have timely appealed but for counsel's deficient performance.
Facts:
- Lucio Flores-Ortega, who required a Spanish language interpreter, was represented by court-appointed public defender Nancy Kops on charges including murder.
- Flores-Ortega pleaded guilty to second-degree murder in exchange for the dismissal of other charges and enhancements.
- On November 10, 1993, he was sentenced to 15 years to life in prison.
- After sentencing, the trial judge informed Flores-Ortega that he had 60 days to file an appeal.
- Although Kops wrote "bring appeal papers" in her case file, she did not file a notice of appeal within the 60-day deadline.
- For the first 90 days after sentencing, Flores-Ortega was in a lockup facility for evaluation and could not communicate with his counsel.
- Approximately four months after his sentencing, Flores-Ortega attempted to file a notice of appeal on his own, but it was rejected as untimely.
Procedural Posture:
- Flores-Ortega's self-filed notice of appeal was rejected by the Superior Court Clerk as untimely.
- His habeas corpus petitions in California state courts, alleging his counsel promised to file an appeal, were denied.
- Flores-Ortega filed a federal habeas petition in the U.S. District Court for the Eastern District of California.
- A Magistrate Judge conducted an evidentiary hearing and found no promise was made by counsel, recommending denial of the petition, which the District Court adopted.
- Flores-Ortega (Appellant) appealed to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit reversed the District Court, holding that counsel's failure to file an appeal without the defendant's consent constituted deficient performance and created a presumption of prejudice.
- The State (Petitioner) was granted a writ of certiorari by the U.S. Supreme Court.
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Issue:
Is defense counsel's failure to file a notice of appeal, without the defendant's express consent, per se deficient performance under the Sixth Amendment?
Opinions:
Majority - Justice O’Connor
No. The Court rejects a per se rule and holds that the standard Strickland v. Washington test applies to claims that counsel was ineffective for failing to file a notice of appeal. A court must first determine if counsel consulted with the defendant. If not, the court must ask whether counsel had a constitutionally imposed duty to consult, which arises when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated an interest in appealing. If counsel's performance was deficient, the defendant must then show prejudice by demonstrating a reasonable probability that, but for counsel's failure, they would have timely appealed. This framework avoids a rigid, bright-line rule and instead requires a circumstance-specific inquiry into the reasonableness of counsel's conduct, consistent with Strickland.
Concurring - Justice Breyer
Yes, counsel almost always has a duty to consult after a trial, but the majority's more nuanced test is appropriate here because the conviction resulted from a guilty plea. The opinion correctly applies to the specific context of a guilty plea, which significantly reduces the scope of potential appealable issues compared to a full trial. This distinction justifies not imposing an automatic duty to consult in every guilty plea case, but the duty would exist in nearly all cases following a trial.
Concurring-in-part-and-dissenting-in-part - Justice Souter
No, counsel's performance was deficient, but the majority's test for determining deficiency is wrong. Instead of a case-by-case analysis, the Court should hold that counsel almost always has a duty to consult with a client about the choice to appeal. The decision to appeal belongs to the defendant, who cannot make an intelligent choice without the advice of counsel. A failure to consult is not a strategic choice protected by Strickland's deference, but a dereliction of a fundamental duty, especially for unsophisticated clients like Flores-Ortega. I concur only in the majority's prejudice analysis.
Concurring-in-part-and-dissenting-in-part - Justice Ginsburg
No, counsel's performance was deficient. The test articulated by Justice Souter, requiring consultation in nearly all cases, provides clearer guidance to lawyers and lower courts. It is plain that the duty to consult was not satisfied in this case, and the Sixth Amendment does not permit defense counsel to simply abandon a client without counseling them about their appeal rights.
Analysis:
This case clarifies the application of the Strickland test to a common ineffective assistance claim: failure to file an appeal. The Court rejected a simple, per se rule in favor of a more nuanced, two-part inquiry for determining counsel's deficiency, focusing on the duty to consult. This decision places a significant burden on defendants to demonstrate not only that counsel had a duty to discuss an appeal, but also that they would have acted on that advice. The ruling creates a flexible but less predictable standard that requires lower courts to engage in a detailed, fact-specific analysis of the interactions between counsel and client post-conviction.
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