OCTOBER TERM, 1999
Syllabus
ROE, WARDEN
v. FLORES-ORTEGA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No.98-1441. Argued November 1, 1999-Decided February 23,
2000
Respondent pleaded guilty to second-degree murder. At his
sentencing, the trial judge advised him that he had 60 days to file
an appeal. His counsel, Ms. Kops, wrote "bring appeal papers" in
her file, but no notice of appeal was filed within that time.
Respondent's subsequent attempt to file such notice was rejected as
untimely, and his efforts to secure state habeas relief were
unsuccessful. He then filed a federal habeas petition, alleging
constitutionally ineffective assistance of counsel based on Ms.
Kops' failure to file the notice after promising to do so. The
District Court denied relief. The Ninth Circuit reversed, however,
finding that respondent was entitled to relief because, under its
precedent, a habeas petitioner need only show that his counsel's
failure to file a notice of appeal was without the petitioner's
consent.
Held:
1.
Strickland v.
Washington, 466 U. S. 668, provides
the proper framework for evaluating a claim that counsel was
constitutionally ineffective for failing to file a notice of
appeal. Under
Strickland, a defendant must show (1) that
counsel's representation "fell below an objective standard of
reasonableness,"
id., at 688, and (2) that counsel's
deficient performance prejudiced the defendant,
id., at 694.
Pp.476-486.
(a) Courts must "judge the reasonableness of counsel's conduct
on the facts of the particular case, viewed as of the time of
counsel's conduct," 466 U. S., at 690, and "[j]udicial scrutiny of
counsel's performance must be highly deferential,"
id., at
689. A lawyer who disregards a defendant's specific instructions to
file a notice of appeal acts in a professionally unreasonable
manner, see
Rodriquez v.
United States, 395 U. S. 327, while a
defendant who explicitly tells his attorney not to file an appeal
plainly cannot later complain that, by following those
instructions, his counsel performed deficiently, see
Jones
v.
Barnes, 463
U. S. 745,751. The Ninth Circuit adopted a bright-line rule for
cases where the defendant has not clearly conveyed his wishes one
way or the other; in its view, failing to file a notice of appeal
without the defendant's consent is
per se deficient. The
Court rejects that
per se rule as inconsistent with
Strickland's circumstance-specific reasonableness
requirement. The question whether counsel has performed deficiently
in such cases is best answered by first asking whether counsel in
fact consulted with
471
the defendant about an appeal. By "consult," the Court means
advising the defendant about the advantages and disadvantages of
taking an appeal and making a reasonable effort to discover the
defendant's wishes. Counsel who consults with the defendant
performs in a professionally unreasonable manner only by failing to
follow the defendant's express instructions about an appeal. If
counsel has not consulted, the court must ask whether that failure
itself constitutes deficient performance. The better practice is
for counsel routinely to consult with the defendant about an
appeal. Counsel has a constitutionally imposed duty to consult,
however, only when there is reason to think either (1) that a
rational defendant would want to appeal, or (2) that this
particular defendant reasonably demonstrated to counsel that he was
interested in appealing. In making this determination, courts must
take into account all the information counsel knew or should have
known. One highly relevant factor will be whether the conviction
follows a trial or a guilty plea, because a plea both reduces the
scope of potentially appealable issues and may indicate that the
defendant seeks an end to judicial proceedings. Even then, a court
must consider such factors as whether the defendant received the
sentence bargained for and whether the plea expressly reserved or
waived some or all appeal rights. Pp. 477-481.
(b) The second part of the
Strickland test requires the
defendant to show prejudice from counsel's deficient performance.
Where an ineffective assistance of counsel claim involves counsel's
performance during the course of a legal proceeding, the Court
normally applies a strong presumption of reliability to the
proceeding, requiring a defendant to overcome that presumption by
demonstrating that attorney errors actually had an adverse effect
on the defense. The complete denial of counsel during a critical
stage of a judicial proceeding, however, mandates a presumption of
prejudice because "the adversary process itself" has been rendered
"presumptively unreliable."
United States v.
Cronic,
466 U. S. 648,
659. The even more serious denial of the entire judicial proceeding
also demands a presumption of prejudice because no presumption of
reliability can be accorded to judicial proceedings that never took
place. Respondent claims that his counsel's deficient performance
led to the forfeiture of his appeal. If that is so, prejudice must
be presumed. Because the defendant in such cases must show that
counsel's deficient performance actually deprived him of an appeal,
however, he 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. This standard follows the
pattern established in
Strickland and
Cronic, and
mirrors the prejudice inquiry applied in
Hill v.
Lockhart, 474
U. S. 52, and
Rodriquez v.
United States,
supra.
472
Syllabus
The question whether a defendant has made the requisite showing
will turn on the facts of the particular case. Nonetheless,
evidence that there were nonfrivolous grounds for appeal or that
the defendant promptly expressed a desire to appeal will often be
highly relevant in making this determination. The performance and
prejudice inquiries may overlap because both may be satisfied if
the defendant shows nonfrivolous grounds for appeal. However, they
are not in all cases coextensive. Evidence that a defendant
sufficiently demonstrated to counsel his interest in an appeal may
prove deficient performance, but it alone is insufficient to
establish that he would have filed the appeal had he received
counsel's advice. And, although showing nonfrivolous grounds for
appeal may give weight to the defendant's contention that he would
have appealed, a defendant's inability to demonstrate the merit of
his hypothetical appeal will not foreclose the possibility that he
can meet the prejudice requirement where there are other
substantial reasons to believe that he would have appealed.
Pp.481-486.
2. The court below undertook neither part of the
Strickland inquiry and the record does not provide the Court
with sufficient information to determine whether Ms. Kops rendered
constitutionally inadequate assistance. The case is accordingly
remanded for a determination whether Ms. Kops had a duty to consult
with respondent (either because there were potential grounds for
appeal or because respondent expressed interest in appealing),
whether she satisfied her obligations, and, if she did not, whether
respondent was prejudiced thereby. P. 487.
160 F.3d
534, vacated and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, THOMAS, and BREYER, JJ.,
joined, and in which STEVENS, SOUTER, and GINSBURG, JJ., joined as
to Part II-B. BREYER, J., filed a concurring opinion,
post,
p. 488. SOUTER, J., filed an opinion concurring in part and
dissenting in part, in which STEVENS and GINSBURG, JJ., joined,
post, p. 488. GINSBURG, J., filed an opinion concurring in
part and dissenting in part,
post, p. 493.
Paul E. O'Connor, Deputy Attorney General of California,
argued the cause for petitioner. With him on the briefs were
Bill Lockyer, Attorney General,
David P. Druliner,
Chief Assistant Attorney General,
Robert R. Anderson and
Arnold O.
Overoye, Senior Assistant Attorneys
General,
473
Margaret Venturi, Supervising Deputy Attorney General,
and
Ward A. Campbell, Assistant Supervising Deputy Attorney
General.
Edward C. DuMont argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Waxman, Assistant Attorney General Robinson, Deputy
Solicitor General Dreeben, and Nina Goodman.
Quin Denvir argued the cause for respondent. With him on
the brief were
Ann H. Voris and
Mary French.
*
JUSTICE O'CONNOR delivered the opinion of the Court.
In this case we must decide the proper framework for evaluating
an ineffective assistance of counsel claim, based on counsel's
failure to file a notice of appeal without respondent's
consent.
I
The State of California charged respondent, Lucio FloresOrtega,
with one count of murder, two counts of assault, and a personal use
of a deadly weapon enhancement allegation. In October 1993,
respondent appeared in Superior Court with his court-appointed
public defender, Nancy Kops, and a Spanish language interpreter,
and pleaded guilty to seconddegree murder. The plea was entered
pursuant to a California rule permitting a defendant both to deny
committing a crime and to admit that there is sufficient evidence
to convict him. See
People v.
West, 3 Cal. 3d 595,
477 P. 2d 409 (1970). In exchange for the guilty plea, the state
prosecutor moved to strike the allegation of personal use of a
deadly weapon and to dismiss both assault charges. On November 10,
1993,
* Kent S.
Scheidegger and
Christine M.
Murphy filed a brief for the Criminal Justice Legal Foundation
as
amicus curiae urging reversal.
Lawrence S.
Lustberg, Kevin McNulty, and
Lisa
B. Kemler filed a brief for the National Association of
Criminal Defense Lawyers as
amicus curiae urging
affirmance.
474
respondent was sentenced to 15 years to life in state prison.
After pronouncing sentence, the trial judge informed respondent,
"You may file an appeal within 60 days from today's date with this
Court. If you do not have money for Counsel, Counsel will be
appointed for you to represent you on your appeaL" App. 40.
Although Ms. Kops wrote "bring appeal papers" in her file, no
notice of appeal was filed within the 60 days allowed by state law.
See Cal. Penal Code Ann. § 1239(a) (West Supp. 2000); Cal. App.
Rule 31(d). (A notice of appeal is generally a one-sentence
document stating that the defendant wishes to appeal from the
judgment. See Rule 31(b); Judicial Council of California, Approved
Form CR-120 (Notice of AppealFelony) (Jan. 5, 2000),
http://www.courtinfo.ca.gov/forms/
documents/cr120.pdf.) Filing such a notice is a purely ministerial
task that imposes no great burden on counsel. During the first 90
days after sentencing, respondent was apparently in lockup,
undergoing evaluation, and unable to communicate with counsel.
About four months after sentencing, on March 24, 1994, respondent
tried to file a notice of appeal, which the Superior Court Clerk
rejected as untimely. Respondent sought habeas relief from
California's appellate courts, challenging the validity of both his
plea and conviction, and (before the California Supreme Court)
alleging that Ms. Kops had not filed a notice of appeal as she had
promised. These efforts were uniformly unsuccessful.
Respondent then filed a federal habeas petition pursuant to 28
U. S. C. § 2254, alleging constitutionally ineffective assistance
of counsel based on Ms. Kops' failure to file a notice of appeal on
his behalf after promising to do so. The United States District
Court for the Eastern District of California referred the matter to
a Magistrate Judge, who in turn ordered an evidentiary hearing on
the limited issue of whether Ms. Kops promised to file a notice of
appeal on respondent's behalf. At the conclusion of the hearing,
the Magistrate Judge found:
475
"The evidence in this case is, I think, quite clear that there
was no consent to a failure to file [a notice of appeal].
"It's clear to me that Mr. Ortega had little or no understanding
of what the process was, what the appeal process was, or what
appeal meant at that stage of the game.
"I think there was a conversation [between Ortega and Kops] in
the jail. Mr. Ortega testified, and I'm sure he's testifying as to
the best of his belief, that there was a conversation after the
pronouncement of judgment at the sentencing hearing where it's his
understanding that Ms. Kops was going to file a notice of
appeal.
"She has no specific recollection of that. However, she is
obviously an extremely experienced defense counsel. She's obviously
a very meticulous person. And I think had Mr. Ortega requested that
she file a notice of appeal, she would have done so.
"But, I cannot find that he has carried his burden of showing by
a preponderance of the evidence that she made that promise." App.
132-133.
The Magistrate Judge acknowledged that under precedent from the
Court of Appeals for the Ninth Circuit,
United States v.
Stearns, 68 F.3d
328 (1995), a defendant need only show that he did not consent
to counsel's failure to file a notice of appeal to be entitled to
relief. The judge concluded, however, that
Stearns announced
a new rule that could not be applied retroactively on collateral
review to respondent's case. See
Teague v.
Lane,
489 U. S. 288
(1989). Thus, the Magistrate Judge recommended that the habeas
petition be denied. App. 161. The District Court adopted the
Magistrate's findings and recommendation, and denied relief.
Id., at 162-163.
The Court of Appeals for the Ninth Circuit reversed, reasoning
that the rule it applied in
Stearns-that a habeas petitioner
need only show that his counsel's failure to file a
476
notice of appeal was without the petitioner's consenttracked its
earlier opinion in
Lozada v.
Deeds, 964 F.2d
956 (1992), which predated respondent's conviction.
160 F.3d
534 (1998). Because respondent did not consent to the failure
to file a notice of appeal-and thus qualified for relief under
Stearns-the court remanded the case to the District Court
with instructions to issue a conditional habeas writ unless the
state court allowed respondent a new appeal. We granted certiorari,
526 U. S. 1097 (1999), to resolve a conflict in the lower courts
regarding counsel's obligations to file a notice of appeal. Compare
United States v.
Tajeddini, 945 F. 2d 458, 468
(CA1 1991)
(per curiam) (counsel's failure to file a
notice of appeal, allegedly without the defendant's knowledge or
consent, constitutes deficient performance);
Morales v.
United States, 143 F.3d
94, 97
(CA21998) (counsel has no duty to file a notice
of appeal unless requested by the defendant);
Ludwig v.
United States, 162 F.3d
456,459
(CA6 1998) (Constitution implicated only when
defendant actually requests an appeal and counsel disregards the
request);
Castellanos v.
United States, 26 F.3d
717, 719-720
(CA7 1994) (same);
Romero v.
Tansy, 46 F.3d
1024, 1030-1031 (CAlO 1995) (defendant does not need to express
to counsel his intent to appeal for counsel to be constitutionally
obligated to perfect defendant's appeal; unless defendant waived
right, counsel was deficient for failing to advise defendant about
appeal right);
United States v.
Stearns, supra,
(counsel's failure to file a notice of appeal is deficient unless
the defendant consents to the abandonment of his appeal).
II
In
Strickland v.
Washington, 466 U. S. 668 (1984), we
held that criminal defendants have a Sixth Amendment right to
"reasonably effective" legal assistance,
id., at 687, and
announced a now-familiar test: A defendant claiming ineffective
assistance of counsel must show (1) that counsel's representation
"fell below an objective standard of reasonableness,"
477
id., at 688, and (2) that counsel's deficient performance
prejudiced the defendant,
id., at 694. Today we hold that
this test applies to claims, like respondent's, that counsel was
constitutionally ineffective for failing to file a notice of
appeal.
A
As we have previously noted, "[n]o particular set of detailed
rules for counsel's conduct can satisfactorily take account of the
variety of circumstances faced by defense counsel."
Id., at
688-689. Rather, courts must "judge the reasonableness of counsel's
challenged conduct on the facts of the particular case, viewed as
of the time of counsel's conduct,"
id., at 690, and
"[j]udicial scrutiny of counsel's performance must be highly
deferential,"
id., at 689.
We have long held that a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in
a manner that is professionally unreasonable. See
Rodriquez
v.
United States, 395 U. S. 327 (1969); cf.
Peguero v.
United States, 526 U. S. 23, 28 (1999)
("[W]hen counsel fails to file a requested appeal, a defendant is
entitled to [a new] appeal without showing that his appeal would
likely have had merit"). This is so because a defendant who
instructs counsel to initiate an appeal reasonably relies upon
counsel to file the necessary notice. Counsel's failure to do so
cannot be considered a strategic decision; filing a notice of
appeal is a purely ministerial task, and the failure to file
reflects inattention to the defendant's wishes. At the other end of
the spectrum, a defendant who explicitly tells his attorney
not to file an appeal plainly cannot later complain that, by
following his instructions, his counsel performed deficiently. See
Jones v.
Barnes, 463 U. S. 745, 751 (1983)
(accused has ultimate authority to make fundamental decision
whether to take an appeal). The question presented in this case
lies between those poles: Is counsel deficient for not filing a
notice of appeal when the defendant has not clearly conveyed his
wishes one way or the other?
478
The Courts of Appeals for the First and Ninth Circuits have
answered that question with a bright-line rule: Counsel must file a
notice of appeal unless the defendant specifically instructs
otherwise; failing to do so is
per se deficient. See,
e.
g., Stearns, 68 F. 3d, at 330;
Lozada, supra, at 958;
Tajeddini, supra, at 468. Such a rule effectively imposes an
obligation on counsel in all cases either (1) to file a notice of
appeal, or (2) to discuss the possibility of an appeal with the
defendant, ascertain his wishes, and act accordingly. We reject
this
per se rule as inconsistent with
Strickland's
holding that "the performance inquiry must be whether counsel's
assistance was reasonable considering all the circumstances." 466
U. S., at 688. The Court of Appeals failed to engage in the
circumstance-specific reasonableness inquiry required by
Strickland, and that alone mandates vacatur and remand.
In those cases where the defendant neither instructs counsel to
file an appeal nor asks that an appeal not be taken, we believe the
question whether counsel has performed deficiently by not filing a
notice of appeal is best answered by first asking a separate, but
antecedent, question: whether counsel in fact consulted with the
defendant about an appeal. We employ the term "consult" to convey a
specific meaningadvising the defendant about the advantages and
disadvantages of taking an appeal, and making a reasonable effort
to discover the defendant's wishes. If counsel has consulted with
the defendant, the question of deficient performance is easily
answered: Counsel performs in a professionally unreasonable manner
only by failing to follow the defendant's express instructions with
respect to an appeal. See
supra, at 477. If counsel has not
consulted with the defendant, the court must in turn ask a second,
and subsidiary, question: whether counsel's failure to consult with
the defendant itself constitutes deficient performance. That
question lies at the heart of this case: Under what circumstances
does counsel have an obligation to consult with the defendant about
an appeal?
479
Because the decision to appeal rests with the defendant, we
agree with JUSTICE SOUTER that the better practice is for counsel
routinely to consult with the defendant regarding the possibility
of an appeal. See ABA Standards for Criminal Justice, Defense
Function 4-8.2(a) (3d ed. 1993);
post, at 490-491 (opinion
concurring in part and dissenting in part). In fact, California
imposes on trial counsel a
per se duty to consult with
defendants about the possibility of an appeal. See Cal. Penal Code
Ann. § 1240.1(a) (West Supp. 2000). Nonetheless, "[p]revailing
norms of practice as reflected in American Bar Association
standards and the like ... are only guides," and imposing "specific
guidelines" on counsel is "not appropriate."
Strickland, 466
U. S., at 688. And, while States are free to impose whatever
specific rules they see fit to ensure that criminal defendants are
well represented, we have held that the Federal Constitution
imposes one general requirement: that counsel make objectively
reasonable choices. See
ibid. We cannot say, as a
constitutional matter, that in every case counsel's failure
to consult with the defendant about an appeal is necessarily
unreasonable, and therefore deficient. Such a holding would be
inconsistent with both our decision in
Strickland and common
sense. See
id., at 689 (rejecting mechanistic rules
governing what counsel must do). For example, suppose that a
defendant consults with counsel; counsel advises the defendant that
a guilty plea probably will lead to a 2 year sentence; the
defendant expresses satisfaction and pleads guilty; the court
sentences the defendant to 2 years' imprisonment as expected and
informs the defendant of his appeal rights; the defendant does not
express any interest in appealing, and counsel concludes that there
are no nonfrivolous grounds for appeal. Under these circumstances,
it would be difficult to say that counsel is "professionally
unreasonable,"
id., at 691, as a constitutional matter, in
not consulting with such a defendant regarding an appeal. Or, for
example, suppose a sentencing court's instructions to a defendant
about
480
his appeal rights in a particular case are so clear and
informative as to substitute for counsel's duty to consult. In some
cases, counsel might then reasonably decide that he need not repeat
that information. We therefore reject a bright-line rule that
counsel must always consult with the defendant regarding an
appeal.
We instead hold that counsel has a constitutionally imposed duty
to consult with the defendant about an appeal when there is reason
to think either (1) that a rational defendant would want to appeal
(for example, because there are nonfrivolous grounds for appeal),
or (2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing. In making this
determination, courts must take into account all the information
counsel knew or should have known. See
id., at 690 (focusing
on the totality of the circumstances). Although not determinative,
a highly relevant factor in this inquiry will be whether the
conviction follows a trial or a guilty plea, both because a guilty
plea reduces the scope of potentially appealable issues and because
such a plea may indicate that the defendant seeks an end to
judicial proceedings. Even in cases when the defendant pleads
guilty, the court must consider such factors as whether the
defendant received the sentence bargained for as part of the plea
and whether the plea expressly reserved or waived some or all
appeal rights. Only by considering all relevant factors in a given
case can a court properly determine whether a rational defendant
would have desired an appeal or that the particular defendant
sufficiently demonstrated to counsel an interest in an appeal.
Rather than the standard we announce today, JUSTICE SOUTER would
have us impose an "almost" bright-line rule and hold that counsel
"almost always" has a duty to consult with a defendant about an
appeal.
Post, at 488. Although he recognizes that "detailed
rules for counsel's conduct" have no place in a
Strickland
inquiry, he argues that this "qualifi-
481
cation" has no application here.
Post, at 491. According
to JUSTICE SOUTER, in
Strickland we only rejected
per
se rules in order to respect the reasonable strategic choices
made by lawyers, and that failing to consult about an appeal cannot
be a strategic choice.
Post, at 491-492. But we have
consistently declined to impose mechanical rules on counseleven
when those rules might lead to better representationnot simply out
of deference to counsel's strategic choices, but because "the
purpose of the effective assistance guarantee of the Sixth
Amendment is not to improve the quality of legal representation,
... [but rather] simply to ensure that criminal defendants receive
a fair triaL" 466 U. S., at 689. The relevant question is not
whether counsel's choices were strategic, but whether they were
reasonable. See
id., at 688 (defendant must show that
counsel's representation fell below an objective standard of
reasonableness). We expect that courts evaluating the
reasonableness of counsel's performance using the inquiry we have
described will find, in the vast majority of cases, that counsel
had a duty to consult with the defendant about an appeal. We differ
from JusTICE SOUTER only in that we refuse to make this
determination as a
per se (or "almost"
per se)
matter.
B
The second part of the
Strickland test requires the
defendant to show prejudice from counsel's deficient
performance.
1
In most cases, a defendant's claim of ineffective assistance of
counsel involves counsel's performance during the course of a legal
proceeding, either at trial or on appeal. See,
e. g.,
id., at 699 (claim that counsel made poor strategic choices
regarding what to argue at a sentencing hearing);
United
States v.
Cronic, 466 U. S. 648, 649-650
(1984) (claim that young lawyer was incompetent to defend complex
criminal
482
case);
Penson v.
Ohio, 488 U. S. 75, 88-89 (1988)
(claim that counsel in effect did not represent defendant on
appeal);
Smith v.
Robbins, ante, p. 259 (claim that
counsel neglected to file a merits brief on appeal);
Smith
v.
Murray, 477
U. S. 527, 535-536 (1986) (claim that counsel failed to make a
particular argument on appeal). In such circumstances, whether we
require the defendant to show actual prejudice-"a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different,"
Strickland, 466 U. S., at 694-or whether we instead presume
prejudice turns on the magnitude of the deprivation of the right to
effective assistance of counsel. That is because "the right to the
effective assistance of counsel is recognized not for its own sake,
but because of the effect it has on the ability of the accused to
receive a fair trial,"
Cronic, supra, at 658, or a fair
appeal, see
Penson, supra, at 88-89. "Absent some effect of
challenged conduct on the reliability of the ... process, the
[effective counsel] guarantee is generally not implicated."
Cronic, supra, at 658.
We "normally apply a 'strong presumption of reliability' to
judicial proceedings and require a defendant to overcome that
presumption,"
Robbins, ante, at 286 (citing
Strickland,
supra, at 696), by "show[ing] how specific errors of counsel
undermined the reliability of the finding of guilt,"
Cronic,
supra, at 659, n. 26. Thus, in cases involving mere "attorney
error," we require the defendant to demonstrate that the errors
"actually had an adverse effect on the defense."
Strickland,
supra, at 693. See,
e. g., Robbins, ante, at 287
(applying actual prejudice requirement where counsel followed all
required procedures and was alleged to have missed a particular
nonfrivolous argument);
Strickland, supra, at 699-700
(rejecting claim in part because the evidence counsel failed to
introduce probably would not have altered defendant's
sentence).
483
In some cases, however, the defendant alleges not that counsel
made specific errors in the course of representation, but rather
that during the judicial proceeding he was-either actually or
constructively-denied the assistance of counsel altogether. "The
presumption that counsel's assistance is essential requires us to
conclude that a trial is unfair if the accused is denied counsel at
a critical stage."
Cronic, supra, at 659. The same is true
on appeal. See
Penson, supra, at 88. Under such
circumstances, "[n]o specific showing of prejudice [is] required,"
because "the adversary process itself [is] presumptively
unreliable."
Cronic, supra, at 659; see also
Robbins,
ante, at 286 ("denial of counsel altogether ... warrants a
presumption of prejudice");
Penson, supra, at 88-89
(complete denial of counsel on appeal requires a presumption of
prejudice).
Today's case is unusual in that counsel's alleged deficient
performance arguably led not to a judicial proceeding of disputed
reliability, but rather to the forfeiture of a proceeding itself.
According to respondent, counsel's deficient performance deprived
him of a notice of appeal and, hence, an appeal altogether.
Assuming those allegations are true, counsel's deficient
performance has deprived respondent of more than a
fair
judicial proceeding; that deficiency deprived respondent of the
appellate proceeding altogether. In
Cronic, Penson, and
Robbins, we held that the complete denial of counsel during
a critical stage of a judicial proceeding mandates a presumption of
prejudice because "the adversary process itself" has been rendered
"presumptively unreliable."
Cronic, supra, at 659. The even
more serious denial of the entire judicial proceeding itself, which
a defendant wanted at the time and to which he had a right,
similarly demands a presumption of prejudice. Put simply, we cannot
accord any "'presumption of reliability,'"
Robbins, ante, at
286, to judicial proceedings that never took place.
484
The Court of Appeals below applied a
per se prejudice
rule, and granted habeas relief based solely upon a showing that
counsel had performed deficiently under its standard. 160 F. 3d, at
536. Unfortunately, this
per se prejudice rule ignores the
critical requirement that counsel's deficient performance must
actually cause the forfeiture of the defendant's appeal. If the
defendant cannot demonstrate that, but for counsel's deficient
performance, he would have appealed, counsel's deficient
performance has not deprived him of anything, and he is not
entitled to relief. Cf.
Peguero v.
United States,
526 U. S. 23
(1999) (defendant not prejudiced by court's failure to advise him
of his appeal rights, where he had full knowledge of his right to
appeal and chose not to do so). Accordingly, we hold that, to 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.
In adopting this standard, we follow the pattern established in
Strickland and
Cronic, and reaffirmed in
Robbins, requiring a showing of actual prejudice (i.
e., that, but for counsel's errors, the defendant might have
prevailed) when the proceeding in question was presumptively
reliable, but presuming 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. See
Strickland, supra,
at 493-496;
Cronic, 466 U. S., at 658-659;
Robbins,
ante, at 286-287. Today, drawing on that line of cases and
following the suggestion of the Solicitor General, we hold that
when counsel's constitutionally deficient performance deprives a
defendant of an appeal that he otherwise would have taken, the
defendant has made out a successful ineffective assistance of
counsel claim entitling him to an appeal.
485
We believe this prejudice standard breaks no new ground, for it
mirrors the prejudice inquiry applied in
Hill v.
Lockhart, 474
U. S. 52 (1985), and
Rodriquez v.
United States,
395 U. S. 327
(1969). In
Hill, we considered an ineffective assistance of
counsel claim based on counsel's allegedly deficient advice
regarding the consequences of entering a guilty plea. Like the
decision whether to appeal, the decision whether to plead guilty
(i.
e., waive trial) rested with the defendant and, like
this case, counsel's advice in
Hill might have caused the
defendant to forfeit a judicial proceeding to which he was
otherwise entitled. We held that "to satisfy the 'prejudice'
requirement [of
Strickland], the defendant must show that
there is a reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on going
to trial."
Hill, supra, at 59. Similarly, in
Rodriquez, counsel failed to file a notice of appeal,
despite being instructed by the defendant to do so. See 395 U. S.,
at 328. We held that the defendant, by instructing counsel to
perfect an appeal, objectively indicated his intent to appeal and
was entitled to a new appeal without any further showing. Because
"[t]hose whose right to an appeal has been frustrated should be
treated exactly like any other appellan[t]," we rejected any
requirement that the would-be appellant "specify the points he
would raise were his right to appeal reinstated."
Id., at
330. See also
Evitts v.
Lucey, 469 U. S. 387 (1985)
(defendant entitled to new appeal when counsel's deficient failure
to comply with mechanistic local court rules led to dismissal of
first appeal).
As with all applications of the
Strickland test, the
question whether a given defendant has made the requisite showing
will turn on the facts of a particular case. See 466 U. S., at
695-696. Nonetheless, evidence that there were nonfrivolous grounds
for appeal or that the defendant in question promptly expressed a
desire to appeal will often be highly relevant in making this
determination. We recognize that
486
the prejudice inquiry we have described is not wholly dissimilar
from the inquiry used to determine whether counsel performed
deficiently in the first place; specifically, both may be satisfied
if the defendant shows nonfrivolous grounds for appeal. See
Hill, supra, at 59 (when, in connection with a guilty plea,
counsel gives deficient advice regarding a potentially valid
affirmative defense, the prejudice inquiry depends largely on
whether that affirmative defense might have succeeded, leading a
rational defendant to insist on going to trial). But, while the
performance and prejudice prongs may overlap, they are not in all
cases coextensive. To prove deficient performance, a defendant can
rely on evidence that he sufficiently demonstrated to counsel his
interest in an appeal. But such evidence alone is insufficient to
establish that, had the defendant received reasonable advice from
counsel about the appeal, he would have instructed his counsel to
file an appeal.
By the same token, although showing nonfrivolous grounds for
appeal may give weight to the contention that the defendant would
have appealed, a defendant's inability to "specify the points he
would raise were his right to appeal reinstated,"
Rodriquez,
395 U. S., at 330, will not foreclose the possibility that he can
satisfy the prejudice requirement where there are other substantial
reasons to believe that he would have appealed. See
ibid.;
see also
Peguero, supra, at 30 (O'CONNOR, J., concurring)
("To require defendants to specify the grounds for their appeal and
show that they have some merit would impose a heavy burden on
defendants who are often proceeding
pro se in an initial
[habeas] motion"). We similarly conclude here that it is unfair to
require an indigent, perhaps
pro se, defendant to
demonstrate that his hypothetical appeal might have had merit
before any advocate has ever reviewed the record in his case in
search of potentially meritorious grounds for appeal. Rather, we
require the defendant to demonstrate that, but for counsel's
deficient conduct, he would have appealed.
487
III
The court below undertook neither part of the
Strickland
inquiry we have described, but instead presumed both that Ms. Kops
was deficient for failing to file a notice of appeal without
respondent's consent and that her deficient performance prejudiced
respondent. See 160 F. 3d, at 536. JusTICE SOUTER finds Ms. Kops'
performance in this case to have been "derelict," presumably
because he believes that she did not consult with respondent about
an appeal.
Post, at 489. But the Magistrate Judge's findings
do not provide us with sufficient information to determine whether
Ms. Kops rendered constitutionally inadequate assistance.
Specifically, the findings below suggest that there may have been
some conversation between Ms. Kops and respondent about an appeal,
see App. 133; see also 160 F. 3d, at 535 (Ms. Kops wrote" 'bring
appeal papers'" in her file), but do not indicate what was actually
said. Assuming,
arguendo, that there was a duty to consult
in this case, it is impossible to determine whether that duty was
satisfied without knowing whether Ms. Kops advised respondent about
the advantages and disadvantages of taking an appeal and made a
reasonable effort to discover his wishes. Cf.
Strickland,
supra, at 691 ("inquiry into counsel's conversations with the
defendant may be critical to a proper assessment of counsel's ...
decisions"). Based on the record before us, we are unable to
determine whether Ms. Kops had a duty to consult with respondent
(either because there were potential grounds for appeal or because
respondent expressed interest in appealing), whether she satisfied
her obligations, and, if she did not, whether respondent was
prejudiced thereby. Accordingly, the judgment of the Court of
Appeals is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
488
Opinion of SOUTER, J.
JUSTICE BREYER, concurring.
I write to emphasize that the question presented concerned the
filing of a "notice of appeal
following a guilty plea." Pet.
for Cert. i (emphasis added). In that context I agree with the
Court. I also join its opinion, which, in my view, makes clear that
counsel does "almost always" have a constitutional duty to consult
with a defendant about an appeal after a trial.
Post this
page (SOUTER, J., concurring in part and dissenting in part); cf.
ante, at 479-481.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JusTICE GINSBURG
join, concurring in part and dissenting in part.
I join Part II-B of the Court's opinion, but I respectfully
dissent from Part II-A. As the opinion says, the crucial question
in this case is whether, after a criminal conviction, a lawyer has
a duty to consult with her client about the choice to appeal. The
majority's conclusion is sometimes; mine is, almost always in those
cases in which a plea of guilty has not obviously waived any claims
of error.1 It is unreasonable for a lawyer with a client like
respondent FloresOrtega to walk away from her representation after
trial or after sentencing without at the very least acting
affir-
1 I say "almost" always, recognizing that there can be cases
beyond the margin: if a legally trained defendant were convicted in
an error-free trial of an open-and-shut case, his counsel
presumably would not be deficient in failing to explain the
options. This is not what we have here. Nor is this a case in which
the judge during the plea colloquy so fully explains appeal rights
and possible issues as to obviate counsel's need to do the same;
such a possibility is never very likely and exists only at the
furthest reach of theory, given a defendant's right to adversarial
representation, see
Smith v.
Robbins, ante, at
296-297 (SOUTER, J., dissenting). Finally, of course, there is no
claim here that Flores-Ortega waived his right to appeal as part of
his plea agreement; although he pleaded guilty, the record shows
that he and the State argued before the trial court for different
sentences, and he had little understanding of the legal system. The
fact of the plea is thus irrelevant to the disposition of the
case.
489
matively to ensure that the client understands the right to
appeal.
Where appeal is available as a matter of right, a decision to
seek or forgo review is for the convict himself, not his lawyer,
Jones v.
Barnes, 463 U. S. 745, 751
(1983), who owes a duty of effective assistance at the appellate
stage,
Evitts v.
Lucey, 469 U. S. 387, 396
(1985);
Penson v.
Ohio, 488 U. S. 75, 85 (1988).
It follows, as the majority notes, that if a defendant requests
counsel to file an appeal, a lawyer who fails to do so is, without
more, ineffective for constitutional purposes. But, as the Court
says, a lesser infidelity than that may fail the test of lawyer
competence under
Strickland v.
Washington, 466 U. S. 668 (1984),
which governs this case. I think that the derelict character of
counsel's performance in this case is clearer than the majority
realizes.
In
Strickland, we explicitly noted that a lawyer has a
duty "to consult with the defendant on important decisions ... in
the course of the prosecution."
Id., at 688. The decision
whether to appeal is one such decision. Since it cannot be made
intelligently without appreciating the merits of possible grounds
for seeking review, see
Peguero v.
United States,
526 U. S. 23,
30-31 (1999) (O'CONNOR, J., concurring);
Rodriquez v.
United States, 395 U. S. 327, 330
(1969), and the potential risks to the appealing defendant, a lay
defendant needs help before deciding. If the crime is minor, the
issues simple, and the defendant sophisticated, a 5-minute
conversation with his lawyer may well suffice; if the charge is
serious, the potential claims subtle, and a defendant uneducated,
hours of counseling may be in order. But only in the extraordinary
case will a defendant need no advice or counsel whatever.
To the extent that our attention has been directed to statements
of "prevailing professional norms,"
Strickland v.
Washington, 466 U. S., at 688
(Strickland's
touchstone of reasonable representation, see
ibid.), they
are consistent with common sense in requiring a lawyer to consult
with a
490
Opinion of SOUTER, J.
client before the client makes his decision about appeal. Thus,
ABA Standards for Criminal Justice 21-2.2(b) (2d ed. 1980):
"Defense counsel should advise a defendant on the meaning of the
court's judgment, of defendant's right to appeal, on the possible
grounds for appeal, and of the probable outcome of appealing.
Counsel should also advise of any posttrial proceedings that might
be pursued before or concurrent with an appeal. While counsel
should do what is needed to inform and advise defendant, the
decision whether to appeal, like the decision whether to plead
guilty, must be the defendant's own choice."
See also ABA Standards for Criminal Justice, Defense Function
4-8.2(a) (3d ed. 1993) (stating that trial counsel "should explain
to the defendant the meaning and consequences of the court's
judgment and defendant's right of appeal" and "should give the
defendant his or her professional judgment as to whether there are
meritorious grounds for appeal and as to the probable results of an
appeal");
id., 4-8.2, Commentary ("[C]ounsel [has the duty]
to discuss frankly and objectively with the defendant the matters
to be considered in deciding whether to appeal. ... To make the
defendant's ultimate choice a meaningful one, counsel's evaluation
of the case must be communicated in a comprehensible manner ....
[T]rial counsel should always consult promptly with the defendant
after making a careful appraisal of the prospects of an appeal");
ABA Standards for Criminal Justice 21-3.2(b)(i).
So also the ABA Model Code of Professional Responsibility, EC
2-31 (1991), provides that: "Trial counsel for a convicted
defendant should continue to represent his client by advising
whether to take an appeal .... " Likewise ABA Model Rule of
Professional Conduct 1.3, Comment (1996): "[I]f a lawyer has
handled a judicial or administrative proceeding that produced a
result adverse to the client but has not been spe-
491
cifically instructed concerning pursuit of an appeal, the lawyer
should advise the client of the possibility of appeal before
relinquishing responsibility for the matter." Restatement (Third)
of the Law Governing Lawyers § 31(3) (Proposed Final Draft No.1,
Mar. 29, 1996) embodies the same standards: "A lawyer must notify a
client of decisions to be made by the client ... and must explain a
matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation." Indeed,
California has apparently eliminated any option on a lawyer's part
to fail to give advice on the appeal decision (whether the failure
be negligent or intentional). California Penal Code Ann. §
1240.1(a) (West Supp. 2000) provides that trial counsel has a duty
to "provide counsel and advice as to whether arguably meritorious
grounds exist for reversal or modification of the judgment on
appeal." California thus appears to have adopted as an
unconditional affirmative obligation binding all criminal trial
counsel the very standard of reasonable practice expressed through
the Restatement and the ABA standards.
I understand that under
Strickland, "[p]revailing norms
of practice as reflected in American Bar Association standards and
the like ... are guides to determining what is reasonable, but they
are only guides," and that "[n]o particular set of detailed rules
for counsel's conduct can satisfactorily take account of the
variety of circumstances faced by defense counselor the range of
legitimate decisions regarding how best to represent a criminal
defendant." 466 U. S., at 688689. But that qualification has no
application here.
While
Strick land's disclaimer that no particular set of
rules should be treated as dispositive respects the need to defer
to reasonable "strategic choices" by lawyers,
id., at 690,
no such strategic concerns arise in this case. Strategic choices
are made about the extent of investigation, the risks of a defense
requiring defendant's testimony and exposure to cross-examination,
the possibility that placing personal
492
Opinion of SOUTER, J.
background information before a jury will backfire, and so on.
It is not, however, an issue of "strategy" to decide whether or not
to give a defendant any advice before he loses the chance to appeal
a conviction or sentence. The concern about too much judicial
second-guessing after the fact is simply not raised by a claim that
a lawyer should have counseled her client to make an intelligent
decision to invoke or forgo the right of appeal or the opportunity
to seek an appeal.
The Court's position is even less explicable when one considers
the condition of the particular defendant claiming
Strickland relief here. Flores-Ortega spoke no English and
had no sophistication in the ways of the legal system. The
Magistrate Judge found that "[i]t's clear ... that Mr. Ortega had
little or no understanding of what the process was, what the appeal
process was, or what appeal meant." App. 133. To condition the duty
of a lawyer to such a client on whether,
inter alia, "a
rational defendant would want to appeal (for example, because there
are nonfrivolous grounds for appeal),"
ante, at 480, is not
only to substitute a harmless-error rule for a showing of
reasonable professional conduct, but to employ a rule that simply
ignores the reality that the constitutional norm must address.2
Most criminal defendants, and certainly this one, will be utterly
incapable of making rational judgments about appeal without
guidance. They cannot possibly know what a rational decisionmaker
must know unless they are given the benefit of a professional
assessment of chances of success and risks of trying. And they will
often (indeed, usually) be just as bad off if they seek relief on
habeas after failing to take a direct appeal,
2 The Court holds that a duty to consult will also be present if
"this particular defendant reasonably demonstrated to counsel that
he was interested in appealing."
Ante, at 480. Because for
most defendants, and certainly for unsophisticated ones like
Flores-Ortega who are unaware even of what an appeal means, such a
demonstration will be a practical impossibility, I view the Court
as virtually requiring the defendant to show the existence of some
nonfrivolous appellate issue.
493
having no right to counsel in state postconviction proceedings.
See
Pennsylvania v.
Finley, 481 U. S. 551, 557
(1987);
Murray v.
Giarratano, 492 U. S. 1, 12 (1989); cf.
Peguero v.
United States, 526 U. S., at 30 (O'CONNOR,
J., concurring) ("To require defendants to specify the grounds for
their appeal and show that they have some merit would impose a
heavy burden on defendants who are often proceeding
pro se
in an initial 28 U. S. C. § 2255 motion").
In effect, to day's decision erodes the principle that a
decision about appeal is validly made only by a defendant with a
fair sense of what he is doing. Now the decision may be made
inadvertently by a lawyer who never utters the word "appeal" in his
client's hearing, so long as that client cannot later demonstrate
(probably without counsel) that he unwittingly had "nonfrivolous
grounds" for seeking review. This state of the law amounts to just
such a breakdown of the adversary system that
Strickland
warned against. "In every case the court should be concerned with
whether ... the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process that our system
counts on to produce just results." 466 U. S., at 696; see also
Rodriquez v.
United States, 395 U. S., at 330;
Penson v.
Ohio, 488 U. S., at 85.
I would hold that in the aftermath of the hearing at which
Flores-Ortega was sentenced, his lawyer was obliged to consult with
her client about the availability and prudence of an appeal, and
that failure to do that violated
Strickland's standard of
objective reasonableness. I therefore respectfully dissent from
Part II-A of the majority's opinion.
JUSTICE GINSBURG, concurring in part and dissenting in part.
This case presents the question whether, after a defendant
pleads guilty or is convicted, the Sixth Amendment permits defense
counsel simply to walk away, leaving the defendant uncounseled
about his appeal rights. The Court is not
494
Opinion of GINSBURG, J.
deeply divided on this question. Both the Court and JusTICE
SOUTER effectively respond: hardly ever. Because the test
articulated by JUSTICE SOUTER provides clearer guidance to lower
courts and to counsel, and because I think it plain that the duty
to consult was not satisfied in this case, I join JUSTICE SOUTER'S
opinion.
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