Even after the time to appeal has expired, it may be possible to file an out-of-time appeal based on ineffective assistance of counsel in failing to consult with the defendant regarding an appeal.  Such a claim should be filed in a separate habeas corpus petition in the court of appeals, after an untimely notice of appeal has been lodged with the clerk of the trial court.  If ineffective assistance is found, the court of appeal will direct that the untimely notice of appeal be filed by the clerk and that the appeal be docketed.  The direct appeal will then proceed in the normal manner.

 

The immigration advantage to filing a direct appeal is that during the time an appeal is pending, the conviction is not considered final for immigration purposes and the immigration authorities cannot initiate or press removal charges.[133]  The basis for mandatory immigration detention may also disappear.  If an appeal can be maintained for the period of the noncitizen’s incarceration, the immigration authorities will not be allowed to detain that individual on the basis of a nonfinal charge.  The client will therefore be able to be released from criminal custody without having been detained by the immigration authorities and possibly whisked away to a distant immigration detention facility.  If the immigration authorities does in fact take a noncitizen into custody at the completion of his or her criminal sentence while an appeal is pending, immigration counsel can petition the immigration court to terminate proceedings (if the nonfinal conviction is the only basis for removal), or a federal habeas corpus challenge to the illegal detention can be brought pursuant to 28 U.S.C. § 2241.  An appeal is thus a very useful vehicle for obtaining post-conviction relief for noncitizens.

 

Under California law, for example, counsel has a statutory duty to file a notice of appeal on his or her client’s behalf and to consult with the defendant regarding an appeal.[134]  In every case, counsel must provide advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal, and must file a timely notice of appeal when counsel feels meritorious grounds exist and an appeal is in the defendant’s best interests, or when the defendant requests trial counsel to do so. 

 

The United States Supreme Court has held that an attorney renders ineffective assistance of counsel when s/he fails to “consult” with a criminal defendant about the advantages and disadvantages of filing a notice of appeal.  In Roe v. Flores-Ortega,[135] the court held that counsel’s failure to consult with the defendant regarding an appeal will constitute ineffective assistance of counsel when the defendant has expressed any interest in appealing or a rational defendant would have wanted to appeal under the circumstances of the case.  If a rational defendant would have wanted to appeal and counsel failed to consult with the client, the defendant is entitled to an out-of-time appeal, even if the defendant has not specifically asked to appeal or even inquired concerning an appeal.

 

The first question, according to the Flores-Oretga court, is “whether counsel in fact consulted with the defendant about an appeal.”  The term “consult” has a specific meaning in this context: “advising 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 his or her client in this manner, counsel only performs unreasonably if s/he fails to follow the defendant’s instructions.  If counsel did not “consult,” however, the next question is whether the failure to do so amounted to constitutionally deficient performance of counsel under the circumstances of the case.

 

A constitutional duty to “consult” exists, and therefore the failure to consult will amount to ineffective assistance of counsel, 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.  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. . . .  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.[136]

 

When counsel fails to “consult” with a defendant regarding an appeal, counsel renders ineffective assistance when there is reason to think a rational defendant would want to appeal, even if the defendant has never inquired about an appeal. 

 

            No showing of prejudice is required; petitioner need not demonstrate that there are meritorious issues to be raised on appeal.  All that need be shown is that the attorney had a constitutional duty to consult, which s/he failed to perform.  If this showing is made, the remedy is an out-of-time appeal, to allow the appellant an opportunity to raise all issues that may appear.

[133] This finality rule is not followed in all circuits.  See § 5.25, supra.

[134] California Penal Code § 1240.1.

[135] Roe v. Flores-Ortega, 528 U.S. 470, 480, 145 L.Ed.2d 985, 120 S.Ct. 1029 (2000).

[136] Ibid.

Sixth Circuit

POST CON RELIEF - APPEAL - INEFFECTIVE COUNSEL
Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required by Ohio Rev. Code 2943.031, and (c) notify Deitz of his right to contact the Mexican consulate, required by Article 36 of the Vienna Convention of Consular Relations, and directing district court to decide the ineffective assistance claims on their merits, since ineffective assistance of counsel constitutes cause to excuse a procedural default: "Given that Dietz's claim of ineffective assistance of counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact prove that he asked his attorney to file a timely appeal and that the attorney failed to do so.").

Ninth Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO FILE NOTICE OF APPEAL POST CON RELIEF - VEHICLES - DIRECT APPEAL - INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO FILE NOTICE OF APPEAL
United States v. Sandoval-Lopez, ___ F.3d ___ (9th Cir. June 6, 2005) (defense counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to file a notice of appeal).
http://caselaw.lp.findlaw.com/data2/circs/9th/0335594p.pdf

Eleventh Circuit

POST CON RELIEF - FEDERAL - APPEAL - WAIVER OF APPEAL - INEFFECTIVE ASSISTANCE OF COUNSEL
Gomez-Diaz v. United States, ___ F.3d ___, 2005 WL 3465538 (11th Cir. Dec. 20, 2005) (2255 motion properly raises claim of ineffective assistance of counsel for failure to file a notice of appeal on request, despite government argument that plea agreement contained waiver of right to appeal from sentence).