If Defendant Requests Notice of Appeal, It's Ineffective Assistance Not to File It, Even if Defendant Waived Appeal

United States v. Tapp, No. 05-30222 (5th Cir. June 28, 2007) (Reavley, Garza, Dennis)

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that the failure to file a requested [notice of appeal] is per se ineffective assistance of counsel, with or without a showing that the appeal would have merit. Id. at 483-86. When an attorney fails to file a NOA when requested to do so, then, the defendant need not demonstrate that he would have been able to raise meritorious issues on appeal. Id. at 477-78. The Court indicated that it would be unfair to require a litigant to argue in a § 2255 proceeding that his appeal would have had merit. Id. at 486. Instead, the defendant must only demonstrate that there is a reasonable probability that, but for counsel’s failure, he would have timely appealed. Id. at 484, 486.

But what if the defendant waived appeal? Is it still ineffective assistance to fail to file a notice of appeal upon the defendant's request? The Fifth Circuit hadn't yet addressed this in a published opinion, but it does so here:

Today, we join our sister circuits in holding that the rule of Flores-Ortega applies even where a defendant has waived his right to direct appeal and collateral review. In such circumstances, if the petitioner is able to demonstrate by a preponderance of the evidence that he requested an appeal, prejudice will be presumed and the petitioner will be entitled to file an out-of-time appeal, regardless of whether he is able to identify any arguably meritorious grounds for appeal that would not be precluded by the terms of his appeal waiver. Because the record in the instant case does not conclusively show whether Tapp requested that his counsel file an appeal, we vacate the district court’s judgment denying Tapp’s § 2255 petition and remand for an evidentiary hearing on this issue.