## Facts

- Lucio Flores-Ortega, a Spanish-speaking defendant, faced California charges including murder, assault, and a weapon enhancement.
- He entered a guilty plea to second-degree murder under a “West plea” agreement; in exchange, the prosecution dismissed the assault counts and weapon enhancement.
- He was sentenced to 15 years to life, and the trial judge advised him he could appeal within 60 days and request appointed counsel if indigent.
- Defense counsel noted “bring appeal papers” but did not file a notice of appeal within the deadline, a filing characterized as ministerial.
- Flores-Ortega was unable to communicate with counsel for an initial period after sentencing and later attempted to file an appeal pro se; the clerk rejected it as untimely.

## Issues

1. What Sixth Amendment standard governs an ineffective-assistance claim based on counsel’s failure to file a notice of appeal.
2. Whether counsel’s failure to file a notice of appeal without the defendant’s express consent is automatically deficient performance.
3. When counsel has a constitutional duty to consult with a defendant about taking an appeal after conviction by guilty plea.
4. What prejudice showing is required when counsel’s deficient conduct results in the loss of a timely appeal.

## Decision

- The Supreme Court vacated the Ninth Circuit’s judgment and remanded.
- The Court held that Strickland’s deficient-performance and prejudice framework applies to claims that counsel was ineffective for failing to file a notice of appeal.
- The Court rejected a per se rule that counsel performs deficiently whenever a notice of appeal is not filed absent the defendant’s consent.
- The Court held counsel must consult about an appeal when there is reason to think (1) a rational defendant would want to appeal, or (2) the defendant reasonably demonstrated interest in appealing.
- The Court held prejudice is shown by a reasonable probability that, but for counsel’s deficient failure to consult (or otherwise protect the right to appeal), the defendant would have timely appealed; likely success on appeal need not be shown.

## Legal Principles

- Strickland applies to failure-to-appeal ineffective-assistance claims; courts assess reasonableness based on the circumstances as they appeared at the time.
- Counsel is professionally unreasonable when counsel disregards a defendant’s specific instruction to file a notice of appeal; no deficiency exists when counsel follows an explicit instruction not to appeal.
- “Consult” means advising about the advantages and disadvantages of an appeal and making a reasonable effort to determine the defendant’s wishes.
- Absent consultation, a constitutional duty to consult arises when a rational defendant would want to appeal or the defendant has reasonably indicated interest; relevant considerations include whether the conviction followed a plea, whether the sentence matched expectations, and whether remaining appellate issues appear nonfrivolous.
- Prejudice for lost appellate opportunity turns on whether the defendant would have filed a timely appeal, not on the probable merits of the hypothetical appeal.

## Conclusion

The Court required Strickland’s case-specific analysis for claims based on counsel’s failure to initiate an appeal, recognized a conditional duty to consult about appealing, and defined prejudice as the reasonable probability the defendant would have timely appealed absent counsel’s deficient performance.


Roe v. Flores-Ortega, 528 U.S. 470 (2000)