dswaze said:
I'm sorry you don't quite understand my post. Let me try to clarify. Under Roe v. Flores-Ortega, the Supreme court held that counsel is constitutionally ineffective for failing to file a Notice of Appeal when a rational defendant would want to appeal or a particular defendant expressed a desire to appeal. (ineffectiveness was found on writ of habeas corpus, for an appeal that was never heard - to answer your question). My specific question is whether or not any one here would agree that if the above is held, for counsel failing to file a notice of appeal, if then counsel would be ineffective for failing to motion the appellate court for counsel on appeal.... the end result being the same, an appeal not heard on the merits.
I hope that makes a little more sense.
Actually you didn't do much for clarification and what little clarification you did provide was lost by both your misunderstanding of the facts and the holding in Roe v. Flores-Ortega. First, the issue in that case is whether counsel is deficient for not filing a notice of appeal when the defendant has not clearly conveyed his wishes one way or the other regarding appeal?
Second the court found that the court below failed to apply either part of the two part Strickland test in evaluating whether counsel was constitutionally ineffective for failing to file a notice of appeal; nor was there sufficient information in the record to make the determination that counsel was constitutionally ineffective. The case was remanded to the trial court for further proceedings consistent with the court's opinion.
Third, it is the First and Nineth circuit court of appeals which have held that counsel must file a notice of appeal unless the defendant specifically instructs otherwise and that failure to do so is per se deficient. The Court in Roe v. Flores-Ortega rejected 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."
Finally, the court did not hold "that counsel is constitutionally ineffective for failing to file a Notice of Appeal when a rational defendant would want to appeal or a particular defendant expressed a desire to appeal." What the court held in this regard is 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." The court specifically rejected a bright-line rule that counsel must always consult with the defendant regarding an appeal, stating " 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."
Therefore the answer to your question is that it depends upon all the surrounding circumstances as to whether counsel will be found to be constitutionally ineffective.
