16 Analyses of this case by attorneys

  1. SCOTUS: lawyer who ignores client’s request for appeal from guilty plea is ineffective

    Wisconsin State Public DefenderMarch 7, 2019

    at 8.Bottom line: Roe v. Flores-Ortega, 528 U.S. 470 (2000) held that when an attorney’s deficient performance costs a defendant an appeal he otherwise would have taken, the court must presume prejudice without requiring the defendant to show that his underlying claims had merit. This principle also applies when the defendant enters a plea agreement which states that he “waives his right to appeal.”

  2. The Supreme Court - February 27, 2019

    Dorsey & Whitney LLPTimothy DroskeFebruary 28, 2019

    Today, the Supreme Court reversed and remanded. Extending its holding in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court held that—even where a defendant has signed an appeal waiver—prejudice is presumed when an attorney’s deficient performance costs the defendant an appeal that the defendant would have otherwise pursued. The Court’s decision is available here.

  3. The Supreme Court - February 27, 2019

    Dorsey & Whitney LLPFebruary 27, 2019

    Today, the Supreme Court reversed and remanded. Extending its holding in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court held that—even where a defendant has signed an appeal waiver—prejudice is presumed when an attorney’s deficient performance costs the defendant an appeal that the defendant would have otherwise pursued. The Court’s decision is available here.

  4. Who controls, you or the client

    Law Office of Phillip CavePhilip D. CaveJune 18, 2018

    Whether to appeal is a client decision. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court dealt with the issue of ineffective assistance claims for a lawyer’s failure to appeal, with or without consulting the client. If the lawyer is found to have performed deficiently, the “prejudice” question is only whether there is a reasonable probability the client would have appealed, not that he would have prevailed on appeal.The wrinkle in the Garza case is that the defendant pleaded guilty and waived his right to appeal as part of the bargain.

  5. Capital Defense Weekly, December 25, 2006

    Capital Defense NewsletterDecember 24, 2006

    Id. at 686; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000) (noting that "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 [proceeding]" (citation and internal quotation marks omitted)). This fairness is "derive[d] from the adversarial nature of our justice system, which is premised on the 'well-tested principle that truth--as well as fairness--is best discovered by powerful statements on both sides of the question.'"

  6. Capital Defense Weekly, April 1, 2002

    Capital Defense NewsletterMarch 31, 2002

    Several federal courts of appeals have held that there is no constitutional right to counsel for post-appeal motions for new trial. United States v. Tajeddini, 945 F.2d 458, 470 (1st Cir. 1991), abrogated on other grounds by Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000); United States v. Lee, 168 U.S. App. D.C. 165, 513 F.2d 423, 424 (D.C. Cir. 1975); United States v. Birrell, 482 F.2d 890, 892 (2d Cir. 1973). [*8] But three federal courts of appeals have held, on particular facts, that the motion for new trial phase is a critical stage of the prosecution.

  7. SCOTUS will address effect of lawyer’s failure to file notice of appeal where plea agreement included an appeal waiver

    Wisconsin State Public DefenderJune 19, 2018

    Gilberto Garza, Jr. v. Idaho, USSC No. 17-1026, certiorari granted 6/18/18Question presented:Does the “presumption of prejudice” recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver?Decision below: Garza v. State, 405 P.3d 576 (Idaho 2017)USSC DocketScotusblog page (includes links to cert petition, briefs, and commentary)This case will be of interest to anyone handling federal criminal cases, where, according to one amicus brief (at 4), most plea agreements include a waiver of appeal. Under Flores-Ortega, if trial counsel fails to file a notice of appeal and the defendant shows he would have appeal but for trial counsel’s failure, the defendant is entitled to a presumption that counsel’s failure prejudiced the defendant.

  8. Attorney-Client Issues - Ineffective Assistance of Counsel -- Appeal

    Garland, Samuel & Loeb, P.C.Don SamuelSeptember 1, 2015

    Roe v. Flores-Ortega, 528 U.S. 470 (2000)Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.Franco v. United States, 762 F.3d 761 (8th Cir. 2014)In this §2255 proceeding, the district court erred in denying the defendant’s request for an evidentiary hearing on the issue of whether he requested that his attorney to file a notice of appeal.Payne v. Stansberry, 760 F.3d 10 (D. C. Cir. 2014)The trial judge instructed the jury (according to the transcript), “If you find that the government has failed to prove any element of the offense, beyond a reasonable doubt, you must find that defendant guilty.”

  9. The Supreme Court - June 18, 2018

    Dorsey & Whitney LLPTimothy DroskeJune 19, 2018

    s available here.Today, the Supreme Court granted certiorari in five cases:Lorenzo v. SEC, No. 17-1077: Whether a misstatement claim under the antifraud provisions of the federal securities laws that does not meet the elements set forth in Janus Capital Group, Inc., v. First Derivative Traders, 564 U.S. 135 (2011) can be repackaged and pursued as a fraudulent scheme claim.Apple, Inc. v. Pepper, No. 17-204: Whether consumers may sue for antitrust damages anyone who delivers goods to them, even where they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.Sturgeon v. Frost, No. 17-949: Whether the Alaska National Interest Lands Conservation Act prohibits the National Park Service from exercising regulatory control over State, Native Corporation, and private land physically within the boundaries of the National Park System in Alaska.Garza v. Idaho, No. 17-1026: Does the “presumption of prejudice” recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver?Timbs v. Indiana, No. 17-1091: Whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.

  10. MSC gives defendant opportunity to appeal where past untimeliness was the fault of trial court and/or appellate counsel

    Warner Norcross & Judd LLPMadelaine LaneJuly 30, 2014

    425(G)(1)(a); clerical errors in the April 24, 2012 order appointing appellate counsel; and/or appellate counsel’s oversights. See Halbert v. Michigan, 545 U.S. 605 (2005); Roe v Flores-Ortega, 528 U.S. 470, 477 (2000); and Peguero v. United States, 526 U.S. 23, 28 (1999). The Michigan Supreme Court specified that appointed counsel may file an application for leave to appeal the defendant’s January 5, 2012 plea-based conviction to the Court of Appeals, as well as any necessary or appropriate post-conviction motions in the trial court, within six months.