453 F. App'x 887
11th Cir.2011Background
- Palacios, a federal prisoner, was sentenced to 135 months after pleading guilty to conspiracy to launder money and money laundering under 18 U.S.C. § 1956(a)(1)(A)(l), (a)(2)(A), (h).
- He filed a pro se 28 U.S.C. § 2255 motion asserting five claims, including ineffective assistance for failing to file a direct appeal.
- The magistrate recommended denial after an evidentiary hearing; the district court adopted and denied the § 2255 motion on the merits.
- This Court granted a certificate of appealability on whether trial counsel failed to consult with Palacios about filing an appeal.
- The court ultimately vacates and remands for Palacios to file a direct appeal, holding counsel failed to adequately consult about an appeal under Flores-Ortega and Thompson, and Palacios is entitled to an out-of-time appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel's failure to consult about an appeal was deficient. | Palacios | Garcia-Montes concluded Palacios was unhappy with sentence but did not discuss appeal options. | Yes, deficient performance. |
| Whether the duty to consult was triggered given Palacios’s conduct. | Palacios demonstrated interest in appealing after sentence. | Garcia-Montes did not discuss appeal options or consult. | Triggered duty to consult; failure to consult was deficient. |
| Whether Palacios was prejudiced and entitled to an out-of-time direct appeal. | Palacios would have timely appealed if consulted. | No appeal rights were pursued. | Palacios entitled to an out-of-time direct appeal; remand to file appeal. |
Key Cases Cited
- Roe v. Flores-Ortega, 528 U.S. 470 (U.S. 2000) (duty to consult when counsel disregards client’s right to appeal)
- Thompson v. United States, 504 F.3d 1203 (11th Cir. 2007) (adequate consultation requires informing about right to appeal and evaluating appeal options)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong deficient performance and prejudice standard)
- McGriff v. Dep’t of Corr., 338 F.3d 1231 (11th Cir. 2003) (district court credibility findings binding absent clear error)
- Gomez-Diaz v. United States, 433 F.3d 788 (11th Cir. 2005) (out-of-time appeal where counsel failed to consult)