924 F.3d 9
1st Cir.2019Background
- Rojas-Medina, a monolingual Spanish-speaking Dominican national, pled guilty to unlawful reentry pursuant to a plea agreement that included a guideline TOL stipulation and an appeal-waiver provision tied to the agreement's sentencing recommendations.
- PSI initially placed him in CHC IV (GSR 57–71) but was later revised upward to CHC V (GSR 70–87); the district court sentenced him to 70 months to run consecutively to any state sentence.
- Trial counsel spoke with Rojas-Medina for roughly two minutes in the courthouse cellblock after sentencing; counsel filed a motion to reconsider the same day but did not file a notice of appeal and did not further communicate with the client.
- Rojas-Medina later learned no appeal had been filed, sought his docket, and filed a pro se 28 U.S.C. § 2255 petition alleging ineffective assistance for failure to file a notice of appeal; an evidentiary hearing was held.
- The magistrate judge recommended granting relief under Flores-Ortega (duty to consult) and allowing a delayed appeal; the district court rejected that recommendation solely on the ground that the signed appeal waiver defeated the Flores-Ortega presumption of prejudice.
- The First Circuit reviewed de novo whether Flores-Ortega and Garza apply despite an appeal waiver, credited the magistrate judge’s factual findings, and considered whether counsel’s short post-sentencing discussion satisfied the duty to consult.
Issues
| Issue | Rojas-Medina's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Flores-Ortega duty to consult applies despite signed appeal waiver | Flores-Ortega presumption applies; counsel had duty to consult because client manifested interest in appealing | Appeal waiver bars application of Flores-Ortega presumption; no prejudice shown | Garza controls: presumption applies despite appeal waiver; Flores-Ortega framework governs |
| Whether petitioner reasonably demonstrated interest in appealing to trigger duty to consult | Post-sentencing questioning about "so much time" and discussion of post-judgment relief sufficed | The statements were confused and only showed displeasure, not a request to appeal | Court: petitioner’s expressions and discussion of relief sufficiently demonstrated interest to trigger duty |
| Whether counsel fulfilled duty to consult via a ~2-minute cellblock conversation and prior pre-sentencing advice about the waiver | Counsel said he discussed motion to reconsider and told client to notify within 14 days if he wanted appeal | Government argues pre-sentencing waiver explanation and counsel’s remarks were adequate consultation | Court: two-minute conversation (and prior limited advice) was insufficient; counsel failed to advise advantages/disadvantages and to ascertain client’s wishes |
| Whether prejudice is presumed and petitioner would have timely appealed/had nonfrivolous grounds | Petitioner promptly sought docket, filed §2255; had a colorable claim that consecutive sentence was appealable despite waiver | Government contends waiver forecloses appeal and petitioner cannot show prejudice | Court: Flores-Ortega presumption of prejudice applies; petitioner showed prompt desire and at least one nonfrivolous ground (consecutive v. concurrent sentence) — relief ordered (leave to file delayed appeal) |
Key Cases Cited
- Flores-Ortega v. United States, 528 U.S. 470 (duty to consult about appeal; presumption of prejudice when counsel fails to consult)
- Garza v. Idaho, 139 S. Ct. 738 (Flores-Ortega presumption applies even if defendant signed appeal waiver)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard requiring deficient performance and prejudice)
- United States v. Maldonado-Escarfullery, 689 F.3d 94 (challenge to consecutive sentence may fall outside appeal waiver when agreement silent on concurrency)
- United States v. Torres-Otero, 232 F.3d 24 (procedural roadmap for granting leave to file delayed appeal)