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First Circuit Rules Appeal Waiver Does Not Relieve Counsel of Duty to Consult About an Appeal

by Dale Chappell

In a case applying a newly minted U.S. Supreme Court decision, the U.S. Court of Appeals for the First Circuit held that an appeal waiver in a plea agreement did not relieve counsel of his duty to consult with his client about filing an appeal.

When the district judge sentenced Toribio Rojas-Medina to more time in prison than he expected under his plea agreement, and further ordered the sentence to run consecutive to any state sentence that might be imposed, he asked his lawyer “why they had given me so much time” during a two-minute conversation after sentencing. Counsel then filed a “motion to reconsider sentence,” and Rojas-Medina was transferred to his designated prison by way of several county jails and detention centers.

Months later, a docket sheet obtained by Rojas-Medina showed that counsel had not filed an appeal, and he promptly filed a motion under 28 U.S.C. § 2255 claiming ineffective assistance of counsel for failing to file an appeal. At an evidentiary hearing, Rojas-Medina testified that he “wanted to appeal because the sentence was too high.” However, counsel testified that the sentence “could not be appealed” because of the appeal waiver in the plea agreement.

The magistrate judge recommended granting Rojas-Medina’s motion, finding that he had demonstrated an intent to appeal and because counsel still had the duty to file a requested appeal despite the waiver. The Government objected.

The district judge agreed with the Government that the appeal waiver absolved counsel of his duty to file the appeal and denied the motion. But the court granted a certificate of appealability on the issue.

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that counsel has a “duty to consult” with his client about an appeal and to file an appeal “if he was interested in appealing.” The Court clarified that “consult” meant “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.”

A defendant, the Court made clear, is not required to prove his appeal would succeed, but he is required to make his desire to appeal known to counsel. Courts have held that there’s no “magic words” to do this, but inquiries “about having time run together” or why the court “gave so much time” are signs to counsel to file an appeal.

Rojas-Medina’s comments to counsel about his sentence being “too high” were enough to prompt counsel to file an appeal, the First Circuit concluded. The big question was whether the appeal waiver relieved counsel of this obligation. At the time of Rojas-Medina’s motion before the district court, the circuits were split on this question. The First Circuit was not clearly on one side or the other.

But then the Supreme Court decided Garza v. Idaho, 139 S. Ct. 738 (2019), in which the Court held that an appeal waiver does not relieve counsel of his or her duty to file a requested appeal. “While signing an appeal waiver means giving up some, many, or even most appellate claims, some claims nevertheless remain,” the Court explained.

Finding that Flores-Ortega required Rojas-Medina’s counsel to file an appeal and that Garza answered the question about the waiver’s effect on that requirement, the First Circuit ruled that the “presumption of prejudice” when counsel fails to file a requested appeal applies here.

Accordingly, the Court remanded to the district court “with instructions to vacate the judgment in the underlying criminal case and reenter it so that petitioner may enjoy a fair opportunity to file a timely notice of appeal.” See: Rojas-Medina v. United States, 924 F.3d 9 (1st Cir. 2019). 

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Rojas-Medina v. United States



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