[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 13, 2006

THOMAS K. KAHN

N o . 05-15729

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket Nos. 04-01918-CV-T-30-TGW

03-00124-CR -T-3

S E R IJO MIQUEL,

a.k.a. Luis Montenegro,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Middle District of Florida

(O cto b er 13, 2006)

B efo re ANDERSON, BIRCH and DUBINA, Circuit Judges.

P E R CURIAM:

F ed er al prisoner Serijo Miquel, through counsel, appeals the district court's o rd er denying his § 2255 motion to vacate his sentence. We granted a certificate of ap p ealab ility on the following issue only: "[w]hether the district court erred in f ailin g to hold an evidentiary hearing on [Miquel]'s claim that he received in effectiv e assistance of counsel based on his attorney's failure to file a notice of ap p eal, in light of this Court's decision in Gomez-Diaz v. United States, 433 F.3d 7 8 8 (11th Cir. 2005)?" While acknowledging the fact that he entered into a w ritten plea agreement with a sentence appeal waiver that waived some but not all o f his appellate rights, Miquel argues that counsel was constitutionally ineffective b ecau se he failed to file a direct appeal as requested.

The government concedes that, pursuant to our decision in Gomez-Diaz, the d is tr ic t court erred by finding that Miquel had waived his claim that his counsel w a s ineffective for failing to file a direct appeal. The government acknowledges th a t we should remand this case for the district court to conduct an evidentiary h earin g to establish whether Miquel's trial counsel had a duty to file a notice of ap p eal from the final judgment in the district court, pursuant to Roe v. FloresO rteg a , 528 U.S. 470, 120 S. Ct. 1029 (2000).

A district court's legal conclusions in a 28U.S.C. § 2255 proceeding are rev iew ed de novo and its factual findings are reviewed for clear error. Lynn v. U n ite d States, 365 F.3d 1225, 1232 (11th Cir. 2004). Whether a defendant u ltim a te ly has received ineffective assistance of counsel is a mixed question of fact an d law reviewed de novo. Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir. 2000).

The legal standard governing the disposition of ineffective assistance of counsel claims is derived from the benchmark case of Strickland v. Washington, 4 6 6 U.S. 668 , 104 S. Ct. 2052 (1984). In Strickland, the Supreme Court e sta b lis h e d a two-prong test for adjudicating ineffective assistance of counsel c la im s . A movant must show that counsel's performance was deficient and that th is deficiency prejudiced the defense. Id. at 687, 104 S. Ct. at 2064.

In Flores-Ortega, the Supreme Court applied the test set forth in Strickland an d reiterated the long-established rule that a lawyer who disregards specific in stru ctio n s from the defendant to file a notice of appeal acts in a professionally u n reaso n ab le manner. 528 U.S. at 476-77, 120 S. Ct. at 1034-35. The Supreme C o u rt further held that, even when a defendant has not specifically instructed his c o u n s el to file an appeal, in order to determine whether counsel performed d eficien tly, a court must inquire whether counsel in fact consulted with the d efen d an t about an appeal. Id. at 478, 120 S. Ct. at 1035. "If so, the attorney has o n ly acted unreasonably if he has ignored the client's wishes to appeal the case. If n o t, the court must further inquire whether the attorney had an affirmative duty to c o n s u lt." Gomez-Diaz, 433 F.3d at 792 (citing Flores-Ortega, 528 U.S. at 478, 1 2 0 S. Ct. at 1035). This duty to consult arises when either: (1) any rational d e f en d a n t would want to appeal; or (2) the defendant reasonably demonstrated an in terest in appealing. Id. (citing Flores-Ortega, 528 U.S. at 480, 120 S. Ct. at 1 0 3 6 ). "[T]o show prejudice under these circumstances, a defendant must d em o n strate that there is a reasonable probability that, but for counsel's deficient failu re to consult with him about an appeal, he would have timely appealed." F lo res-O rteg a , 528 U.S. at 484, 120 S. Ct. at 1038.

In Gomez-Diaz, we were presented with a case factually and procedurally sim ilar to the instant appeal. In that case, Gomez-Diaz pled guilty pursuant to a w r itte n plea agreement containing a sentence appeal waiver identical to the waiver in the instant case. 433 F.3d at 790. Gomez-Diaz did not file a direct appeal. Id.

H e filed a § 2255 motion, wherein he alleged, inter alia, that his court-appointed co u n sel failed to file a notice of appeal as he had requested. Id. The district court d e n ie d the § 2255 motion without an evidentiary hearing, on the basis that GomezD iaz failed to identify any ground for appeal falling within the exceptions listed in th e sentence appeal waiver. Id.

After examining the analytical framework set forth in the Supreme Court's d ecisio n s in Strickland and Flores-Ortega, we held that Gomez-Diaz did in fact state a claim sufficient to entitle him to an evidentiary hearing in the district court.

Gomez-Diaz, 433 F.3d at 791-93. We remanded the case to the district court with in stru ctio n s to conduct an evidentiary hearing to determine whether Gomez-Diaz's in itia l statements were sufficient to trigger a per se duty to appeal, and if not, w h e th e r counsel fulfilled his constitutional duty to consult with Gomez-Diaz reg ard in g his desire to appeal. Id. at 792. We also held that the reasoning of F lo res-O rteg a applied "with equal force" where the defendant has waived many, b u t not all, of his appellate rights. Id. at 793.

H ere, as in Gomez-Diaz, we conclude from the record that the district court e rr ed by concluding that Miquel had waived his ineffective assistance of counsel claim . In denying Miquel's ineffective-assistance-of-counsel claim asserted in his § 2255 motion, the district court found that the claim was barred because it did not relate to the negotiation of his plea agreement and did not fall within any of the e x c ep tio n s to his appeal waiver. As conceded by the government, the district court erred in making this finding in light of the reasoning set forth in Gomez-Diaz.

The record shows that the district court did not address this issue of w h e th e r Miquel actually requested his attorney to file an appeal. This is an e ss en tia l first step in the analysis under Flores-Ortega and Gomez-Diaz.

Therefore, we vacate the district court's order and remand this case to the district co u rt to conduct an evidentiary hearing.

VACATED AND REMANDED.