[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

S e p t e m b e r 12, 2006

N o . 05-16582 T H O M A S K. KAHN

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

D . C. Docket Nos.

0 4 -0 1 7 2 8 -C V -T -1 7 -E A J

03-00082-CR -T-1

E D U A R D O ROSERO,

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

(S ep tem b er 12, 2006)

B efo re BIRCH, BLACK and BARKETT, Circuit Judges.

P E R CURIAM:

F e d e ra l prisoner Eduardo Rosero, proceeding pro se, appeals the district co u rt's denial of his § 2255 motion to vacate, set aside, or correct his sentence. We g r a n te d a certificate of appealability ("COA") on the issue of whether the district c o u r t erred by finding that appellant had waived his claim that counsel was in effectiv e for failing to file a direct appeal. The government concedes the error an d requests that we remand for the district court to hold an evidentiary hearing on th is issue. We agree that the district court erred in concluding that Rosero waived h is claim, and we accordingly VACATE the district court's denial of Rosero's § 2255 motion and REMAND for the district court to determine whether Rosero's co u n sel denied him effective assistance of counsel.

I. BACKGROUND T h e instant § 2255 motion stems from Rosero's guilty plea to one count of co n sp irin g to possess with the intent to distribute five grams or more of cocaine ab o ard a vessel subject to the jurisdiction of the United States, in violation of 46 U .S .C . app. § 1903 and 21U.S.C. § 960(b)(1)(B)(ii). R1-1. The district court im p o s ed a sentence of 210 months of imprisonment. In addition, Rosero's written p lea agreement contained a sentence appeal waiver, which provided, in relevant p art, as follows: T h e defendant . . . expressly waives the right to appeal d efen d an t's sentence, directly or collaterally, on any g r o u n d , including the applicability of the "safety valve" p ro v isio n s contained in 18U.S.C. § 3553(f) and USSG § 5C1.2, except for an upward departure by the s en te n c in g judge, a sentence above the statutory m a x im u m , or a sentence in violation of the law apart fr o m the sentencing guidelines[.] Exh. Folder 1-53 at 12.

In his § 2255 motion, Rosero raised several claims, including that his c o u n s el was ineffective for failing to file a direct appeal of his sentence.1 Rosero in d ic ate d that none of the claims mentioned in his § 2255 motion were raised "p rio r hereto based on the advi[c]e" of his counsel. R1-1 at 4.

T h e government responded that Rosero waived his right to appeal his sen ten ce, either directly or collaterally, on all of the grounds raised in his motion.

S p ecifically, with regard to Rosero's ineffective assistance of counsel claim, the g o v ern m en t responded that this claim was waived because it did not relate to the v a lid ity of the plea or the waiver itself. In reply, Rosero argued, inter alia, that asid e from the exceptions set forth in the plea agreement itself, he could co llaterally attack his sentence on constitutional grounds in accordance with the S u p rem e Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2 3 4 8 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

The district court denied Rosero's § 2255 motion. In its order denying the m o tio n , the district court addressed the sequence of events at Rosero's change of p le a hearing, noting that th e United States Magistrate Judge reviewed with Rosero the w aiv er of his right to appeal, directly or collaterally his sen ten ce, and asked whether he had discussed this waiver with h is lawyer and if he had any questions about it. Rosero r es p o n d e d affirmatively. The Court also asked if he were ag reein g to that provision freely and voluntarily as part of his p le a and he said "Yes." R1-11 at 2 (citations omitted). In denying the motion, the district court found that R o sero had waived his ineffective-assistance-of-counsel claim pursuant to the s en te n c e appeal waiver in the plea agreement. The district court also denied R o s e ro 's § 2255 motion with respect to all of the other claims, none of which are relev an t to this appeal.

Rosero then filed a notice of appeal. We granted a COA on the following is su e only: "[w]hether the district court erred by finding that appellant had waived h is claim that counsel was ineffective for failing to file a direct appeal?" R1-17.

II. DISCUSSION T h e government concedes that, pursuant to our decision in Gomez-Diaz v. U n ite d States, 433 F.3d 788 (11th Cir. 2005), the district court erred by finding that R o s e ro had waived his claim that his counsel was ineffective for failing to file a d irect appeal. The government acknowledges that we should remand for the d istrict court to conduct an evidentiary hearing to establish the content of c o m m u n ic atio n s between Rosero and his counsel so that the district court may d eterm in e whether counsel complied with his constitutional duties pursuant to Roe v . Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029 (2000).2 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) (per curiam). Whether a d e f en d a n t ultimately has received ineffective assistance of counsel is a mixed q u estio n of fact and law reviewed de novo. Mincey v. Head, 206 F.3d 1106, 1142 (1 1 th Cir. 2000).

In Strickland v. Washington, the Supreme Court established a two-prong test fo r adjudicating ineffective assistance of counsel claims. 466 U.S. 668, 104 S. Ct.

2 0 5 2 (1984). First, a "movant must show that counsel's performance was d e f ic ie n t." Id. at 687, 104 S. Ct. at 2064. The proper measure of attorney p erfo rm an ce is "reasonableness under prevailing professional norms." Id. at 688, 1 0 4 S. Ct. at 2065. "[C]ounsel is strongly presumed to have rendered adequate assistan ce" and to have exercised reasonable professional judgment. Id. at 690, 1 0 4 S. Ct. at 2066. Second, a movant "must show that the deficient performance p reju d iced the defense." Id. at 687, 104 S. Ct. at 2064. To prove prejudice, a m o v an t must show "that there is a reasonable probability" that the outcome "would h av e been different" but for counsel's unprofessional errors. Id. at 694, 104 S. Ct. at 2068.

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 manner that is p ro fessio n ally unreasonable." 528 U.S. at 474-77, 120 S. Ct. at 1035. The S u p rem e Court further held that, even when a defendant has not specifically in s tr u c te d his counsel to file an appeal, in order to determine whether counsel p erfo rm ed deficiently, a court must inquire "whether counsel in fact consulted with th e defendant about an appeal." Id. at 478, 120 S. Ct. at 1035. "If so, the attorney h as only acted unreasonably if he has ignored the client's wishes to appeal the c as e . . . . If not, the court must further inquire whether the attorney had an a ff ir m a tiv e duty to consult." Gomez-Diaz, 433 F.3d at 792 (citing Flores-Ortega, 5 2 8 U.S. at 478, 120 S. Ct. at 1035). This duty to consult arises when either: "(1) an y rational defendant would want to appeal, or (2) [the defendant] reasonably d em o n strated an interest in appealing." Id. (citing Flores-Ortega, 528 U.S. at 480, 1 2 0 S. Ct. at 1036). "[T]o show prejudice in these circumstances, a defendant must d em o n strate that there is a reasonable probability that, but for counsel's deficient f ailu r e to consult with him about an appeal, he would have timely appealed." Flores-Ortega, 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 789-90. Gomez-Diaz did not file a direct appeal.

Id. 433 F.3d at 790. He filed a § 2255 motion, wherein he alleged, inter alia, that his court-appointed counsel failed to file a notice of appeal as he r eq u e ste d . Id. The district court denied the § 2255 motion, without an evidentiary h e a rin g , on the basis that Gomez-Diaz failed to identify any ground for appeal fallin g within the exceptions listed in the sentence appeal waiver. Id. at 790. We g r a n te d a certificate of appealability to address the question of "[w]hether [GomezD ia z] was denied effective assistance of counsel when counsel failed to file a tim ely notice of appeal after appellant allegedly requested counsel to do so." Id.

In addressing this issue, we also addressed two subsidiary questions: (1) "whether [ G o m e z- D ia z's ] § 2255 motion states a claim that entitles him to an evidentiary h e a rin g " ; and (2) if yes, "whether [Gomez-Diaz's] limited appeal waiver precludes th e grant of relief unless he can show that he has meritorious grounds for appeal." Id.

After examining the analytical framework set forth in the Supreme Court's d e c is io 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.

Id. at 791-93. Construing Gomez-Diaz's pleadings liberally, we remanded the case to the district court with instructions to conduct an evidentiary hearing to d e te rm in e whether Gomez-Diaz's initial statements were sufficient to trigger a per se duty to appeal, and if not, whether counsel fulfilled his constitutional duty to co n su lt with Gomez-Diaz regarding his desire to appeal. Id. We also held that the r ea so n in g of Flores-Ortega applied "with equal force" when "the defendant has w aiv ed many, but not all, of his appellate rights." Id. at 793.

H e re , as in Gomez-Diaz, the district court erred by concluding that Rosero h ad waived his ineffective assistance of counsel claim. In denying Rosero's in e f fe ctiv e assistance of counsel claim asserted in his § 2255 motion, the district co u rt found that the claim was barred because it did not relate to the validity of the p le a or the waiver itself. As conceded by the government, the district court erred in making this finding in light of the reasoning set forth in Gomez-Diaz. The r ec o r d in this case is insufficient to determine whether Rosero actually requested th at his attorney file an appeal. The record shows that the district court did not ad d ress this issue. The inquiry as to whether Rosero actually requested counsel to file an appeal, which has not taken place in this case, is an essential first step in the an alysis under Flores-Ortega and Gomez-Diaz.

III. CONCLUSION We vacate and remand to the district court to conduct an evidentiary hearing in to : (1) whether Rosero, in fact, requested counsel to file a direct appeal to trigger th e per se duty to appeal set forth in Flores-Ortega; and (2) if not, whether counsel fu lfilled his constitutional duty to consult with Rosero by advising Rosero of the ad v an tag es and disadvantages of filing an appeal and making a reasonable effort to co m p ly with Rosero's wishes.

VACATED AND REMANDED.

1 The district court initially denied Rosero's § 2255 motion as time-barred. Rosero subsequently filed a motion to alter or amend judgment. The district court granted Rosero's motion to alter or amend judgment and reopened the case so that it could address the merits of the claims in his § 2255 motion to vacate.

2 The government notes that Rosero fails to discuss Flores-Ortega and Gomez-Diaz, and contends that Rosero's brief instead discusses the merits of several different arguments that hypothetically could have been raised on appeal. The government asserts that these arguments should not be considered and that Rosero has failed to address the narrow question that we have certified for review. While Rosero does not discuss Flores-Ortega and Gomez-Diaz, he has maintained that his counsel was constitutionally ineffective for not filing a direct appeal despite the sentence appeal waiver in the plea agreement. Rather than asserting the merits of specific arguments, it appears that Rosero cites particular examples of what his counsel could have argued if a direct appeal was filed. As we construe pro se arguments liberally, Rosero has addressed the issue specified in the COA. See Trawinski v. United Technologies, 313 F.3d 1295, 1297 (11th Cir. 2002) (per curiam) (noting that courts construe pro se pleadings liberally).