[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

January 18, 2007

N o . 05-16961 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.

05-20726-CV-JIC

0 3 - 2 0 4 4 1 CR-JIC

F E L IX SUAREZ,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(J a n u a ry 18, 2007)

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

P E R CURIAM:

F ed eral prisoner Felix Suarez appeals the district court's denial of his § 2255 m o tio n to vacate, set aside or correct his sentence. We granted a certificate of a p p e a la b ility on the following issue only: "[w]hether appellant was denied e ff ec tiv e assistance of counsel when counsel failed to file a timely notice of appeal a fte r appellant allegedly requested counsel to do so and whether the district court e rr ed in failing to hold an evidentiary hearing on the issue," pursuant to GomezD iaz v. United States, 433 F.3d 788 (11th Cir. 2005).

Suarez argues that his counsel was per se ineffective because he failed to file a direct appeal upon request and that, at a minimum, Suarez is entitled to an ev id en tiary hearing on the issue. The government concedes that, pursuant to our d e c is io n in Gomez-Diaz, the district court erred by finding that Suarez had waived h is claim that his counsel was ineffective for failing to file a direct appeal. It a ck n o w le d g e s that we should remand for the district court to conduct an e v id e n tia ry hearing to establish whether Suarez's trial counsel had a duty to file a n o tice of appeal from the final judgment in the district court.

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 ited 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-ofco u n sel claims is derived from the seminal case of Strickland v. Washington, 466 U .S . 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme C o u r t established a two-prong test for adjudicating ineffective-assistance-ofc o u n s el claims. First, a movant must show that counsel's performance was u n r ea so n a b ly deficient. Second, the movant must show that this deficiency p reju d iced the defense. Id. at 687, 104 S.Ct. at 2064.

In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029 (2000), the Supreme C o u r t applied the test set forth in Strickland in addressing the question of when co u n sel is ineffective for failing to file a notice of appeal. The Court reiterated the lo n g -estab lish ed rule that a lawyer who disregards specific instructions from the d efen d an t to file a notice of appeal acts in a professionally unreasonable manner.

Id. at 476-77, 120 S.Ct. at 1034-35. The Court further held that counsel may be in effectiv e even when a defendant has not specifically instructed his counsel to file an appeal, so long as counsel had a duty to consult the defendant about his desire to ap p eal. This duty to consult arises when either: (1) any rational defendant would w an t to appeal; or (2) the defendant reasonably demonstrated an interest in ap p ealin g . Id. at 480, 120 S.Ct. at 1036. Finally, in addition to showing u n r ea so n a b le deficiency, the defendant must also show that the failure to file a n o tice of appeal caused prejudice. "[T]o show prejudice under these circu m stan ces, a defendant must demonstrate that there is a reasonable probability th at, but for counsel's deficient failure to consult with him about an appeal, he w o u ld 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 ritten plea agreement containing a sentence appeal waiver. Gomez-Diaz, 433 F .3 d at 790. Gomez-Diaz did not file a direct appeal. Id. He filed a § 2255 m o tio n , wherein he alleged, inter alia, that his court-appointed counsel failed to file a notice of appeal as he had requested. Id. The district court denied the § 2255 m o tio n without an evidentiary hearing, on the basis that Gomez-Diaz failed to id e n tif y any ground for appeal falling within the exceptions listed in the sentence ap p eal waiver. Id. at 790.

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. We remanded the case to the district court with instructions to c o n d u c t an evidentiary hearing to determine whether Gomez-Diaz's initial s ta te m e n ts were sufficient to trigger a per se duty to appeal, and if not, whether co u n sel fulfilled his constitutional duty to consult with Gomez-Diaz regarding his d esire to appeal. Id. at 793 We also held that the reasoning of Flores-Ortega ap p lied "with equal force" where the defendant has waived many, but not all of his ap p ellate rights. Id. at 793.

U p o n review of the record, and upon consideration of the briefs of the p arties, we find that Gomez-Diaz controls this case, and vacate and remand.

Here, as in Gomez-Diaz, the district court erred by concluding that Suarez h a d waived his ineffective-assistance-of-counsel claim. In that case, Gomez-Diaz p le d guilty pursuant to a written plea agreement containing a sentence appeal w aiv er that, substantively, was essentially the same as the waiver in the instant c as e. Gomez-Diaz, 433 F.3d at 790. In denying Suarez's ineffective-assistanceo f-co u n sel claim asserted in his § 2255 motion, the district court found that the claim was barred by Suarez's knowing and voluntary waiver. As conceded by the g o v ern m en t, 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 the issue of whether S u arez actually requested his attorney to file an appeal. This is an essential first step in the analysis under Flores-Ortega and Gomez-Diaz. Therefore, we vacate a n d remand to the district court to conduct an evidentiary hearing into: (1) whether S u a r ez , in fact, requested counsel to file a direct appeal sufficient to trigger the per s e duty to appeal set forth in Flores-Ortega; and (2) if not, whether counsel fulfilled h is constitutional duty to consult with Suarez by advising him of the advantages an d disadvantages of filing an appeal and making a reasonable effort to comply w ith Suarez's wishes.

VACATED AND REMANDED.