                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            September 12, 2006
                             No. 05-16582                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                            D. C. Docket Nos.
                         04-01728-CV-T-17-EAJ
                            03-00082-CR-T-1

EDUARDO ROSERO,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                          (September 12, 2006)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Federal prisoner Eduardo Rosero, proceeding pro se, appeals the district

court’s denial of his § 2255 motion to vacate, set aside, or correct his sentence. We

granted a certificate of appealability (“COA”) on the issue of whether the district

court erred by finding that appellant had waived his claim that counsel was

ineffective for failing to file a direct appeal. The government concedes the error

and requests that we remand for the district court to hold an evidentiary hearing on

this issue. We agree that the district court erred in concluding that Rosero waived

his 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

counsel denied him effective assistance of counsel.

                                 I. BACKGROUND

      The instant § 2255 motion stems from Rosero’s guilty plea to one count of

conspiring to possess with the intent to distribute five grams or more of cocaine

aboard a vessel subject to the jurisdiction of the United States, in violation of 46

U.S.C. app. § 1903 and 21 U.S.C. § 960(b)(1)(B)(ii). R1-1. The district court

imposed a sentence of 210 months of imprisonment. In addition, Rosero’s written

plea agreement contained a sentence appeal waiver, which provided, in relevant

part, as follows:

             The defendant . . . expressly waives the right to appeal
             defendant’s sentence, directly or collaterally, on any

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              ground, including the applicability of the “safety valve”
              provisions contained in 18 U.S.C. § 3553(f) and USSG
              § 5C1.2, except for an upward departure by the
              sentencing judge, a sentence above the statutory
              maximum, or a sentence in violation of the law apart
              from the sentencing guidelines[.]

Exh. Folder 1-53 at 12.

       In his § 2255 motion, Rosero raised several claims, including that his

counsel was ineffective for failing to file a direct appeal of his sentence.1 Rosero

indicated that none of the claims mentioned in his § 2255 motion were raised

“prior hereto based on the advi[c]e” of his counsel. R1-1 at 4.

       The government responded that Rosero waived his right to appeal his

sentence, either directly or collaterally, on all of the grounds raised in his motion.

Specifically, with regard to Rosero’s ineffective assistance of counsel claim, the

government responded that this claim was waived because it did not relate to the

validity of the plea or the waiver itself. In reply, Rosero argued, inter alia, that

aside from the exceptions set forth in the plea agreement itself, he could

collaterally attack his sentence on constitutional grounds in accordance with the

Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.



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        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.

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2348 (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

motion, the district court addressed the sequence of events at Rosero’s change of

plea hearing, noting that

             the United States Magistrate Judge reviewed with Rosero the
             waiver of his right to appeal, directly or collaterally his
             sentence, and asked whether he had discussed this waiver with
             his lawyer and if he had any questions about it. Rosero
             responded affirmatively. The Court also asked if he were
             agreeing to that provision freely and voluntarily as part of his
             plea and he said “Yes.”

R1-11 at 2 (citations omitted). In denying the motion, the district court found that

Rosero had waived his ineffective-assistance-of-counsel claim pursuant to the

sentence appeal waiver in the plea agreement. The district court also denied

Rosero’s § 2255 motion with respect to all of the other claims, none of which are

relevant to this appeal.

      Rosero then filed a notice of appeal. We granted a COA on the following

issue only: “[w]hether the district court erred by finding that appellant had waived

his claim that counsel was ineffective for failing to file a direct appeal?” R1-17.

                                 II. DISCUSSION

      The government concedes that, pursuant to our decision in Gomez-Diaz v.

United States, 433 F.3d 788 (11th Cir. 2005), the district court erred by finding that



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Rosero had waived his claim that his counsel was ineffective for failing to file a

direct appeal. The government acknowledges that we should remand for the

district court to conduct an evidentiary hearing to establish the content of

communications between Rosero and his counsel so that the district court may

determine 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 28 U.S.C. § 2255 proceeding are

reviewed de novo and its factual findings are reviewed for clear error. Lynn v.

United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). Whether a

defendant ultimately has received ineffective assistance of counsel is a mixed

question of fact and law reviewed de novo. Mincey v. Head, 206 F.3d 1106, 1142

(11th Cir. 2000).

       In Strickland v. Washington, the Supreme Court established a two-prong test



       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).


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for adjudicating ineffective assistance of counsel claims. 466 U.S. 668, 104 S. Ct.

2052 (1984). First, a “movant must show that counsel’s performance was

deficient.” Id. at 687, 104 S. Ct. at 2064. The proper measure of attorney

performance is “reasonableness under prevailing professional norms.” Id. at 688,

104 S. Ct. at 2065. “[C]ounsel is strongly presumed to have rendered adequate

assistance” and to have exercised reasonable professional judgment. Id. at 690,

104 S. Ct. at 2066. Second, a movant “must show that the deficient performance

prejudiced the defense.” Id. at 687, 104 S. Ct. at 2064. To prove prejudice, a

movant must show “that there is a reasonable probability” that the outcome “would

have 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

and reiterated the long-established rule “that a lawyer who disregards specific

instructions from the defendant to file a notice of appeal acts in a manner that is

professionally unreasonable.” 528 U.S. at 474-77, 120 S. Ct. at 1035. The

Supreme Court further held that, even when a defendant has not specifically

instructed his counsel to file an appeal, in order to determine whether counsel

performed deficiently, a court must inquire “whether counsel in fact consulted with

the defendant about an appeal.” Id. at 478, 120 S. Ct. at 1035. “If so, the attorney



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has only acted unreasonably if he has ignored the client’s wishes to appeal the

case . . . . If not, the court must further inquire whether the attorney had an

affirmative duty to consult.” Gomez-Diaz, 433 F.3d at 792 (citing Flores-Ortega,

528 U.S. at 478, 120 S. Ct. at 1035). This duty to consult arises when either: “(1)

any rational defendant would want to appeal, or (2) [the defendant] reasonably

demonstrated an interest in appealing.” Id. (citing Flores-Ortega, 528 U.S. at 480,

120 S. Ct. at 1036). “[T]o show prejudice in these circumstances, a defendant must

demonstrate that there is a reasonable probability that, but for counsel’s deficient

failure 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

similar to the instant appeal. In that case, Gomez-Diaz pled guilty pursuant to a

written 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

requested. Id. The district court denied the § 2255 motion, without an evidentiary

hearing, on the basis that Gomez-Diaz failed to identify any ground for appeal

falling within the exceptions listed in the sentence appeal waiver. Id. at 790. We



                                            7
granted a certificate of appealability to address the question of “[w]hether [Gomez-

Diaz] was denied effective assistance of counsel when counsel failed to file a

timely notice of appeal after appellant allegedly requested counsel to do so.” Id.

In addressing this issue, we also addressed two subsidiary questions: (1) “whether

[Gomez-Diaz’s] § 2255 motion states a claim that entitles him to an evidentiary

hearing”; and (2) if yes, “whether [Gomez-Diaz’s] limited appeal waiver precludes

the 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

decisions 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

determine 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

consult with Gomez-Diaz regarding his desire to appeal. Id. We also held that the

reasoning of Flores-Ortega applied “with equal force” when “the defendant has

waived many, but not all, of his appellate rights.” Id. at 793.

      Here, as in Gomez-Diaz, the district court erred by concluding that Rosero



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had waived his ineffective assistance of counsel claim. In denying Rosero’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 validity of the

plea 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

record in this case is insufficient to determine whether Rosero actually requested

that his attorney file an appeal. The record shows that the district court did not

address 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

analysis under Flores-Ortega and Gomez-Diaz.

                                 III. CONCLUSION

       We vacate and remand to the district court to conduct an evidentiary hearing

into: (1) whether Rosero, in fact, requested counsel to file a direct appeal to trigger

the per se duty to appeal set forth in Flores-Ortega; and (2) if not, whether counsel

fulfilled his constitutional duty to consult with Rosero by advising Rosero of the

advantages and disadvantages of filing an appeal and making a reasonable effort to

comply with Rosero’s wishes.

      VACATED AND REMANDED.




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