                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              January 18, 2007
                             No. 05-16961                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                            D. C. Docket Nos.
                            05-20726-CV-JIC
                            03-20441 CR-JIC

FELIX SUAREZ,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                            (January 18, 2007)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:
      Federal prisoner Felix Suarez appeals the district court’s denial of his § 2255

motion to vacate, set aside or correct his sentence. We granted a certificate of

appealability on the following issue only: “[w]hether appellant was denied

effective assistance of counsel when counsel failed to file a timely notice of appeal

after appellant allegedly requested counsel to do so and whether the district court

erred in failing to hold an evidentiary hearing on the issue,” pursuant to Gomez-

Diaz 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

evidentiary hearing on the issue. The government concedes that, pursuant to our

decision in Gomez-Diaz, the district court erred by finding that Suarez had waived

his claim that his counsel was ineffective for failing to file a direct appeal. It

acknowledges that we should remand for the district court to conduct an

evidentiary hearing to establish whether Suarez’s trial counsel had a duty to file a

notice of appeal from the final judgment in the district court.

      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). Whether a defendant

ultimately has received ineffective assistance of counsel is a mixed question of fact



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and 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 seminal case of Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme

Court established a two-prong test for adjudicating ineffective-assistance-of-

counsel claims. First, a movant must show that counsel’s performance was

unreasonably deficient. Second, the movant must show that this deficiency

prejudiced 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

Court applied the test set forth in Strickland in addressing the question of when

counsel is ineffective for failing to file a notice of appeal. The Court reiterated the

long-established rule that a lawyer who disregards specific instructions from the

defendant 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

ineffective 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

appeal. 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. at 480, 120 S.Ct. at 1036. Finally, in addition to showing



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unreasonable deficiency, the defendant must also show that the failure to file a

notice of appeal caused prejudice. “[T]o show prejudice under 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. Gomez-Diaz, 433

F.3d at 790. Gomez-Diaz did not file a direct appeal. Id. He filed a § 2255

motion, 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

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.

      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. We remanded the case to the district court with instructions to

conduct an evidentiary hearing to determine whether Gomez-Diaz’s initial



                                            4
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. at 793 We also held that the reasoning of Flores-Ortega

applied “with equal force” where the defendant has waived many, but not all of his

appellate rights. Id. at 793.

      Upon review of the record, and upon consideration of the briefs of the

parties, 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

had waived his ineffective-assistance-of-counsel claim. In that case, Gomez-Diaz

pled guilty pursuant to a written plea agreement containing a sentence appeal

waiver that, substantively, was essentially the same as the waiver in the instant

case. Gomez-Diaz, 433 F.3d at 790. In denying Suarez’s ineffective-assistance-

of-counsel 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

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 the issue of whether

Suarez 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



                                           5
and remand to the district court to conduct an evidentiary hearing into: (1) whether

Suarez, in fact, requested counsel to file a direct appeal sufficient 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 Suarez by advising him of the advantages

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

with Suarez’s wishes.

      VACATED AND REMANDED.




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