                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-1701
JOSE HERRERA CORRAL,
                                           Petitioner-Appellant,
                                v.

UNITED STATES OF AMERICA,
                                           Respondent-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
           No. 03 C 1432—Joan B. Gottschall, Judge.
                         ____________
  ARGUED JANUARY 23, 2007—DECIDED AUGUST 13, 2007
                   ____________


  Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. In 2002 Jose Herrera Corral
and his father-in-law, Fidel Robeles-Ortega, pled guilty to
conspiring to possess cocaine with intent to distribute.
Although each defendant’s plea agreement specifically
reserved the right to appeal the district court’s ruling on
their joint motion to suppress, only Robeles-Ortega’s
attorney filed a notice of appeal. Robeles-Ortega’s appeal
succeeded in this court, and he was released from prison.
While Robeles-Ortega’s appeal was still pending, however,
Herrera Corral filed a federal habeas petition, alleging
that his counsel was ineffective because he operated under
a conflict of interest and was not available when Herrera
Corral tried to inform him that he wished to file an appeal.
2                                              No. 06-1701

After a hearing, the district court denied Herrera Corral’s
petition, concluding that his attorney’s performance was
not constitutionally deficient. Because Herrera Corral’s
counsel remained unreasonably unavailable during the
ten-day window to file an appeal, we reverse.


                    I. BACKGROUND
  In 2001 agents from the Drug Enforcement Administra-
tion raided an apartment without a warrant, seized a bag
full of cocaine, and arrested Herrera Corral and his father-
in-law—the apparent custodians of the seized drugs. Both
Herrera Corral and Robeles-Ortega moved to suppress
the cocaine, but after the district court denied the motion,
they agreed to plead guilty to conspiring to possess and
possessing with intent to distribute cocaine, 18 U.S.C. § 2;
21 U.S.C. §§ 841(a)(1), 846, and both signed conditional
plea agreements that reserved their right to appeal the
adverse suppression ruling.
   The district court sentenced Herrera Corral to the
mandatory minimum term of imprisonment—ten years—
and found him ineligible to receive a sentence below the
mandatory minimum because he was not completely
cooperative with the government. See U.S.S.G. § 5C1.2
(permitting judges to sentence certain first-time, non-
violent drug offenders below the mandatory minimum
if they fully cooperate with the government). After the
court sentenced Herrera Corral, his attorney did not file a
notice of appeal within the required ten days after judg-
ment, Fed. R. App. P. 4(b)(1)(A)(i), despite having pre-
served in the plea agreement Herrera Corral’s right to
appeal the adverse suppression ruling. In contrast,
Robeles-Ortega appealed the district court’s suppression
ruling, and we held that the drugs were the result of an
illegal search and should have been suppressed. United
States v. Robeles-Ortega, 348 F.3d 679, 684-85 (7th Cir.
No. 06-1701                                                3

2003). As a result, Robeles-Ortega was released from
prison.
   While his father-in-law’s appeal was pending, Herrera
Corral filed a petition in the district court under 28 U.S.C.
§ 2255, proposing two theories for why his counsel was
ineffective. He first claimed that counsel’s loyalty to
Robeles-Ortega caused him to refrain from advising
Herrera Corral to provide information to the government
implicating his father-in-law. Second, he contended that
counsel did not adequately consult with him about
filing an appeal and remained unavailable when Herrera
Corral repeatedly attempted to tell counsel to file a
notice of appeal.
  The district court held an evidentiary hearing on the
motion. Herrera Corral first testified about his claim that
counsel had a conflict of interest, saying that counsel told
him that Robeles-Ortega would pay his $50,000 legal
fee. Herrera Corral said that he thought that because
Robeles-Ortega paid the attorney’s fee, counsel never
advised him that he needed to disclose more information
to the government to qualify for a sentence below the
mandatory minimum. On the other hand, Herrera Corral
testified that he told the government everything he knew.
  Herrera Corral next addressed his claim that counsel
improperly failed to file a notice of appeal. He asserted
that prior to sentencing, counsel advised him that the
cocaine should have been suppressed, that counsel had
friends who could handle an appeal for $10,000, and that
he thought that the appeal “had a chance.” Herrera Corral
said that during the ten days after judgment he tried to
tell counsel to file a notice of appeal but could not tele-
phone him directly because he knew from previous experi-
4                                                    No. 06-1701

ence that his attorney blocked calls from the prison.1
Herrera Corral therefore instructed his wife to call.
Although she left several messages, counsel did not return
any of the calls within the relevant ten days. Herrera
Corral testified that his wife also inquired at the office of
the clerk of this court about obtaining a public defender
for her husband, but was unable to have one appointed.
  Herrera Corral’s wife and sister also testified at the
hearing that counsel spoke to them immediately after
sentencing about the possibility of having the appeal
handled by another attorney for $10,000 or by a federal
public defender. His wife corroborated Herrera Corral’s
testimony that she tried to call counsel several times
about the appeal and that he did not return her calls until
after the time to file an appeal had long passed.
  Counsel was the next to testify, describing his interac-
tions with Herrera Corral on the day of sentencing.
Counsel testified that he met with Herrera Corral prior to
the sentencing hearing to discuss the suppression issue.
During their conversation, Herrera Corral said that he
did not want to appeal but that, despite counsel’s re-
quest, he also did not want counsel to withdraw. The
attorney then recounted a brief meeting he had with
Herrera Corral in a holding cell immediately after sen-
tencing, during which he advised Herrera Corral that a
potentially meritorious issue remained for appeal, but



1
   Before sentencing Herrera Corral attempted to telephone his
attorney from prison, but the call did not go through because
of a “call result 31,” meaning that counsel had placed a block on
all calls from the prison to his office. According to counsel, once
a person blocks incoming calls from the prison, the intended
receiver must affirmatively unblock the calls to receive them.
Prison telephone records verify that Herrera Corral’s calls to
his attorney were blocked.
No. 06-1701                                              5

with regard to representing Herrera Corral on the appeal,
“I told him I wouldn’t do it.” At that point Herrera Corral
“just sat on the bench back in the lockup,” and said,
“ ‘I don’t care. I don’t care.’ ”
   Counsel concluded that Herrera Corral did not wish to
appeal, but the response “surprised” him because “what
he was saying was making no sense to me because we
had spent all this time and all this effort and we be-
lieved we had a meritorious issue.” Counsel testified that
he inquired no further and that the whole conversation
took approximately one to two minutes. Counsel said he
then spoke with Herrera Corral’s wife and told her that he
would not file the appeal because he was “done with the
case” and was “basically discharged.” He said that he
did not recall hearing from Herrera Corral or his family
during the next ten days. As for the blocked phone calls
that Herrera Corral described, counsel explained that he
may have inadvertently blocked calls from the prison
because the message from the prison asking for ap-
proval to accept calls was in Spanish.
  The final witness was one of the attorney’s associates,
who testified that he and counsel met with Herrera Corral
about filing an appeal (he believed the meeting took
place before sentencing) and that Herrera Corral indicated
that he did not want to appeal. The associate, who served
as an interpreter during the meeting, summarized the
consultation between counsel and Herrera Corral:
   He—he basically—his body language was—I mean,
   I remember this. He just sat there, he seemed so upset
   by this. He says no, that’s okay, in response to filing
   the appeal. We reminded him look, you still have a
   chance to do this, even after you’re sentenced, even
   when you’re doing your sentence. You can appeal this.
   You should appeal this. This was reserved for you, this
   right. This was a very good thing that was done for
6                                               No. 06-1701

    you. Normally you don’t get this kind of thing in a
    plea agreement. Normally those issues are waived, but
    this was reserved for you, you should do so. And he
    again just sort of drooped down and said no, that’s
    okay.
  Crediting counsel’s and his associate’s testimony, the
district court found that counsel had made reasonable
efforts to discover Herrera Corral’s wishes and that
Herrera Corral “indicated clearly” that he did not want
to appeal. Accordingly, the district court denied Herrera
Corral’s petition, and he appeals.


                       II. ANALYSIS
  When a district court denies a § 2255 motion, we review
the court’s findings of fact for clear error and rulings of
law de novo. Hall v. United States, 371 F.3d 969, 972-73
(7th Cir. 2004).
  Herrera Corral argues that counsel’s performance was
ineffective because he failed to file a notice of appeal, see
Fed. R. App. P. 4(b)(1)(A), and was not available during
the ten days to file an appeal. Although the district court
found that Herrera Corral “indicated clearly” to counsel
that he did not wish to appeal, this ruling does not re-
solve whether counsel rendered ineffective assistance by
remaining unavailable to Herrera Corral and his wife
during the period to file the appeal.
  In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Su-
preme Court stated that “a defendant who explicitly tells
his attorney not to file an appeal plainly cannot later
complain that, by following his instructions, his counsel
performed deficiently.” Id. at 477. And we have held
that “[c]ounsel will not be found ineffective per se for
failure to appeal an appealable judgment.” Oliver v. United
States, 961 F.2d 1339, 1342 (7th Cir. 1992). But neither
No. 06-1701                                              7

the Supreme Court nor this court has ever held that a
defendant who initially indicates that he does not wish to
appeal cannot reasonably expect counsel’s assistance if
the defendant has a change of heart before the window
to file an appeal closes.
  The district court addressed this point only briefly,
saying in a footnote, “Herrera Corral provides no sup-
port for the argument (and the court cannot find any) that
an attorney has a duty to be reachable by his client after
his client has discharged him.” The district court never
found, however, that counsel was discharged. In fact,
counsel’s own testimony—which the district court
credited—indicates that he was not discharged, but rather
unilaterally quit. Counsel testified that before sentencing
he offered to withdraw, but Herrera Corral “asked me not
to do that.” After sentencing, despite Herrera Corral’s
request that he not withdraw from representation, counsel
told Herrera Corral that he “wouldn’t do” the appeal.
Counsel reiterated during cross examination that “I had
even offered to withdraw, and he said no, he didn’t want
me to withdraw after all the other issues that had devel-
oped. That’s why I went to [Herrera Corral’s wife] and
said: I can’t do this appeal.” Importantly, counsel never
said that he sought permission from this court—or any
court—before deciding to withdraw; that decision was
impermissible without leave from this court.
  In United States v. Flowers, 789 F.2d 569, 570 (7th Cir.
1986) (per curiam), we ruled that only this court may
allow defense counsel to withdraw after judgment in the
district court has been entered. While the situation in
Flowers was slightly different than the facts presented
here because the defendants’ attorneys in Flowers moved
to withdraw after filing notices of appeal, the concerns
here are the same. Flowers relies on what was then Circuit
Rule 2(c) (the current Rule 51(a) uses the same text),
which stated that “[t]rial counsel in a criminal case,
8                                              No. 06-1701

whether retained or appointed by the district court, is
responsible for the continued representation of the client
desiring to appeal unless specifically relieved by the court
of appeals upon a motion to withdraw.” Id. at 570 n.1
(quoting Circuit Rule 2(c)). We stated that the policy
informing this rule was “our responsibility of ensuring
that trial counsel perfects a defendant’s appeal,” and we
stated that “[w]e have seen too many examples of crim-
inal defense attorneys wanting to bail out on appeal while
leaving their clients in the lurch.” Id. at 570. The rule of
course references a “client desiring to appeal,” but the
decision whether to appeal is not final until the time to
perfect an appeal has expired. See id. (noting this court’s
responsibility to ensure that counsel perfect an appeal
after sentencing). Between entry of judgment and the
close of the appeal window, counsel must not be allowed
to withdraw precisely because a client who initially de-
cides not to appeal might change his mind, and—as we
have seen in this case—the consequences of the lawyer
simply walking off can be too high. Of course, a defendant
who has a change of heart and makes no real effort to
inform counsel is not entitled to relief. Moreover, although
we conclude that an attorney should remain available to
a client during the relevant ten-day period, we are not
suggesting that the attorney must adjust his or her
schedule in anticipation of the client’s decision to ap-
peal. Rather, we simply hold that when a criminal defen-
dant has made reasonable efforts to contact his lawyer
about an appeal during the ten-day period, his lawyer
must make a reasonable effort to reach the client before
the time for filing a notice of appeal expires.
  Therefore, we must now ask whether the attorney
remained reasonably available to Herrera Corral during
that ten-day period, and in doing so we look both to
Herrera Corral’s efforts and counsel’s behavior. Looking at
the facts credited by the district court, it is evident that
No. 06-1701                                               9

rather than remaining available, the attorney actually
avoided contact from Herrera Corral and his wife. Herrera
Corral’s wife testified that she repeatedly called counsel
for assistance during the ten-day appeal period, but
that her phone calls were not returned. This is consistent
with her testimony that she sought help from other
quarters as well: at the Federal Public Defender’s office
and at the office of the clerk of this court. Counsel claims
he does not recall receiving any of her messages. But the
district court never found that Herrera Corrals’ wife was
not credible concerning placing these calls, stating only,
“[w]hile the court found Herrera Corral’s wife and sister
to be somewhat credible, any weight accorded to them
does not tip the balance in Herrera Corral’s favor in light
of the strength of [counsel] and [his associate’s] testi-
mony.” Considering the court’s suggestion that the attor-
ney was not required to be reachable, this statement seems
to indicate that the district court thought the later phone
calls didn’t matter, not that they didn’t happen. Moreover,
telephone records from the prison establish that Herrera
Corral’s phone calls to his lawyer were in fact blocked
as Herrera Corral described. The court’s findings demon-
strate that the attorney was not merely unavailable; his
failure to return some phone calls and his blocking of
others were affirmative steps to prevent his client from
reaching him during this crucial time frame. Counsel took
affirmative actions to avoid his client and was therefore
unreasonably unavailable and his representation was
constitutionally deficient.
  Additionally, counsel’s deficient performance prejudiced
Herrera Corral, who would have filed an appeal but for
his attorney’s actions. “[W]hen counsel’s constitutionally
deficient performance deprives a defendant of an appeal
that he otherwise would have taken, the defendant has
made out a successful ineffective assistance of counsel
claim entitling him to an appeal.” Flores-Ortega, 528 U.S.
10                                              No. 06-1701

at 484. Herrera Corral’s wife said—in testimony that the
district court did not discredit—that she tried to reach the
attorney because Herrera Corral wanted to file an appeal.
Because counsel did not return her calls, Herrera Corral
was deprived of an appeal that he would have other-
wise taken. Herrera Corral has therefore established a
successful ineffective assistance of counsel claim and he
is entitled to an appeal.
  Because we have already decided that counsel’s assis-
tance was ineffective, it is not necessary to address
Herrera Corral’s second argument that counsel operated
under a conflict of interest, which deterred him from
advising Herrera Corral to provide more information about
his father-in-law. But we note that Herrera Corral has
consistently maintained that he told the government
everything he knew and that he told them the truth.
Herrera Corral therefore likely could not establish that
the presumed conflict adversely affected his representa-
tion. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); Hall
v. United States, 371 F.3d 969, 973 (7th Cir. 2004).


                     III. CONCLUSION
  Because counsel rendered ineffective assistance, the
district court’s judgment is REVERSED and the case is
REMANDED for the entry of an order granting the petition
for a writ of habeas corpus. Under Circuit Rule 40(e), this
opinion was circulated to all the active judges of this court,
and none voted to hear the case en banc.
No. 06-1701                                        11

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—8-13-07
