                                                      [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                 FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                   ________________________ ELEVENTH CIRCUIT
                                                         DEC 18, 2007
                          No. 07-11209                 THOMAS K. KAHN
                      Non-Argument Calendar                CLERK
                    ________________________

             D.C. Docket Nos. 06-08031-CV-4-IPJ-HGD
                         04-00238-CR-4-1

AARON LEWIS McELROY,



                                                      Petitioner–Appellant,

                               versus

UNITED STATES OF AMERICA,

                                                     Respondent–Appellee.


                    ________________________

             Appeal from the United States District Court
                for the Northern District of Alabama
                   _________________________

                        (December 18, 2007)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

      Aaron Lewis McElroy, proceeding pro se, appeals the district court’s denial

of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We

granted a certificate of appealability on the following issue only: “Whether the

district court erred in denying appellant’s claim that his trial counsel was

ineffective for failing to file a notice of appeal after appellant allegedly requested

counsel to do so?” We agree that the district court clearly erred in denying

McElroy’s § 2255 motion on the grounds that McElroy failed to identify arguably

meritorious grounds which he could have pursued on direct appeal.

      It is well-settled case law that “a lawyer who disregards specific instructions

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

unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (applying the

“reasonably effective” legal assistance test from Strickland v. Washington, 466

U.S. 668 (1984), to a claim that counsel was ineffective for failing to file a notice

of appeal). There is a presumption of prejudice “with no further showing from the

defendant of the merits of his underlying claims when the violation of the right to

counsel rendered the proceeding presumptively unreliable or entirely nonexistent.”

Id. at 484. A defendant need not establish that his direct appeal would have been



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arguably meritorious; he need only show that his counsel’s constitutionally

deficient performance deprived him of an appeal he would have otherwise

taken—i.e., the defendant expressed to his attorney a desire to appeal. Id.; see also

Gomez-Diaz v. United States, 433 F.3d 788, 792 (11th Cir. 2005).

      Moreover, even when a defendant has not specifically instructed his counsel

to file an appeal, his counsel may still have performed deficiently. In such

circumstances, a court must inquire “whether counsel in fact consulted with the

defendant about an appeal”—that is, whether he advised the defendant about the

advantages and disadvantages of taking an appeal while also making a reasonable

effort to discover the defendant’s wishes. Flores-Ortega, 528 U.S. at 478. If the

attorney has consulted with the defendant, “the attorney 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 the affirmative duty to

consult.” Gomez-Diaz, 433 F.3d at 792 (citing Flores-Ortega, 528 U.S. at 478).

This duty to consult arises when either “(1) any rational defendant would want to

appeal, or (2) his particular client reasonably demonstrated an interest in

appealing.” Id. (citing Flores-Ortega, 528 U.S. at 480).

      In the present case, the district court erroneously concluded that to satisfy

the prejudice prong of the Strickland test, McElroy was required to establish that



                                           3
he would have had an arguably meritorious claim on direct appeal. Consequently,

the district court never determined whether McElroy specifically requested that his

counsel file a notice of appeal or whether he had a duty to consult or actually

consulted with McElroy about filing an appeal. Furthermore, the record below is

insufficient to resolve the factual questions because the record contains both a

sworn affidavit from McElroy supporting his version of events and a sworn

affidavit from his trial counsel refuting McElroy’s claim that he directed his

counsel to file a notice of appeal. Thus, the district erred in failing to hold an

evidentiary hearing to establish the content —or lack thereof —of communications

between McElroy and his attorney.

      Accordingly, in light of Strickland, Flores-Ortega, and Gomez-Diaz, we

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

determine (1) whether McElroy, in fact, requested counsel to file a direct appeal

sufficient to trigger the per se duty to appeal; and (2) if not, whether counsel

fulfilled his constitutional duty to consult with McElroy by advising him of the

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

comply with McElroy’s wishes.

      VACATED AND REMANDED .




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