                                                       [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                          FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                            ________________________ ELEVENTH CIRCUIT
                                                              OCT 13, 2006
                                 No. 05-15729               THOMAS K. KAHN
                             Non-Argument Calendar              CLERK
                           ________________________

                  D. C. Docket Nos. 04-01918-CV-T-30-TGW
                               03-00124-CR-T-3

SERIJO MIQUEL,
a.k.a. Luis Montenegro,


                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.


                           ________________________

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

                               (October 13, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      Federal prisoner Serijo Miquel, through counsel, appeals the district court’s

order denying his § 2255 motion to vacate his sentence. We granted a certificate of

appealability on the following issue only: “[w]hether the district court erred in

failing to hold an evidentiary hearing on [Miquel]’s claim that he received

ineffective assistance of counsel based on his attorney’s failure to file a notice of

appeal, in light of this Court’s decision in Gomez-Diaz v. United States, 433 F.3d

788 (11th Cir. 2005)?” While acknowledging the fact that he entered into a

written plea agreement with a sentence appeal waiver that waived some but not all

of his appellate rights, Miquel argues that counsel was constitutionally ineffective

because he failed to file a direct appeal as requested.

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

district court erred by finding that Miquel had waived his claim that his counsel

was ineffective for failing to file a direct appeal. The government acknowledges

that we should remand this case for the district court to conduct an evidentiary

hearing to establish whether Miquel’s trial counsel had a duty to file a notice of

appeal from the final judgment in the district court, pursuant to Roe v. Flores-

Ortega, 528 U.S. 470, 120 S. Ct. 1029 (2000).

      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

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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).

      The legal standard governing the disposition of ineffective assistance of

counsel claims is derived from the benchmark case of Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052 (1984). In Strickland, the Supreme Court

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

claims. A movant must show that counsel’s performance was deficient and that

this deficiency prejudiced the defense. Id. at 687, 104 S. Ct. at 2064.

      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 professionally

unreasonable manner. 528 U.S. at 476-77, 120 S. Ct. at 1034-35. 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 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

                                           3
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 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 identical to the waiver

in the instant case. 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.

      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.

Gomez-Diaz, 433 F.3d at 791-93. We remanded the case to the district court with

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

                                            4
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. at 792. 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.

       Here, as in Gomez-Diaz, we conclude from the record that the district court

erred by concluding that Miquel had waived his ineffective assistance of counsel

claim. In denying Miquel’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 negotiation of his plea agreement and did not fall within any of the

exceptions to his appeal 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 this issue of

whether Miquel 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 the district court’s order and remand this case to the district

court to conduct an evidentiary hearing.

       VACATED AND REMANDED.




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