                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-14916                   OCTOBER 5, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                         ________________________

        D. C. Docket Nos. 03-01728-CV-TWT-1 & 01-00534-CR-TWT

ARTURO PLIEGO-DUARTE,



                                                      Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                      Respondent-Appellee.


                         ________________________

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

                               (October 5, 2006)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Arturo Pliego-Duarte, a federal prisoner 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. After review, we vacate the district court’s order and remand for

further proceedings consistent with this opinion.

                                 I. BACKGROUND

      In 2002, pursuant to a plea agreement, Pliego-Duarte pled guilty to

conspiracy to possess with intent to distribute cocaine and methamphetamine.

Pliego-Duarte’s plea agreement contained an appeal waiver provision in which he

agreed to waive all rights to appeal his sentence or to collaterally attack his

conviction except in two circumstances: an upward departure or an appeal by the

government. Pliego-Duarte was sentenced to a term of 360 months’ imprisonment,

followed by a term of ten years of supervised release. There was no direct appeal.

      In 2003, Pliego-Duarte filed a 28 U.S.C. § 2255 motion challenging his 2002

sentence. The § 2255 motion alleged, inter alia, that Pliego-Duarte was denied

effective assistance of counsel because his sentencing counsel had failed to file a

direct appeal at Pliego-Duarte’s request.

      The district court held an evidentiary hearing, at which Pliego-Duarte and

his sentencing counsel, Herbert Shafer and Rebecca Guinn, testified. Shafer

testified that he had no independent recollection of whether he had a conversation

with Pliego-Duarte about his right to appeal following his sentencing. Guinn



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testified that she did have a conversation with Pliego-Duarte about his right to

appeal, that he told her he wanted to file an appeal and that she “reiterated to him

that he had waived his right to appeal and that he needed to talk to Mr. Shafer

about filing an appeal, if he wanted to do that.” On cross-examination, Guinn

testified that Pliego-Duarte asked that she file an appeal. Pliego-Duarte also

testified, stating that he advised both Shafer and Guinn to file an appeal. Pliego-

Duarte further stated that, even though Guinn reminded him that he had waived his

right to appeal, he insisted that she file an appeal.

      The district court denied Pliego-Duarte’s § 2255 motion. The district court

concluded that, “because [Pliego-Duarte’s] direct appeal waiver was valid and

enforceable, he suffered no arguable prejudice from the failure of Mr. Shafer or

Ms. Guinn to file a direct appeal on his behalf.” We granted Pliego-Duarte a

certificate of appealability as to whether the district court properly denied his

§ 2255 motion as follows:

      Whether the district court properly denied appellant’s claim for
      ineffective assistance of counsel based on counsel’s failure to file a
      direct appeal?


                                   II. DISCUSSION

      The two-pronged test of Strickland v. Washington requires a defendant

claiming ineffective assistance of counsel to show both objectively unreasonable

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performance by counsel and resulting prejudice to the defendant. 466 U.S. 668,

104 S. Ct. 2052 (1984). An attorney who fails to file an appeal on behalf of a

client after having been requested to do so per se acts in an objectively

unreasonable manner. Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029,

1035 (2000). Furthermore, prejudice is presumed under these circumstances. Id.

at 483, 120 S. Ct. at 1038.

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

the forgoing principles when the defendant had executed an appeal waiver.

Gomez-Diaz controls the outcome in this case.

      In Gomez-Diaz, the defendant pled guilty pursuant to a plea agreement

containing an appeal waiver. Gomez-Diaz, 433 F.3d at 790. The district court

denied the defendant’s § 2255 motion alleging ineffective assistance of counsel

due to counsel’s failure to file a direct appeal. Id. We vacated and remanded,

stating that, if the evidence establishes that counsel failed to file an appeal contrary

to his client’s wishes, “prejudice is to be presumed.” Id. at 793. Under such

circumstances, the defendant is “entitled to an out-of-time appeal, regardless of

whether he can identify any arguably meritorious grounds for appeal that would fit

one of the exceptions contained in his appeal waiver.” Id. This Court rejected the

district court’s assumption that, in light of the appeal waiver, an appeal would be



                                            4
futile because the defendant had not waived all of his appellate rights. Id. at 793-

94. We also concluded that the defendant has no duty to identify potential

appellate issues that fall outside the appeal waiver. Id. at 793. Rather, to

demonstrate prejudice, the defendant need only show that “‘but for counsel’s

deficient conduct, he would have appealed.’” Id. at 793 (quoting Flores-Ortega,

528 U.S. at 486, 120 S. Ct. at 1040).

       Here, Pliego-Duarte waived most, but not all, of his appellate rights in his

plea agreement. Guinn, one of Pliego-Duarte’s attorneys, admitted during the

evidentiary hearing that Pliego-Duarte had requested that she file a direct appeal on

his behalf.1 Furthermore, it is undisputed that no direct appeal was filed. In other

words, the record demonstrates that, but for Guinn’s failure, Pliego-Duarte would

have appealed. Under Gomez-Diaz, prejudice to Pliego-Duarte is presumed, and

he is entitled to an out-of-time appeal.

       Accordingly, we vacate the district court’s order denying Pliego-Duarte’s

§ 2255 motion and remand for further proceedings consistent with this opinion. If,

following the perfection of an appeal by filing a notice of appeal, defense counsel


       1
         The government argues that the district court failed to make an express factual finding as
to whether Pliego-Duarte asked his counsel to file an appeal and urges us to remand the case to
the district court for such a factual determination. Because counsel Guinn admitted that her
client Pliego-Duarte requested that she file an appeal on his behalf and there is no contradictory
evidence or even allegation otherwise, we conclude that remand is not necessary under the
particular facts of this case.

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believes that the record shows no meritorious basis for appeal, counsel may, at that

time, file a motion to withdraw and supporting brief pursuant to Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396 (1967). At that time, the Court will

evaluate whether any arguably meritorious issues exist for appeal. However, under

our Gomez-Diaz precedent, Pliego-Duarte is entitled to the perfection of an out-of-

time appeal where he has not waived all appeal rights.

      VACATED AND REMANDED.




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