Whether trial counsel has a Sixth Amendment duty to file a notice of appealfollowing a guilty plea in the absence of a request by the defendant, particularlywhere the defendant has been advised of his appeal rights.










In the Supreme Court of the United States

No. 98-1441
ERNEST C. ROE, WARDEN, PETITIONER

v.

LUCIO FLORES ORTEGA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

This case involves the proper standards for evaluating a claim that respondent'sconstitutional right to counsel was violated when his lawyer failed to perfectan appeal from the state court judgment entered on his plea of guilty. Becausesimilar collateral attacks on federal criminal judgments will generallybe adjudicated under the same standards, the United States has a substantialinterest in the outcome of this case.

1. In 1993, respondent Ortega stabbed and killed an innocent bystander duringa barroom confrontation with another man. See J.A. 34-36. Earlier the sameday, respondent had chased the victim around a local park, brandishing aknife, after an apparently unrelated dispute. That evening he had committedanother armed assault, lunging with his knife at the man he later confrontedagain in the bar. J.A. 34-35, 37-38.
The State of California charged respondent with murder and two counts ofassault. J.A. 152. It also sought a sentence enhancement on the murder countfor personal use of a deadly weapon. Ibid. After consulting with counsel,respondent entered into a plea agreement under which he pleaded guilty tosecond-degree murder, and the State moved to dismiss the two assault chargesand to strike its request for a deadly-weapon enhancement. J.A. 152-153.1At a sentencing hearing on November 10, 1993, respondent's counsel askedthe state court to place respondent on probation, but the court rejectedthat request. J.A. 35-36, 40; see Cal. Penal Code § 1203(e)(2) (WestSupp. 1999) (prohibiting probation, except in "unusual cases,"where the offender "used * * * a deadly weapon upon a human being"in connection with the offense of conviction); Cal R. Ct. 413(c) (West 1996)(specifying factors to be considered in determining whether a case is "unusual").The court instead sentenced respondent to the term of 15 years to life inprison prescribed by state law for second-degree murder. J.A. 40.2
No notice of appeal from respondent's conviction or sentence was filed withinthe 60 days allowed by state law. J.A. 152; see Cal. Penal Code § 1239(a)(West Supp. 1999); Cal. R. Ct. 31(d) (West 1996).3 In March 1994 respondentattempted to file a notice of appeal challenging his conviction, statingthat his lawyer had "misrepresented [the] * * * ramifications of pleadingguilty" by telling him that he "would only get 3 1/2 years if[he] pleaded guilty," and that if he had not been "misled"by counsel he would not have pleaded guilty. C.A. E.R. 47-49. The courtclerk rejected the notice as untimely. Id. at 57; J.A. 152-153.4
Respondent sought relief from the state court of appeal, filing both a petitionfor a writ of habeas corpus and a motion for leave to file a belated noticeof appeal. See C.A. E.R. 59-62; J.A. 43. He repeated his claim that he hadbeen misinformed about the consequences of pleading guilty, and added aclaim that his attorney had not "[told him] about any time limitationsfor appeal." C.A. E.R. 60. The court of appeal noted that it had discretionto forgive a default in the timely filing of a notice of appeal, that itspower in that regard was to be "liberally exercised," and that"reasonable doubts" were to be "resolved in favor of thepetitioner in order to protect the right of appeal." J.A. 43-44. Itfurther observed, however, that the transcripts of proceedings in the trialcourt "ma[de] clear pertinent facts," including that respondent'schange of plea occurred "during trial" and "almost one monthprior to sentencing"; that the court informed respondent, with an interpreterpresent, of the sentencing consequences of a guilty plea, as did the post-pleaprobation report; and that at sentencing, again with an interpreter present,respondent "expressed no surprise or objection to the term imposed."J.A. 44. Under those circumstances, the court refused to issue a writ ofhabeas corpus. Ibid.
Respondent also sought a writ of habeas corpus from the California SupremeCourt, repeating and elaborating on his previous challenges both to thevalidity of his plea and conviction and to the refusal to entertain hisappeal. C.A. E.R. 68-76. That petition added, for the first time, an allegationthat respondent's attorney had not filed a timely notice of appeal "asshe promi[s]ed." Id. at 70, 76. The state Supreme Court denied thepetition without comment. J.A. 45.

2. After the state courts denied him relief, petitioner commenced this actionin federal district court under 28 U.S.C. 2254 (1994 & Supp. III 1997),alleging only that his federal constitutional right to counsel was violatedby trial counsel's "fail[ure] to file a notice of appeal on his behalfafter promising to do so." J.A. 46, 51, 152-153. The district courtreferred the matter to a magistrate, who appointed counsel to representrespondent at an evidentiary hearing limited to determining "the credibilityof [respondent's] assertions that [his lawyer] promised to file a noticeof appeal on his behalf." J.A. 92, 153 (emphasis omitted).
At the hearing, the magistrate received testimony from respondent, his trialcounsel, and the state-certified Spanish-language interpreter who had servedboth at the change-of-plea hearing and at sentencing. J.A. 154. Trial counseltestified that on the day before sentencing she met with respondent andan interpreter to review with him the pre-sentence report prepared by thestate probation office. Br. in Opp. 1-2; see J.A. 109. At some point shewrote on that report the notation "bring appeal papers," as "areminder to take appeal papers to court with her at sentencing." Br.in Opp. 2; see J.A. 109-110. She also testified that, in her opinion, theonly grounds for appealing would have been that the sentencing court abusedits discretion in denying probation; that such an appeal would "almostcertainly [have] fail[ed]"; and that, although she would not have encouragedan appeal, she would have filed one had respondent asked her to do so. J.A.158; see J.A. 114-115, 119-120.
After hearing the evidence, the magistrate concluded that respondent hadhad "little or no understanding of what the process was, what the appealprocess was, or what appeal meant at that stage of the game." J.A.133, 154. He found that respondent "did not consent to [counsel's]failure to file a notice of appeal," but also that respondent had "notmet his burden of proving by a preponderance of the evidence that [counsel]had promised to file a notice of appeal on his behalf." J.A. 132-133,154. Moreover, he concluded, respondent's lawyer was "obviously anextremely experienced defense counsel" and "a very meticulousperson," so that "had [respondent] requested that she file a noticeof appeal, she would have done so." J.A. 133.
The magistrate recognized that his finding that respondent did not consentto the failure to appeal would be sufficient to require relief under theNinth Circuit's decision in United States v. Stearns, 68 F.3d 328 (1995).He held, however, that by dispensing with any requirement that a habeaspetitioner show that he had asked his attorney to file a notice of appeal(or that she was otherwise under an affirmative duty to do so), Stearnshad stated a "new rule" of federal constitutional law, which,under Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion), could notbe applied on federal collateral review of respondent's state conviction.J.A. 154-161. He therefore recommended that the district court deny respondent'sfederal habeas petition. J.A. 161. The district court, after "carefullyreview[ing] the entire file," including petitioner's objections tothe magistrate's report, adopted the magistrate's findings and recommendationsand denied relief. J.A. 162-163.

3. The court of appeals reversed. J.A. 164-169. The court reasoned thatthe rule it had applied in Stearns- that a habeas petitioner need show only"that counsel's failure to file a notice of appeal was without thepetitioner's consent"-had first been announced in Lozada v. Deeds,964 F.2d 956, 958 (9th Cir. 1992), well before the time of respondent'splea and conviction. J.A. 168. Although Lozada involved a conviction enteredafter trial, rather than after a guilty plea, the court concluded that Stearnshad merely "appli[ed] * * * the rule in Lozada," rather than announcinga "new rule" of law whose application to respondent's case wouldbe barred by Teague v. Lane. Ibid. Because the district court's factualfinding that respondent "did not consent to the failure to file a noticeof appeal" in his case satisfied the sole requirement of the Lozada/Stearns rule, the court reversed the district court's judgment and remandedthe case with instructions to issue a conditional writ of habeas corpus,"releasing [respondent] from state custody unless the state trial courtvacates and reenters [respondent's] judgment of conviction and allows afresh appeal." J.A. 166, 168.

A criminal defendant generally has a Sixth Amendment right to the effectiveassistance of counsel, both at trial and on direct appeal. The right extendsto advice concerning whether or not to plead guilty, and to assistance inpursuing any appeal taken from the judgment entered after such a plea. Giventhat the nature of appeals, and the possible legal claims that might beadvanced on appeal, are beyond the knowledge of most defendants, it wouldbe anomalous if the defendant did not also have a right to assistance ofcounsel in understanding the appeal process and in making the decision whetherto appeal. Respondent's right to counsel accordingly included a right toconsult with a lawyer concerning the possibility and advisability of pursuingan appeal from his conviction or sentence.
Respondent now contends that, had he been adequately represented, he wouldhave perfected such an appeal. The court of appeals held that even if respondentnever specifically instructed his lawyer to appeal, he was entitled to anew opportunity to appeal because he did not give his consent to his lawyer'sfailure to file a notice of appeal within the 60 days allowed by state law.That "consent" rule should be rejected, because it seriously undervaluesthe substantial public interest in the finality of criminal judgments, isin considerable tension with this Court's decisions, and is subject to abuse.
There are, nonetheless, circumstances under which a claim of ineffectiveassistance in taking an appeal may be made out. Where the defendant canprove that he instructed his lawyer to appeal but the lawyer failed to doso, the case for professional error is straightforward, and prejudice tothe defendant may properly be presumed. The problem is more difficult where,as in this case, the defendant cannot make such a showing. In those circumstances,a court should accord the defendant a new opportunity to appeal only ifhe can demonstrate both (i) that, on the particular facts of his case, hislawyer's performance fell outside the potentially wide range of competentprofessional approaches to the question of counseling about an appeal froma conviction based on a guilty plea, and (ii) that there is a reasonableprobability that, but for counsel's unprofessional errors, he would havedirected his attorney to perfect an appeal. That standard will not requirea conclusive determination, on collateral review, of the merits of the underlyingclaims the defendant seeks to present on appeal. It will, however, requirea sufficient showing of prejudice in the decision whether or not to appealto provide some level of confidence that a court granting collateral reliefis remedying a true violation of the defendant's right to counsel.
In this case, respondent cannot show that his lawyer failed to execute anactual instruction to appeal. Nor does the present record afford any soundbasis for concluding that respondent's failure to appeal resulted from adecision, assumption, or error on the part of his counsel falling outsidethe normal range of competent post-guilty-plea representation, or that thereis a reasonable probability that, if competently counseled, respondent wouldhave directed his attorney to appeal. That record is accordingly insufficientto support the court of appeals' judgment.

I. COLLATERAL RELIEF SHOULD BE GRANTED TO RESTORE A FORFEITED FIRST APPEALONLY IF THE APPLICANT CAN SHOW NOT ONLY THAT COUNSEL PROVIDED PROFESSIONALLYINADEQUATE ASSISTANCE, BUT ALSO THAT THERE IS A REASONABLE PROBABILITY HEWOULD HAVE TAKEN THE APPEAL BUT FOR COUNSEL'S UNPROFESSIONAL ERRORS
A. The Right To Counsel Includes A Right To Appropriate Consultation RegardingAppeal After A Guilty Plea
The Constitution guarantees the accused "[i]n all criminal prosecutions"the right to effective assistance of legal counsel at every critical stageof trial-level proceedings, from the filing of charges or other commencementof adversary judicial proceedings through acquittal or conviction. U.S.Const. Amend. VI; United States v. Gouveia, 467 U.S. 180, 187-189 (1984);Strickland v. Washington, 466 U.S. 668, 684-685 (1984); cf. Nichols v. UnitedStates, 511 U.S. 738, 743 & n.9 (1994) (right to appointed counsel forindigent defendants applies to all felony cases and to misdemeanors whereactual imprisonment is imposed). The guarantee extends to the effectiveassistance of counsel in pursuing one direct appeal, where applicable lawprovides the opportunity for such an appeal as a matter of right. Evittsv. Lucey, 469 U.S. 387 (1985); see also, e.g., Penson v. Ohio, 488 U.S.75 (1988); Anders v. California, 386 U.S. 738 (1967). One aspect of effectivelegal assistance on appeal is compliance with the particular proceduresand deadlines necessary, in the relevant jurisdiction, to effectuate theclient's decision to appeal. Evitts, supra; see Coleman v. Thompson, 501U.S. 722, 752-757 (1991) (distinguishing situations in which there is aconstitutional right to effective assistance of counsel from those in whichthere is no such right).5 Moreover, where a defendant asks counsel to perfectan appeal and counsel fails to do so, this Court and others have generallyheld that no other or more specific prejudice need be shown in order tojustify relief. Rodriquez v. United States, 395 U.S. 327 (1969); see alsoPeguero v. United States, 119 S. Ct. 961, 965 (1999) (discussing Rodriquez);Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam).6
A defendant's right to counsel extends to advice concerning whether or notto plead guilty to the charges pending against him. See, e.g., Hill v. Lockhart,474 U.S. 52, 56-57 (1985); Mabry v. Johnson, 467 U.S. 504, 508-510 &n.10 (1984); Tollett v. Henderson, 411 U.S. 258, 266-268 (1973); McMannv. Richardson, 397 U.S. 759, 769-771 & n.14 (1970). Moreover, even afterhaving pleaded guilty, the defendant may have colorable grounds to appeal-tochallenge the sentence imposed by the court, for example, or an unfavorableevidentiary ruling that led to a conditional plea, or (in a few cases) thevalidity of the plea itself. See 18 U.S.C. 3742(a); Fed. R. Crim. P. 11(a)(2),32(c)(5). The right to counsel also extends to pursuing any such claimson a first appeal as of right.
While the decision whether to appeal belongs to the defendant personally,see Jones v. Barnes, 463 U.S. 745, 751 (1983), it is unrealistic to expecta defendant to comprehend the appellate process or its potential benefits,detriments, and limitations without the advice of counsel. To an even greaterdegree than trials, appeals turn on the nature of the governing law andsuch technicalities as standards of review. The appellate process itselfis also likely to be foreign to most defendants. The decision whether toappeal cannot, accordingly, be made intelligently without appropriate accessto a lawyer. It would be anomalous if the right to counsel that appliesat the guilty-plea stage and to representation on appeal did not also includeassistance in understanding the appeal process, evaluating the strengthor weakness of potential claims, and otherwise making an informed decisionabout whether or not to appeal in the first place. See Nelson v. Peyton,415 F.2d 1154, 1157 (4th Cir. 1969) (right to counsel is "requiredin the hiatus between the termination of trial and the beginning of an appealin order that a defendant know that he has the right to appeal, how to initiatean appeal and whether, in the opinion of counsel, an appeal is indicated"),cert. denied, 397 U.S. 1007 (1970).
Respondent's right to counsel accordingly included the right to consultwith a lawyer, at or around the time that judgment was entered against him,concerning the possibility and advisability of pursuing an appeal from hisconviction or sentence. See Baker v. Kaiser, 929 F.2d 1495, 1498-1500 (10thCir. 1991) (discussing role of counsel in period allowed for filing appeal);Hardiman v. Reynolds, 971 F.2d 500, 505-506 (10th Cir. 1992) (noting speciallimitations applicable in context of guilty pleas, but remanding for applicationof Baker where defendant alleged inadequate post-plea counseling); Marrowv. United States, 772 F.2d 525, 527-530 (9th Cir. 1985) (similar).7
B. A Rule That Presumes Ineffective Assistance Of Counsel From Failure ToAppeal After A Guilty Plea Undervalues The Public Interest In Finality AndIs Subject To Abuse
Respondent entered into a plea agreement with state prosecutors, under whichhe pleaded guilty to a charge of second-degree murder. He now contends that,had he been adequately counseled, he would have perfected an appeal challenginghis conviction, his sentence, or both. See, e.g., Br. in Opp. 9; J.A. 57-59(portion of federal habeas petition); C.A. E.R. 47 (original untimely noticeof appeal, noting challenge both to sentence and to validity of plea). Inaddressing that claim, the court of appeals did not evaluate the adequacyof the counseling that respondent received on the presence or absence ofany arguable basis for appeal. Nor did the court consider whether respondenthad instructed his lawyer to appeal on his behalf, after having been advisedof that right by the trial court. Rather, the court held that respondent'ssimple ability to show that he "did not consent to counsel's failureto file" an appeal within the 60-day period allowed by the State afterthe entry of judgment sufficed to require the issuance of a federal writof habeas corpus setting aside respondent's state conviction, unless thestate trial court reentered its judgment so as to re-start the time fortaking a direct appeal. J.A. 166, 168; see Cal. R. Ct. 31(d) (West 1996)(reprinted at Pet. App. C3-C4) (time limit for appeal following guilty plea).That approach incorrectly equates failure to file a notice of appeal, withoutexplicit consent from the defendant, with constitutionally ineffective assistanceof counsel.
The court of appeals' rule effectively requires a federal court to grantcollateral relief upon a simple allegation of non-consent, unless the recordaffirmatively discloses, or the prosecuting government can show, that thedefendant deliberately bypassed his right to take a direct appeal from thejudgment entered on his guilty plea. See, e.g., Salmon v. Carrillo, No.96-55707, 1998 WL 792290 (9th Cir. Nov. 13, 1998) (per curiam) (unpublishedsummary order granting "automatic[] * * * [conditional] reversal"of state conviction where defendant "did not consent to the abandonmentof his appeal"), petition for cert. pending, No. 98-1473; Br. in Opp.5 (relying on Fay v. Noia, 372 U.S. 391 (1963)). Indeed, it would createa situation in which almost any guilty plea would have to be understoodto contain an unwritten reservation of an opportunity to take one "direct"appeal at some later time, regardless of normal deadlines or proceduralrequirements. Such a rule seriously undervalues the respect owed to state(and federal) procedural rules, and the substantial public interest in thefinality of criminal judgments. It is also in considerable tension withthis Court's decisions rejecting the "deliberate bypass" standardfor assessing a federal court's ability to grant collateral review of procedurallydefaulted claims, including those in which the default consists of a failureto take any direct appeal. See Coleman v. Thompson, 501 U.S. at 744-751(rejecting use of Fay standard in this context); see also, e.g., Murrayv. Carrier, 477 U.S. 478, 485-492 (1986); United States v. Frady, 456 U.S.152, 167-168 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977).
A defendant who claims a violation of his right to counsel based on hislawyer's failure to provide effective assistance in bringing a first appealmust bear the usual burden of proving that the assistance he received wasconstitutionally deficient. Normally, that requirement entails a two-partshowing: first, that counsel's performance was so seriously lacking in someparticular respect as to fall below an objective standard of reasonableness;and second, that the defendant suffered some actual prejudice because ofthat inadequate performance. Strickland, 466 U.S. at 687; Kimmelman v. Morrison,477 U.S. 365, 381 (1986); Hill, 474 U.S. at 58-59. To show deficient performanceunder the first step of this analysis, the defendant must overcome "astrong presumption that counsel's conduct [fell] within the wide range ofreasonable professional assistance." Strickland, 466 U.S. at 689-690.
That presumption has particular application when a defendant claims thatineffective assistance resulted in his failure to pursue an appeal afterpleading guilty. Because guilty pleas account for a large proportion ofcriminal convictions, proposed rules that undermine the finality of theresulting judgments are properly disfavored. See, e.g., Hill, 474 U.S. at58 (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979) (in turnquoting United States v. Smith, 440 F.2d 521, 528-529 (7th Cir. 1971) (Stevens,J., dissenting))); Blackledge v. Allison, 431 U.S. 63, 71 (1977). Moreover,because there is nothing unusual about a defendant's failure to appeal afterhaving pleaded guilty, such a failure by itself gives no hint of ineffectivelegal assistance. See State v. Peppers, 796 P.2d 614, 619-620 (N.M. Ct.App. 1990) (distinguishing guilty-plea cases from those involving failureto appeal from conviction after trial). To the contrary, once an unconditionalguilty plea has been properly accepted by the court, the grounds availablefor challenging the resulting conviction itself are narrow. See, e.g., Tollett,411 U.S. at 267. Although a defendant may have other possible grounds forappeal, such as a challenge to the sentence imposed by the court, thoseissues will often have been addressed in the negotiation or structuringof the plea (or even included in the plea agreement itself), and the defendantwill have decided, with the advice of counsel, to accept a final resolutionof the accusations against him. Thus, there is ordinarily nothing remarkableabout a defendant's choosing not to pursue legal challenges further. Inaddition, the core concern "that unfair procedures may have resultedin the conviction of an innocent defendant is only rarely raised by a petitionto set aside a guilty plea." Timmreck, 441 U.S. at 784.
There is also a special need for caution in this context because any opportunityto revisit, on collateral review, an initial failure to appeal from a judgmentbased on a guilty plea may present potential habeas petitioners with unusualtemptations for abuse. Defendants who have made difficult decisions to pleadguilty, often choosing among unpleasant options under conditions of inevitablelegal uncertainty, may simply have second thoughts after the normal timefor appeal has run. Compare McMann, 397 U.S. at 769-771; Brady v. UnitedStates, 397 U.S. 742, 756-758 (1970). Moreover, new rules of law may beannounced that, while unavailable to the defendant on collateral review,could be invoked on a new or reinstated "direct" appeal. See Bousleyv. United States, 523 U.S. 614, 621-624 (1998); Teague v. Lane, 489 U.S.288, 305-310 (1989) (plurality opinion).
Where such benefits may be sought on the basis of asserted representationalerrors that are beyond the prosecutor's ability to prevent, easy for thedefendant to allege, and often difficult to disprove (given the potentialabsence of reliable records of private consultations between a defendantand his lawyer), the prosecuting government, and the public it represents,may be deprived of a significant part of the proper benefits of its pleaagreement with the defendant. Those benefits include not only the avoidanceof trial, but also expedition, finality, and repose. See, e.g., Hill, supra;Blackledge, supra; Timmreck, supra. Courts evaluating claims like respondent'sshould, therefore, pay particular heed to this Court's admonitions thatthe defendant "must identify the acts or omissions of counsel thatare alleged not to have been the result of reasonable professional judgment,"and that "counsel is strongly presumed to have rendered adequate assistanceand made all significant decisions in the exercise of reasonable professionaljudgment." Strickland, 466 U.S. at 690. The rule applied by the courtof appeals in this case is inconsistent with those requirements.

C. Relief Should Be Granted If (But Only If) A Defendant Can Show Both InadequatePerformance By Counsel And Resulting Prejudice, Either Actual Or Presumed

1. Appeals defaulted after a request by the defendant. While the court ofappeals' approach is deficient, there are certainly circumstances underwhich a claim of ineffective assistance in perfecting an appeal may be madeout. The most obvious of these is where the defendant can prove that hedirected his lawyer to perfect an appeal, but the lawyer failed to do so.In that situation, the client has made a decision that is his to make, seeJones, 463 U.S. at 751, and the lawyer has been given a task that involvestechnical knowledge and attention, but little or no exercise of professionaljudgment. Compare id. at 751-754 (in briefing and arguing appeal, counselexercises independent legal judgment). There will, indeed, seldom (if ever)be any adequate professional excuse for a lawyer's failure to take the technicalsteps necessary to perfect an appeal when the defendant has clearly communicateda decision to appeal.8 Every court that has addressed the question, includingthis Court, has accordingly recognized that an attorney's failure to actunder those circumstances amounts to ineffective assistance of counsel thatjustifies reinstatement of the defendant's direct appeal. See Rodriquez,supra; see also Peguero, 119 S. Ct. at 965 (discussing Rodriquez); Ludwig,162 F.3d at 459; Castellanos, 26 F.3d at 719-720; and other cases citedin notes 5-6, supra.
The courts of appeals that have considered this situation have also heldthat a defendant who can show that he asked his attorney to appeal, andthat the attorney failed to do so, need show no other "prejudice"to warrant collateral relief that will allow the original appeal to proceed.See cases cited in note 6, supra; see also Strickland, 466 U.S. at 692 ("Incertain Sixth Amendment contexts, prejudice is presumed."); Penson,488 U.S. at 85-89 (no showing of prejudice required where state appellateprocedures deprived petitioner of effective assistance of counsel on appeal);cf. Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam).9 That conclusionmakes sense when the defendant has already demonstrated that he made thedecision to appeal and directed his lawyer to effectuate it. In such a case,there is no question that the defendant expressed a desire to appeal withinthe time allowed for that decision. It is also beyond dispute that, butfor counsel's inadequate performance, the appeal would have been procedurallyperfected, and the defendant would have been entitled to consideration ofhis claims by an appellate court (and to the assistance of counsel in identifyingand presenting those claims). Concerns about finality are accordingly muted,and those about strategic behavior on the part of the defendant are essentiallyeliminated. Indeed, such a defendant has shown that he was, in effect, deprivedof the benefit of any counsel on appeal-a circumstance that Strickland itselfrecognized as sufficient to support a presumption of prejudice. See Strickland,466 U.S. at 692 ("Actual or constructive denial of the assistance ofcounsel altogether is legally presumed to result in prejudice."); Penson,488 U.S. at 88.

2. Appeals defaulted in the absence of any request by the defendant. Theproblem is more difficult where, as in this case, an applicant for collateralrelief cannot show that he actually directed his lawyer to perfect an appeal.In such a situation the concerns about finality and possible abuse outlinedabove are distinctly present, and it may be difficult for a district courtto evaluate a defendant's claims concerning the effectiveness of counsel'sassistance on the question of appeal. Perhaps for those reasons, the relevantdecisions in the courts of appeals (other than the court below) have tendedto hold, or at least strongly suggest, that a defendant is not entitledto relief on the basis of his attorney's failure to perfect an appeal, unlesshe can show that he in fact requested that the appeal be pursued. See, e.g.,Ludwig, 162 F.3d at 459; Castellanos, 26 F.3d at 719-720. That bright-linerule would doubtless produce a just result in the majority of cases; andit would have, of course, the virtues common to such rules.
A bright-line rule would not, however, be consonant with the importanceof the matter to the individual defendant whose right to counsel may havebeen violated, or with the careful contextual analysis on which this Courthas typically insisted in evaluating claimed violations of a defendant'sright to the effective assistance of counsel. See, e.g., Strickland, 466U.S. at 690 ("[A] court deciding an actual ineffectiveness claim mustjudge the reasonableness of counsel's challenged conduct on the facts ofthe particular case, viewed as of the time of counsel's conduct.");id. at 696 ("Most important, in adjudicating a claim of actual ineffectivenessof counsel, a court should keep in mind that the principles we have stateddo not establish mechanical rules."); cf. McMann, 397 U.S. at 771 ("Beyondthis we think the matter, for the most part, should be left to the goodsense and discretion of the trial courts."). If, to take an extremeexample, a defendant could show that the court that sentenced him had announcedon the record, over counsel's objection, that it had selected a particularlyharsh sentence because of the defendant's race, and that counsel subsequentlyadvised the defendant that he had no right to relief from the sentence soimposed, it is hard to see why the defendant should be barred from reliefsimply because he accepted counsel's advice at face value, rather than demandingthe filing of what his lawyer had advised him would be a useless appeal.
The better approach is, accordingly, to recognize that even if a defendantcannot show that counsel failed to execute a clear direction to file anappeal, the defendant may nonetheless be able to establish, in some circumstances,that counsel performed below objective standards of competency in advisinghim concerning the possibility and advisability of an appeal from the judgmententered after a guilty plea. Because circumstances that actually justifyrelief are likely to be relatively rare, however, and because the burdenof litigating meritless claims is high, it is necessary in this contextboth to emphasize the broad range of potentially competent representationthat counsel may afford on legal issues surrounding the advisability ofappeal in such circumstances, and to require some showing of actual "prejudice"before awarding collateral relief.
(i) As to the first point, lower courts have recognized-and this Court shouldconfirm-that there is no constitutional requirement that a lawyer, underall circumstances, even advise a client who has pleaded guilty of the rightto appeal from the judgment entered on that plea, much less discuss thepros and cons of such an appeal. Whether there is a duty to give such advicedepends, instead, on whether the defendant seeks counsel about a possibleappeal, or the lawyer knows (or should, as a matter of reasonable professionalcompetence, know or learn) that there is some substantial ground for appealthat the defendant might wish to pursue. See Hardiman, 971 F.2d at 506;Laycock v. New Mexico, 880 F.2d 1184, 1187-1188 (10th Cir. 1989); Marrowv. United States, 772 F.2d at 527-530; see also Morales v. United States,143 F.3d 94, 96-97 (2d Cir. 1998); Castellanos, 26 F.3d at 719 (dictum);Giles v. Beto, 437 F.2d 192, 194 (5th Cir. 1971); compare Cal. Penal Code§ 1240.1(b) (West Supp. 1999) (imposing duty on lawyers representingindigent defendants to file notice of appeal "when the attorney isof the opinion that arguably meritorious grounds exist for a reversal ormodification of the judgment * * * and where, in the attorney's judgment,it is in the defendant's interest to pursue any relief that may be available* * * on appeal; or when directed to do so by a defendant having a rightto appeal"). As the Second Circuit has observed, whether a lawyer'sfailure to raise the issue of appeal after a guilty plea with the defendantsua sponte breaches any duty to the client
may depend on whether defendant's counsel * * * advised him [of the rightto appeal] prior to sentencing * * *, or whether the court gave him noticeof his appellate rights (as it should, and did here), or whether the defendanthad sufficient experience with the criminal justice system to know of hisright to appeal without being told-not to mention the variable merits andprospects of an appeal, especially one from a sentence imposed followinga plea.
Morales, 143 F.3d at 96.10
Moreover, questions concerning the adequacy of counseling about appeal followinga guilty plea will often be intertwined with questions about the detailsand circumstances of the plea itself, and about counsel's advice relatingto acceptance of the plea.11 Indeed, in some cases the plea agreement mayspeak directly to the question of appeal, either specifically contemplatingan appeal on particular issues, or specifically waiving the defendant'sright to appeal on some or all potential grounds. Cf. Fed. R. Crim. P. 11(c)(6)(effective Dec. 1, 1999) (requiring court to determine, before acceptinga guilty plea, that the defendant understands "the terms of any provisionin a plea agreement waiving the right to appeal or to collaterally attackthe sentence"). Just as with claims that counsel provided ineffectiveassistance in advising a defendant to accept a plea agreement, courts consideringhabeas petitions based on allegedly ineffective assistance in rendering(or not rendering) advice about appeal will inevitably have to evaluateeach case on its own facts. Strickland properly instructs, however, thatin doing so they should demand that habeas petitioners identify with someprecision "the acts or omissions of counsel that are alleged not tohave been the result of reasonable professional judgment," and shouldthen make "every effort * * * to eliminate the distorting effects ofhindsight"; to "reconstruct the circumstances of counsel's challengedconduct"-including especially, in this context, the background of consultationssurrounding the decision to plead guilty, and whether counsel would havehad any reason to expect the defendant to be surprised or dissatisfied withthe final outcome of the proceedings; and to "evaluate the conductfrom counsel's perspective at the time." 466 U.S. at 689-690. Finally,courts must strive to distinguish reasonable errors of prediction, or excusablemistakes of fact, law, or judgment, from the sort of professional lapsethat constitutes true ineffective assistance. Compare, e.g., Murray, 477U.S. at 492 (discussing "[a]ttorney error short of ineffective assistance");McMann, 397 U.S. at 774 (short of ineffective assistance, defendant whopleads guilty "assumes the risk of ordinary error in either his orhis attorney's assessment of the law and facts").12
(ii) The close relationship between claims of ineffective assistance infailing to appeal after a plea and claims of ineffectiveness relating tothe plea itself also suggests a familiar framework for requiring an appropriateshowing of prejudice when the claim is not that counsel failed to carryout the defendant's decision to appeal, but that she failed to provide effectiveassistance in raising or advising about the question of appeal in the firstplace. When a habeas petitioner claims that counsel provided ineffectiveassistance in connection with his decision to plead guilty-a decision thatgenerally has greater consequences than the decision whether to appeal fromthe judgment eventually entered on that plea-the law requires him to shownot only that counsel's assistance was incompetent, but also that "thereis a reasonable probability that, but for counsel's errors, he would nothave pleaded guilty and would have insisted on going to trial." Hill,474 U.S. at 59. A similar standard should apply in cases like the presentone.
In cases alleging ineffective counseling about appeal, as in those involvingadvice about pleas, the question of prejudice-in the sense of whether acompetently counseled defendant would have acted differently- depends heavilynot only on the details of confidential discussions between the defendantand his lawyer, but also on conclusions about the defendant's actual andhypothetical state of mind. Those are matters uniquely within the knowledgeof the defendant-particularly when the defendant may seek to contradictmatters otherwise of record. It is therefore appropriate to demand, in caseslike this one, that a habeas petitioner satisfy a "prejudice"standard similar to the one announced in Hill: The defendant should be requiredto prove that there is a reasonable probability that, but for counsel'sunprofessional errors, he would have directed his attorney to perfect anappeal. That standard will not require a conclusive determination, by thehabeas court, of the merits of the underlying claims that the defendantseeks (or might seek, given the benefit of counsel) to present on appeal.Compare Penson, 488 U.S. at 86-89; Anders, 386 U.S. at 744-745.13 It will,however, require a sufficient showing of prejudice in the decision whetheror not to appeal to provide some level of confidence that a court that grantscollateral relief is remedying a violation of the defendant's right to counsel,rather than simply excusing the default of a defendant whose failure toappeal was attributable to any of a number of other possible reasons, fromconscious decision to his own inadvertence.

II. RESPONDENT HAS SHOWN NEITHER THAT HIS COUNSEL'S PERFORMANCE WAS DEFICIENTWITH RESPECT TO THE ISSUE OF APPEAL, NOR THAT BUT FOR ERRORS ON HER PARTHE WOULD HAVE TAKEN AN APPEAL

The record in this case reveals that the state trial court informed respondentat sentencing of his right to appeal, and to have counsel appointed to representhim on appeal. J.A. 40. The district court found that respondent's counseldid not "promise[]" to file an appeal. J.A. 154, 163, 166. Themagistrate judge's observations, based on the evidentiary hearing over whichhe presided, further indicate his belief that although respondent and hislawyer apparently had a conversation about the issue, respondent did notexplicitly ask his lawyer to take an appeal. J.A. 40 ("[S]he is obviouslyan extremely experienced defense counsel. She's obviously a very meticulousperson. And I think had [respondent] requested that she file a notice ofappeal, she would have done so."); see also J.A. 158. The questionon which this Court granted review also takes it as a premise that respondentwas informed of his right to appeal, but did not make such a request. Pet.i. We therefore assume for present purposes that although respondent knewin general of his right to appeal, he did not clearly express to his attorneyany desire to take an appeal from the judgment entered on his guilty plea-butalso "did not consent to counsel's failure to file a notice of appeal."J.A. 166; see J.A. 154.
That conclusion does not end the case because, as we have explained, a habeaspetitioner should have the opportunity to show that counsel rendered ineffectiveassistance by, for example, failing to apprise him of an obviously meritoriousground for appeal, or failing entirely to respond to a request for adviceand consultation. In this case, the present record reflects at most thatthere may have been some misunderstanding between respondent and his attorneyabout the desirability of an appeal. See J.A. 133. It affords, however,no sound basis for concluding that the failure to appeal resulted from anydecision, assumption, or error of respondent's counsel that falls outsidethe normal range of competent guilty-plea representation. There is, forexample, no obvious non-frivolous appellate issue that trial counsel shouldhave identified and discussed with her client. See p. 5, supra. Nor doesthe record demonstrate a reasonable probability that, if competently counseled,respondent would have explicitly directed his attorney to appeal.
The present record is therefore insufficient to support the court of appeals'judgment ordering a grant of collateral relief. That judgment should accordinglybe reversed, and the case should be remanded for whatever further proceedingsthat court may deem appropriate in light of the legal standards articulatedby this Court.