Roe v. Flores-Ortega
The Supreme Court held that a lawyer isn't automatically at fault for failing to file a notice of appeal or discuss an appeal with a client who never said one way or the other whether he wanted one — it depends on the circumstances, not a bright-line rule.
The Court sent the case back so lower courts could apply this case-by-case test: lawyers must consult about an appeal when a rational defendant would likely want one or when the client showed interest, and a defendant seeking relief must show he would have actually appealed.
How it got here: A federal magistrate and district court denied habeas relief; the Ninth Circuit reversed under its own precedent, and the State asked the Supreme Court to review the standard for such claims.
The Case in Depth
What happened
A California public defender did not file a notice of appeal after her client, Lucio Flores-Ortega, pleaded guilty to second-degree murder and was sentenced to 15 years to life. She had written "bring appeal papers" in her file, but no notice was filed within the 60-day window, and Flores-Ortega's later attempt to appeal was rejected as untimely. He sought federal habeas relief, arguing his lawyer's failure to file or discuss an appeal violated his right to effective counsel.
The question before the Court
If a defendant never clearly tells his lawyer whether he wants to appeal, does the lawyer have to bring it up anyway?
Why it matters
Criminal defendants who plead guilty or are convicted at trial, and never explicitly discuss appeal with their lawyer, now depend on a fact-specific test rather than an automatic rule to know whether their lawyer's silence violated their rights. Defense attorneys gain guidance on when they must proactively raise the possibility of an appeal, and defendants seeking to reopen a lost appeal must show they actually would have appealed.
What changes now
The case returns to the lower courts to apply the new two-step framework: first, determine whether Flores-Ortega's lawyer had a duty to consult with him about an appeal, and if so, whether she met that duty; second, if she fell short, determine whether he can show he would have appealed had she properly advised him. This is a final merits ruling on the legal standard, though the outcome for this particular defendant remains undetermined pending further proceedings.
What this does not decide
The Court did not decide whether this particular lawyer's performance was actually deficient or whether Flores-Ortega was harmed — it sent those fact-specific questions back for further proceedings. It also did not adopt Justice Souter's proposed near-automatic duty to consult, leaving the duty dependent on case-specific circumstances.
Concurrences and dissents
Concurrence — Justice Breyer
Justice Breyer stressed that the question presented was limited to notices of appeal following a guilty plea. He agreed with the Court in that narrow context, and read the majority opinion as effectively already embracing Justice Souter's view that counsel 'almost always' must consult with a defendant about an appeal after a trial.
Dissent in part — Justice Souter
“only in the extraordinary case will a defendant need no advice or counsel whatever.”Souter argued nearly every defendant needs a lawyer's advice before deciding whether to appeal.
Justice Souter agreed with the prejudice standard in Part II-B but argued the majority's rule for when a lawyer must consult about an appeal was too weak. He would have held that counsel has an 'almost always' duty to consult after conviction, since deciding whether to advise a client about appeal is not a strategic choice deserving deference, and found this lawyer's performance clearly deficient given her client's confusion and limited English.
Dissent in part — Justice Ginsburg
Justice Ginsburg wrote separately to say the Court and Justice Souter largely agreed that counsel can 'hardly ever' simply walk away without advising a client about appeal rights, but she found Justice Souter's clearer standard preferable and believed the duty to consult was plainly unmet on this record, so she joined his opinion.
How the Court got there
The legal reasoning, step by step
- The Court applied the two-part test from Strickland v. Washington for ineffective-assistance claims: the defendant must show counsel's performance fell below an objective standard of reasonableness, and that the deficient performance caused harm.
- The Court rejected a bright-line rule requiring lawyers to always file a notice of appeal or always consult the client about one, reasoning that Strickland requires judging reasonableness based on the totality of the circumstances rather than a rigid checklist.
- Instead, the Court held a lawyer has a constitutional duty to consult with the client about an appeal when either a reasonable defendant in that situation would likely want to appeal, or the specific client showed the lawyer he was interested in appealing.
- On the harm side, the Court held that when a lawyer's failure to consult actually costs a defendant his chance to appeal, courts should presume the deficiency caused harm — because the entire appellate proceeding was lost, not just a single argument within it — but only if the defendant can show he would have actually appealed had he been properly advised.
- Applying this framework, the Court found the record below was too thin to show whether the lawyer had a duty to consult, whether she satisfied it, or whether her client was harmed, since it was unclear what she and her client actually discussed.
Doctrinal impact
Cases affected by this decision
Reaffirms Strickland v. Washington (466 U.S. 668)
The Court applied Strickland's two-part deficient-performance-and-prejudice test to claims about failing to file or discuss an appeal.
Reaffirms Rodriquez v. United States (395 U.S. 327)
The Court relied on Rodriquez's rule that a defendant denied a requested appeal need not show the appeal would have merit.