guilty and instructs his trial counsel to notice an appeal disregarding that instruction rendered ineffective assistance in which prejudice is presumed the court reached that conclusion even though pleading guilty waive the vast majority of claims that could be raised on appeal and even though most defendants who plead guilty do not ultimately succeed in their direct appeal the court correctly concluded that prejudice is presumed both because the defendants disregard for the instruction to notice of an appeal forfeits the entire direct appeal reinstatement all the parties before the court agree that even though mr garza signed an appeal waiver that certain fundamental claims survive that appeal waiver so when the appeal is reinstated the plea agreement will remain intact the appeal waiver remain intact to succeed on an issue that is waived mr garza would have to and we think he actually has a colorable claim in this record that his appeal waiver was involuntary and so all he is seeking to do maybe this is the better way to describe this consider to similarly situated defendants ok both sign a plea agreement both plea agreements contain an appeal waiver of both defendants instruct their counsel to go ahead and perfect it to notice an appeal in the first defendant situation counsel follows that client a notice of appeal all parties before the court agree that an appeal will be perfected he'll be appointed counsel he will get access to the record which would be required to identify issues for appeal and make sure that the plea proceedings proceeded in a way that is lawful no way to peer so you're on i think a couple points in response it's him it's important to recognize that simply noticing an appeal or in this case reinstating an appeal it's hard to see how that alone breaches the plea agreement and so the way this happens in practice is that when an appeal waiver is signed the government gains what is effectively an affirmative defense that it can raise on appeal it can choose to raise it it's not jurisdictional it's not self executing the government chooses to raise it and satisfies the court of appeals that the issue that appellate counsel has actually raised on appeal is in fact within the appeal waiver then the government will succeed and there will be consequences potentially depending on what the the plea agreement says the consequences should be all of that is what we're saying this direct this i thought this was the thrust of justice ginsburg's question if it is ultimately determined that the appeal was in violation of the appeal waiver then the plea bargain has been broken by the defendant that's correct your honor yes and it may be void imposed on certain unconstitutional considerations and then of course there are the issues that are outside the scope of the appeal waiver which can be certainly raised by the defendant without any sort of consequence or they would only dates what if the issue that the defendant wants to raise is clearly within the scope of the appeal waiver movie comes the lawyer and says i want to appeal because i'm not guilty so in other words i don't you know i think you know it was voluntary and all that and the it's not beyond the constitution limits i just a not guilty so i want to appeal so your honor a few responses i think the first response i have is clear in whose view this court has always recognized that there's a role for the court in that sort of distinction and that's always been a it's provided is the protections that that decision was all about and has been applied by this court several times since the second response i have i think you're going a little too fast ok because i'm breaking that down ok all right defendant comes to you your competent attorney and says i want to appeal what is a defense attorney generally do first he consults correct he tells the client you this is what the law says you have a waiver in here you shouldn't appeal you run the risk of breaching the agreement in the government could go back and re sin the agreement and put you into jail for a lot longer do you really want to do this now client is it the client the one who has the right to appeal isn't that what we've said for dozens of cases that's correct your honor the attorney can decide what to appeal and so is the client tho of an autonomy is right to breach i think that is correct though and i understood that to be your position you said you had two answers to my question yeah it was the second one sure and just as some are touched on them but let me just repeat them so in a slightly different way so the second answer is why what the defendant has identified as the issue matters because the defendant doesn't make the decision what issues will be raised on appeal he makes the decision whether his objective is to appeal and so what we would say is that when  defendant articulate stew is attorney his agent if you will that his objective is to show that the police proceedings that just took place were on lawful the attorney has no place telling that defendant that he would prefer to just substitute his own view that the defendant go off see defeat and go to prison that is our position and then that's why as the court recognized in jones be barnes the person who makes the decisions as to what issues will be raised is the appellate attorney and so it would be illogical to say that a defendant's right to appeal is the united states argument argues here turns on his ability to articulate certain issues and remember your honor we're talking about the notice of appeal stage here so the record typically hasn't been ordered here it certainly wouldn't have been ordered in idaho because that's triggered by the notice of appeal so you're asking and generally a defender with limited education his exposure to the legal system might be minutes maybe hours to attend specif certain issues that might be in or outside the scope of labor and then you're asking his agent to basically play judge and forfeit his appeal if he alone thinks that the words that came out of the defendant's mouth happen to fall within the way i think you does ultimately depend on the proposition that the defendant has this categorical right based on autonomy to insist on an appeal and have an attorney purrfect to the appeal filed  even if there is zero chance that the appeal will be found not to have been waived i think and maybe that's right but i do think your argument depends on that and i wonder how that is consistent with the way floor is ortega analyzed the question of whether the attorney was deficient in that situation if there is such a right then why wouldn't the attorney have the right to have the obligation to consult with the with the client and to tell the client that the client has that right but instead it went through a very complicated fact and beyond inquiry into whether what the attorney did are called for such an inquiry into whether what the attorney did was deficient so i think there are two parts to your question so first as to whether our position is that it's a let me answer this way our position is that the determination ortega the court specifically acknowledged there that pleading guilty substantially reduce the number of claims that mr floors or take it could bring and in the very next sentence it acknowledged the possibility of what we have here it said that a defendant may also expressly waive some claims in addition to that and the relevance that it recognizes what we believe the relevance should be here which is that the act of signing a pleading guilty and of signing appeal waiver represents a indication of finality and interest in finality on the part of the defendant and that's why few defendants will plead guilty sign an appeal waiver and then instruct their attorney to appeal in the first place and on top of that in addition to acting as is an indication of finality in a part of the defendant as the state and the united states acknowledge and in fact represent throughout their briefs pleading guilty signing an appeal waiver and then having appellate counsel raise an issue that even might fall within the appeal waiver can have serious consequences for a defendant and so it acts and has acted as a sort of natural check and that's why the really is no evidence or certainly we would have expected the united states to provide evidence to support its idea that there would be frivolous appeals for instance while i think you have to understand the nature of the right that you're serving if i could just come back to the chief justices question and perhaps embellish it a little so you have issue and then as soon as the defendant his sentence says to his attorney i want to appeal issue they have and i think your answer has to be that that is the right of the defendant and the obligation of the attorney to out the client's wishes am i right that i think that is here i think that's right your honor i think it's up largely on realistic scenario travel event and you too with the jurisdictions that permitted the fence attorney to tell the client issue but i'm going to give you the instructions on how to file your own notice of appeal there are other jurisdictions i think the majority who require the attorney to file the notice of appeal and then in ender's brief but what do we do with those that say when you're instructed by your clients if the notice of appeal and you can't do it because it's an ethical obligation and that it will violation you tell the client how to do it right so let is enough for you can i just clarify this this particular record idaho does this if they can provide that if they attorney withdraws before the notice of appeal is pretty is filed that the defendant will be provided with new counsel and of about the appeal and of course we agree that counsel should have a conversation with the defendant and say we think you know i believe i don't have the record yet he should be out on the record yet this is a preliminary assessment during the short window but i think it's going to be very difficult for you to argue around your appeal waiver to raise this issue that the justice alito was describing but she should still perfect the appeal because we're asking the attorney to do is a ministerial task here once the defendant has made a decision we know that united you don't hear back from the appellate section or the solicitor general's office file that protective notice of appeal and what are the practical differences between the consequences of the position you're advocating and what would happen if you were to lose this case if you win in the situation where the thinks there's no non frivolous claim to be raised on appeal after the plea waiver the attorney you say will file manderson brief right that's right so so ok that's that's one side of it and then the other side if you were to lose then the defendant would not be entirely he precluded from trying to take an appeal with respect to issues that the defendant thinks are outside of the plea waiver the defendant could bring a collateral proceeding and argue that his attorney was ineffective for failing to take an appeal based on the police waiver that didn't cover the issue and the only difference i can see depends on state law namely whether and maybe there are other differences and you'll tell me if i'm overlooking something whether an attorney will be appointed for the defendant in the post conviction proceeding and whether there will be a more stringent standard of review but if state why didn't is state law provide an attorney and didn't provide a more sinister engine standard of review what is the practical difference so your honor of course ninety two percent of post conviction defendants across the country don't get counsel on post conviction review but i think that one very important collateral consequence was left out in addition to i think the difference and in burdens is a significant one here we're talking about not just civil burdens but this court well aware of the added hurdles that goes along with a b s proceedings that a defendant would now have to go through not because he made any mistake but because his agent failed to undertake a ministerial task i'm sorry that to get to the other very significant consequence the failure to preserve issues in before a conviction becomes final by raising them on direct appeal can forever prevent a defendant from raising those issues collaterally so in the federal system this court decided and badly to raise a voluntariness claim in a twenty two fifty five position you have to have first asserted that on direct appeal so i mean to make a very blunt example if a defendant believes he has evidence that he could introduce on hay vs to show involuntary ness ok to show that his counsel misled him except or outside of the direct appeal record if he attaching an additional burden just for him to assert his is his involuntary his claim he's now going to show that it would have been i take it to you to be saying that he could assert that it was ineffective not to raise in voluntariness in the direct appeal so now he has to show that it was unreasonable for counsel not to file it in the direct appeal and that it would prejudice him and we suddenly are back to getting to the all of the merits all of what should have happened in the direct appeal in the first instance and shouldn't have prevented the defendant from simply arguing these issues when he sent to post conviction by virtue of his counsel's failure to notice the appeal he will not have counsel so that's very much a direct consequence of not filing the appeal if as we think the court should the the bargain struck by the parties here is garza was waiving his right to raise certain issues you know a scope defined by the language in the plea of the appeal waiver but was he could still raise several issues which my friends do not contest he can raise on direct appeal so he would notice the appeal he would still be bound by the terms of his plea bargain meaning the appeal waiver would still apply in that appellate proceeding but he can still raise of course any claim outside the scope of the waiver and that would be a determination for the court with the assistance of appellate counsel and he can challenge for instance the voluntariness of it whether the government honored its its commitments under the plea agreement all of those are issues that idaho all the federal courts conclude can be raised in a direct appeal proceeding even when you have signed an appeal waiver and so an appeal waiver never precludes any and all possible peals that is what is undisputed on this record and that's what the federal courts have concluded that they're not and i think it's important to recognize that to think about how unrecognizable the conception of tribal council we're dealing with when we applied the united states or the states test here  would have a trial counsel do is listen to the words of the client and determine whether the words were the right words to be outside the scope of the waiver and give up that client's best chance simply because during the no window trial counsel can't come up with an issue or doesn't think the client said the right things give up his best chance of proving his conviction of lawful which is unlawful which is the implication of him having instructed  on the question of when you're in breach you said you're not in breach when the notice of appeal is filed and is that true no matter what the notice of appeal says another would suppose the notice of appeal is an opportunity to lay out your claims and you lay out claims that are within the waiver does that still in your view not breach the agreement yes i think so your honor because idaho for instance the rules are very clear that even with respect to and generally speaking in federal court we're talking about identifying the order you're appealing from parties are required to specify issues in idaho insofar as you specify issues it's very clear that you're not bound once the appeal has begun so the way that would play out is that a notice of  l would be filed there wouldn't be a strong claim of breach then because as all agree there are claims that could be raised which would not be breach breached even if they were resolved on the merits and the government would move to dismiss the claim with the expedient procedures that are available in idaho in federal courts and if at that point no particular issue can be raised that's outside the scope of the waiver of what happens in some of these cases the defendant just decides to dismiss the appeal all together so no harm done  but if the only issues the defendant can identify or within the scope of the waiver you got to claim a breach and the next question that you had in another words if if there's if the defendant files a brief that raises issues within the scope of the waiver that's right and that would be determined by the court of appeals whether it's within the scope of the wave and how about if there's an anderson brief that that raises issues within the scope of the waiver does not breach the defendant's bargain well the way that anders plays out is that counsel is required to file a brief as i think you honor's question is suggesting and the pro se litigant is also given an opportunity to file a brief under enders and those are viewed by the court you know i think it's a if the pro se litigant himself in his brief is asserting claims that are in the scope of the waiver i think there would be a strong claim of breach in that instance if counsel is not actually pressing claims within the scope of the waiver in and the government's generally not required to respond to anders briefs right so it's the attorney raising issues that are pointing the court  speaking he would because on appeal idaho provides that the state appellate defender comes in i'm just asking because i'm not aware at least for miles circuit that we would have not appointed a new attorney when this one has been found ineffective now that new attorney could file that in brief could do anything permissible under the rules but my point is i don't know enough about the other jurisdictions are surely surprised that most wouldn't i think that's right and i just would add one thing which is that these claims actually could go very well to that attorney's conduct the attorney who is usurping his client's decision to appeal so we're talking about the voluntar one question you rely a lot on the autonomy of the client to it and we still have a lot of cases saying you know a decision whether to appeal or make a major decision like that belong to the client here that we have a complicating factor that the autonomy is already been expressed through the plea waiver and it's presumptively correct given that it's a final judgment of a trial court at that moment at least what do we do about that so autonomy runs both ways here in this particular instance and presume prejudice in this circumstance is there some tension between that and the fact that we don't presume prejudice even when lawyers make really bad obviously wrong strategic tactical decisions and cases all the time how do we reconcile that where even even an obvious circumstances we don't presume prejudice and here most of these cases are going to be not prejudicial right so what do we do about those so let me i think they're two separate questions there let me try to answer them so the state the united states make the first argument you suggested which is that autonomy has been exercised a time one when the waiver of appeal is not now of course one can't claim to respect autonomy without looking at the actual autonomous decision but looking at it as a whole w proceeding has been provided to the defendant and there are certain errors and the client's not entitle or depends on title perfect proceeding then yes in that circumstance to presume prejudice you look for those circumstances where prejudice is so likely that you know it should be presumed now the united states all that concedes that that doesn't apply in this circumstance if you look at the bottom of page twelve top of page thirteen after they do all the posturing saying you should be identifying the most likely circumstances they say oh but the court has also recognized that when you forfeit an entire proceeding a proceeding which is a contingency is a important part of reaching finality that that's not the inquiry the court goes through thank you counsel jorgensen thank you mr chief justice and may it please the court my friend keeps referring to a waiver of issues but there was no waiver of issues in this case there was a waiver procedure there was an appellate waiver thus in similar situations like this where there is an appeal waiver there's been a waiver of a proceeding not just of those issues and i think this case actually provides a very good example of that agreement in this case that was signed by mr garza contains many provisions some of those provisions include that he would plead guilty to certain charges that the state would not then bring up bring other charges and would dismiss an enhancement  garza agreed to the particular sentence he would receive the plea agreement lists many of the list the rights that are required to be given under idaho's ruhleben which is the substantive equivalent of federal rule of and thus even without the appeal waiver the state had basically assured itself of victory on appeal it had it had already secured the waiver of many many many issues in fact all of the reasonable issues that could be how many but certainly not all  sure themselves a victory on appeal since there were arguments outside the scope of the agreement including some that have to be out available outside the scope that's agreement that could have been the basis for an appeal well that's correct insofar as it goes and that's one of the reasons why this is has to be a fact by fact analysis in this case mr garza clearly did waive the appellate procedure to all of those issues that he could conceivably waive that so he waived appellate procedure to address the sentences he had no right to any appellate procedure to address the sentences had he filed the appeal he wrote had his attorney filed a notice of appeal and raise the issues mr garza wanted to challenge to his sentence the only thing he would have gotten was a  luminary proceeding to determine whether he was asserting a wave procedure which you could shoot a chess florists or take a certain was the way it approach the issue was pretty given that there is even in a guilty plea they are waivers of some issues but not others that the question of whether a defendant would have appeal it clearly says there's no duty to consult where there is a waiver it also says that there is a duty to provide the appeal if it's requested and there is no duty to provide the appeal if the client says there that he or she does not if the defendant doesn't ask you for one you don't have to consult but once he asks you for one you have to file a notice of appeal this is just the second situation i would respectfully your honor i would say that where the where the client has given this type of conflicting guidance in other words this was a waiver that was secured through the direction of counsel counsel was involved with us so counsel had some idea of what plea agreement that mr garza decided to change his mind to have his cake and eat it too or to game the system or however you want to phrase it doesn't have to so it's not understand th you don't think that if defendant who has a right to appeal has a right i mean to even an interest free because that tells you why you can't appeal it and my experience again and i don't know if it's typical or not anderson priests are filed and most defendants don't respond but occasionally you get a few who  o if you forfeited that right to have someone explain to you the wise you can't get it back well you've heard your under your position that you're not you forfeit your right to you altogether our position is that in post conviction we're we are evaluating the conduct of counsel in making this choice that we have to look at the to tell you the circumstances and in this case the how the includes the waiver the totality includes the specific instruction of the client the totality includes the scope of the waiver in counsel's determination that his client was specifically asking him to seek an appeal that would address an issue within this mr perkins and so on what you just said i guess i was a little bit confused in your brief as to the scope of your argument suppose that the client had you know after doing the appeal waiver but there are some issues that you could still bring not very many but some and the the client says i want you to to the to the head to says attorney i want you to appeal and he does not give any further guidance in other words he doesn't say what particular issues or whether the those issues are inside or does he get to it at that point does the attorney have to take the appeal can you presume prejudice from the fact that the attorney has not taken the appeal at that point you can presume neither to fish performance nor prejudice because that may for example originate a duty to consult with the client to actually ascertain whether the client wants to try to vitiate the entire plea agreement to ascertain whether the client really wants to just test the state and see if they will maybe not act on a direct breach of the plea agreement there are several different things the client may be trying to achieve and all that mr garza allege that he was trying to achieve at any point is an appeal of his sentence yes guess that i had understood your brief as saying that as long as you don't specifically want to appeal something that's within the scope of the waiver then the attorney does in fact have to file a notice of appeal and you see say that there is prejudice when he doesn't but but but but you're saying that even if the current makes a kind of generalized go file an appeal for me and leave it to you what how you know i don't know the law you go do it and the attorney doesn't file anything even then you would say that there is no presumption yes we would say th presumption in other words before the attorney could actually undermine the plea agreement do something that would end up with the state at bringing the new charges possibly seeking to put mr gars away for life the attorney would have to secure mr garza's approval of that course of action but doesn't that run counter to our normal division of labor between clients and lawyers don't clients generally specify the end i wish to appeal and leave it to the lawyer to determine the means and doesn't it become incumbent at that stage upon the lawyer to identify whether there are any viable issues for appeal and come back to the client and say there are some or there are not some and a failure to do that why isn't the failure to do that presumptively prejudicial the failure to do that could conceivably be presumptively prejudicial depending on our facts and i guess in the question you just asked you talked about the end and i would suggest that the end is not the filing of the notice of appeal but the ultimate goal of the client if the client wishes to ultimately keep his agreement and he only wants his sentences possibly reduced trials for this guilty plea now we hope that at those trials are complete proceedings there are very few errors indeed we hope none but a client  to appeal now here we have a no appeal agreement but there are some errors that could be made we hope there are none or very few but there could be some so why shouldn't it be exactly the same rule if you client say to the lawyer appeal he has to appeal now if when examining  knowledgeable defended who occasionally is right i mean why well first off strickland is the general standard at all going it's exactly the same we say on the ordinary case no agreement we say if the client asks you you have to do it even without prejudice because he has been deprived of a lawyer at a critical stage of the proceeding and we presume prejudice why not say identical thing by the way if he doesn't ask you  if there really is a good reason you should have appealed anyway but we don't have to go into that because that isn't in this case ok so again same question why draw such a line for a couple of reasons first off the general strickland standard is sufficient to catch those instances where there is a mistake where there were trial counsel has not behaved in a manner that is acceptable that meets those minimum or constitutional requirements and second  off generally where this court will apply a presumption it is under the expectation that applying that presumption will reach the correct result in most cases most instances here the presumption is going to lead to an incorrect result in most instances simply because the waiver is ultimately going to be enforced so there is no reason to doubt in this case that the waiver would have ultimately been enforced and it's certainly not in a difficult burden to put on mr  like him to put some reason to believe the waiver would not have been enforced in relation to his appeal is disheartening because we would hope that in trials guilty plea proceedings there are also very few grounds for appeal and you are saying i see your point your point is though there are a lot there but there aren't many here who i hope you see i find out a difficult ground to use as making this distinction if for no other reason that i have no idea that's true or not that what's true or not your honor that there are lots of grounds for appealing a trial there are lots of grounds for appealing a guilty plea proceeding but there are only a very few grounds for appealing when there is a waiver of appeal i would hope in all those cases there are very few i don't know and so i find it hard to grow and write an opinion which said the reason you don't get exactly the same right is because you have fewer likely grounds for appeal well i think that the right again is not just a limitation of the issues you can raise on appeal it is a waiver of the actual proceeding itself except in certain limited circumstances are the practical difference in the differences between the consequences of taking a hopeless appeal when there is no when there is no appeal waiver and the consequences of taking a hopeless appeal that is covered by a police waiver yes there is and the reason is that for example had there been no waiver in this case and you want to race a sentence the court would have dealt with it fairly summarily on the basis of well that's invited there you lose but that would have been an effect alternately a merits determination where there is a waiver and he says i want to challenge my sentence then the court applies the waiver dismisses the case you never even have any sort of ruling on the merits you've never had a challenge to the judgment you've only had a question of doesn't believe or i don't as a person it's a ruling on the merits you have no case both of them or you have no case how you i don't understand there being a difference between what i don't know if it was you or the government who suggested threat hope threshold and there issues its decision on the appeal a motion to dismiss is on there it's well i think that a motion to dismiss is on the applicant illit of the waiver in other words is does the waiver kick in to foreclose the appeal and that's a different decision but that will either a firm or reverse the judgment counsel it in addition to just as priors question of why complicate the law or on top of that question what practical harm has there been in those  ictions those areas that have applied the presumption because i haven't seen much evidence of practical problems from the presumption well it is it is true that most courts deal with these fairly quickly and s upfront but we would argue that that's a reason why there shouldn't be this generalized rule a bright line rule that's going to just simply get that is is probably not a good bright it's very simple i think you're agreeing for the court when they get an appeal so if to pick a justice ginsburg's point if the appeal is reinstated you get the appeal while most issues are probably going within the scope of the waiver and then there might be in some cases something outside the scope of the waiver oftentimes those are not meritorious of course and are quickly dealt with sometimes they are though it's seems pretty simple for most appellate courts to deal with that and i'm not sure there's any evidence of a problem and if there's not evidence of a problem why complicate the laws just as prior says what the state gets out of these types of agreements is the procedure itself in other words there's finality of judgment but statists i'm starting or up i think you are knowledge that the appeal waiver gives up the appeal except in certain limited circumcise yes as one goes my point earlier an appeal waiver never gives up everything it can't it can't and because it never can give up everything you've never actually forfeited the entire procedure that's right but there but it would require a minimal showing to show that ultimately the appeal that the defendant wanted and had a right to was one of these things outside of the scope of the waiver and i think that's the crucial difference here mr garza in the post conviction case was asked specifically what issue would you raise on appeal if i reinstate your appeal rights the district court asked in that decision and mr garza's answer was my sentence so it would not be an onerous burden for somebody with an appeal waiver challenging the decision of counsel to say you know what i can convince this core that i would have raised one of the never said that in the state courts has there been a decision on that issue by any state court the district court i believe pages thirty one through thirty two or thirty t two a of the appendix on the petition the district court specifically asked garza what issues do you wish to raise on appeal if we reinstated your right what would you pursue and he specifically limited it to the sentence issue and specifically the court noted that mr garza had not raised any direct challenge to the waiver so i'm looking at page five of the three the blue brief and say you didn't write it but it's says that mr garcia promptly filed a pro se petition for post conviction relief in it he asserted that his trial counsel rendered ineffective assistance by disregarding his instructions by with notice of appeal mr grocer further argue that he did not knowingly and voluntarily plead guilty and that he had file a notice of appeal or it might have been ineffective assistance of counsel if that is in fact what he wanted and his attorney failed to ascertain that through consultation if i may continue just briefly one very garza has never so contended at any stage of the supposed conviction cases and the footnote also addresses that thank you  counsel mr chief justice and may it please the court a prejudice inquiry under strickland is the normal tool for identifying which final criminal judgments should be reopened based on counsel's ineffective assistance that is cases where the harm to finality is justified by increased accuracy and reliability the court should not abandon that case specific inquiry here where any benefits would exist only in exceptional cases a lot of the focus of argument today has been on the question whether counsel has an obligation to file a notice of appeal under various circumstances that is the question of deficient performance i'd like to refocus the court if i may on the question of prejudice which is the one that we have focused on what floors or take it tells us is that once you know that the reason that the defendant lost out on an appellate proceeding to which he had a right because of what counsel did that automatically is prejudicial you don't have to know whether he was going to appeals in the courts of appeals just disregard the waiver altogether it is in the nature of an affirmative defense that you can lose if you don't use so why isn't it the denial of it in a proceeding to which the defendant is entitled by law so the question is not merely whether he would have filed a notice of appeal and submitted some brief that the court would have read if we know based on the circumstances that the court would just have thrown out the proceeding at by did what it says in fl a situation ordinarily requires a quote presumption of prejudice and what that's right but elsewhere it's only if i take that to mean if your client asks you the lawyer file a notice of appeal you've got to do it and if you don't do it it's automatically prejudice now isn't it isn't it and my question was well why isn't that exactly the same here now which part of my wro and my wrong that that's what floors are take a says or and i wrong that this is the same so floors or take a certainly says what you're talking about her but it also clarifies elsewhere that the type of appeal to which we're talking about is an appeal to which the defendant has a right which is to say a marriage proceeding if a defendant for instance asked to appeal to the wrong court he wants to appeal to the ninth circuit rather than to an idaho state appellate court no one would say that if his attorney declines to file that notice of appeal knowing that it would just be tossed out without any consideration of the merits of his claims that the defendant has been prejudiced in the sense that that the sixth amendment cares about because strickland uses the term prejudiced because he has no legal right to that kind of appeal that's called he does have a legal right to appeal to the court relevant court of appeals that is a statutory right now perhaps congress could change that and say an appeal waivers cases you know sure the government go seek that but for now at least there's a statutory right to appeal to the right court so back to justice briar's question i think we've got a lot of that complication you well that it let me give you another example let's say five years after his conviction the defendant says to his attorney i want to file  notice of appeal and there's no jurisdictional defects because the timing of a notice of appeal in a criminal case is not jurisdictional if the attorney declines because he knows that there would be no consideration of the merits again i think that's just of aiding the hypothetical respectfully different in a case where the defendant just has bad arguments of the sort there mike asserted in an endless brief you still know there that if a notice of appeal is filed that there will be review on the merits he may lose but he's still going to have his claims reviewed and if the court of appeals disagrees with him it's going to affirm it's not going to dismiss the appeal which is what happens in the case of an appellate wave and so what floors are take it tells us is we care about that type of error that would undermine our faith in the reliability of the proceedings but if all you've lost out on is an opportunity to have your claims tossed out without any merits review whatsoever floors or take a does not tell us that that type of loss counts as prejudice do you think we can get anything out of the question of whether the defendant has a legal right to file some thing there are isn't it the case that understand she did so under wools defendants have the right to do all sorts of things during a criminal proceeding but for almost all of those the decision is made by the attorney that's correct the question is more about whether the loss of a proceeding undermines our faith in the reliability of the criminal judgment if the answer there is no then the defendant hasn't lost anything that the sixth amendment was designed to protect sorry business i just don't understand we have a trial or a guilty plea defendant says appeal but that doesn't mean it isn't true you know that the court of appeals writes the word dismissed and not the word for that's right in our brief we have a footnote citing decisions from every circuit in the federal where there's a dismissal or not in which they decide so that's what the difference really comes down to in your mind it's that is one technical difference but i think it also goes to the question are they reviewing the claims on the merits when there is a loss of a proceeding in which no merits review occurs that doesn't undermine our faith in the reliability of the proceedings it's also important to note that an appellate waiver doesn't just make the likelihood of success on appeal lower it's an additional obstacle that would prevent the defense claims even from getting consideration and so if we want to rule out that obstacle we have to do some additional investigation we can look either to direct evidence that the defendant was on the verge of appealing some claim that would have gotten merits consideration or if we don't have direct evidence based on communications or contemporaneous evidence we can look to the existence of some non frivolous claim outside the scope of the waiver that the defendant had which provides circumstantial evidence that had a notice of appeal been filed he would have appealed some claim they got merits romney said fit with the usual breakdown of responsibilities between client and lawyer where we normally assume that clients wholly specify objectives or hands and that a lawyer has the obligation under ethical rules in mostly most for six to pick the appropriate means so if a client says i wish to appeal anything's possible why isn't that a necessary directive to the lawyer to figure out which possible things fall outside the waiver or or those sorts of the winning argument so again we're not talking about counsel's obligations or the client's obligations on direct review when we're on collateral review trying to figure out why it was that the defendant either was or wasn't harmed the normal burden under strickland is that a defendant who seeks to reopen an otherwise final judgment has the burden in all cases to establish that he was prejudiced now it may be that as a theoretical matter any defendant could always challenge something outside the scope of his waiver he could always challenge for instance whether his plea was voluntary but we shouldn't start with the assumption for all cases that all defendants are intending to challenge for instance the voluntariness of their pleas not only does that invert the normal burden of proof under strickland it's contrary to experience it's also contrary to what this court has said about frivolous appeals name terms of experience does the federal government think that the experience of those circuits that have applied a presumption of prejudice has shown a problem so it's a problem only that it leads to the reinstatement of additional frivolous appeals we're not saying that it's such a big problem that the sky is going to fall in but it does create a couple practical problems number one in addition to additional frivolous appeals there are a lot of circuits that don't act on motions to dismiss on the basis of waivers until after a full briefing on the argument on the merits which means the government loses a lot of the benefit of its bargain the second one is that when you're on collateral review you end up focusing just on the at the denture you question the very difficult evidentiary question whether the defendant actually asked for a notice of appeal which can be burdensome i'm sorry those circuits don't believe i he or she believes they have some viable and potentially viable argument right so the fact that the court requires briefing on that one is set an additional burden it's an additional burden to require the government to address the merits when really the case should be thrown out at the threshold because all of the defendant's claims have been waived thank you counsel two minutes  thank you mr chief justice i just want to really make one point maybe with two parts responding to the united states suggestion that really we're dealing here with a for formalistic are symbolic appeal and i just want to do it on the context of this record with the real practical consequences this could have for mr garza as we note on page thirty two of our opening brief mr garza here has a very colorful i think meritorious claim that his appeal waiver was involuntary we address the specific facts there which include shortly before his second plea indicating on a form that he was not waiving his right to appeal going into to plead her eggs neither of which inquired as required under state law under rule eleven into whether he was waiving his right to appeal and then being advised three times in the once in the hearing and twice in judgments that he had a right to appeal and i just want to note that that claim could not be raised on post conviction justice alito you asked whether it was raised and dealt with the answer is no the very pages that were referred to you that you were referred to by the state the district court says i do not understand mr garza to be challenging the voluntariness of his appeal waiver i will see his pro se petition as only addressing the voluntariness of his plea agreement as a whole so even though the lack of advice at the rule of hearing would seem to support his claim i will not consider it that way and if i could just finish in summation by saying that the substantial majority of the circuits have adopted the rule partition or propose in this case those circuits account for approximately ninety five percent of the guilty pleas in the federal system and no problems have been shown with that rule we ask the court to adhere to it where as here a defendant satisfies a court that he wanted to challenge the lawfulness of the proceedings he got his state appointed attorney his agent has no place substituting his own view that his client should simply cede and go off to prison thank you thank you counsel the case is submitted