constitutional duty to consult with him about his interest in appealing in this case it a constitutional duty to consult with mr herrion about his desires to appeal because he had reason to think that mr herring was interested in appealing under the circumstances mr harry met with his attorney within three days of his sentencing hearing the undisputed record shows that mr herring told his attorney that he wanted to appeal this case and that is attorney in response told him that he did not do appeal and that mr herring would have to find another attorney if he wanted to it could i just ask for a clarification on that point about not doing peals that wasn't the st time that that was communicated to mr herring was a no point and if he was why would there be any further duty to consult i'm sorry i didn't understand the st part or was affected billy withdrawing his counsel he wasn't he didn't sign up to do an appeal  said you've got to go find another attorney so where what triggers the duty to consult under those circumstances well your honor i would posit that you can't prospectively trigger a withdraw for your contract and that the court has authority over the officers as over the attorneys as an officer of the court to say in a sixty minute your honor as well says that if this particular defendant has expressed interest in appealing than an attorney has a duty to that is supreme court never say that in the context of an arrangement for representation that was limited to the trial work and not to an appeal to the supreme court ever addressed a situation like that no your honor i don't believe the supreme court has addressed that particular situation but i think the supreme court has said is that in the overwhelming majority rather the vast majority of cases counsel will have a duty to consult with the defendant about whether or not they want to take an appeal you honor well ok but mr kramer didn't stop there he actually tried to find attorneys who do federal appellate work and gave mr herring the names of those attorneys why isn't that sufficient to satisfy at the consultation did because you're on a floor is ortega specifically says that consult in this context has a specific meaning he has to discuss the advantages and the disadvantages of taking an appeal with his client but if he tells his client that here's some here's some attorneys who really know how to do appeals why isn't that adequate for purposes of consultation we're going to because mr herring had a personal attorney client relationship with his counsel of choice that he had hired mr eric kramer at that point so his counsel of choice which is the bedrock of our constitutional system is the supreme court has said he personally had a duty to discharge those obligations in the analysis is whether mr trial count will perform professional in a professionally reasonable manner and given advice about the specific advantages and disadvantages of taking a pill this contrast trial counsel's for what he did with maybe what competent counsel would have done that they would have met with mr herring they would have told him you have a  case there may be many if not all of your claims that you want to raise which would be barred by the plea agreement and if you do file a notice of appeal and ultimately file the merits brief then you could be in breach of the plea agreement and that could subject you to further punishment you know other conduct which may not have been prosecuted the government may come back and try to prosecute that afterwards but that's not what mr or what trial counsel did here instead he gave a list of other attorneys to his client who are in the undisputed record is that he told his attorney i want to appeal my case and as the attorney said wait a minute he said he was interested in appealing his case correct i appendix thirty four and this is in mr herring's pro se reply or response of the government's reply is that he told his attorney he wanted to appeal his case and he was asking his attorney to file an appeal when he met with him i don't wonder at was that statement under an affidavit i believe that there was a sworn that that particular thing you said that he said i want to appeal the wanted to appeal his case there was an attached sworn  like certificate of service it's a i wouldn't call an affidavit your honor or dec a declaration under the formal since the rules but it was attached with the following page saying that he had signed these things under penalty of perjury after the mystery and did not prove any prejudice by i believe he said that mr sharon's counsel did not have to consult with him in these circumstances because the trial court's instructions and this instance is incompetent to advise on an appeal because he's never done an appeal in his life and he doesn't he can't meaningfully consult because never having done an appeal he doesn't know how that works and then says so here are some names you've got plenty of time there's the telephone consult with them what is unreasonable about a few things your honor i think what's unreasonable about it is that the whole point of talking about the advantages and disadvantages of taking an appeal is to ascertain the client's wishes whether or not he in fact wants to pursue an appeal it's not to dispose of every merits of every claim that he may be complaining about it we're talking to you about at that point because the whole record maybe hasn't been ordered you will have transcripts those sorts of things but finally a notice of appeal is a purely ministerial task as the court has reiterated in bars of the idaho recently and so if counsel is feels for whatever reason that they cannot represent him on appeal or they don't have the competence to do those sorts of things and i understand the rules of professional conduct obviously impose limitations on council to not take on matters which they are not qualified then counsel has a duty to consult with other lawyers do legal research the types of things that lawyers do to one be able to give that advice in order to to file the notice of appeal if his client tell tells him that he wants to appealing counsel is unsure about the types of claims the notice of appeal should be filed because your client with his autonomy to make that type of decision has expressed a desire in appealing so the contract between them is oid public policy or something the contract can't be enforced i think that particular provision of the contract your honor to the extent it comes in conflict with the th amendment duties and councils role in the proceedings is not enforceable just as provisions  attorneys contracts which routinely say things like if i'm not paid on time i get to withdraw prior to trial those sorts of deals court say you know you can't withdraw at the last minute we're not going to do that you know as an officer of the court i have the ability to deny or withdraw regardless irrespective rather of your contractual agreement with the client with the district court said has the always do if you cannot afford counsel we why didn't he except that might be the answer that might be if you had the money to appoint counsel for the trial he would have had counsel money to appeal get an appellate counsel now for would not have felt he was eligible for that offer by the court is that correct yes or i think that's plausible i have i think it's also important to look at the court's admonitions and the court said you have the right to appeal inform operates if you so desire and and mr kramer can explain what that means to you but what about notice to get appointing counsel for a minute because i think i get that too narrow did the court say that if you ask we will file a notice of appeal for you whether or not you have the ability to get free counsel yes your honor he did so that was not and he didn't that he didn't accept that offer not at that time your honor but i think it's important to remember that after the admonitions three days later mr harry goes and he meets with his own attorney his trial counsel and says i want to appeal and trial counsel tells him but there was a but if you really wanted to appeal there was unconditional proposal by the court to file a notice of appeal for him regardless of whether it was in june or not yes your honor and so if you really want to appeal is the fact that he didn't take the court up on that offer powerful evidence that he didn't really intend to i think it's powerful evidence your honor that mr harr had questions about everything that was said to him during the course of the proceedings and this has not been raised in particular briefing but it is in the record that mr herring actually has hearing disability and he raised in response to the other claim of the twenty dollars to fifty five iraq on the question of presidents what's your strongest evidence that mr herring would have appealed had he been properly advised the fact that he told his attorney that he wanted to appeal and his attorney told him he could not appeal in face of the plea that said yes your honor i think that's our strongest point in favor did he take any steps to appeal i bet he spoke with his attorney he asked for documents from his attorney he had his brother contact his attorney ask questions immediately after the sentencing to try to ascertain his options but the record is really scant on these things your honor that's why in part we have the record may be scant but you do need to i mean the prejudice showing mr heron told his attorney that he wanted to appeal his case and we assert that is attorney performed efficiently and failing to advise him pointed out with the that's that's the effect the part yes you're on and let's get to the prejudice part i want to know what the evidence is trial counsel deprive mr herring of an appeal that he no you know what is the evidence yes or he would have taken steps to appeal had he been properly advised other than telling his lawyer at the beginning that he had an interest and appeal well mr be an interest in appealing to show prejudice yes your honor it beyond an interested appeal we do need to show beyond it we have to show other substantial reasons and what are they other than that he  other than that well i think telling your attorney that you want to and i said other than that you've said that now about five times i need something beyond that yes your honor unless that's all you're relying upon and if that is tell me if that's all you're relying upon well your honor i and mr herring didn't even compact any of i mean it's unclear from the record i honestly don't know you have any evidence that he did know your honor do not with that i would like to reserve the remainder of my time thank you please the court my name is jennifer williams for the united states mr herring pleaded guilty to one count of possession of child pornography as part of his plea he signed an appeal waiver waiving his right to appeal his sentence except under very limited circumstances he was alternately sentenced to a sentence of sixty months which was eighteen months below the low and the sentencing guideline range in his twenty dollars to fifty five dollars and based on the claim he present in that he concedes that he never explicitly asked his attorney to file an appeal notice so his only claim is that mr cramer failed to adequately consult with him about the advantages and disadvantages of an appeal well given the council page twenty of your brief and i'm quoting it says the defense counsel discussed with mr herring the advantages and disadvantages of taking an appeal and i didn't really see how that actually happened well he says in his two thousand two hundred and fifty five that mr kramer told him that because of his appeal waiver he didn't have an appeal and it's a fair inference from that statement that because of the appeal way of r and the sentence he received which was below the low end of the guideline range there were simply no grounds for an appeal mr kramer the attorney confirms that in his affidavit in which he says he later contacted in a an appellate attorney who confirmed his understanding of the case and i just don't see where when when the cases require the scotian about the pros and cons of taking an appeal and i've not seen that in the record i did did did mr cramer actually sit down with mr herring and say here's some reasons you might want to think about an appeal here's the reasons that maybe it doesn't make all that much s where is that in the record well i think that based on the specific facts of the case and what mr cramer and mr herring say happened at that meeting and admittedly the facts are sparse but the sentence he received was below the low end of the sentencing guidelines combined with his appeal way of r and mr cramer sent statement in his affidavit that he saw no grounds for an appeal that the case law says you have to consult about the advantages and disadvantages of an appeal but that doesn't mean it's herring says that mr kramer told him that because of the appeal waiver he didn't have an appeal and that how does that go to advantages and disadvantages and i don't see anything i'm looking at the range the plea and the appeal was so are you saying that there's no duty to consult if there really wasn't any advantage to appealing what floors are take us says that you need to in looking at a duty to consult our position st is that there was adequate consultation given the facts of this case nd that under floors ortega you have to look at the totality of the circumstances in determining whether there was a duty to consult and that given the facts of this case that mr cramer had no reason to think that mr herring would really want to appeal his case given the plea appeal way of r and sentence below what was agreed to in the plead below the low end of the sentencing guidelines  what if the defendant unreasonably paunch to appeal the counsel on all of us and you and everyone else in the courtroom says there is no basis for an appeal here but the defendant says i want to appeal well that would be a different case that but that claim has never been made in this case this case has always been presented as a duty to consult case so for purposes of this appeal in the twenty to fifty five he claims that he expressed an interest in appealing but he's never claimed that he specifically instructed his attorney to file an appeal because that seems to be a little bit of a difference in the way your arguments are being presented at this morning mr mr newman kept saying he told mr that mr herring told mr kramer that he wanted to file an appeal and you're saying he was interested in finding an appeal and i don't know how much daylight there is between those two but it does seem like there's a little bit of difference in emphasis there well and i think if that if that were talking about that he expressed an interest in appeal or that he said i want to appeal he has twenty to fifty five in his twenty to fifty five our position is that he concedes he never said i want to appeal if that were the case this twenty to fifty five and the briefs on appeal would have had to be presented differently if he claimed if if his claim is that he expressed we instructed his attorney to file an appeal then this would not be a failure to consult case and that's how it was presented it's how it was presented to the district court it had its how it was presented in the briefing on appeal let me read you two sentences that both start with we hold and  florida's case and one we instead hold that counsel has a constitutionally and posed duty to consult with the defendant about an appeal when there is reason to think either of two things the nd of which is that this particular defendant reasonably demonstrated to counsel that he was interested in appealing the nd accordingly we hold out to show prejudice in these circumstances a defendant much demonstrate that there is a reasonable probability that for counsel's deficient failure to consult with him about an appeal he would have timely appealed in other words doesn't have to be a certainty that he would have appealed it just has to be a question an establish as i believe the court said that he would have appealed but for the end effective assistance of counsel that's the st one and the nd one specifically speaks to prejudice the st the well you said the st one speaks to in effect the show you're the st yes but the nd but but the court makes clear that the nd inquiry the prejudice inquiry something more has to be shown then and so a reasonable probability and that isn't even a preponderance of that but for counsel's deficient failure to consult with him about an appeal he would have timely appealed and so if he comes in and says i would timely appealed and here's a reason to believe that i was talking about appeal and certainly we know that because trial counsel gave him three names what i'd point to this th sentence from floors are to go to prove deficient performance a defendant can rely on evidence that he sufficiently demonstrated to counsel his interest in an appeal but such evidence alone is insufficient to establish that had the defendant received reasonable advice from his counsel about the appeal he would have instructed his counsel to file an appeal and then the court goes on to discuss what sorts of evidence might be sufficient to make that showing and that is when the court discusses the existence of non frivolous grounds for appeal now the court sa the defendant isn't required to show non frivolous grounds for appeal but that is one sort of evidence that can be used to show something more than what is required to simply show the ineffective assistance and what else what else could what else  well he could it perhaps if he had if he had shown that he had contacted one of the other attorneys there are other things that he perhaps could have shown to establish that he would have appealed but for the ineffective assistance do the cases require taking some action as opposed to making a statement i'm not sure floors or take a discount well there are other that i mean but there are other cases that have addressed this issue i'm wondering if they provide any guidance on that question not that we could find i don't think that precludes it but i think what the case law makes clear is that what you have to show what a defendant has to show to establish ineffective assistance of counsel we what you're saying is an interest in appealing is one thing on the ineffective prong infective assistance prime but you need something more on the prejudice prong what is that something more well something that's something more could be the existence of non frivolous grounds for appeal it could also be taking some action perhaps contacting in this particular case perhaps contacting want to be appellate attorneys on the list he was given well but all yes show is a reasonable possibility that he wanted to appeal but i'm frankly concerned about one step before that all still would like to appeal and the guy sought records that might support his appeal how can we say that this record conclusively shows he was not wanting to appeal is didn't the court here in failing to have a hearing how how bad could that be how much disruption of the court schedule could that be just to have a hearing any hear from the guy we had no such hearing here did he ask for such a hearing was it required that he asked and why isn't it error not to have had a hearing well the question for the court is whether the  energy is it you do abuse your is question unless the record conclusively shows that he's not entitle to one so what is so conclusive about the judgment that he did not want to appeal it seems to me mr creamer may have been ineffective by not advising him at least of some of the pros and cons saying look i'm not going to take the appeal but here are some pros and cons to consider assuming that then i'm going to prejudice and i'm saying why didn't the court have a hearing on his intent but you're saying he didn't show as intent and maybe didn't maybe he did but it sure some m b us statements out there and twenty to fifty five pieces you've got to have a hearing in this the evidence is conclusive on the issue so my question is did he ask for a hearing as he waived the right to hearing why do you think is evidence is so conclusive that he didn't want to appeal those were string of questions but let's start with the st two which is factual did he ask for such a hearing why isn't he entitled  wanted to appeal all the discussion i've heard from my two colleagues with you seems to me to fall quite a way short of a conclusive establishment that he did not want to appeal so just answer this question did he ask for a hear complaining on appeal he didn't get a hearing right yes all right so a while why isn't that a good claim why does the winner and why don't we remand and say look there's things here in going here and there we can the question is is a conclusive i mean it's not enough to say beyond a really is on the to say probably would have appealed to you didn't establish more likely than not or anything else the question before you get a hearing is whether it was conclusive that you did not want to appeal did that issue could make that finding it just a court did because now how could this record make that finding in light of the statements that we've been hearing discussed today because he didn't present any non frivolous grounds that he would have raised on appeal he never what the law is now but you do have to show something more than what is required to show an effect of assistance so you have to show something other than that you expressed an interest in appealing and floors were taken out of it in the air to show that to may like to hear from you on the evidentiary hearing let's give the how much do we owe mr nuland one year well no but she went over so i think we ought to give him think you've got three if you want to use it all yes your honor thank you very much i think the court has keyed on a clear issue here is that whether or not the record conclusively shows that there is not a reasonable probability which is a probability sufficient to undermine the confidence in the outcome of the proceedings that mr harry would not have taken an appeal and i know that's a double negative but that's the standard for denying of evidentiary hearing in this case and as the court has correctly identified mr harry has statements in his twenty to fifty five in the reply and there is evidence potentially going both ways on this in the district court should have held an evidentiary let me ask you this i was alleged then what's the point in having an evidentiary hearing at that point i mean when that happens for example in summary judgment we say well even if the facts are disputed if we accept everything that that the non moving party claims then we can still go ahead and decide this why wouldn't that same principle work here what's the need for an evidentiary hearing if the court is saying i am going to accept everything mr herring said and decide on that basis whether the i think the court did make that finding the court found that the court was of the opinion that the record conclusively refuted mr harries claim that there is a reasonable probability that he would have filed an appeal what we would assert is that that five i'm just i'm just trying to understand what an evidentiary hearing is going to accomplish if the district court did that well i think your st mr haye would have the opportunity to potentially develop additional facts about what he did or didn't in the have done that in the  conviction context but he would have been able to developing that rationally related to the same acts and the same claims that he asserted in the twenty dollars to fifty five dollars and in the file so an evidentiary hearing would have allowed the court to resolve the issue of whether in fact for example mr herrion did in fact tell his attorney that he wanted to appeal these are all things that go to the uncertainty of the record itself your honor but we would submit that the government's rule which would require mr herrion or any litigant to show non frivolous claims has been rejected by the supreme court will times since rodrigues through florida take a and through garza versus idaho and with that we would submit the case for consideration to the court