United States Court of Appeals 

For the First Circuit 

No. 18-1150 

TORIBIO ROJAS-MEDINA, 

Petitioner, Appellant, 

v. 

UNITED STATES OF AMERICA, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Francisco A. Besosa, U.S. District Judge] 

[Hon. Bruce J. McGiverin, U.S. Magistrate Judge] 

Before 

Torruella, Selya, and Lynch, 

Circuit Judges. 

 Franco L. Pérez-Redondo, Research & Writing Attorney, with 

whom Eric A. Vos, Federal Public Defender, and Vivianne M. MarreroTorres, Assistant Federal Public Defender, Supervisor, Appeals 

Section, were on brief, for petitioner. 

 Antonio L. Pérez-Alonso, Assistant United States Attorney, 

with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and 

Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, 

Appellate Division, were on brief, for respondent. 

May 16, 2019 
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SELYA, Circuit Judge. In Roe v. Flores-Ortega, 528 U.S. 

470 (2000), the Supreme Court held that, as a matter of 

constitutional law, a defense attorney has a duty to consult with 

a client about an appeal either when a particular defendant 

reasonably demonstrated to the attorney that he was interested in 

appealing or when the circumstances are such that a rational 

defendant would want to appeal. See id. at 480. The Court went 

on to hold that when an attorney violates this duty, a presumption 

of prejudice arises. See id. at 483. The appeal at hand requires 

us, for the first time, to apply the Flores-Ortega presumption of 

prejudice in circumstances in which the defendant has previously 

executed a plea agreement containing a waiver-of-appeal provision. 

Mindful of the teachings of both Flores-Ortega and Garza v. Idaho, 

139 S. Ct. 738 (2019), we reverse the district court's dismissal 

of petitioner-appellant Toribio Rojas-Medina's petition for postconviction relief and direct the district court, on remand, to 

afford him an appropriate opportunity to file a timely notice of 

appeal. 

I. BACKGROUND 

The petitioner is a monolingual Spanish speaker who is 

a native and citizen of the Dominican Republic. On November 23, 

2015, a federal grand jury sitting in the District of Puerto Rico 

returned a three-count indictment charging him with unlawfully 

transporting noncitizens (count 1), unlawful reentry into the 
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United States by a deported noncitizen (count 2), and failure to 

heave to a vessel (count 3). See 8 U.S.C. §§ 1324(a)(1)(A)(i), 

1326(b)(1); 18 U.S.C. § 2237(a)(1). Roughly three months later, 

the petitioner entered into a plea agreement (the Agreement), 

wherein he agreed to plead guilty to count 2 (unlawful reentry 

into the United States by a deported noncitizen). In exchange, 

the government agreed to dismiss the other two counts. The 

Agreement memorialized, inter alia, the parties' stipulation to a 

total offense level (TOL) of 21, but contained no stipulation as 

to the petitioner's criminal history category (CHC). 

In a section of the Agreement entitled "SENTENCING 

RECOMMENDATION," the parties agreed that they would "recommend a 

sentence at the lower end of the applicable Guideline Sentencing 

Range." The parties further agreed that the petitioner "may 

request that [his] sentence run concurrently with any pending state 

sentence or state revocation sentence that may be imposed as a 

result of the current criminal conduct," and "may also argue for 

a downward departure" on the basis "that his [CHC] substantially 

overrepresent[ed] the seriousness of [his] criminal conduct or the 

likelihood that [he] will commit other crimes." Of particular 

pertinence for present purposes, the Agreement contained a waiverof-appeal provision under which the petitioner surrendered the 

right to appeal his conviction and sentence, "provided that [he 

was] sentenced in accordance with the terms and conditions set 
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forth in the Sentence Recommendation provisions of [the 

Agreement]." 

A probation officer prepared the presentence 

investigation report (PSI Report). Consistent with the Agreement, 

the probation officer recommended a TOL of 21. She assessed the 

petitioner eight criminal history points, placing him in CHC IV. 

The recommended guideline sentencing range (GSR) was 57 to 71 

months. 

Neither party objected to the guideline calculations 

limned in the PSI Report. The petitioner's then-counsel (whom we 

shall call "trial counsel") filed a sentencing memorandum in which 

he urged the district court to vary downward and sentence the 

petitioner based on a CHC of III. Specifically, trial counsel 

sought a sentence of 46 months, which fell at the bottom of the 

GSR for a TOL of 21 and a CHC of III. Trial counsel also requested 

that the sentence "run concurrently with any pending state 

sentence."1 

Prior to sentencing, a different probation officer 

approached trial counsel, told him that the PSI Report had 

miscalculated the petitioner's CHC, and said that two additional 

 1 The petitioner committed the current offense while on postrelease supervision in New York. Thus, he was concerned that he 

might be subject to additional state prison time if the New York 

authorities moved to revoke his supervision due to his federal 

offense. 
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criminal history points would be added. These additional points 

served to elevate the petitioner from CHC IV to CHC V. 

The district court convened the disposition hearing on 

May 13, 2016. The court asked trial counsel whether he needed 

additional time to prepare, given the change in the probation 

officer's CHC calculation. Trial counsel said that he did not 

need extra time, reasoning that "by adding two additional points, 

it would only strengthen my position as to the overrepresentation 

of [the petitioner's] criminal history." He added that he would 

still be able to pursue his request for a downward departure.2 He 

then presented his argument for a 46-month sentence. The 

government made clear that it was "not objecting or arguing 

against" such a sentence, which was "discussed as part of the plea 

negotiations." Rather, the government was "standing by the 

[Agreement]" and "recommending a sentence at the lower end of the 

applicable guideline range based on a [TOL] of 21, according to 

the [CHC] that the Court accepts." 

 2 It is evident that trial counsel was using the term 

"departure" colloquially to include both downward departures and 

downward variances. Cf. United States v. Santini-Santiago, 846 

F.3d 487, 489-90 (1st Cir. 2017) (explaining that departures may 

only be "justified by reference to specified characteristics of 

the offense or the offender, or to an early disposition program," 

whereas variances may be justified by a much broader swath of 

rationales, "such as 'deterrence,' inducing 'respect for the law,' 

and effective 'correctional treatment'" (quoting 18 U.S.C. 

§ 3553(a))). The word "departure" appears to have been given this 

same broad meaning in the Agreement. 
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When all was said and done, the district court adopted 

the probation officer's revised recommendation, assessed ten 

criminal history points, and placed the petitioner in CHC V. Using 

the agreed TOL of 21, the court set the GSR at 70 to 87 months. 

It proceeded to impose a 70-month term of immurement to run 

consecutively vis-á-vis any state sentence that might be imposed. 

Trial counsel immediately objected. 

Upon completion of the sentencing proceeding, trial 

counsel had a two-minute conversation with the petitioner at the 

courthouse cellblock. After this brief chat, the two never spoke 

again. Judgment entered on May 13, 2016 — the same day that trial 

counsel filed a so-called "Motion to Reconsider Sentence." The 

motion papers contended that the 70-month sentence was "extremely 

harsh" and "greater than necessary to fulfill the purposes of 

sentencing under [18 U.S.C. §] 3553(a)." Three days later, the 

district court summarily denied the motion. Trial counsel did not 

file a notice of appeal, and the fourteen-day appeal period expired 

on May 27, 2016. At that time, the petitioner was not aware that 

trial counsel had filed a motion for reconsideration, nor was he 

aware that it had been denied. 

The petitioner was shuttled among several different 

correctional facilities following the imposition of sentence. 

After arriving at his destination in mid-July, he wrote to the 

district court requesting a copy of his docket sheet. The 
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petitioner stated that he was "in the process of a[n] appeal" and 

needed "certain information." The court granted his request on 

August 2, 2016. Upon receiving the docket sheet, the petitioner 

realized for the first time that a notice of appeal had not been 

filed on his behalf. With the help of another inmate, he filed a 

pro se petition to vacate his sentence pursuant to 28 U.S.C. 

§ 2255, claiming that trial counsel was ineffective for failing to 

file a notice of appeal. 

The district court referred the section 2255 petition to 

a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 

72(b)(1). After appointing post-conviction counsel, the 

magistrate judge held an evidentiary hearing. Both the petitioner 

and trial counsel testified about the details of their two-minute 

cellblock conversation. According to the petitioner, he "asked 

the attorney why they had given me so much time" and made it plain 

that all along, he had "wanted to appeal because the sentence was 

too high." The petitioner testified that trial counsel replied 

that the sentence "could not be appealed." When the petitioner 

insisted that "there had to be a way," trial counsel advised him 

to file a section 2255 petition. 

Trial counsel offered a somewhat different version. He 

recalled "discussing . . . the changes to the [PSI Report] and why 

[the court] finally made the determination that it did." He 

thought that he had "mentioned" filing a motion for 
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reconsideration, but he did not "think [he and the petitioner] 

ever agreed to it." Importantly, trial counsel claimed to have 

told the petitioner that although "there was a waiver of appeal, 

. . . if [the petitioner] thought that there was anything that 

could be appealed, that he had fourteen days and had to inform me 

so that I could file something." 

The magistrate judge reserved decision and subsequently 

issued a report and recommendation, recommending that the 

petitioner's ineffective assistance claim should be granted and 

that he should be allowed an appropriate opportunity to perfect a 

delayed appeal. The magistrate judge found that although the 

petitioner had not explicitly instructed trial counsel to file a 

notice of appeal,3 he had manifestly demonstrated an interest in 

appealing sufficient to trigger trial counsel's constitutional 

duty to consult. The magistrate judge then concluded that, "[e]ven 

fully crediting [trial counsel's] testimony, his discussion with 

[the petitioner at the cellblock] still did not meet the Supreme 

Court's requirement for a consult." Building on this foundation, 

the magistrate judge ruled that the Flores-Ortega presumption of 

prejudice, see 528 U.S. at 483, applied even though the petitioner 

had signed an appeal waiver. Thus, what remained was "to determine 

 3 In his appellate briefs, the petitioner does not argue that 

he explicitly instructed trial counsel to file a notice of appeal. 

Consequently, we deem any such argument waived. See United States 

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 
- 9 - 

whether [the petitioner] showed . . . a reasonable probability 

that he would have timely appealed." The magistrate judge then 

resolved this issue in the petitioner's favor and recommended 

granting the section 2255 petition. 

The government objected, see Fed. R. Crim. P. 59(b)(2), 

and the district court, exercising de novo review, see Fed. R. 

Crim. P. 59(b)(3), and without holding a further evidentiary 

hearing, rejected the magistrate judge's recommendation. The 

court did not take issue with any of the magistrate judge's 

findings of fact but, rather, held that Flores-Ortega's 

presumption of prejudice was inapposite because the petitioner had 

executed an appeal waiver. In the absence of such a presumption, 

the petitioner could not (in the district court's view) show any 

prejudice flowing from trial counsel's failure to file a timely 

notice of appeal. The court acknowledged, though, that if FloresOrtega applied notwithstanding the appeal waiver, the petitioner 

might be able to demonstrate that he had expressed an interest in 

appealing to trial counsel and that trial counsel's failure to 

consult with him may have deprived him of an appeal he would 

otherwise have taken. 

The district court issued a certificate of 

appealability, see 28 U.S.C. § 2253(c), and this timely appeal 

ensued. 
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II. ANALYSIS 

When a habeas petitioner appeals from the district 

court's denial of a section 2255 petition for post-conviction 

relief following an evidentiary hearing, our review of the court's 

factual findings is for clear error. See Casiano-Jiménez v. United 

States, 817 F.3d 816, 820 (1st Cir. 2016). Questions of law, of 

course, engender de novo review. See id. Here, the magistrate 

judge made factual findings after an evidentiary hearing. The 

district court — which did not have the benefit of hearing live 

testimony — did not take issue with the magistrate judge's factual 

findings, nor did it make any explicit factual findings of its 

own. Thus, we treat the district court as "adopt[ing] (albeit 

implicitly) the well-considered factual findings made by the 

Magistrate Judge." United States v. J.C.D., 861 F.3d 1, 5 (1st 

Cir. 2017). 

Our starting point is the constitutional guarantee of 

"the right to the effective assistance of counsel." Strickland v. 

Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 

397 U.S. 759, 771 n.14 (1970)); see U.S. Const. amend. VI. In 

order to succeed on an ineffective assistance claim, a "defendant 

must show both that counsel's performance was deficient and that 

it prejudiced his defense." Janosky v. St. Amand, 594 F.3d 39, 45 

(1st Cir. 2010) (citing Strickland, 466 U.S. at 687). In FloresOrtega, the Supreme Court held that Strickland "applies to claims 
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. . . that counsel was constitutionally ineffective for failing to 

file a notice of appeal." 528 U.S. at 477. 

With respect to the first element of the Strickland 

inquiry, the Flores-Ortega Court concluded that a defense 

attorney's representation is constitutionally deficient if the 

attorney either "disregards specific instructions from the 

defendant to file a notice of appeal" or fails (under certain 

circumstances) to consult with the defendant about an appeal. Id. 

at 480. Specifically, the Court held that "counsel has a 

constitutionally imposed duty to consult with the defendant about 

an appeal when there is reason to think either (1) that a rational 

defendant would want to appeal (for example, because there are 

nonfrivolous grounds for appeal), or (2) that this particular 

defendant reasonably demonstrated to counsel that he was 

interested in appealing." Id. By "consult," the Court clarified 

that it meant "advising the defendant about the advantages and 

disadvantages of taking an appeal, and making a reasonable effort 

to discover the defendant's wishes." Id. at 478. 

With respect to the second element of the Strickland 

inquiry, the Flores-Ortega Court concluded that a defendant whose 

attorney fails to carry out a duty to consult with him about an 

appeal is entitled to a presumption of prejudice. See id. at 483. 

A defendant is not required to show that an appeal is likely to be 

successful in order to be entitled to file an appeal out-of-time 
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based on ineffective assistance of counsel; he need only 

demonstrate that "counsel's constitutionally deficient performance 

deprive[d] [him] of an appeal that he otherwise would have taken." 

Id. at 484. 

Until very recently, federal courts were divided as to 

whether the Flores-Ortega presumption of prejudice applies when a 

defendant has executed an appeal waiver. Compare, e.g., Witthar 

v. United States, 793 F.3d 920, 923 (8th Cir. 2015) (holding 

Flores-Ortega applicable notwithstanding signed appeal waiver); 

Campusano v. United States, 442 F.3d 770, 776-77 (2d Cir. 2006) 

(same); Gomez-Diaz v. United States, 433 F.3d 788, 794 (11th Cir. 

2005) (same); United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 

(9th Cir. 2005) (same), with Nunez v. United States, 546 F.3d 450, 

455 (7th Cir. 2008) (holding Flores-Ortega inapplicable because 

defendant had signed appeal waiver); United States v. Mabry, 536 

F.3d 231, 241 (3d Cir. 2008) (same). But this question, previously 

the subject of a circuit split, has now been settled. In Garza, 

the Court held four-square that "the presumption of prejudice 

recognized in Flores-Ortega applies regardless of whether a 

defendant has signed an appeal waiver." 139 S. Ct. at 749. The 

Garza Court explained that "while signing an appeal waiver means 

giving up some, many, or even most appellate claims, some claims 

nevertheless remain." Id. at 745; see United States v. Teeter, 

257 F.3d 14, 24-26 (1st Cir. 2001) (explaining that appeal waiver 
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does not apply when waiver's scope was not clearly delineated, 

when plea was not knowing and voluntary, or when enforcing waiver 

"would work a miscarriage of justice"). The Court stressed that 

filing a notice of appeal is "a purely ministerial task that 

imposes no great burden on counsel." Garza, 139 S. Ct. at 745 

(quoting Flores-Ortega, 528 U.S. at 474). 

Although the defendant in Garza — unlike the petitioner 

— explicitly instructed his attorney to appeal, we see no reason 

why this distinction would affect Garza's holding that the FloresOrtega presumption of prejudice "applies regardless of whether a 

defendant has signed an appeal waiver." Id. at 749. After all, 

Flores-Ortega involved a defendant who had not expressly asked his 

attorney to file an appeal. See 528 U.S. at 477. We hold that 

Garza applies and, thus, we proceed to analyze the petitioner's 

claim under the Flores-Ortega framework. 

The first question is whether trial counsel had a duty 

to consult with the petitioner. As we already have explained, the 

duty to consult is triggered either when "a rational defendant 

would want to appeal" or when a "particular defendant reasonably 

demonstrated to counsel that he was interested in appealing." Id. 

at 480. In this instance, the record makes manifest that the 

petitioner expressed to trial counsel an interest in appealing 

sufficient to activate trial counsel's duty to consult. 
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We have yet to consider what qualifies as "reasonably 

demonstrat[ing]" an interest in appealing. We agree with the 

weight of authority, though, that a defendant must have done more 

than merely express his displeasure at sentencing. See United 

States v. Cong Van Pham, 722 F.3d 320, 325 (5th Cir. 2013); Jackson 

v. Att'y Gen. of Nev., 268 F. App'x 615, 620 (9th Cir. 2008). 

Instead, the defendant must have "said something to his counsel 

indicating that he had an interest in appealing." Cong Van Pham, 

722 F.3d at 325 (emphasis in original) (quoting United States v. 

Cooper, 617 F.3d 307, 313 (4th Cir. 2010)). A duty to consult 

arises, for example, "when . . . a defendant who received 

consecutive sentences asked 'about having time run together,'" id. 

(quoting Frazer v. South Carolina, 430 F.3d 696, 702, 712 (4th 

Cir. 2005)), or "when a defendant asked after sentencing 'what's 

next? What can we do now?,'" id. (quoting Palacios v. United 

States, 453 F. App'x 887, 889 (11th Cir. 2011) (per curiam)). 

Here, the magistrate judge credited the petitioner's 

testimony that he asked trial counsel why he had gotten "so much 

time." In addition, it is undisputed that the petitioner and trial 

counsel discussed the possibility of filing a motion for 

reconsideration. The government argues that a motion for 

reconsideration and an appeal are materially different. This 

argument is unavailing. 
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To begin, "[t]here is simply no such thing as a 'motion 

to reconsider' an otherwise final sentence." United States v. 

Ortiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014). In other words, the 

only vehicle for post-conviction relief that trial counsel 

discussed with the petitioner did not actually exist — yet the 

petitioner had no way of knowing that. Unsurprisingly, then — as 

the district court noted — the petitioner's testimony at the 

evidentiary hearing "exhibited confusion" and "conflate[d] a 

notice of appeal with a motion for reconsideration." Rojas-Medina 

v. United States, 290 F. Supp. 3d 145, 156-57 (D.P.R. 2018). A 

defendant — especially a defendant who is not an English speaker 

— should not be required to use magic words in order to trigger 

his counsel's duty to advise him about his right to appeal. See 

Cong Van Pham, 722 F.3d at 325. What counts is the substance and 

thrust of what the defendant says to counsel. 

In the case at hand, the petitioner made it luminously 

clear that he was dissatisfied with the sentence imposed and 

interested in whatever relief might be available. No more was 

exigible to ground the conclusion that the petitioner reasonably 

demonstrated to his lawyer his interest in appealing, thus 

triggering the lawyer's duty to consult with him about the 

advantages and disadvantages of taking an appeal. 

A question remains as to whether trial counsel fulfilled 

his duty to consult. We think not. Trial counsel's two-minute 
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chat with the petitioner, without more, was insufficient to 

discharge this duty. At a minimum, trial counsel was required to 

advise his client about the pros and cons of taking an appeal, and 

then to make a reasonable effort to ascertain his client's wishes. 

See Flores-Ortega, 528 U.S. at 478. Even if we were to credit 

trial counsel's testimony that he told the petitioner that "if he 

thought . . . there was anything that could be appealed . . . he 

had fourteen days" within which to inform trial counsel that he 

wanted to appeal — a matter on which we take no view — that 

statement did not shed any glimmer of light on the advantages or 

disadvantages of taking an appeal. 

In an attempt to sidestep this hurdle, the government 

points to conversations between the petitioner and trial counsel 

prior to sentencing, in which trial counsel "advised [the 

petitioner] about the consequences of his appellate waiver." The 

government asserts that, examining the totality of the 

circumstances (including these pre-sentencing conversations), 

"[trial counsel] did more than enough to effectively 'consult' 

with [the petitioner] about an appeal." 

This assertion defies reason. Even if we were disposed 

to consider the pre-sentencing conversations, it appears that 

trial counsel did no more than inform the petitioner that his 

appeal waiver would prevent him from filing an appeal. That may 

or may not have been true. See Teeter, 257 F.3d at 24-26 
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(cataloguing exceptions to appeal waiver's preclusive effect). In 

all events, we agree with the Fifth Circuit that "[c]ounsel's duty 

to [consult] requires more than simply notice that an appeal is 

available or advice that an appeal may be unavailing." White v. 

Johnson, 180 F.3d 648, 652 (5th Cir. 1999). 

Our inquiry does not end with the conclusion that trial 

counsel did not properly discharge his duty to consult. It remains 

for us to determine whether counsel's constitutionally deficient 

performance prejudiced the petitioner by "depriv[ing] [him] of an 

appeal that he otherwise would have taken." Flores-Ortega, 528 

U.S. at 484. The Supreme Court has cautioned that although this 

question ultimately "will turn on the facts of the particular 

case[,] . . . evidence that there were nonfrivolous grounds for 

appeal or that the defendant promptly expressed a desire to appeal 

will often be highly relevant in making this determination." Id. 

at 472. 

Here, the petitioner promptly expressed a desire to 

appeal. At his first possible opportunity to speak with counsel 

after sentencing, he expressed dissatisfaction with his sentence 

and an interest in pursuing post-conviction relief. He then 

requested his docket sheet from the district court soon after 

arriving at his designated custodial facility. Upon realizing 

that no appeal had been taken, he promptly sought assistance and 

perfected a section 2255 petition. Cf. Frazer, 430 F.3d at 712 
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(noting that petitioner's "tenacity in pursuing habeas relief 

. . . bolsters th[e] conclusion" that he would have appealed). 

To cinch the matter, we find that the petitioner has at 

least one nonfrivolous ground for appealing, notwithstanding his 

appeal waiver. He has made it pellucid that he wishes to 

challenge, inter alia, the district court's determination that his 

sentence should run consecutive to, not concurrent with, any state 

sentence. In United States v. Maldonado-Escarfullery, we held 

that an appeal of a consecutive sentence fell beyond the reach of 

an appeal waiver when "the plea agreement did not make any 

recommendation as to whether the sentence should run concurrently 

or consecutively." 689 F.3d 94, 97 n.2 (1st Cir. 2012). Several 

years later, we reached the same conclusion in United States v. 

Santiago-Burgos, 750 F.3d 19, 23 (1st Cir. 2014). 

The petitioner has a plausible argument that the same is 

true here. The SENTENCING RECOMMENDATION provision in his case 

did not specify whether his sentence should run concurrently or 

consecutively, yet the district court chose the latter. It follows 

that the petitioner's proposed challenge to the district court's 

refusal to run his sentence concurrently with any state sentence 

that might be imposed constitutes a nonfrivolous ground of appeal. 

After all, an argument need only be colorable to qualify as 

nonfrivolous, see United States v. Aguilera, 179 F.3d 604, 607 

(8th Cir. 1999); it does not have to be a sure winner. 
- 19 - 

To say more would be superogatory. We hold that trial 

counsel's failure to consult deprived the petitioner of an appeal 

that he otherwise would have taken. 

III. CONCLUSION 

We need go no further. For the reasons elucidated above, 

we reverse the judgment of the district court and remand with 

instructions to vacate the judgment in the underlying criminal 

case and reenter it so that the petitioner may enjoy a fair 

opportunity to file a timely notice of appeal. For these purposes, 

the district court shall follow the procedural roadmap charted by 

this court in United States v. Torres-Otero, 232 F.3d 24, 31-32 

(1st Cir. 2000). Mandate shall issue forthwith; without prejudice, 

however, to the right of either party to file, within customary 

time limits, petitions for rehearing or rehearing en banc.