NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-3947

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TOLA ROSS,

 Appellant

v.

SUPERINTENDENT PINE GROVE SCI;

DISTRICT ATTORNEY PHILADELPHIA;

ATTORNEY GENERAL PENNSYLVANIA

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania 

(D.C. Civil No. 2-17-cv-00073)

District Judge: Honorable Timothy J. Savage 

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Submitted Pursuant to Third Circuit L.A.R. 34.1

on April 12, 2022

Before: AMBRO, SCIRICA, and TRAXLER, Circuit Judges.

(Filed: July 19, 2022)

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OPINION**

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 Honorable William Traxler, Senior Circuit Judge, United States Court of Appeals for 

the Fourth Circuit, sitting by designation

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

SCIRICA, Circuit Judge

Tola Ross seeks a writ of habeas corpus from a state court conviction. 

28 U.S.C. § 2254. We granted Ross a certificate of appealability (COA) on whether the 

District Court erred in denying his claim that his counsel was ineffective for failing to 

perfect a direct appeal on his behalf. We now hold the Pennsylvania Superior Court 

applied precedent that is contrary to clearly established federal law and Ross was 

prejudiced by his counsel’s deficient performance. The Commonwealth of Pennsylvania 

does not oppose our granting the relief sought by Ross. We will reverse the judgment of 

the District Court denying Ross’s petition for a writ of habeas corpus and remand with 

instructions to conditionally grant the writ.

I.

In 2004, Tola Ross was charged with first-degree murder, arson, and criminal 

conspiracy. To avoid the possibility of life imprisonment, Ross pleaded guilty to third 

degree murder, arson, and criminal conspiracy. The next day, Ross sought to withdraw 

his plea. His plea counsel filed a simple motion to withdraw the plea, which offered no 

reason or justification as to why Ross sought to do so. Accordingly, the trial judge 

denied the motion.

Although Ross told his plea counsel he wanted to withdraw his plea, Ross’s plea

counsel never consulted with him about filing a notice of appeal and never filed such a 

notice. Ross attempted to file a pro se notice of appeal, but the notice was seemingly

misdirected and never docketed. Accordingly, Ross never received a direct appeal of his 

conviction.
3

Ross then filed a petition for state collateral relief in the Court of Common Pleas, 

pursuant to Pennsylvania’s Post Conviction Relief Act (PCRA). Ross raised several 

issues, including that his counsel was ineffective for failing to file a notice of appeal from 

the trial court’s denial of his motion to withdraw his guilty plea. The PCRA court held

two evidentiary hearings, at which Ross and his plea counsel both testified. Ross and his 

plea counsel disagreed over whether Ross specifically requested plea counsel to file a 

notice of appeal. But plea counsel admitted that Ross asked him to withdraw the plea. 

He also admitted that he never consulted with Ross about an appeal after the judge denied 

the withdrawal motion. The PCRA court resolved the credibility dispute in favor of the 

plea counsel and found Ross had not specifically requested his plea counsel to file a 

notice of appeal.

The PCRA court did not apply the test the Supreme Court laid out in Roe v. 

Flores-Ortega, 528 U.S. 470 (2000). In Flores-Ortega, the Supreme Court set forth the 

legal framework for claims alleging that counsel was ineffective for failing to file a direct 

appeal where the defendant had not given explicit instruction concerning an appeal. Id. at 

477. In such situations, a judge must consider whether counsel consulted with the 

defendant. Id. at 477–78. The Court held that counsel must “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. at 480.
4

Instead of applying Flores-Ortega to Ross’s claim, the PCRA court rejected 

Ross’s claim because he “failed to establish that he requested trial counsel to file a direct 

appeal following the denial of his Petition to Withdraw and/or Reconsideration of 

Sentence.” JA 121. On appeal, the Pennsylvania Superior Court took the same approach 

and relied on pre-Flores-Ortega state precedent requiring Ross to “prove that he 

requested an appeal and that counsel disregarded that request.” JA 127–28 (citing 

Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa. Super. Ct. 1999) (abrogated by 

Flores-Ortega, 528 U.S. 470)). Because the Superior Court concluded Ross had not 

asked plea counsel to file an appeal, it rejected Ross’s ineffective-assistance-of-counsel

claim.

Ross eventually exhausted his state court remedies when the Pennsylvania 

Supreme Court declined to review his case. He then filed a § 2254 petition for a writ of 

habeas corpus in the U.S. District Court for the Eastern District of Pennsylvania. The 

District Court denied Ross’s petition and declined to issue a COA. We granted a COA as 

to the notice-of-appeal issue. The Commonwealth concedes the District Court erred

because the Superior Court should have followed Flores-Ortega, and, accordingly, does 

not contest Ross’s petition.
5

II.1

Where, as here, the state court adjudicated the merits of a petitioner’s habeas 

claims, federal habeas relief is available only if the state court’s decision was (1) 

“contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court,” or (2) “based on an unreasonable determination of 

the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d).

A state-court decision is “contrary to” clearly established federal law if the 

decision “applies a rule that contradicts the governing law set forth in [the Supreme 

Court’s] cases, or if it confronts a set of facts that is materially indistinguishable from a 

decision of [the Supreme] Court but reaches a different result.” Rountree v. Balicki, 640 

F.3d 530, 537 (3d Cir. 2011) (quoting Brown v. Payton, 544 U.S. 133, 141 (2005)). 

Here, the Pennsylvania Superior Court applied a rule that contradicts Flores-Ortega. See

Lewis v. Johnson, 359 F.3d 646, 659 (3d Cir. 2004) (“The Supreme Court invalidated 

[this] rule in Flores–Ortega.”). Instead of considering whether Ross would want to 

appeal and whether he reasonably demonstrated to his plea counsel that he was interested 

in appealing, as required by Flores-Ortega, the Superior Court focused on Ross’s failure 

to prove he explicitly requested his plea counsel to file a notice of appeal. As the 

1 We have jurisdiction over this petition under 28 U.S.C. § 2253(c)(1), as Ross appeals 

from a final order denying habeas relief of the United States District Court for the Eastern 

District of Pennsylvania and has received a certificate of appealability from this Court.
6

Commonwealth acknowledges, the decision to reject Ross’s claim on these grounds was 

contrary to clearly established federal law.

III.

We agree with both Ross and the Commonwealth in finding Ross’s plea counsel 

ineffective. To succeed on an ineffective-assistance-of-counsel claim, a petitioner must 

show (1) “counsel’s performance was deficient,” and (2) “the deficient performance 

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Ross has 

met both prongs of the Strickland test.

After the Court’s decision in Flores-Ortega, Ross’s request to withdraw his plea 

should have put his plea counsel on notice that Ross was interested in appealing. See

Lewis, 359 F.3d at 660 (finding a defendant’s attempt to withdraw his guilty plea “should 

have put [counsel] on notice that [the defendant] may have been interested in appealing 

the trial judge’s ruling”). Accordingly, plea counsel’s failure to consult with Ross about 

an appeal constitutes deficient performance under Strickland’s first prong. And Ross has 

met Strickland’s second prong because plea counsel’s failure to consult with Ross 

prejudiced Ross. Ross’s request to withdraw his plea and his attempt to file a pro se

notice of appeal demonstrate “a reasonable probability that, but for counsel’s deficient 

failure to consult with him about an appeal, he would have timely appealed.” FloresOrtega, 528 U.S. at 484. Ross has demonstrated he received ineffective assistance of 

counsel in violation of his Sixth Amendment right.
7

IV.

We will reverse the District Court’s order denying the petition for a writ of habeas 

corpus and remand with instructions to issue a writ of habeas corpus conditioned upon 

the Commonwealth’s reinstatement of Ross’s right of first appeal within 90 days of entry 

of the grant of relief.