FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 13, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-15712

Non-Argument Calendar

________________________

D. C. Docket Nos. 

03-08045-CV-CLS-PWG

03-00040-CR-CLS

COLLINS IRIS GASTON, 

Petitioner-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

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Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(June 13, 2007)

Before ANDERSON, BIRCH and PRYOR, Circuit Judges.

PER CURIAM:
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Collins Iris Gaston, a federal prisoner serving a 135-month sentence for

conspiracy to possess with intent to distribute crack cocaine, appeals pro se the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct

a sentence. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214 (1996), governs this appeal because Gaston

filed his motion after the AEDPA’s enactment. We granted a certificate of

appealability only as to “Whether appellant was denied effective assistance of

counsel when counsel failed to file a timely notice of appeal after appellant

allegedly requested counsel to do so.”

In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal

conclusions de novo and factual findings for clear error. Lynn v. United States,

365 F.3d 1225, 1232 (11th Cir. 2004). Whether counsel is ineffective is a mixed

question of law and fact that we review de novo. United States v. Bender, 290

F.3d 1279, 1284 (11th Cir. 2002). Because Gaston is proceeding pro se, we

liberally construe his pleadings. Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998).

In Roe v. Flores-Ortega, 528 U.S. 470, 473-75, 120 S.Ct. 1029, 1033-34,

145 L.Ed.2d 985 (2000), the Supreme Court considered a case in which a state

defendant pleaded guilty to murder, but did not waive his right to appeal, nor
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consented to his attorney not filing a notice of appeal. The Supreme Court held

that the test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), applies to determine whether counsel was ineffective for failing to file

a notice of appeal. Flores-Ortega, 528 U.S. at 477, 120 S.Ct. at 1034. Under

Strickland, a movant demonstrates ineffective assistance of counsel by showing:

“(1) that counsel’s representation fell below an objective standard of

reasonableness, and (2) that counsel’s deficient performance prejudiced the

defendant.” Flores-Ortega, 528 U.S. at 476-77, 120 S.Ct. at 1034 (internal

quotation marks and internal citations omitted).

With respect to the objective standard of reasonableness, the Supreme Court

reaffirmed that an attorney who fails to file an appeal on behalf of a client who

specifically requests it acts in a professionally unreasonable manner. Id. at 477,

120 S.Ct. at 1035. 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 . . . or (2) that this

particular defendant reasonably demonstrated to counsel that he was interested in

appealing.” Id. at 480, 120 S.Ct. at 1036.

With respect to prejudice, the Flores-Ortega Court held that prejudice is

presumed where counsel fails to file an appeal that the defendant wanted filed
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because the defendant is denied the opportunity for a proceeding at all. Id. at 483,

120 S.Ct. at 1038. “[T]o show prejudice in these circumstances, a defendant must

demonstrate that there is a reasonable probability that, but for counsel’s deficient

failure to consult with him about an appeal, he would have timely appealed.” 

Flores-Ortega, 528 U.S. at 484, 120 S.Ct. at 1038. This is true even absent the

defendant showing that he would have had any viable grounds for an appeal. Id. at

477, 120 S.Ct. at 1035.

The general rule of Flores-Ortega also applies even if the defendant has

signed a limited waiver of his right to appeal his sentence. Gomez-Diaz v. United

States, 433 F.3d 788, 790 (11th Cir. 2005). The defendant in Gomez-Diaz waived

his right to directly or collaterally appeal his sentence unless the sentencing judge

upwardly departed, sentenced above the statutory maximum, or sentenced in

violation of the law apart from the guidelines. Id. We instructed the district court

to hold an evidentiary hearing to determine whether (1) Gomez-Diaz had requested

that his counsel file an appeal, and, therefore, whether his counsel had a duty to

appeal and, (2) if not, whether Gomez-Diaz’s counsel consulted with Gomez-Diaz

and fulfilled his constitutional duty to determine whether Gomez-Diaz wished to

appeal. Id. at 792-93. We further held that even though the defendant had waived

“many, but not all, of his appellate rights,” he had no duty to “identify any
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arguably meritorious grounds for appeal that would fit one of the exceptions

contained in his appeal waiver.” Id. at 793; see also Montemoino v. United States,

68 F.3d 416, 417-18 (11th Cir. 1995) (holding where a defendant pleads guilty and

counsel fails to file a notice of appeal despite a request to do so, the defendant is

entitled to an out-of-time appeal of the sentencing issues absent an express waiver,

even without showing that any viable grounds for an appeal exist).

If, after an evidentiary hearing, a district court finds that a defendant was

denied the right to appeal, it must vacate the judgment, reimpose the same

sentence, and inform the defendant of the right to appeal and that he has ten days in

which to file a notice of appeal. United States v. Phillips, 225 F.3d 1198, 1201

(11th Cir. 2000).

In the present case, the district court did not determine whether Gaston

requested that his attorney file a notice of appeal. If the district court determines

after an evidentiary hearing that Gaston’s counsel was ineffective in not filing a

notice of appeal, then Gaston would be entitled to pursue an out-of-time appeal. 

See Gomez-Diaz, 433 F.3d at 793; see also Phillips, 225 F.3d at 1201. This is true

even where, as here, a defendant contractually waived the right to appeal, because

the merits of an appeal are not to be considered in deciding whether to grant an

out-of-time appeal. See Flores-Ortega, 528 U.S. at 477, 120 S.Ct. at 1035.
 If an out-of-time appeal is ultimately granted and defense counsel believes that the 1

record shows no meritorious basis for an appeal, counsel may, at that time, file a motion to

withdraw from the case pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967).

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Accordingly, we vacate the order denying relief, and instruct the district

court to hold an evidentiary hearing to determine whether Gaston’s counsel was

ineffective in not filing a notice of appeal. If the court finds that counsel was 1

ineffective then it should follow the procedures set forth in Phillips, 225 F.3d at

1201.

VACATED AND REMANDED.