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December 20, 2005

Appeal waivers and ineffective assistance

Today the Eleventh Circuit issued an interesting opinion discussing ineffective assistance of counsel for failure to pursue an appeal in Gomez-Diaz v. US, No. 04-11105 (11th Cir. Dec. 20, 2005) (available here).  Here is how the opinion begins:

Francisco Gomez-Diaz filed a timely 28 U.S.C. ยง 2255 motion challenging his conviction and sentence on federal offenses.  He alleged, among other things, that counsel appointed to represent him failed to file a notice of appeal as he requested.

It is well-settled that a lawyer who disregards instructions from his client to appeal has acted "in a manner that is professionally unreasonable." Roe v. Flores- Ortega, 528 U.S. 470, 477 (2000).  Prejudice is presumed. Id. at 483. The issue on this appeal is whether that general rule applies in a case where the defendant signed, as part of his plea agreement, a limited waiver of his right to appeal his sentence.  We hold that it does.

December 20, 2005 at 11:52 AM | Permalink


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Posted by: Cherese Williams | Jan 17, 2006 5:41:34 PM

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