ROE, WARDEN v. FLORES-ORTEGA

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470 OCTOBER TERM, 1999
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ROE, WARDEN v. FLORES-ORTEGA
certiorari to the united states court of appeals for
the ninth circuit
No. 98–1441. Argued November 1, 1999—Decided February 23, 2000
Respondent pleaded guilty to second-degree murder. At his sentencing,
the trial judge advised him that he had 60 days to file an appeal. His
counsel, Ms. Kops, wrote “bring appeal papers” in her file, but no notice
of appeal was filed within that time. Respondent’s subsequent attempt
to file such notice was rejected as untimely, and his efforts to secure
state habeas relief were unsuccessful. He then filed a federal habeas
petition, alleging constitutionally ineffective assistance of counsel based
on Ms. Kops’ failure to file the notice after promising to do so. The
District Court denied relief. The Ninth Circuit reversed, however,
finding that respondent was entitled to relief because, under its prece-
dent, a habeas petitioner need only show that his counsel’s failure to file
a notice of appeal was without the petitioner’s consent.
Held:
1. Strickland v. Washington, 466 U. S. 668, provides the proper
framework for evaluating a claim that counsel was constitutionally inef-
fective for failing to file a notice of appeal. Under Strickland, a defend-
ant must show (1) that counsel’s representation “fell below an objective
standard of reasonableness,” id., at 688, and (2) that counsel’s deficient
performance prejudiced the defendant, id., at 694. Pp. 476–486.
(a) Courts must “judge the reasonableness of counsel’s conduct on
the facts of the particular case, viewed as of the time of counsel’s con-
duct,” 466 U. S., at 690, and “[j]udicial scrutiny of counsel’s performance
must be highly deferential,” id., at 689. A lawyer who disregards a
defendant’s specific instructions to file a notice of appeal acts in a profes-
sionally unreasonable manner, see Rodriquez v. United States, 395 U. S.
327, while a defendant who explicitly tells his attorney not to file an
appeal plainly cannot later complain that, by following those instruc-
tions, his counsel performed deficiently, see Jones v. Barnes, 463 U. S.
745, 751. The Ninth Circuit adopted a bright-line rule for cases where
the defendant has not clearly conveyed his wishes one way or the other;
in its view, failing to file a notice of appeal without the defendant’s con-
sent is per se deficient. The Court rejects that per se rule as inconsist-
ent with Strickland’s circumstance-specific reasonableness requirement.
The question whether counsel has performed deficiently in such cases is
best answered by first asking whether counsel in fact consulted with

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the defendant about an appeal. By “consult,” the Court means advising
the defendant about the advantages and disadvantages of taking an ap-
peal and making a reasonable effort to discover the defendant’s wishes.
Counsel who consults with the defendant performs in a professionally
unreasonable manner only by failing to follow the defendant’s express
instructions about an appeal. If counsel has not consulted, the court
must ask whether that failure itself constitutes deficient performance.
The better practice is for counsel routinely to consult with the defend-
ant about an appeal. Counsel has a constitutionally imposed duty to
consult, however, only 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. In making this determination, courts must take into
account all the information counsel knew or should have known. One
highly relevant factor will be whether the conviction follows a trial
or a guilty plea, because a plea both reduces the scope of potentially
appealable issues and may indicate that the defendant seeks an end to
judicial proceedings. Even then, a court must consider such factors as
whether the defendant received the sentence bargained for and whether
the plea expressly reserved or waived some or all appeal rights.
Pp. 477–481.
(b) The second part of the Strickland test requires the defendant
to show prejudice from counsel’s deficient performance. Where an inef-
fective assistance of counsel claim involves counsel’s performance during
the course of a legal proceeding, the Court normally applies a strong
presumption of reliability to the proceeding, requiring a defendant to
overcome that presumption by demonstrating that attorney errors actu-
ally had an adverse effect on the defense. The complete denial of coun-
sel during a critical stage of a judicial proceeding, however, mandates a
presumption of prejudice because “the adversary process itself ” has
been rendered “presumptively unreliable.” United States v. Cronic,
466 U. S. 648, 659. The even more serious denial of the entire judicial
proceeding also demands a presumption of prejudice because no pre-
sumption of reliability can be accorded to judicial proceedings that never
took place. Respondent claims that his counsel’s deficient performance
led to the forfeiture of his appeal. If that is so, prejudice must be pre-
sumed. Because the defendant in such cases must show that counsel’s
deficient performance actually deprived him of an appeal, however, he
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. This standard follows the pattern established in
Strickland and Cronic, and mirrors the prejudice inquiry applied in
Hill v. Lockhart, 474 U. S. 52, and Rodriquez v. United States, supra.

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472 ROE v. FLORES-ORTEGA
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The question whether a defendant has made the requisite showing will
turn on the facts of the particular case. Nonetheless, 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. The performance and prejudice inquiries
may overlap because both may be satisfied if the defendant shows non-
frivolous grounds for appeal. However, they are not in all cases coex-
tensive. Evidence that a defendant sufficiently demonstrated to coun-
sel his interest in an appeal may prove deficient performance, but it
alone is insufficient to establish that he would have filed the appeal had
he received counsel’s advice. And, although showing nonfrivolous
grounds for appeal may give weight to the defendant’s contention that
he would have appealed, a defendant’s inability to demonstrate the merit
of his hypothetical appeal will not foreclose the possibility that he can
meet the prejudice requirement where there are other substantial rea-
sons to believe that he would have appealed. Pp. 481–486.
2. The court below undertook neither part of the Strickland inquiry
and the record does not provide the Court with sufficient information
to determine whether Ms. Kops rendered constitutionally inadequate
assistance. The case is accordingly remanded for a determination
whether Ms. Kops had a duty to consult with respondent (either because
there were potential grounds for appeal or because respondent ex-
pressed interest in appealing), whether she satisfied her obligations,
and, if she did not, whether respondent was prejudiced thereby. P. 487.
160 F. 3d 534, vacated and remanded.
O’Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Scalia, Kennedy, Thomas, and Breyer, JJ., joined, and in
which Stevens, Souter, and Ginsburg, JJ., joined as to Part II–B.
Breyer, J., filed a concurring opinion, post, p. 488. Souter, J., filed an
opinion concurring in part and dissenting in part, in which Stevens and
Ginsburg, JJ., joined, post, p. 488. Ginsburg, J., filed an opinion concur-
ring in part and dissenting in part, post, p. 493.
Paul E. O’Connor, Deputy Attorney General of California,
argued the cause for petitioner. With him on the briefs
were Bill Lockyer, Attorney General, David P. Druliner,
Chief Assistant Attorney General, Robert R. Anderson and
Arnold O. Overoye, Senior Assistant Attorneys General,

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Margaret Venturi, Supervising Deputy Attorney General,
and Ward A. Campbell, Assistant Supervising Deputy Attor-
ney General.
Edward C. DuMont argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Solicitor General Waxman, Assistant Attorney
General Robinson, Deputy Solicitor General Dreeben, and
Nina Goodman.
Quin Denvir argued the cause for respondent. With him
on the brief were Ann H. Voris and Mary French.*
Justice O’Connor delivered the opinion of the Court.
In this case we must decide the proper framework for eval-
uating an ineffective assistance of counsel claim, based on
counsel’s failure to file a notice of appeal without respond-
ent’s consent.
I
The State of California charged respondent, Lucio Flores-
Ortega, with one count of murder, two counts of assault, and
a personal use of a deadly weapon enhancement allegation.
In October 1993, respondent appeared in Superior Court
with his court-appointed public defender, Nancy Kops, and a
Spanish language interpreter, and pleaded guilty to second-
degree murder. The plea was entered pursuant to a Califor-
nia rule permitting a defendant both to deny committing a
crime and to admit that there is sufficient evidence to convict
him. See People v. West, 3 Cal. 3d 595, 477 P. 2d 409 (1970).
In exchange for the guilty plea, the state prosecutor moved
to strike the allegation of personal use of a deadly weapon
and to dismiss both assault charges. On November 10, 1993,
*Kent S. Scheidegger and Christine M. Murphy filed a brief for the
Criminal Justice Legal Foundation as amicus curiae urging reversal.
Lawrence S. Lustberg, Kevin McNulty, and Lisa B. Kemler filed a brief
for the National Association of Criminal Defense Lawyers as amicus
curiae urging affirmance.

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respondent was sentenced to 15 years to life in state prison.
After pronouncing sentence, the trial judge informed re-
spondent, “You may file an appeal within 60 days from to-
day’s date with this Court. If you do not have money for
Counsel, Counsel will be appointed for you to represent you
on your appeal.” App. 40.
Although Ms. Kops wrote “bring appeal papers” in her file,
no notice of appeal was filed within the 60 days allowed by
state law. See Cal. Penal Code Ann. § 1239(a) (West Supp.
2000); Cal. App. Rule 31(d). (A notice of appeal is generally
a one-sentence document stating that the defendant wishes
to appeal from the judgment. See Rule 31(b); Judicial Coun-
cil of California, Approved Form CR–120 (Notice of Appeal-
Felony) (Jan. 5, 2000), http://www.courtinfo.ca.gov/forms/
documents/cr120.pdf.) Filing such a notice is a purely minis-
terial task that imposes no great burden on counsel. During
the first 90 days after sentencing, respondent was apparently
in lockup, undergoing evaluation, and unable to communicate
with counsel. About four months after sentencing, on
March 24, 1994, respondent tried to file a notice of appeal,
which the Superior Court Clerk rejected as untimely. Re-
spondent sought habeas relief from California’s appellate
courts, challenging the validity of both his plea and convic-
tion, and (before the California Supreme Court) alleging that
Ms. Kops had not filed a notice of appeal as she had promised.
These efforts were uniformly unsuccessful.
Respondent then filed a federal habeas petition pursuant
to 28 U. S. C. § 2254, alleging constitutionally ineffective as-
sistance of counsel based on Ms. Kops’ failure to file a notice
of appeal on his behalf after promising to do so. The United
States District Court for the Eastern District of California
referred the matter to a Magistrate Judge, who in turn or-
dered an evidentiary hearing on the limited issue of whether
Ms. Kops promised to file a notice of appeal on respondent’s
behalf. At the conclusion of the hearing, the Magistrate
Judge found:

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“The evidence in this case is, I think, quite clear that
there was no consent to a failure to file [a notice of
appeal].
. . . . .
“It’s clear to me that Mr. Ortega had little or no under-
standing of what the process was, what the appeal proc-
ess was, or what appeal meant at that stage of the game.
“I think there was a conversation [between Ortega
and Kops] in the jail. Mr. Ortega testified, and I’m sure
he’s testifying as to the best of his belief, that there was
a conversation after the pronouncement of judgment at
the sentencing hearing where it’s his understanding that
Ms. Kops was going to file a notice of appeal.
“She has no specific recollection of that. However,
she is obviously an extremely experienced defense coun-
sel. She’s obviously a very meticulous person. And I
think had Mr. Ortega requested that she file a notice of
appeal, she would have done so.
“But, I cannot find that he has carried his burden of
showing by a preponderance of the evidence that she
made that promise.” App. 132–133.
The Magistrate Judge acknowledged that under precedent
from the Court of Appeals for the Ninth Circuit, United
States v. Stearns, 68 F. 3d 328 (1995), a defendant need only
show that he did not consent to counsel’s failure to file a
notice of appeal to be entitled to relief. The judge con-
cluded, however, that Stearns announced a new rule that
could not be applied retroactively on collateral review to re-
spondent’s case. See Teague v. Lane, 489 U. S. 288 (1989).
Thus, the Magistrate Judge recommended that the habeas
petition be denied. App. 161. The District Court adopted
the Magistrate’s findings and recommendation, and denied
relief. Id., at 162–163.
The Court of Appeals for the Ninth Circuit reversed, rea-
soning that the rule it applied in Stearns—that a habeas
petitioner need only show that his counsel’s failure to file a

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notice of appeal was without the petitioner’s consent—
tracked its earlier opinion in Lozada v. Deeds, 964 F. 2d 956
(1992), which predated respondent’s conviction. 160 F. 3d
534 (1998). Because respondent did not consent to the fail-
ure to file a notice of appeal—and thus qualified for relief
under Stearns—the court remanded the case to the District
Court with instructions to issue a conditional habeas writ
unless the state court allowed respondent a new appeal. We
granted certiorari, 526 U. S. 1097 (1999), to resolve a conflict
in the lower courts regarding counsel’s obligations to file a
notice of appeal. Compare United States v. Tajeddini, 945
F. 2d 458, 468 (CA1 1991) (per curiam) (counsel’s failure to
file a notice of appeal, allegedly without the defendant’s
knowledge or consent, constitutes deficient performance);
Morales v. United States, 143 F. 3d 94, 97 (CA2 1998) (counsel
has no duty to file a notice of appeal unless requested by the
defendant); Ludwig v. United States, 162 F. 3d 456, 459 (CA6
1998) (Constitution implicated only when defendant actually
requests an appeal and counsel disregards the request);
Castellanos v. United States, 26 F. 3d 717, 719–720 (CA7
1994) (same); Romero v. Tansy, 46 F. 3d 1024, 1030–1031
(CA10 1995) (defendant does not need to express to counsel
his intent to appeal for counsel to be constitutionally obli-
gated to perfect defendant’s appeal; unless defendant waived
right, counsel was deficient for failing to advise defendant
about appeal right); United States v. Stearns, supra, (coun-
sel’s failure to file a notice of appeal is deficient unless the
defendant consents to the abandonment of his appeal).
II
In Strickland v. Washington, 466 U. S. 668 (1984), we held
that criminal defendants have a Sixth Amendment right to
“reasonably effective” legal assistance, id., at 687, and an-
nounced a now-familiar test: A defendant claiming ineffective
assistance of counsel must show (1) that counsel’s representa-
tion “fell below an objective standard of reasonableness,”

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id., at 688, and (2) that counsel’s deficient performance prej-
udiced the defendant, id., at 694. Today we hold that this
test applies to claims, like respondent’s, that counsel was con-
stitutionally ineffective for failing to file a notice of appeal.
A
As we have previously noted, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense
counsel.” Id., at 688–689. Rather, courts must “judge the
reasonableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s con-
duct,” id., at 690, and “[j]udicial scrutiny of counsel’s per-
formance must be highly deferential,” id., at 689.
We have long held that a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts
in a manner that is professionally unreasonable. See Rodri-
quez v. United States, 395 U. S. 327 (1969); cf. Peguero v.
United States, 526 U. S. 23, 28 (1999) (“[W]hen counsel fails
to file a requested appeal, a defendant is entitled to [a new]
appeal without showing that his appeal would likely have
had merit”). This is so because a defendant who instructs
counsel to initiate an appeal reasonably relies upon counsel
to file the necessary notice. Counsel’s failure to do so cannot
be considered a strategic decision; filing a notice of appeal
is a purely ministerial task, and the failure to file reflects
inattention to the defendant’s wishes. At the other end of
the spectrum, a defendant who explicitly tells his attorney
not to file an appeal plainly cannot later complain that, by
following his instructions, his counsel performed deficiently.
See Jones v. Barnes, 463 U. S. 745, 751 (1983) (accused has
ultimate authority to make fundamental decision whether to
take an appeal). The question presented in this case lies
between those poles: Is counsel deficient for not filing a no-
tice of appeal when the defendant has not clearly conveyed
his wishes one way or the other?

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The Courts of Appeals for the First and Ninth Circuits
have answered that question with a bright-line rule: Counsel
must file a notice of appeal unless the defendant specifically
instructs otherwise; failing to do so is per se deficient. See,
e. g., Stearns, 68 F. 3d, at 330; Lozada, supra, at 958; Tajed-
dini, supra, at 468. Such a rule effectively imposes an obli-
gation on counsel in all cases either (1) to file a notice of
appeal, or (2) to discuss the possibility of an appeal with the
defendant, ascertain his wishes, and act accordingly. We re-
ject this per se rule as inconsistent with Strickland’s holding
that “the performance inquiry must be whether counsel’s as-
sistance was reasonable considering all the circumstances.”
466 U. S., at 688. The Court of Appeals failed to engage
in the circumstance-specific reasonableness inquiry required
by Strickland, and that alone mandates vacatur and remand.
In those cases where the defendant neither instructs coun-
sel to file an appeal nor asks that an appeal not be taken, we
believe the question whether counsel has performed defi-
ciently by not filing a notice of appeal is best answered by
first asking a separate, but antecedent, question: whether
counsel in fact consulted with the defendant about an appeal.
We employ the term “consult” to convey a specific meaning—
advising the defendant about the advantages and disadvan-
tages of taking an appeal, and making a reasonable effort to
discover the defendant’s wishes. If counsel has consulted
with the defendant, the question of deficient performance is
easily answered: Counsel performs in a professionally unrea-
sonable manner only by failing to follow the defendant’s ex-
press instructions with respect to an appeal. See supra, at
477. If counsel has not consulted with the defendant, the
court must in turn ask a second, and subsidiary, question:
whether counsel’s failure to consult with the defendant itself
constitutes deficient performance. That question lies at the
heart of this case: Under what circumstances does counsel
have an obligation to consult with the defendant about an
appeal?

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Because the decision to appeal rests with the defendant,
we agree with Justice Souter that the better practice is
for counsel routinely to consult with the defendant regarding
the possibility of an appeal. See ABA Standards for Crimi-
nal Justice, Defense Function 4–8.2(a) (3d ed. 1993); post,
at 490–491 (opinion concurring in part and dissenting in
part). In fact, California imposes on trial counsel a per se
duty to consult with defendants about the possibility of
an appeal. See Cal. Penal Code Ann. § 1240.1(a) (West
Supp. 2000). Nonetheless, “[p]revailing norms of practice as
reflected in American Bar Association standards and the
like . . . are only guides,” and imposing “specific guidelines”
on counsel is “not appropriate.” Strickland, 466 U. S., at
688. And, while States are free to impose whatever specific
rules they see fit to ensure that criminal defendants are well
represented, we have held that the Federal Constitution
imposes one general requirement: that counsel make objec-
tively reasonable choices. See ibid. We cannot say, as a
constitutional matter, that in every case counsel’s failure to
consult with the defendant about an appeal is necessarily
unreasonable, and therefore deficient. Such a holding would
be inconsistent with both our decision in Strickland and
common sense. See id., at 689 (rejecting mechanistic rules
governing what counsel must do). For example, suppose
that a defendant consults with counsel; counsel advises the
defendant that a guilty plea probably will lead to a 2 year
sentence; the defendant expresses satisfaction and pleads
guilty; the court sentences the defendant to 2 years’ impris-
onment as expected and informs the defendant of his appeal
rights; the defendant does not express any interest in appeal-
ing, and counsel concludes that there are no nonfrivolous
grounds for appeal. Under these circumstances, it would be
difficult to say that counsel is “professionally unreasonable,”
id., at 691, as a constitutional matter, in not consulting with
such a defendant regarding an appeal. Or, for example, sup-
pose a sentencing court’s instructions to a defendant about

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his appeal rights in a particular case are so clear and infor-
mative as to substitute for counsel’s duty to consult. In
some cases, counsel might then reasonably decide that he
need not repeat that information. We therefore reject a
bright-line rule that counsel must always consult with the
defendant regarding an appeal.
We instead hold that counsel has a constitutionally im-
posed duty to consult with the defendant about an appeal
when there is reason to think either (1) that a rational de-
fendant would want to appeal (for example, because there
are nonfrivolous grounds for appeal), or (2) that this particu-
lar defendant reasonably demonstrated to counsel that he
was interested in appealing. In making this determination,
courts must take into account all the information counsel
knew or should have known. See id., at 690 (focusing on the
totality of the circumstances). Although not determinative,
a highly relevant factor in this inquiry will be whether the
conviction follows a trial or a guilty plea, both because a
guilty plea reduces the scope of potentially appealable issues
and because such a plea may indicate that the defendant
seeks an end to judicial proceedings. Even in cases when
the defendant pleads guilty, the court must consider such
factors as whether the defendant received the sentence bar-
gained for as part of the plea and whether the plea expressly
reserved or waived some or all appeal rights. Only by con-
sidering all relevant factors in a given case can a court prop-
erly determine whether a rational defendant would have de-
sired an appeal or that the particular defendant sufficiently
demonstrated to counsel an interest in an appeal.
Rather than the standard we announce today, Justice
Souter would have us impose an “almost” bright-line rule
and hold that counsel “almost always” has a duty to consult
with a defendant about an appeal. Post, at 488. Although
he recognizes that “detailed rules for counsel’s conduct” have
no place in a Strickland inquiry, he argues that this “qualifi-

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cation” has no application here. Post, at 491. According to
Justice Souter, in Strickland we only rejected per se rules
in order to respect the reasonable strategic choices made by
lawyers, and that failing to consult about an appeal cannot
be a strategic choice. Post, at 491–492. But we have con-
sistently declined to impose mechanical rules on counsel—
even when those rules might lead to better representation—
not simply out of deference to counsel’s strategic choices, but
because “the purpose of the effective assistance guarantee
of the Sixth Amendment is not to improve the quality of
legal representation, . . . [but rather] simply to ensure that
criminal defendants receive a fair trial.” 466 U. S., at 689.
The relevant question is not whether counsel’s choices were
strategic, but whether they were reasonable. See id., at 688
(defendant must show that counsel’s representation fell
below an objective standard of reasonableness). We expect
that courts evaluating the reasonableness of counsel’s per-
formance using the inquiry we have described will find, in
the vast majority of cases, that counsel had a duty to consult
with the defendant about an appeal. We differ from Jus-
tice Souter only in that we refuse to make this determina-
tion as a per se (or “almost” per se) matter.
B
The second part of the Strickland test requires the
defendant to show pre judice from counsel’s deficient
performance.
1
In most cases, a defendant’s claim of ineffective assistance
of counsel involves counsel’s performance during the course
of a legal proceeding, either at trial or on appeal. See, e. g.,
id., at 699 (claim that counsel made poor strategic choices
regarding what to argue at a sentencing hearing); United
States v. Cronic, 466 U. S. 648, 649–650 (1984) (claim that
young lawyer was incompetent to defend complex criminal

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case); Penson v. Ohio, 488 U. S. 75, 88–89 (1988) (claim that
counsel in effect did not represent defendant on appeal);
Smith v. Robbins, ante, p. 259 (claim that counsel neglected
to file a merits brief on appeal); Smith v. Murray, 477 U. S.
527, 535–536 (1986) (claim that counsel failed to make a
particular argument on appeal). In such circumstances,
whether we require the defendant to show actual preju-
dice—“a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have
been different,” Strickland, 466 U. S., at 694—or whether
we instead presume prejudice turns on the magnitude of the
deprivation of the right to effective assistance of counsel.
That is because “the right to the effective assistance of coun-
sel is recognized not for its own sake, but because of the
effect it has on the ability of the accused to receive a fair
trial,” Cronic, supra, at 658, or a fair appeal, see Penson,
supra, at 88–89. “Absent some effect of challenged conduct
on the reliability of the . . . process, the [effective counsel]
guarantee is generally not implicated.” Cronic, supra, at
658.
We “normally apply a ‘strong presumption of reliability’ to
judicial proceedings and require a defendant to overcome
that presumption,” Robbins, ante, at 286 (citing Strickland,
supra, at 696), by “show[ing] how specific errors of counsel
undermined the reliability of the finding of guilt,” Cronic,
supra, at 659, n. 26. Thus, in cases involving mere “attorney
error,” we require the defendant to demonstrate that the
errors “actually had an adverse effect on the defense.”
Strickland, supra, at 693. See, e. g., Robbins, ante, at 287
(applying actual prejudice requirement where counsel fol-
lowed all required procedures and was alleged to have
missed a particular nonfrivolous argument); Strickland,
supra, at 699–700 (rejecting claim in part because the evi-
dence counsel failed to introduce probably would not have
altered defendant’s sentence).

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2
In some cases, however, the defendant alleges not that
counsel made specific errors in the course of representation,
but rather that during the judicial proceeding he was—either
actually or constructively—denied the assistance of counsel
altogether. “The presumption that counsel’s assistance is
essential requires us to conclude that a trial is unfair if the
accused is denied counsel at a critical stage.” Cronic, supra,
at 659. The same is true on appeal. See Penson, supra,
at 88. Under such circumstances, “[n]o specific showing of
prejudice [is] required,” because “the adversary process it-
self [is] presumptively unreliable.” Cronic, supra, at 659;
see also Robbins, ante, at 286 (“denial of counsel altogether
. . . warrants a presumption of prejudice”); Penson, supra,
at 88–89 (complete denial of counsel on appeal requires a pre-
sumption of prejudice).
Today’s case is unusual in that counsel’s alleged deficient
performance arguably led not to a judicial proceeding of dis-
puted reliability, but rather to the forfeiture of a proceeding
itself. According to respondent, counsel’s deficient perform-
ance deprived him of a notice of appeal and, hence, an appeal
altogether. Assuming those allegations are true, counsel’s
deficient performance has deprived respondent of more than
a fair judicial proceeding; that deficiency deprived re-
spondent of the appellate proceeding altogether. In Cronic,
Penson, and Robbins, we held that the complete denial of
counsel during a critical stage of a judicial proceeding man-
dates a presumption of prejudice because “the adversary
process itself ” has been rendered “presumptively unrelia-
ble.” Cronic, supra, at 659. The even more serious denial
of the entire judicial proceeding itself, which a defendant
wanted at the time and to which he had a right, similarly
demands a presumption of prejudice. Put simply, we cannot
accord any “ ‘presumption of reliability,’ ” Robbins, ante, at
286, to judicial proceedings that never took place.

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484 ROE v. FLORES-ORTEGA
Opinion of the Court
3
The Court of Appeals below applied a per se prejudice
rule, and granted habeas relief based solely upon a showing
that counsel had performed deficiently under its standard.
160 F. 3d, at 536. Unfortunately, this per se prejudice rule
ignores the critical requirement that counsel’s deficient per-
formance must actually cause the forfeiture of the defend-
ant’s appeal. If the defendant cannot demonstrate that, but
for counsel’s deficient performance, he would have appealed,
counsel’s deficient performance has not deprived him of any-
thing, and he is not entitled to relief. Cf. Peguero v. United
States, 526 U. S. 23 (1999) (defendant not prejudiced by
court’s failure to advise him of his appeal rights, where he
had full knowledge of his right to appeal and chose not to do
so). Accordingly, we hold that, to 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.
In adopting this standard, we follow the pattern estab-
lished in Strickland and Cronic, and reaffirmed in Robbins,
requiring a showing of actual prejudice (i. e., that, but
for counsel’s errors, the defendant might have prevailed)
when the proceeding in question was presumptively reliable,
but presuming prejudice with no further showing from the
defendant of the merits of his underlying claims when the
violation of the right to counsel rendered the proceeding pre-
sumptively unreliable or entirely nonexistent. See Strick-
land, supra, at 493–496; Cronic, 466 U. S., at 658–659; Rob-
bins, ante, at 286–287. Today, drawing on that line of cases
and following the suggestion of the Solicitor General, we hold
that when counsel’s constitutionally deficient performance
deprives a defendant of an appeal that he otherwise would
have taken, the defendant has made out a successful ineffec-
tive assistance of counsel claim entitling him to an appeal.

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485 Cite as: 528 U. S. 470 (2000)
Opinion of the Court
We believe this prejudice standard breaks no new ground,
for it mirrors the prejudice inquiry applied in Hill v. Lock-
hart, 474 U. S. 52 (1985), and Rodriquez v. United States,
395 U. S. 327 (1969). In Hill, we considered an ineffective
assistance of counsel claim based on counsel’s allegedly defi-
cient advice regarding the consequences of entering a guilty
plea. Like the decision whether to appeal, the decision
whether to plead guilty (i. e., waive trial) rested with the
defendant and, like this case, counsel’s advice in Hill might
have caused the defendant to forfeit a judicial proceeding to
which he was otherwise entitled. We held that “to satisfy
the ‘prejudice’ requirement [of Strickland], the defendant
must show that there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, supra, at 59.
Similarly, in Rodriquez, counsel failed to file a notice of ap-
peal, despite being instructed by the defendant to do so.
See 395 U. S., at 328. We held that the defendant, by in-
structing counsel to perfect an appeal, objectively indicated
his intent to appeal and was entitled to a new appeal without
any further showing. Because “[t]hose whose right to an
appeal has been frustrated should be treated exactly like any
other appellan[t],” we rejected any requirement that the
would-be appellant “specify the points he would raise
were his right to appeal reinstated.” Id., at 330. See also
Evitts v. Lucey, 469 U. S. 387 (1985) (defendant en-
titled to new appeal when counsel’s deficient failure to com-
ply with mechanistic local court rules led to dismissal of
first appeal).
As with all applications of the Strickland test, the ques-
tion whether a given defendant has made the requisite show-
ing will turn on the facts of a particular case. See 466 U. S.,
at 695–696. Nonetheless, evidence that there were nonfriv-
olous grounds for appeal or that the defendant in question
promptly expressed a desire to appeal will often be highly
relevant in making this determination. We recognize that

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486 ROE v. FLORES-ORTEGA
Opinion of the Court
the prejudice inquiry we have described is not wholly dissim-
ilar from the inquiry used to determine whether counsel per-
formed deficiently in the first place; specifically, both may
be satisfied if the defendant shows nonfrivolous grounds for
appeal. See Hill, supra, at 59 (when, in connection with a
guilty plea, counsel gives deficient advice regarding a poten-
tially valid affirmative defense, the prejudice inquiry de-
pends largely on whether that affirmative defense might
have succeeded, leading a rational defendant to insist on
going to trial). But, while the performance and prejudice
prongs may overlap, they are not in all cases coextensive.
To prove deficient performance, a defendant can rely on evi-
dence that he sufficiently demonstrated to counsel his inter-
est in an appeal. But such evidence alone is insufficient to
establish that, had the defendant received reasonable advice
from counsel about the appeal, he would have instructed his
counsel to file an appeal.
By the same token, although showing nonfrivolous
grounds for appeal may give weight to the contention that
the defendant would have appealed, a defendant’s inability
to “specify the points he would raise were his right to appeal
reinstated,” Rodriquez, 395 U. S., at 330, will not foreclose
the possibility that he can satisfy the prejudice requirement
where there are other substantial reasons to believe that he
would have appealed. See ibid.; see also Peguero, supra,
at 30 (O’Connor, J., concurring) (“To require defendants to
specify the grounds for their appeal and show that they have
some merit would impose a heavy burden on defendants who
are often proceeding pro se in an initial [habeas] motion”).
We similarly conclude here that it is unfair to require an
indigent, perhaps pro se, defendant to demonstrate that
his hypothetical appeal might have had merit before any ad-
vocate has ever reviewed the record in his case in search
of potentially meritorious grounds for appeal. Rather, we
require the defendant to demonstrate that, but for counsel’s
deficient conduct, he would have appealed.

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Opinion of the Court
III
The court below undertook neither part of the Strickland
inquiry we have described, but instead presumed both that
Ms. Kops was deficient for failing to file a notice of appeal
without respondent’s consent and that her deficient perform-
ance prejudiced respondent. See 160 F. 3d, at 536. Jus-
tice Souter finds Ms. Kops’ performance in this case to
have been “derelict,” presumably because he believes that
she did not consult with respondent about an appeal. Post,
at 489. But the Magistrate Judge’s findings do not provide
us with sufficient information to determine whether Ms.
Kops rendered constitutionally inadequate assistance. Spe-
cifically, the findings below suggest that there may have been
some conversation between Ms. Kops and respondent about
an appeal, see App. 133; see also 160 F. 3d, at 535 (Ms. Kops
wrote “ ‘bring appeal papers’ ” in her file), but do not indicate
what was actually said. Assuming, arguendo, that there
was a duty to consult in this case, it is impossible to deter-
mine whether that duty was satisfied without knowing
whether Ms. Kops advised respondent about the advantages
and disadvantages of taking an appeal and made a reasonable
effort to discover his wishes. Cf. Strickland, supra, at 691
(“inquiry into counsel’s conversations with the defendant
may be critical to a proper assessment of counsel’s . . . deci-
sions”). Based on the record before us, we are unable to
determine whether Ms. Kops had a duty to consult with re-
spondent (either because there were potential grounds for
appeal or because respondent expressed interest in appeal-
ing), whether she satisfied her obligations, and, if she did not,
whether respondent was prejudiced thereby. Accordingly,
the judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.

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488 ROE v. FLORES-ORTEGA
Opinion of Souter, J.
Justice Breyer, concurring.
I write to emphasize that the question presented con-
cerned the filing of a “notice of appeal following a guilty
plea.” Pet. for Cert. i (emphasis added). In that context I
agree with the Court. I also join its opinion, which, in my
view, makes clear that counsel does “almost always” have
a constitutional duty to consult with a defendant about an
appeal after a trial. Post this page (Souter, J., concurring
in part and dissenting in part); cf. ante, at 479–481.
Justice Souter, with whom Justice Stevens and Jus-
tice Ginsburg join, concurring in part and dissenting in
part.
I join Part II–B of the Court’s opinion, but I respectfully
dissent from Part II–A. As the opinion says, the crucial
question in this case is whether, after a criminal conviction,
a lawyer has a duty to consult with her client about the
choice to appeal. The majority’s conclusion is sometimes;
mine is, almost always in those cases in which a plea of guilty
has not obviously waived any claims of error.1 It is unrea-
sonable for a lawyer with a client like respondent Flores-
Ortega to walk away from her representation after trial
or after sentencing without at the very least acting affir-
1 I say “almost” always, recognizing that there can be cases beyond the
margin: if a legally trained defendant were convicted in an error-free trial
of an open-and-shut case, his counsel presumably would not be deficient in
failing to explain the options. This is not what we have here. Nor is
this a case in which the judge during the plea colloquy so fully explains
appeal rights and possible issues as to obviate counsel’s need to do the
same; such a possibility is never very likely and exists only at the furthest
reach of theory, given a defendant’s right to adversarial representation,
see Smith v. Robbins, ante, at 296–297 (Souter, J., dissenting). Finally,
of course, there is no claim here that Flores-Ortega waived his right to
appeal as part of his plea agreement; although he pleaded guilty, the rec-
ord shows that he and the State argued before the trial court for different
sentences, and he had little understanding of the legal system. The fact
of the plea is thus irrelevant to the disposition of the case.

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Opinion of Souter, J.
matively to ensure that the client understands the right to
appeal.
Where appeal is available as a matter of right, a decision
to seek or forgo review is for the convict himself, not his
lawyer, Jones v. Barnes, 463 U. S. 745, 751 (1983), who owes
a duty of effective assistance at the appellate stage, Evitts
v. Lucey, 469 U. S. 387, 396 (1985); Penson v. Ohio, 488 U. S.
75, 85 (1988). It follows, as the majority notes, that if a de-
fendant requests counsel to file an appeal, a lawyer who fails
to do so is, without more, ineffective for constitutional pur-
poses. But, as the Court says, a lesser infidelity than that
may fail the test of lawyer competence under Strickland v.
Washington, 466 U. S. 668 (1984), which governs this case.
I think that the derelict character of counsel’s performance
in this case is clearer than the majority realizes.
In Strickland, we explicitly noted that a lawyer has a duty
“to consult with the defendant on important decisions . . . in
the course of the prosecution.” Id., at 688. The decision
whether to appeal is one such decision. Since it cannot be
made intelligently without appreciating the merits of possi-
ble grounds for seeking review, see Peguero v. United States,
526 U. S. 23, 30–31 (1999) (O’Connor, J., concurring); Rodri-
quez v. United States, 395 U. S. 327, 330 (1969), and the po-
tential risks to the appealing defendant, a lay defendant
needs help before deciding. If the crime is minor, the issues
simple, and the defendant sophisticated, a 5-minute conversa-
tion with his lawyer may well suffice; if the charge is serious,
the potential claims subtle, and a defendant uneducated,
hours of counseling may be in order. But only in the ex-
traordinary case will a defendant need no advice or counsel
whatever.
To the extent that our attention has been directed to state-
ments of “prevailing professional norms,” Strickland v.
Washington, 466 U. S., at 688 (Strickland’s touchstone of
reasonable representation, see ibid.), they are consistent
with common sense in requiring a lawyer to consult with a

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client before the client makes his decision about appeal.
Thus, ABA Standards for Criminal Justice 21–2.2(b) (2d ed.
1980):
“Defense counsel should advise a defendant on the
meaning of the court’s judgment, of defendant’s right to
appeal, on the possible grounds for appeal, and of the
probable outcome of appealing. Counsel should also ad-
vise of any posttrial proceedings that might be pursued
before or concurrent with an appeal. While counsel
should do what is needed to inform and advise defend-
ant, the decision whether to appeal, like the decision
whether to plead guilty, must be the defendant’s own
choice.”
See also ABA Standards for Criminal Justice, Defense Func-
tion 4–8.2(a) (3d ed. 1993) (stating that trial counsel “should
explain to the defendant the meaning and consequences of
the court’s judgment and defendant’s right of appeal” and
“should give the defendant his or her professional judgment
as to whether there are meritorious grounds for appeal and
as to the probable results of an appeal”); id., 4–8.2, Commen-
tary (“[C]ounsel [has the duty] to discuss frankly and objec-
tively with the defendant the matters to be considered in
deciding whether to appeal. . . . To make the defendant’s
ultimate choice a meaningful one, counsel’s evaluation of the
case must be communicated in a comprehensible manner. . . .
[T]rial counsel should always consult promptly with the de-
fendant after making a careful appraisal of the prospects of
an appeal”); ABA Standards for Criminal Justice 21–3.2(b)(i).
So also the ABA Model Code of Professional Responsibil-
ity, EC 2–31 (1991), provides that: “Trial counsel for a con-
victed defendant should continue to represent his client by ad-
vising whether to take an appeal . . . .” Likewise ABA Model
Rule of Professional Conduct 1.3, Comment (1996): “[I]f a law-
yer has handled a judicial or administrative proceeding that
produced a result adverse to the client but has not been spe-

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Opinion of Souter, J.
cifically instructed concerning pursuit of an appeal, the law-
yer should advise the client of the possibility of appeal before
relinquishing responsibility for the matter.” Restatement
(Third) of the Law Governing Lawyers § 31(3) (Proposed
Final Draft No. 1, Mar. 29, 1996) embodies the same stand-
ards: “A lawyer must notify a client of decisions to be made
by the client . . . and must explain a matter to the extent
reasonably necessary to permit the client to make informed
decisions regarding the representation.” Indeed, California
has apparently eliminated any option on a lawyer’s part to
fail to give advice on the appeal decision (whether the failure
be negligent or intentional). California Penal Code Ann.
§ 1240.1(a) (West Supp. 2000) provides that trial counsel has
a duty to “provide counsel and advice as to whether argua-
bly meritorious grounds exist for reversal or modification of
the judgment on appeal.” California thus appears to have
adopted as an unconditional affirmative obligation binding
all criminal trial counsel the very standard of reasonable
practice expressed through the Restatement and the ABA
standards.
I understand that under Strickland, “[p]revailing norms
of practice as reflected in American Bar Association stand-
ards and the like . . . are guides to determining what is rea-
sonable, but they are only guides,” and that “[n]o particular
set of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” 466 U. S., at 688–
689. But that qualification has no application here.
While Strickland’s disclaimer that no particular set of
rules should be treated as dispositive respects the need to
defer to reasonable “strategic choices” by lawyers, id., at 690,
no such strategic concerns arise in this case. Strategic
choices are made about the extent of investigation, the risks
of a defense requiring defendant’s testimony and exposure
to cross-examination, the possibility that placing personal

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Opinion of Souter, J.
background information before a jury will backfire, and so
on. It is not, however, an issue of “strategy” to decide
whether or not to give a defendant any advice before he loses
the chance to appeal a conviction or sentence. The concern
about too much judicial second-guessing after the fact is sim-
ply not raised by a claim that a lawyer should have counseled
her client to make an intelligent decision to invoke or forgo
the right of appeal or the opportunity to seek an appeal.
The Court’s position is even less explicable when one con-
siders the condition of the particular defendant claiming
Strickland relief here. Flores-Ortega spoke no English and
had no sophistication in the ways of the legal system. The
Magistrate Judge found that “[i]t’s clear . . . that Mr. Ortega
had little or no understanding of what the process was, what
the appeal process was, or what appeal meant.” App. 133.
To condition the duty of a lawyer to such a client on whether,
inter alia, “a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for ap-
peal),” ante, at 480, is not only to substitute a harmless-error
rule for a showing of reasonable professional conduct, but to
employ a rule that simply ignores the reality that the consti-
tutional norm must address.2 Most criminal defendants,
and certainly this one, will be utterly incapable of making
rational judgments about appeal without guidance. They
cannot possibly know what a rational decisionmaker must
know unless they are given the benefit of a professional
assessment of chances of success and risks of trying. And
they will often (indeed, usually) be just as bad off if they
seek relief on habeas after failing to take a direct appeal,
2 The Court holds that a duty to consult will also be present if “this
particular defendant reasonably demonstrated to counsel that he was in-
terested in appealing.” Ante, at 480. Because for most defendants, and
certainly for unsophisticated ones like Flores-Ortega who are unaware
even of what an appeal means, such a demonstration will be a practical
impossibility, I view the Court as virtually requiring the defendant to
show the existence of some nonfrivolous appellate issue.

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Opinion of Ginsburg, J.
having no right to counsel in state postconviction proceed-
ings. See Pennsylvania v. Finley, 481 U. S. 551, 557 (1987);
Murray v. Giarratano, 492 U. S. 1, 12 (1989); cf. Peguero v.
United States, 526 U. S., at 30 (O’Connor, J., concurring)
(“To require defendants to specify the grounds for their ap-
peal and show that they have some merit would impose a
heavy burden on defendants who are often proceeding pro
se in an initial 28 U. S. C. § 2255 motion”).
In effect, today’s decision erodes the principle that a deci-
sion about appeal is validly made only by a defendant with a
fair sense of what he is doing. Now the decision may be
made inadvertently by a lawyer who never utters the word
“appeal” in his client’s hearing, so long as that client cannot
later demonstrate (probably without counsel) that he unwit-
tingly had “nonfrivolous grounds” for seeking review. This
state of the law amounts to just such a breakdown of the
adversary system that Strickland warned against. “In
every case the court should be concerned with whether . . .
the result of the particular proceeding is unreliable because
of a breakdown in the adversarial process that our system
counts on to produce just results.” 466 U. S., at 696; see also
Rodriquez v. United States, 395 U. S., at 330; Penson v. Ohio,
488 U. S., at 85.
I would hold that in the aftermath of the hearing at which
Flores-Ortega was sentenced, his lawyer was obliged to con-
sult with her client about the availability and prudence of
an appeal, and that failure to do that violated Strickland’s
standard of objective reasonableness. I therefore respect-
fully dissent from Part II–A of the majority’s opinion.
Justice Ginsburg, concurring in part and dissenting in
part.
This case presents the question whether, after a defendant
pleads guilty or is convicted, the Sixth Amendment permits
defense counsel simply to walk away, leaving the defendant
uncounseled about his appeal rights. The Court is not

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Opinion of Ginsburg, J.
deeply divided on this question. Both the Court and Jus-
tice Souter effectively respond: hardly ever. Because the
test articulated by Justice Souter provides clearer guid-
ance to lower courts and to counsel, and because I think it
plain that the duty to consult was not satisfied in this case,
I join Justice Souter’s opinion.