Page:Gilberto Garza, Jr. v. Idaho.pdf/11

8 Idaho maintains that the risk of breaching the defendant’s plea agreement renders counsel’s choice to override the defendant’s instructions a strategic one. See Strickland, 466 U. S., at 690–691 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable…”). That is not so. While we do not address what constitutes a defendant’s breach of an appeal waiver or any responsibility counsel may have to discuss the potential consequences of such a breach, it should be clear from the foregoing that simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope. And in any event, the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make. See McCoy, 584 U. S., at ___ (slip op., at 6); Barnes, 463 U. S., at 751. Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.

We now address the crux of this case: whether Flores-Ortega’s presumption of prejudice applies despite an appeal waiver. The holding, principles, and facts of