Page:Gilberto Garza, Jr. v. Idaho.pdf/22

Rh In my view, a defendant who has executed an appeal waiver cannot show prejudice arising from his counsel’s decision not to appeal unless he (1) identifies claims he would have pursued that were outside the appeal waiver; (2) shows that the plea was involuntary or unknowing; or (3) establishes that the government breached the plea agreement. Garza has not made any such showing, so he cannot establish prejudice. Furthermore, because Garza’s counsel acted reasonably, Garza also cannot establish deficient performance. I would therefore affirm.

The majority relies on Flores-Ortega to create its new rule, but if anything, that decision undermines the majority’s per se approach. In Flores-Ortega, the defendant pleaded guilty to second-degree murder without waiving any of his appellate rights. 528 U. S., at 473–474. On federal collateral review, the defendant alleged that his counsel was ineffective for failing to file a notice of appeal after she promised to do so. Id., at 474. The record contained conflicting evidence as to whether the defendant had communicated his desire to appeal, and the District Court concluded that he failed to carry his burden. Id., at 475. The Ninth Circuit reversed, reasoning that “a habeas petitioner need only show that his counsel’s failure to file a notice of appeal was without the petitioner’s consent.” Id., at 475–476.

This Court reversed. We first concluded that the Ninth Circuit’s rule “effectively impose[d] an obligation 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.” Id., at 478. We rejected “this per se rule as inconsistent with Strickland’s holding that ‘the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.’ ” Ibid. (quoting 466 U. S., at 688). We also