9th Circuit Notes Resolved Split and Determines Flores-Ortega Did Not Establish New Constitutional Rule

Per Tanner v. McDaniel, --- F.3d ----, 2007 WL 2027360 (9th Cir.(Nev.) Jul 13, 2007) (NO. 06-15405):

Generally, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301. In alleging deficient performance by his attorney, Tanner seeks to rely only on the portion of Flores-Ortega's holding that defense counsel has a duty to consult with the defendant regarding an appeal when there is reason to think that a rational defendant would want to appeal, such as when there are nonfrivolous grounds for appeal. Therefore, for purposes of our Teague inquiry, we focus on the question of whether, as of April 1994, precedent dictated that counsel had an obligation to consult with the client regarding an appeal under those circumstances. FN5

FN5. This is an issue of first impression in our circuit. However, the Third and Fourth Circuits have held that Flores-Ortega did not announce a new rule of constitutional law. Frazer v. South Carolina, 430 F.3d 696, 706 (4th Cir.2005); Lewis v. Johnson, 359 F.3d 646, 655 (3d Cir.2004). In Daniel v. Cockrell, 283 F.3d 697, 707-08 (5th Cir.2002), abrogated on other grounds by Glover v. United States, 531 U.S. 198 (2001), the Fifth Circuit appeared to conclude that the second prong of Flores-Ortega created a new rule regarding proof of prejudice when counsel fails to discuss an appeal with the client. However, the court did so without discussion, and provided an alternative basis for its holding immediately afterward. Id. at 708.

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Although the Court resolved a circuit split in Flores-Ortega, that fact alone does not imply that the Court announced a new constitutional rule. Cf. Caspari, 510 U.S. at 393-94 (looking to divided prior rulings of lower federal and state courts to confirm analysis that particular rule at issue was not dictated by existing precedent). Rather, the Court was correcting the course of several federal courts of appeals that had departed from the Strickland fact-specific standard and imposed a per se obligation on defense attorneys to file notices of appeals in all cases. See Flores-Ortega, 528 U.S. at 476, 478; United States v. Stearns, 68 F.3d 328, 330 (9th Cir.1995); Romero v. Tansy, 46 F.3d 1024, 1030-31 (10th Cir.1995); United States v. Tajeddini, 945 F.2d 458, 466-68 (1st Cir.1991). Other circuits had refused to implement such a rule, but had not held that defense counsel was never obliged to raise the possibility of an appeal with the client. See Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.1998); Morales v. United States, 143 F.3d 94, 96-97 (2d Cir.1998); Castellanos v. United States, 26 F.3d 717, 719 (7th Cir.1994); see also Estes v. United States, 883 F.2d 645, 648-49 (8th Cir.1989). If any court had taken such a position, that position would have been unreasonable in light of Strickland, which requires examination of the reasonableness of counsel's performance under all the circumstances. Cf. Flores-Ortega, 528 U.S. at 481 (stating that Court has consistently rejected "mechanistic rules" in analysis of effectiveness of counsel). Nor did any of the courts in those cases hold that it would be objectively reasonable for counsel to fail to discuss an appeal with her client when there were nonfrivolous grounds for appeal.