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If you told your lawyer to file an appeal and he did not, courts presume you were harmed — even if you signed an appeal waiver. Roe v. Flores-Ortega, 528 U.S. 470, 477, 483-84 (2000); Garza v. Idaho, 586 U.S. 232 (2019). A lawyer who never talked with you about an appeal, or who missed a strong issue on appeal, may also have been ineffective. You can raise these claims in a § 2255 motion.
On a first appeal, the Constitution guarantees effective appellate counsel, just as it does at trial. Evitts v. Lucey, 469 U.S. 387, 396 (1985). That covers both trial lawyers whose mistakes affect the appeal and appellate lawyers themselves.
Strickland v. Washington: Ineffective Assistance of Counsel on Appeal
Courts use the two-part test from Strickland v. Washington, 466 U.S. 668 (1984). You must show (1) deficient performance and (2) a reasonable probability that, but for counsel’s errors, the result would have been different.
When the claim is that no appeal was filed at all, the prejudice question is different: you must show a reasonable probability that, but for the lawyer’s failure, you would have appealed. Flores-Ortega, 528 U.S. at 484. Below are published cases on ineffective assistance related to the appeal.
What appeal-related mistakes have courts recognized?
- United States v. Malone, 442 Fed.Appx. 864, 867-68 (4th Cir. 2011)(quoting Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)). Section 2255 relief was granted when counsel failed to consult with defendant regarding appeal. Such consultation is required “when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” See also United States v. Pham, 722 F.3d 320, 324 (5th Cir. 2013)(Section 2255 relief granted for ineffective assistance of counsel when defense counsel “[a]t most . . . discussed an appeal in the abstract and even then did so only before the sentence was pronounced . . . after sentencing, when the sentence actually imposed became known and the time period for filing a notice of appeal began to run, counsel neither mentioned the possibility of an appeal at all nor made any effort to discover Pham’s wishes in that regard.”) (emphasis in original).
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- Corral v. United States, 498 F.3d 470, 475 (7th Cir. 2007). A writ of habeas corpus under section 2255 was granted; counsel rendered ineffective assistance by failing to be available for instruction to appeal during the ten-day window then allowed for filing a notice of appeal (now 14 days, Fed. R. App. P. 4(b)(1)(A)). See also Dowell v. United States, 694 F.3d 898, 903-04 (7th Cir. 2012)(Remand for IAC determination when allegation made that defendant instructed counsel to appeal a specifically reserved issue and counsel failed to do so). But see United States v. Mabry, 536 F.3d 231 (3d Cir. 2008)(No cognizable IAC claim when counsel failed to file an appeal after defendant instructed him to do so; the defendant waived all claims of post-sentencing ineffectiveness, and the waiver was knowing and voluntary).
- Garcia v. United States, 278 F.3d 134, 137-38 (2d Cir. 2002). Section 2255 relief was granted when defendant’s counsel advised him on the record that no appeal could be filed, and the district court confirmed that incorrect advice. See also Griffin v. United States, 109 F.3d 1217 (7th Cir. 1997)(Remand for IAC determination when attorney advised defendant to voluntarily dismiss his appeal because it would be better to file a Rule 35(b) motion — which the defendant could not do).
- United States v. Skurdal, 341 F.3d 921 (9th Cir. 2003). Remand for IAC determination when counsel failed to file a proper Anders brief with his motion to withdraw at the close of defendant’s case. A proper Anders brief should satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and explain why any issues raised by the defendant would be frivolous. Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s failure to fulfill his duties under Anders amounts to ineffective assistance of counsel. See also United States v. Youla, 241 F.3d 296 (3d Cir. 2000)(Counsel did not comply with Anders when he filed a brief representing that there were no appealable issues when in fact there were multiple meritorious issues).
- Ballard v. United States, 400 F.3d 404 (6th Cir. 2004). Section 2255 relief was granted when counsel provided ineffective assistance of counsel on appeal by failing to raise an Apprendi issue that would have been successful. See also Alaniz v. United States, 351 F.3d 365 (8th Cir. 2003)(Granting section 2255 relief when counsel failed to appeal an improper Guidelines aggregation that resulted in an otherwise inapplicable mandatory minimum); Brown v. United States, 167 F.3d 109 (2d Cir. 1999)(Failure to appeal constitutionally deficient jury instructions amounted to ineffective assistance of counsel, section 2255 relief granted); United States v. Williamson, 183 F.3d 458 (5th Cir. 1999)(Section 2255 relief granted when counsel failed to raise on appeal dispositive precedent that would have resulted in a lower Guideline range); Stallings v. United States, 536 F.3d 624 (7th Cir. 2008)(Remand for IAC determination when counsel failed to raise Booker issue on appeal).
Why does the appeal matter so much?
The direct appeal is your main chance to fix legal errors in the trial and sentencing. Issues not raised there can be hard to raise later. That is why the right to effective counsel extends to the appeal.
Common questions
I asked my lawyer to file an appeal, but she didn’t. Can I raise that in a § 2255 motion?
Yes. A lawyer who ignores a client’s specific instruction to file a notice of appeal acts unreasonably, and prejudice is presumed — you do not have to show the appeal would have succeeded. Roe v. Flores-Ortega, 528 U.S. 470, 477, 483-84 (2000). The rule applies even if you signed a plea agreement with an appeal waiver. Garza v. Idaho, 586 U.S. 232 (2019).
The usual remedy is the chance to file a new appeal. Watch the one-year § 2255 deadline. If this happened to you, book a consultation with Brandon Sample.
My lawyer filed an Anders brief saying I had no non-frivolous issues for appeal, but he is wrong. Can I raise that in a § 2255 motion?
Possibly. An Anders brief is filed when an appointed lawyer asks to withdraw because, after reviewing the whole record, he finds no non-frivolous issues. Anders v. California, 386 U.S. 738, 744 (1967). If there were non-frivolous issues and the lawyer missed them, or did not do a proper review, courts have found ineffective assistance. See United States v. Skurdal and United States v. Youla, above.
I signed an appeal waiver. Does that end any challenge to my sentence?
Not always. In 2026, the Supreme Court held that “[a]n agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice.” Hunter v. United States, No. 24-1063 (U.S. June 18, 2026).
This exception is narrow. The Court said it “sets a high bar”: the sentence must contain an obvious, “egregious error” — “not one a judge could reasonably make.” Id. Its examples include a sentence longer than the statute allows, a sentence with a blatant constitutional error, a sentence based on a forbidden factor like race, or a sentence imposed without basic fair procedure. Ordinary mistakes in applying sentencing law, like a typical error in calculating the Sentencing Guidelines range, are not enough: “standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver.” Id. The Court sent Mr. Hunter’s case back for the lower court to apply this standard.
Many plea waivers also carve out ineffective-assistance claims, so check the exact words of your plea agreement.
Related pages
Cognizable Claims: The Court Lacked Jurisdiction
Cognizable Claims: The Conviction or Sentence Violates the Constitution
Cognizable Claims: Ineffective Assistance of Counsel
Ineffective Assistance of Counsel: Pretrial
Ineffective Assistance of Counsel: Trial
Ineffective Assistance of Counsel: Sentencing
Cognizable Claims: The Conviction or Sentence Violates Federal Law
Cognizable Claims: The Conviction or Sentence is Otherwise Subject to Collateral Attack
Questions about your case? Book a consultation to talk it through with Brandon Sample.