A Three-Minute Talk About an Appeal Was Enough to Consult

When a client never tells the lawyer to appeal, a § 2255 claim about the missed appeal turns on whether the lawyer "consulted." In United States v. Cota-Higuera, No. 25-2083, decided October 14, 2026, the Tenth Circuit held that a short conversation right after sentencing was enough. The order is unpublished and not binding precedent, but it shows how these claims are decided.

What happened

In June 2021, without a plea agreement, Mr. Cota-Higuera pleaded guilty to five federal drug and gun charges that together carried a 15-year mandatory minimum. In December 2021 he was sentenced to 15 years. About three months later he filed a notice of appeal on his own, and it was dismissed as untimely.

He then filed a § 2255 motion claiming his trial lawyer was ineffective for not consulting with him about an appeal. A magistrate judge appointed new counsel and held an evidentiary hearing where both he and his trial lawyer testified. The district court denied the motion, and the Tenth Circuit granted a certificate of appealability on the consultation claim.

The rule

Roe v. Flores-Ortega, 528 U.S. 470 (2000), sets the test. If a defendant neither tells counsel to appeal nor says not to, the first question is whether counsel consulted. To "consult" means "advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." A lawyer who consulted "performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal."

If counsel did not consult, the duty to consult exists "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." Prejudice requires "a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed."

What the court decided

The district court believed the trial lawyer, and Mr. Cota-Higuera did not challenge that finding on appeal. The lawyer testified that he "spoke with Defendant about an appeal for roughly three minutes after sentencing," told him he had a right to appeal within 14 days, said he saw no merit to an appeal, and asked him to get in touch if he wanted to appeal. Mr. Cota-Higuera did not respond, and the lawyer did not contact him again.

The Tenth Circuit held that this was consultation:

• Advantages. Counsel was not required to list the advantages of an appeal "when counsel testified credibly that he told Defendant he did not think there were any meritorious grounds for appeal."
• His wishes. Counsel "was not required to demand a response" during the conversation. The court added: "Counsel could have (and ideally would have) followed up with Defendant after their brief appeal discussion, but our review under Strickland is 'highly deferential.'"
• The record. He waited several months to contact counsel about an appeal, and there was a "complete lack of affirmative evidence" that he had told counsel earlier that he wanted one.

Because counsel consulted and got no instruction, there was no deficient performance.

One more point is in a footnote. His § 2255 motion had also claimed that the lawyer ignored a request to appeal. The Tenth Circuit did not address that claim because it was not in his certificate of appealability request or his opening brief.

What it means for you

• Say it plainly, and in writing if you can. The deadline for a criminal appeal is 14 days after judgment is entered (Fed. R. App. P. 4(b)(1)(A)). If you want to appeal, tell your lawyer directly and keep a copy. An express instruction changes the analysis.
• These claims come down to credibility. When there is a hearing, the judge decides whose account to believe. Compare our post on Anderson, where conflicting sworn statements meant a hearing was needed.
• Keep every claim alive on appeal. A claim left out of the certificate of appealability request and the opening brief may not be reviewed.

Our guide to ineffective assistance and the failure to appeal covers the Flores-Ortega test in more detail, and our certificate of appealability guide explains that step.