It is well-settled that due process requires that defendants have
effective assistance of counsel on appeals as of right, Evitts v. Lucey,
469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), and that an appeal
from a criminal conviction is a matter of right. Coppedge v. United
States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). A defendant
asserting that his counsel rendered constitutionally ineffective
assistance must show both that his attorney's performance was objectively
unreasonable and that he was prejudiced by the deficiency. See Strickland
v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Supreme Court has held that the standard first articulated in
Strickland applies when a defendant alleges that his counsel was
ineffective for failing to file a notice of appeal. See Roe v.
Flores-Ortega, 528 U.S. 470, 476-77. 120 S.Ct. 1029, 145 L.Ed.2d 985
(2000) (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052).
A defendant satisfies the first Strickland prong if his attorney
"disregards specific instructions from the defendant to file a notice of
appeal," for there could be no objectively reasonable grounds for failing
to comply with such a request. See Flors-Ortega, 528 U.S. at 477, 120
S.Ct. 1029 (citing Rodriguez v. United States, 395 U.S. 327, 89 S.Ct.
1715, 23 L.Ed.2d 340 1969)): see also Peguero v. United States,
526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) ("[W]hen counsel fails
to file a cc quested appeal, a defendant is entitled to [a new appeal
without showing that his appeal would likely have had merit."). The
prejudice prong of the Strickland test is made out in such cases if the
defendant can show that but for counsel's deficient performance, he would
have appealed." Flores-Ortega, 528 U.S. at 483, 120 S.Ct. 1029; see also
id. (noting that there is a "presumption of prejudice" when counsel's
deficient performance resulted in the loss of an entire judicial
proceeding). Both prongs are satisfied if counsel knew definitively of the
defendant's desire to appeal but failed to file the required notice.
That is what happened to Dumas in state court. I therefore conclude
that Dumas was denied effective assistance of counsel due to his
counsel's failure to file the requested notice of appeal.*fn1 See
Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir. 1999) (If the defendant
told his lawyer to appeal from the conviction, "`and the lawyer dropped
the ball, then the defendant has been deprived, not of effective
assistance of counsel, but of any assistance of counsel on appeal.
Abandonment is a per se violation of the sixth amendment.'") (quoting
Castellanos v. United States, 26 F.3d 717, 718 (7th Cir. 1994)).
Finally, as noted above, Dumas need not demonstrate the likelihood of
success on appeal before obtaining relief. Peguero, 526 U.S. at 23, 119
S.Ct. 961 ("[W]hen counsel fails to file a requested appeal, a defendant
is entitled to [a new] appeal without showing that his appeal would
likely have had merit."); Rodriquez, 395 U.S. at 330, 89 S.Ct. 1715
("Those whose right to appeal has been frustrated should be treated
exactly like any other appellants; they should not be given any
additional hurdle to clear just because their rights were violated at
some earlier stage in the proceedings."); see also McHale v. United
States, 175 F.3d 115, 119 (2d Cir. 1999) ("petitioner need not
demonstrate that, but for the ineffectiveness of counsel, [a direct]
have succeeded or even would have had merit.").
For the reasons stated above, Dumas's petition for a writ of habeas
corpus is conditionally granted. Respondent is hereby ordered to take the
steps necessary to afford petitioner a direct appeal within 45 days of
this opinion. If those steps require further order of this Court,
respondent should promptly make the appropriate application.