Jerry L. Vinyard v. United States , 804 F.3d 1218 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1134
JERRY L. VINYARD,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:10-cv-00341-WDS — William D. Stiehl, Judge.
____________________
ARGUED SEPTEMBER 9, 2015 — DECIDED NOVEMBER, 4, 2015
Before POSNER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal presents a challenge
to the constitutional sufficiency of a criminal defense attor-
ney’s advice in unusual circumstances. Appellant Jerry
Vinyard pled guilty to charges of conspiracy to manufacture,
distribute, and possess methamphetamine with intent to dis-
tribute. At sentencing, he started to backtrack on whether he
was admitting some of the relevant conduct listed in his
presentence report. After consulting with his attorney, he
withdrew his objections. His hesitation, however, prompted
2 No. 14-1134
the district judge (Judge Gilbert) to vacate his guilty plea
and sentence on the court’s own initiative. That led in turn to
an unusual series of proceedings culminating in a writ of
mandamus from this court ordering the district court to re-
instate Vinyard’s plea and sentence.
Vinyard still wished to challenge his guilty plea, howev-
er, and he tried to do so in the district court proceedings
conducted to comply with our mandate. A different district
judge (Judge Stiehl) rejected Vinyard’s challenge and rein-
stated the plea and sentence. Vinyard then had a choice to
make: he could file a direct appeal, or he could forgo that
route in favor of an immediate collateral attack under 28
U.S.C. § 2255. On his attorney’s advice, he chose the latter
path. He now argues that advice caused him to default some
of his claims and amounted to constitutionally ineffective
assistance of counsel under Strickland v. Washington, 466 U.S.
668 (1984). Vinyard seeks reinstatement of his right to a di-
rect appeal.
The district court denied relief, concluding that the deci-
sion to forgo a direct appeal was strategic and not objectively
unreasonable, and that Vinyard could not show prejudice in
any event. This court granted a certificate of appealability on
only that claim. After full briefing and argument, we affirm
the denial of relief because Vinyard has shown neither defi-
cient performance nor prejudice under Strickland.
I. Factual and Procedural Background
Vinyard’s only claim on appeal is that his attorney was
constitutionally ineffective when he advised Vinyard to chal-
lenge his guilty plea as part of a collateral attack under
§ 2255 without first pursuing a direct appeal. That advice,
No. 14-1134 3
Vinyard contends, was wrong because as a general rule “the
voluntariness and intelligence of a guilty plea can be at-
tacked on collateral review only if first challenged on direct
review.” Bousley v. United States, 523 U.S. 614, 621 (1998). The
government defends the attorney’s advice as a reasoned stra-
tegic decision—a decision, moreover, with which Vinyard
agreed at the time—and argues that even if the advice was
wrong, Vinyard suffered no prejudice by following it. This
court reviews the district court’s denial of a § 2255 petition de
novo with regard to issues of law, and we review factual
findings for clear error. Blake v. United States, 723 F.3d 870,
879 (7th Cir. 2013), citing Galbraith v. United States, 313 F.3d
1001, 1006 (7th Cir. 2002).
The procedural history of this case is unusual and central
to the ineffective-assistance-of-counsel claim. We must re-
view the relevant portions in some detail. Vinyard was ar-
rested on April 27, 2006 for participating in a conspiracy to
manufacture and distribute methamphetamine. Vinyard de-
cided to plead guilty. He signed a stipulation of facts admit-
ting: that he had been involved in the conspiracy; that his
role had been to obtain “precursor materials” such as
pseudoephedrine pills and anhydrous ammonia for use in
methamphetamine cooks; and that the total amount of
methamphetamine involved in the conspiracy exceeded 500
grams.
Judge Gilbert held a guilty plea hearing on November 7,
2006. Much of that hearing, including the adequacy of the
district court’s guilty plea colloquy with Vinyard, is not be-
fore this court. Relevant to the present appeal, however, the
government explained its evidence, which tracked the stipu-
lation of facts that Vinyard had signed. Vinyard agreed that
4 No. 14-1134
the government’s recitation was correct. When the judge
asked if any threats or promises had been made to induce
his plea, Vinyard said no. When asked if his plea was his
own free and voluntary act, he said it was. The judge accept-
ed the guilty plea and set a date for sentencing. Before the
hearing concluded, Vinyard’s attorney, Susan Gentle, noted
for the record that the parties had agreed that the govern-
ment would not proceed with a forfeiture action against
Vinyard’s home and property.
The court sentenced Vinyard on May 3, 2007. The presen-
tence investigation report indicated that Vinyard was re-
sponsible for 36,491 grams of a mixture or substance contain-
ing methamphetamine, 36,000 of which stemmed from an
incident in which Vinyard supplied tanks to store 300 gal-
lons of anhydrous ammonia stolen by his co-conspirators.
Vinyard’s attorney did not object to the report. When Judge
Gilbert asked Vinyard directly if he wanted to correct any
errors or make any alterations, Vinyard declined. Later on,
however, Vinyard questioned the accuracy of the report. He
told the judge that although he was guilty, he was “not
guilty of everything that I’m accused of” and that, of the
36,491 grams of methamphetamine listed in his presentence
investigation report as relevant conduct, “36,000 of that does
not belong on there. Is simply not true. I did not do that.”
Understandably troubled by this sudden change in
Vinyard’s position, Judge Gilbert asked Vinyard if he wished
to object to the relevant conduct identified in the presentence
report. The prosecutor said there was no “realistic possibil-
ity” that the relevant conduct would fall below 500 grams of
methamphetamine, the threshold needed to apply the twen-
ty-year mandatory minimum sentence in light of Vinyard’s
No. 14-1134 5
criminal record. The court recessed while Vinyard consulted
with his attorney. After that consultation, Vinyard said he
would not contest the relevant conduct described in the
presentence investigation report. He specifically declined to
contest whether the relevant conduct involved more than
500 grams of methamphetamine. Judge Gilbert then sen-
tenced Vinyard to the mandatory minimum of 240 months in
prison.
Judge Gilbert remained troubled by Vinyard’s protests at
sentencing. The next day, May 4, without first notifying the
government, he ordered that Vinyard be released on bail.
The order was not filed until May 7, however, and the gov-
ernment learned of Vinyard’s release only when an agent
saw him walking into the Probation Office. The government
immediately appealed the release order. On May 10, it filed
an additional motion to reverse the release order. That same
day, Judge Gilbert vacated the release order and directed
Vinyard to surrender to the United States Marshal, mooting
the first appeal. The judge also sua sponte vacated Vinyard’s
guilty plea and sentence and ordered that new counsel be
appointed to represent him, terminating attorney Gentle and
appointing attorney Gene Gross in her place. The govern-
ment appealed again and on June 5 moved for a stay in both
the district court and this court.
Judge Gilbert granted the motion to stay on June 13 and
explained his reasons for vacating the plea and sentence. He
was concerned that Vinyard had not agreed knowingly and
voluntarily to the relevant conduct in the presentence inves-
tigation report. The judge also believed he had not adequate-
ly informed Vinyard of his right to challenge a prior convic-
tion that raised the mandatory minimum sentence to twenty
6 No. 14-1134
years under 21 U.S.C. §§ 841 and 851. With its second appeal
still pending, the government then petitioned for a writ of
mandamus to compel the district court to reinstate the plea
and sentence.
This court granted the writ, holding that the district court
had committed patent error and that the government had
demonstrated irreparable harm. See United States v. Vinyard,
539 F.3d 589, 595 (7th Cir. 2008). While expressing doubt that
the district court had erred at all in failing to inform Vinyard
of his rights under § 851 or in adopting the relevant conduct
described in the presentence investigation report, we held
that neither arguable error could call the guilty plea itself
into question. Id. at 593–94. We further held that neither er-
ror warranted relief from the sentence. Id. Accordingly, we
vacated the district court’s May 10 order and issued a writ
mandating “that judgment be entered pursuant to the May
3, 2007 sentence pronounced by the district court.” Id. at 595.
The case returned to the district court, where Judge Gil-
bert recused himself. The case was reassigned to Judge
Stiehl. Vinyard then filed for the first time a motion to with-
draw his guilty plea, which Judge Stiehl denied on May 20,
2009. Recognizing the rarity of the situation, the judge cor-
rectly noted that the remand was “very simply a mandamus
directing the Court to enter judgment on the sentence.”
Judge Stiehl concluded that he could not grant Vinyard relief
because of the specific and limited nature of the remand. He
denied Vinyard’s motion and noted that Vinyard was “not
without remedy as he may challenge his plea on direct ap-
peal of this sentence, or on habeas review.” The district court
entered judgment on June 8, 2009.
No. 14-1134 7
At that point, attorney Gross offered the advice that
Vinyard now challenges. Gross and Vinyard discussed
whether to pursue a direct appeal of the conviction and sen-
tence. Vinyard’s affidavit in support of his § 2255 petition
says that Gross advised him “that the record was not suffi-
ciently developed to pursue a direct appeal, that the best is-
sue I had going for me was a claim of ineffective assistance
of counsel and the appropriate vehicle to pursue this claim
was through a § 2255 motion.” Vinyard took that advice, and
the period for filing a direct appeal expired. A letter from
Gross to Vinyard dated April 5, 2010 provides further insight
into the challenged advice:
1. The thrust of our motion is not a sentencing
argument. The thrust of our motion is that you
received ineffective assistance of counsel in
that objections were not filed to the PSR and
you were allowed to plead guilty to the offense
of conspiracy over 500 grams. As I point out in
the motion, the plea agreement did not comply
with Rule 11 concerning plea agreements, in
that all of the information was not presented to
the Court (which is clear from the transcript
concerning threats of forfeiture).1
2. The decision to pursue issues of ineffective
assistance or proceed with direct appeal [was]
1The Rule 11 issue referred to in the April 5 letter was that counsel
had failed to disclose a plea agreement that existed in the form of the
government’s promise not to pursue forfeiture proceedings against
Vinyard’s home if he pled guilty. As noted, however, Vinyard’s lawyer
had disclosed that promise to the court on the record at the guilty plea
hearing.
8 No. 14-1134
discussed last year. I believe you have made
the right decision in that the only direct appeal
issues would be whether or not Judge Gilbert
properly advised you of your right to contest
the [§ 851] enhancement. I am still convinced
that your most likely avenue for relief is collat-
eral attack and not direct appeal. The most per-
suasive features of your case are Judge Gil-
bert’s Orders following your first sentencing
hearing and his action in removing your first
attorney.
On May 6, 2010, Vinyard filed his own § 2255 petition pro se,
apparently due to concerns that his attorney had not yet
filed one despite the looming deadline. His petition raised
the expected ineffective-assistance claims against his first at-
torney (Gentle), but it also raised several others, including a
claim that his second attorney (Gross) was ineffective for ad-
vising him to pursue a collateral attack on his plea in lieu of
a direct appeal. This advice, Vinyard contended, was legally
erroneous and caused his procedural default of certain meri-
torious claims.
Judge Stiehl denied relief. Vinyard v. United States, No. 10-
CV-341-WDS, 2013 WL 6153268 (S.D. Ill. Nov. 22, 2013). He
found that the decision to pursue a collateral attack under
§ 2255 instead of a direct appeal was “undoubtedly” strate-
gic and that Vinyard had agreed with his attorney that a col-
lateral attack was “the best course.” Id. at *18. The claims
Vinyard argued he would have raised on direct appeal did
“not appear to be claims that could not be raised on collat-
eral attack,” and he had in fact raised them in his § 2255 peti-
No. 14-1134 9
tion. Id.2 Thus, Gross’s advice to pursue “further factual de-
velopment beyond the criminal record” was not objectively
unreasonable, and Vinyard also could not show prejudice.
Id. The court rejected Vinyard’s other plea-related claims as
well, holding that he had procedurally defaulted the direct
attack on his guilty plea, id. at *20, and that his first attorney
had not provided ineffective assistance by permitting the
government to coerce him into pleading guilty, id. at *9–11.
We granted a certificate of appealability as to whether
Vinyard’s attorney “rendered ineffective assistance by erro-
neously advising him that he could challenge his guilty plea
only on collateral attack and not on direct appeal.”
II. Analysis
The Sixth Amendment to the United States Constitution
guarantees the accused in a criminal case the right to the ef-
fective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 684–86 (1984); Wyatt v. United States, 574 F.3d 455,
457 (7th Cir. 2009). This right is “firmly established” not only
for trial but also for a first appeal as of right. Gray v. Greer,
800 F.2d 644, 646 (7th Cir. 1985), citing Evitts v. Lucey, 469
U.S. 387 (1985). Under the familiar two-pronged test of
Strickland, Vinyard must show both that his attorney’s per-
formance was deficient and that he was prejudiced as a re-
sult. E.g., Carter v. Douma, 796 F.3d 726, 735 (7th Cir. 2015),
citing Harrington v. Richter, 562 U.S. 86, 104 (2011).
2 Those claims included: (1) Vinyard’s plea was coerced by the gov-
ernment; (2) the district court was not informed of an oral plea agree-
ment between Vinyard and the government; and (3) the district court
had removed Vinyard’s first attorney on its own motion. Vinyard, 2013
WL 6153268, at *17.
10 No. 14-1134
To satisfy the deficient performance prong, a petitioner
must show that the representation his attorney provided fell
below an objective standard of reasonableness. Strickland,
466 U.S. at 688; Rodriguez v. United States, 286 F.3d 972, 983
(7th Cir. 2002). A court’s scrutiny of an attorney’s perfor-
mance is “highly deferential” to eliminate as much as possi-
ble the distorting effects of hindsight, and we “must indulge
a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689; see also Groves v. United States, 755 F.3d 588,
591 (7th Cir. 2014). Under these standards, “strategic choices
made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.” Strick-
land, 466 U.S. at 690; see also, e.g., United States v. Berg, 714
F.3d 490, 499 (7th Cir. 2013) (decision not to call a particular
witness); Harris v. United States, 366 F.3d 593, 596 (7th Cir.
2004) (decision not to advocate for guideline “safety valve”
at sentencing).
A strategic choice based on a misunderstanding of law or
fact, however, can amount to ineffective assistance. “An at-
torney’s ignorance of a point of law that is fundamental to
his case combined with his failure to perform basic research
on that point is a quintessential example of unreasonable
performance under Strickland.” Hinton v. Alabama, 571 U.S.
—, —, 134 S. Ct. 1081, 1089 (2014); see also, e.g., Thomas v.
Clements, 789 F.3d 760, 768–69 (7th Cir. 2015) (“counsel ad-
mitted his failure to reach out to [a pathology] expert was
not a conscious decision—he just did not think to do so”);
Woolley v. Rednour, 702 F.3d 411, 423 (7th Cir. 2012) (“Though
we often defer to an attorney’s calculated decision to forgo a
certain trial strategy, it is undisputed that there was no stra-
tegic rationale underlying these errors.”).
No. 14-1134 11
These principles apply with equal force to appeals. An at-
torney is not expected to raise every possible non-frivolous
claim on appeal; winnowing down possible claims to those
an attorney believes are strongest is a classic example of a
strategic decision. Makiel v. Butler, 782 F.3d 882, 897–98 (7th
Cir. 2015). A decision not to file a notice of appeal at all will
be appropriate if the lawyer has consulted adequately with
her client about the decision. Roe v. Flores-Ortega, 528 U.S.
470, 478 (2000). And of course, a defendant who instructs his
attorney not to appeal cannot claim deficient performance
when the attorney complies with his wishes. Id. at 477, citing
Jones v. Barnes, 463 U.S. 745, 751 (1983). But if a lawyer has
been instructed to appeal and inadvertently fails to do so,
she has acted “in a manner that is professionally unreason-
able” under the Sixth Amendment. Flores-Ortega, 528 U.S. at
477, citing Rodriquez v. United States, 395 U.S. 327 (1969); see
also, e.g., Kitchen v. United States, 227 F.3d 1014, 1020 (7th Cir.
2000); Castellanos v. United States, 26 F.3d 717, 718 (7th Cir.
1994) (“If the defendant told his lawyer to appeal, and the
lawyer dropped the ball, then the defendant has been de-
prived, not of effective assistance of counsel, but of any assis-
tance of counsel on appeal. Abandonment is a per se viola-
tion of the sixth amendment.”) (emphasis in original).
Vinyard concedes that he never instructed Gross to file a
notice of appeal. Vinyard agreed that not appealing would
be the “best course.” Vinyard, 2013 WL 6153268, at *18.
Vinyard argues that ought to be irrelevant, however, because
he based his decision not to appeal entirely on his lawyer’s
erroneous advice. Attorney Gross advised Vinyard not to
pursue a direct appeal challenging the validity of his guilty
plea. Vinyard argues, though, that it is well established that
“section 2255 is not a substitute for direct appeal,” see Qualls
12 No. 14-1134
v. United States, 774 F.2d 850, 851 (7th Cir. 1985), and that
“the voluntariness and intelligence of a guilty plea can be
attacked on collateral review only if first challenged on di-
rect review.” Bousley v. United States, 523 U.S. 614, 621 (1998);
see also Ballinger v. United States, 379 F.3d 427, 429 (7th Cir.
2004). Thus, Vinyard contends, advising a client to forgo a
direct appeal of his guilty plea forecloses the possibility of
collateral attack as a matter of law and cannot be a strategic
decision.
One problem with Vinyard’s argument is that he has
been unable to explain what, exactly, he could have appealed
to challenge the voluntariness of his plea. Arguments on di-
rect appeal are “necessarily limited to the trial record, since a
court of appeals does not take evidence.” United States v. Ta-
glia, 922 F.2d 413, 417 (7th Cir. 1991). In this case, the limited
record that would have been available on direct appeal con-
tains no hint of the government coercion that Vinyard now
contends he would have challenged. Rather, the record of-
fers only the plea colloquy—when Vinyard repeatedly swore
that his plea was voluntary and that the government’s factu-
al basis for the charges was correct—and the stipulation of
facts Vinyard signed agreeing that the conspiracy involved
over 500 grams of methamphetamine.
It would make little sense to require defendants to chal-
lenge their guilty pleas on direct appeal (and as a corollary
to require attorneys to advise such appeals to avoid claims of
constitutional ineffectiveness) even when the challenge
would depend on evidence outside the available record. See
Waley v. Johnston, 316 U.S. 101, 104 (1942) (per curiam)
(where petitioner alleged his guilty plea was coerced by the
government, that issue “was appropriately raised by the ha-
No. 14-1134 13
beas corpus petition. The facts relied on are dehors the rec-
ord and their effect on the judgment was not open to consid-
eration and review on appeal”); see also Bousley, 523 U.S. at621–22 (distinguishing between claim that a guilty plea had
been coerced by threats made by government agent, which
“falls within an exception to the procedural default rule for
claims that could not be presented without further factual
development,” and a claim that the plea colloquy was erro-
neous, which “can be fully and completely addressed on di-
rect review based on the record created at the plea collo-
quy”). Nor could Vinyard have challenged the May 20, 2009
denial of his motion to withdraw his plea: our mandate
clearly ordered entry of judgment on the original sentence,
leaving the district court no room to grant Vinyard’s motion.
So the record showed no non-frivolous grounds to attack
Vinyard’s guilty plea on direct appeal. Attorney Gross’s ad-
vice to proceed instead with a collateral attack was not legal-
ly erroneous or constitutionally ineffective. In fact, if he had
advised Vinyard to pursue a direct appeal of his plea, that
advice would have raised a serious constitutional concern in
its own right. To raise a claim on direct appeal in spite of an
inadequate record would have been fruitless but also might
well have resulted in procedural default because issues
“raised on direct appeal may not be reconsidered on a § 2255
motion absent changed circumstances.” Varela v. United
States, 481 F.3d 932, 935 (7th Cir. 2007).
To illustrate this danger, consider the context of the most
common sorts of claims for ineffective assistance of counsel.
Like Vinyard’s challenge to his plea, such claims generally
depend on information outside the record available on direct
appeal. The Supreme Court has definitively held that ineffec-
14 No. 14-1134
tive-assistance claims need not be presented on direct appeal
to preserve them for collateral attack under § 2255, Massaro v.
United States, 538 U.S. 500, 504 (2003), because ineffective-
assistance claims nearly always require more extensive and
targeted factual development than is available in the record
on direct appeal. Furthermore, once “an ineffective-
assistance claim is rejected on direct appeal, it cannot be
raised again on collateral review.” United States v. Flores, 739
F.3d 337, 341 (7th Cir. 2014). “A litigant gets to argue ineffec-
tive assistance, and for that matter any other contention, just
once.” Id. Thus, bringing a premature claim for ineffective
assistance of counsel on direct appeal is not prudent, and we
have repeatedly cautioned defendants against raising such
claims on direct appeal. E.g., United States v. Bryant, 754 F.3d
443, 444 (7th Cir. 2014) (ineffective-assistance claims “usually
as a matter of prudence should not” be raised on direct ap-
peal); Flores, 739 F.3d at 341 (“Raising ineffective assistance
on direct appeal is imprudent because defendant paints
himself into a corner.”); Harris, 394 F.3d at 558.
These principles and the blanket exception in Massaro
apply specifically to ineffective-assistance-of-counsel claims,
but their logic applies equally to the claims Vinyard says he
would have brought on direct appeal. Issues “raised on di-
rect appeal may not be reconsidered on a § 2255 motion ab-
sent changed circumstances.” Varela v. United States, 481 F.3d
932, 935 (7th Cir. 2007); see also Olmstead v. United States, 55
F.3d 316, 319 (7th Cir. 1995) (declining to reconsider issue
previously raised on direct appeal “in the absence of
changed circumstances of fact or law”). A challenge to
Vinyard’s plea on direct appeal, then, would have yielded
procedural default, and without the benefit of the factual
development that collateral attack permits.
No. 14-1134 15
We have previously allowed defendants to withdraw
claims raised on direct appeal when oral argument made
clear that those claims would benefit from additional factual
development. E.g., United States v. Williams, 559 F.3d 607, 615
(7th Cir. 2009) (validity of jury waiver); United States v. Ro-
sario, 234 F.3d 347, 352 (7th Cir. 2000) (use of perjured testi-
mony); United States v. Hardamon, 188 F.3d 843, 847 (7th Cir.
1999) (ineffective assistance of counsel). By advising Vinyard
to avoid the same path that we encourage criminal defend-
ants to avoid as a matter of prudence, his lawyer was not in-
effective. Vinyard has failed to show deficient performance
under Strickland.
Vinyard’s claim fails the prejudice prong of Strickland as
well. A showing of prejudice generally requires a defendant
to establish “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. Vinyard has
not actually attempted to show prejudice under this stand-
ard. Given the flaws in his claims of coercion, he would be
hard-pressed to do so. See, e.g., Hutchings v. United States,
618 F.3d 693, 699 (7th Cir. 2010) (finding a defendant’s “after-
the-fact explanation wholly insufficient to override the verity
that presumptively attaches to a defendant’s statements
when entering a guilty plea” and rejecting his argument that
he had pled guilty based on a promise of a sentence reduc-
tion); Bontkowski v. United States, 850 F.2d 306, 313–14 (7th
Cir. 1988) (defendant’s responses made during a plea collo-
quy were “voluntary and binding” as to whether his plea
had been obtained via promises or threats).
Instead, Vinyard argues that his situation fits a different
category altogether: cases in which a defendant has, through
16 No. 14-1134
an attorney’s errors, been denied access to the appeal process
altogether. See, e.g., Roe v. Flores-Ortega, 528 U.S. 470 (2000);
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). In such
cases, courts apply a presumption of prejudice “with no fur-
ther showing from the defendant of the merits of his under-
lying claims” because the lawyer’s deficient performance has
rendered the adversary process itself unavailable. Flores-
Ortega, 528 U.S. at 484. Accordingly, to satisfy Strickland in a
case like Flores-Ortega, a defendant need not show a reason-
able probability that he would have prevailed on appeal. In-
stead, “when counsel’s constitutionally deficient perfor-
mance deprives a defendant of an appeal that he otherwise
would have taken, the defendant has made out a successful
ineffective assistance of counsel claim entitling him to an
appeal.” Id. at 484; accord Castellanos, 26 F.3d at 720 (if de-
fendant timely tells attorney he wishes to appeal and attor-
ney fails to do so, defendant “need not make a preliminary
showing of ‘prejudice’ tantamount to presenting the appeal
without legal assistance”) (footnote omitted).
The presumption of prejudice applied in Flores-Ortega
and Castellanos, where counsel failed to file a notice of appeal
as requested, does not extend to the very different facts here.
Vinyard did not instruct counsel to appeal only to have
counsel refuse or forget; such cases justify the presumption
because defendants abandoned by their lawyers have “suf-
fered injury from that very fact—from the loss of advocacy
services that could have been used to establish a non-
frivolous issue for appeal.” Betts v. Litscher, 241 F.3d 594, 597
(7th Cir. 2001) (emphasis in original), citing Flores-Ortega, 528
U.S. at 483, and Castellanos, 26 F.3d 717; see also Flores-
Ortega, 528 U.S. at 486 (concluding it is “unfair to require an
indigent, perhaps pro se, defendant to demonstrate that his
No. 14-1134 17
hypothetical appeal might have had merit before any advo-
cate has ever reviewed the record in his case in search of po-
tentially meritorious grounds for appeal”) (emphasis in orig-
inal). Instead, Vinyard and his attorney discussed the op-
tions, and the attorney gave reasonable advice not to pursue
a direct appeal. This was not abandonment and did not
make it unfair to require a showing of prejudice. See Castel-
lanos, 26 F.3d at 719 (“If the defendant wants to take an im-
prudent appeal, the lawyer properly may try to talk him out
of it.”); cf. Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013)
(appellate counsel can be constitutionally ineffective for fail-
ing to present a particular issue on appeal only when it is
“obvious” and “clearly stronger” than the claim actually
presented, unless he has a strategic justification). The Flores-
Ortega presumption of prejudice does not apply to this case.
The judgment of the district court is AFFIRMED.