Opinion of the Court
the loss of any such appeal. See Brief for Respondent 11, 23–26; Brief for United States as Amicus Curiae 7, 13, 21–22. These arguments miss the point. Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants. Especially because so much is unknown at the notice-of-appeal stage, see supra, at 6–7, it is wholly speculative to say that counsel’s deficiency forfeits no proceeding to which a defendant like Garza has a right.[1]
The Government also takes its causation argument one step further. Arguing that, in the appeal-waiver context, “a generalized request that an attorney file an appeal… is not enough to show that appellate merits review would have followed,” Brief for United States as Amicus Curiae 22, the Government proposes a rule that would require a defendant to show–on a “case-specific” basis, id., at 23–either (1) “that he in fact requested, or at least expressed interest in, an appeal on a non-waived issue,” id., at 21–22, or alternatively (2) “ ‘that there were nonfrivolous grounds for appeal’ despite the waiver,” id., at 22 (quoting Flores-Ortega, 528 U. S., at 485). We decline this suggestion, because it cannot be squared with our precedent and would likely prove both unfair and inefficient in practice.
This Court has already rejected attempts to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit. In Flores-Ortega, the Court explained that prejudice should be presumed “with no further showing from the defendant of the merits of his underlying claims.”
- ↑ The possibility that an appellate court confronted with a waived claim (and a motion to enforce the waiver) would technically “dismiss the appeal without reaching the merits,” see Brief for United States as Amicus Curiae 17; see also Brief for Respondent 26, does not alter this conclusion. Whatever the label, the defendant loses the opportunity to raise any appellate claims at all–including those that would, or at least could, be heard on the merits.
