What is the test for a defendant to successfully appeal against his conviction for failing to file a notice of appeal?

Under Strickland v. Washington, 466 U.S. 668 (1984), a convicted defendant's claim that his attorney was ineffective has two components. See id. at 687. The defendant must show both (1) that the attorney's performance was deficient and (2) that this deficient performance prejudiced the defense. See id. Because it is dispositive in this case, we will skip directly to the issue of prejudice.

Prejudice is presumed if counsel failed to file a notice of appeal without the defendant's consent. See, e.g., United States v. Stearns, 68 F.3d 328, 330 (9th Cir.1995). It goes without saying, however, that when the client does consent to the decision not to appeal, he cannot then turn around and claim ineffective assistance on the basis that his attorney simply followed orders. That is precisely what happened in this case.