Singleton v. Eagleton, No. 09-7701 (4th Cir. Apr. 25, 2011):
Background on Flores-Ortega. In Roe v. Flores-Ortega, the Supreme Court recognized two distinct scenarios in which a defendant may raise a claim of ineffective assistance of counsel for failure to file a notice of appeal. The first scenario occurs when "a lawyer . . . disregards specific instructions from the defendant to file a notice of appeal." The second scenario occurs when trial counsel fails to consult with a defendant about an appeal and there was a "constitutionally imposed duty" to do so. The duty to consult arises "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."
Petitioner must exhaust prejudice requirement. Regarding the second, failure-to-consult scenario, the Fourth Circuit holds that in addition to presenting such a scenario to the state court, a petitioner must also assert before the state court that he was prejudiced from a forgone meritorious appeal. Otherwise, such a claim remains unexhausted.