No Flores-Ortega Duty to Consult Where Defendant Did Not Instruct an Appeal and Received a Substantial Downward-Variance Sentence Under an Appeal-Waiver Plea

Introduction

In John Rankin v. United States (6th Cir. Jan. 5, 2026) (unpublished), petitioner-appellant John Rankin sought post-conviction relief under 28 U.S.C. § 2255, alleging that his attorney, Steven Scharg, rendered ineffective assistance by failing to file a notice of appeal. Rankin had pleaded guilty to federal drug-trafficking offenses and agreed to a plea provision waiving appellate rights (including sentencing appeals under stated conditions). The district court imposed a below-Guidelines sentence (a “substantial downward variance”) and Rankin filed no direct appeal.

The key issues on appeal were whether Rankin proved (1) that he specifically instructed counsel to file a notice of appeal, and if not, (2) whether counsel nonetheless had a constitutional duty to consult with Rankin about an appeal under Roe v. Flores-Ortega.

Summary of the Opinion

The Sixth Circuit affirmed the denial of § 2255 relief. It held that the district court did not clearly err in finding that Rankin did not specifically direct Scharg to file a notice of appeal. It further agreed that counsel had no duty to consult about an appeal on these facts, emphasizing the plea agreement’s appeal waiver and Rankin’s receipt of a substantial downward-variance sentence. Rankin’s earlier, limited interest in appealing a bond decision did not reasonably demonstrate later interest in appealing his sentence.

Analysis

Precedents Cited

Bullard v. United States, 937 F.3d 654, 658 (6th Cir. 2019)
Provided the appellate standards of review in § 2255 cases: factual findings are reviewed for clear error and legal conclusions de novo. This framing mattered because Rankin’s claim turned heavily on a credibility-based factual determination about whether he instructed counsel to appeal.
Gilbert v. United States, 64 F.4th 763, 770 (6th Cir. 2023)
Reinforced that ineffective-assistance claims presenting mixed questions of law and fact are reviewed de novo. The court thus deferred on credibility findings but independently assessed whether the proven facts satisfied constitutional standards under Strickland and Flores-Ortega.
Strickland v. Washington, 466 U.S. 668, 687 (1984)
Supplied the two-part ineffective-assistance framework: deficient performance and prejudice. Rankin’s claim depended on showing either (a) counsel ignored an explicit instruction to appeal (typically deficient performance with presumed prejudice), or (b) counsel unreasonably failed to consult about an appeal when consultation was constitutionally required.
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
Established two pivotal rules applied here: (1) ignoring a defendant’s specific instructions to file a notice of appeal is professionally unreasonable; and (2) even without an explicit instruction, counsel must consult about an appeal when there is reason to think either a rational defendant would want to appeal or the particular defendant reasonably demonstrated an interest in appealing. The Sixth Circuit applied both prongs, rejecting Rankin’s proof of an instruction and finding no duty to consult under the circumstances.
Garza v. Idaho, 586 U.S. 232, 237 (2019)
Confirmed that if counsel fails to file a requested notice of appeal, prejudice is presumed even when the defendant signed an appeal waiver. The opinion acknowledged this principle, but it did not help Rankin because the district court (affirmed on appeal) found he did not actually request an appeal.
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)
Provided the deference rule for credibility determinations: where a trial judge credits one coherent witness over another and there is no extrinsic contradiction, reversal for clear error is rare. The Sixth Circuit relied on Anderson to uphold the district court’s choice to credit counsel’s testimony over Rankin’s.
Neill v. United States, 937 F.3d 671, 676 (6th Cir. 2019)
Reinforced Flores-Ortega’s case-specific inquiry and the “highly deferential” scrutiny of counsel’s performance. The Sixth Circuit used this lens to evaluate whether consultation was constitutionally required in light of the plea waiver and the unusually favorable sentence.
United States v. Melvin, 557 F. App'x 390, 393-96 (6th Cir. 2013)
Cited by Rankin for the proposition that a district court’s misstatement during a plea colloquy may affect enforceability of an appeal waiver. Rankin argued this could have created a nonfrivolous sentencing appeal pathway. The Sixth Circuit did not treat this as enough—on these facts—to trigger a duty to consult where the defendant received a major downward variance and did not demonstrate an interest in appealing the sentence.

Legal Reasoning

Instruction-to-appeal claim failed on factfinding.
The court treated the dispositive question as whether Rankin specifically instructed Scharg to file a notice of appeal. Rankin’s credibility was weakened by his admission that a key assertion in his § 2255 motion—claiming counsel “promised” to appeal—was a “mistake.” Rankin also claimed a confirming text exchange but could not produce it. Scharg testified that he would have filed immediately if asked and did not recall any post-sentencing contact. Applying Anderson v. City of Bessemer City and clear-error review, the Sixth Circuit upheld the district court’s credibility determination that no instruction was given.
No duty to consult under Flores-Ortega given the plea waiver and substantial downward variance.
Even though Rankin did not squarely raise a consultation theory in his § 2255 motion, the district court addressed it and the Sixth Circuit agreed with the outcome. Under Flores-Ortega, consultation is required only if (a) a rational defendant would want to appeal or (b) the defendant reasonably showed interest in appealing. The Sixth Circuit emphasized:
- Rankin pleaded guilty under a plea agreement containing an appellate-waiver provision.
- He received a 180-month sentence—well below the calculated Guidelines range of 235 to 293 months—described as a “substantial downward variance.”
- Counsel characterized the variance as a “gift,” supporting the inference that an appeal would be an unlikely rational choice.
On these facts, the court found “no reason to think that a rational defendant would have wanted to appeal.”
Prior bond-appeal discussion did not demonstrate interest in appealing the sentence.
Rankin argued that earlier discussions about appealing a denial of bond (related to obtaining surgery before incarceration) showed he was inclined to appeal. The Sixth Circuit rejected the analogy: the bond issue was narrow and medical-specific and was dropped after Rankin received medical attention; it did not reasonably signal a later desire to appeal the sentence.
Strickland deficiency not shown; prejudice analysis never triggered.
Because Rankin failed to establish that counsel disregarded an instruction to appeal or that consultation was required, he failed to prove deficient performance under Strickland v. Washington. Without deficiency, the claim failed regardless of prejudice (and the Garza v. Idaho presumption was irrelevant absent a proven request).

Impact

Although “NOT RECOMMENDED FOR PUBLICATION,” the decision is practically important in three recurring § 2255 contexts:

Credibility-driven “asked-to-appeal” claims. The opinion underscores how difficult it is to overturn a district court’s credibility findings on appeal under clear error review, especially where the record lacks corroboration (e.g., missing texts) and the district judge found counsel more credible.
When appeal waivers and favorable sentences narrow the duty to consult. The Sixth Circuit treated the combination of an appeal waiver and a substantial downward variance as strongly indicative that a rational defendant would not want to appeal, reducing the likelihood that failure to consult will be deemed constitutionally deficient.
Separating “interest in one appealable issue” from “interest in appealing the sentence.” The court’s treatment of the bond-motion episode signals that a defendant must show interest tied to an appeal of conviction/sentence—not merely prior appellate curiosity in a different, time-limited interlocutory matter—to satisfy the “reasonably demonstrated” prong of Flores-Ortega.

Complex Concepts Simplified

28 U.S.C. § 2255 motion: A post-conviction procedure allowing a federal prisoner to ask the sentencing court to vacate or correct a sentence due to constitutional or other serious legal errors (commonly, ineffective assistance of counsel).
Appeal waiver: A plea-agreement term where a defendant gives up some or all rights to appeal. Waivers often still allow limited appeals (for example, above-Guidelines sentences or other enumerated exceptions), but they substantially reduce the expected value of an appeal.
Guidelines range / criminal history category / offense level: The Sentencing Guidelines produce an advisory imprisonment range based largely on offense severity (offense level) and prior record (criminal history category). Here the range was 235–293 months, but the court imposed 180 months.
Downward variance: A sentence below the advisory Guidelines range based on statutory sentencing factors. A “substantial downward variance” is a sizeable reduction, often making an appeal less likely from a rational-defendant perspective.
Clear error vs. de novo review: “Clear error” is highly deferential to the trial court’s fact findings (especially credibility). “De novo” means the appellate court decides the legal question fresh, without deference.
Duty to consult (Flores-Ortega): Even absent a direct instruction to appeal, counsel must discuss the pros/cons of appealing when either a rational defendant would want to appeal or the defendant showed interest in appealing.

Conclusion

John Rankin v. United States reinforces two core post-conviction lessons: (1) § 2255 claims that counsel ignored an instruction to appeal often rise or fall on credibility findings that are rarely disturbed on appeal; and (2) under Roe v. Flores-Ortega, counsel’s duty to consult about an appeal is highly fact-dependent and may not be triggered where a defendant pleads guilty under an appeal waiver and receives a substantial downward-variance sentence, absent a clear, timely indication that the defendant actually wants to appeal.