When Senior Judge John Kane rejected the plea agreement, not because he had any difficulty with the deal cut as far as the defendant was concerned, but that the government gratuitously threw in the now-ubiquitous waiver of appeal, the Tenth Circuit said no. Judge Kane’s position was that the government provided no additional consideration for the waiver. The Circuit’s view was, “So what? That’s the deal.”
In Garza v. Idaho, the Supreme Court issued one of those head-scratching decisions that gave the appearance of good news while accomplishing little, if nothing, to help. The Court extended the rule of Roe v. Flores-Ortega, that failure of counsel to file a Notice of Appeal was, per se, ineffective assistance of counsel.
This was a significant decision, as if would otherwise fall to the defendant to meet the requirements of Strickland v. Washington to show that counsel’s screw-up, the failure to file the notice, would survive the second-prong of the test, that there was a reasonable probability of a different outcome. In other words, you had to show a probability that you would win the appeal to get the right to appeal. This was not only an absurd burden, but gave cover to inexcusable failure. A first-level appeal is a right, so failure to file a notice is an unjustifiable failure.
But then came the waiver. Much to the surprise of judges and advocates, Newton’s Third Law kicked in, and the government came up with a way to cut deals and avoid having to fight out the case anyway on appeal. Routinely included in plea agreements was a clause stating that the defendant waived certain rights on appeal, including the right to challenge his sentence provided it was within the range anticipated by the plea agreement.
It may smell odd, but the waivers made sense in that if the government lived up to its end of the bargain, the defense didn’t get a second chance at relitigating the case. He got the benefit of the bargain, to the extent anyone considers a federal plea negotiation a benefit or a bargain, and that was that. Judge Kane recognized the coercive nature of the inclusion of the waiver, just one more burden rammed down the defendant’s throat for which there was no additional consideration. It was the same plea deal as before, plus a waiver, as if the defendant had much of a choice in the matter.
But rather than face the waiver issue, the Supremes went for a side issue, that even a defendant whose plea agreement waived appeal had a presumptive right to file a notice of appeal, and failure to do so, even in the face of a waiver, in the absence of any appealable issue, was ineffective assistance of counsel.
This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.
Whenever Justice Sonia Sotomayor writes the Court’s opinion, a defendant wins. Whenever a defendant wins, we cheer. But what did we win?
That an appeal waiver does not bar claims outside its scope follows from the fact that, “[a]lthough the analogy may not hold in all respects, plea bargains are essentially contracts.” Puckett v. United States, 556 U. S. 129, 137 (2009).
As with any type of contract, the language of appeal waivers can vary widely, with some waiver clauses leaving many types of claims unwaived. Additionally, even a waived appellate claim can still go forward if the prosecution forfeits or waives the waiver. E.g., United States v. Story, 439 F. 3d 226, 231 (CA5 2006). Accordingly, a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.
There should be no question that there are exceptions to appeal waivers, but they’re outliers, rarely occurring. When they do occur, it should be incumbant on defense counsel to recognize them, as that’s why the Sixth Amendment provides the right to effective assistance of counsel. And if they fail to do so, then IAC should be presumed. Of course, this is a condemnation of the rule of Strickland more than an extension of Flores-Ortega. Or to get even closer to the crux of the problem, the allowance of appeal waivers at all.
The irony here is that the Court continues its embrace of appeal waivers, not to mention Strickland, while giving defendants who demand an appeal despite, as was the case with Garza here, getting the sentence for which they bargained, a right without a purpose. Garza’s lawyer was presumed to provide ineffective assistance for not filing a Notice of Appeal even though Garza has no appealable issue and no chance of prevailing on appeal.
But if Justice Sotomayor’s concern is real, then why should there be any need to file a Notice of Appeal at all? It’s just a piece of paper, a pro forma submission, the purpose of which is now lost to the ages. Rather than make this an IAC problem, where defense counsel should now file a Notice just for kicks and to avoid being hauled on the carpet for failing to do so even though there is nothing to appeal, just presume a notice has been filed for all defendants and see what comes of it.
There’s no difference between eliminating the requirement for the filing of a notice of appeal and mandating that defense counsel file the form regardless of an effective appeal waiver in a plea agreement. If there is nothing to appeal, there will be nothing to appeal either way.
As for poor Gilberto Garza, he won and gained nothing but his name on a Supreme Court opinion, as he will get his right to appeal and an assigned lawyer will submit an Anders brief in his honor. It’s not that there couldn’t have been appealable issues behind his waiver, but that there appears to be nothing. As Justice Clarence Thomas wrote in dissent:
Garza’s counsel quite reasonably declined to file an appeal for that purpose, recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain. Yet, the majority finds Garza’s counsel constitutionally ineffective, holding that an attorney’s performance is per se deficient and per se prejudicial any time the attorney declines a criminal defendant’s request to appeal an issue that the defendant has waived. In effect, this results in a “defendant-alwayswins” rule that has no basis in Roe v. Flores-Ortega, 528 U. S. 470 (2000), or our other ineffective-assistance precedents, and certainly no basis in the original meaning of the Sixth Amendment.
If the Supreme Court wanted to give meaning to a defendant’s right to appeal following a plea agreement, the solution is getting rid of Strickland and appeal waivers, not creating a presumption of ineffective assistance that goes nowhere.
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SHG,
Nice elucidation of what might appear to be a warm and fuzzy win for the poor old criminal defendant but, as you point out, practically is a nothing burger. I have a different take on what the Court should have done.
Appeal waivers are efficient ways of processing criminal cases and the Court’s decision just exposed CDLs to potential IAC and malpractice claims in some small number of cases. With that premise in mind, the Court should have held that there can be no obligation on the part of a CDL to file a notice of appeal when an appeal has been waived in a plea agreement that has been subjected to the rigors of a Rull 11 inquiry by the trial court as to the plea and plea agreement. Why?
If a notice of appeal is filed in contravention of the plea agreement, it is more likely true than not that the CDL is assisting his or her client in breaching the plea agreement. Since, as you point out, there is almost zero chance that the appeal waiver will be ignored on appeal, the pointless act of filing the notice of appeal in most cases runs the risk of exposing the defendant in some small number of cases to a poke in the eye with a short stick should the appeal be successful and the case returned for resentencing. The old “be careful what you ask for” aphorism sound loudly.
Here’s the basic tension. Some, like the Wise Latina, view the criminal process in federal courts as attempting to produce handcrafted art objects of individualized beauty. I few the federal criminal process as more like the humming and efficient assembly line at the old Willow Run plant near Detroit.
All the best.
RGK
You raise a strategic reality that few defendants, and no sitting Supreme Court justice, is likely to grasp: they could end up far worse off than they started if they get what they demand. I’ve had the unpleasant experience of explaining this to defendants, and being on the recieving end of a jail house lawyer’s complaint for saving a defendant’s life too well.
SHG,
No good deed goes unpunished, to wit:
Pro Se Notice of Appeal:
“My lawyer got me life in prison without parole in a plea agreement I deny reading although each page bears my signature and I swore I read it and discussed it with my lawyer and my mom when I talked to the judge. My lawyer refused to appeal my life sentence muttering something about an appeal waiver. While it true that I slaughtered several people with a hatchet and 50 bishops swear they saw me do it, I am not a bad guy and I wouldn’t have accepted the plea deal had my public pretender competently advised me to ignore the plea offer and proceed to trial on a defense I am pretty sure I could have dreamed up particularly with a new and better lawyer trained at the law school in the Caribbean. By the way, the chow here stinks.”
All the best.
RGK
But for those bishops, I would have beat the case, too.
Pro Se Notice of Appeal Addendum:
“Dear Judges,
I forgot to tell you that I’m not afraid of the death penalty. There is no chance that a jury or a judge would impose the death penalty on me as I am very special. That’s what the inmate legal aids told me. Have a good day.”
Not that we’d ever dream of contradicting a judge, but in NY anyway, some rights are considered nonwaivable, like not getting an illegal sentence or not being too nuts to stand trial. In the high court’s 50-cent words, society’s interest in upholding some rights transcends the individual defendant’s concerns. So they survive even a voluntary appeal waiver and it’s not some kind of breach of contract to file a notice of appeal.
Oh, the poor CDL, exposed to IAC claims! Filing a NOA takes 5 seconds. Courts keep stacks of NOA forms right on the defense table. That’s all Garza’s lawyer had to do. He didn’t have to write the appeal – that’s the job of appellate shmos like us. Who of course warn our clients off filing an appeal if there’s a risk involved. But sometimes there’s a valid or even *gasp* a winning issue.
If a Detroit factory were like the criminal process, half their cars would be missing engines or wheels.
And now back to our macrame.
All the best,
A. Squawk
Comparing federal to state practice (not to mention a particular state’s practice) tends to be confusing and unhelpful. The duties are very different and the comparison serves only to exerbate problems, plus invite someone from every other jurisdicition to nitpick the differences, making the problems even worse.
Still, the bottom line of Garza is that the decision whether to file an appeal belongs to the client. That’s settled SCT law and neither new nor regional. When the client timely requests his attorney to file a NOA, the attorney can try to talk him out of it but can’t just refuse, which is what happened here.
Yes, that it is, for whatever it’s worth given the validity of appeal waivers.
I wonder what the federal defender who catches the case will do with it.
In my opinion you’ve done the nearly impossible—convinced me that a Thomas dissent makes perfect sense and is a proper understanding of the Sixth Amendment.
A sad sign of the times. At least we still have Alito to hate.
Not a fan of the appellate lawyer employment act of 2019? FYI Idaho doesn’t permit Anders briefs.
You have a brilliant future on the CJA panel.
An absolutely stellar display of jurisprudential masturbation.
Good afternoon. IANAL, and usually don’t comment for that reason.
Is this case another example of the tension between a lawyer’s professional judgment and a client’s rights? In your post Confession of Error, discussing McCoy v. Louisiana, you said the following:
“Certainly we guide them. We inform them. We explain the tactical and strategic benefits and detriments of their choices, and the very real world consequences of their choices. And yet, hard as it may be to watch a defendant, a client, make a decision that you are certain will be suicidal, the choice remains the client’s. Ultimately, it’s his life, not yours.”
You also wrote:
“We don’t have to like it, but we must nonetheless respect the fact that the Constitution gives certain decisions to the client no matter what we believe to be in his best interest. We must respect the fact that it’s his life at stake, not ours, no matter how bad he may be at saving himself.”
This, as well as most of the rest of that post, may seem to apply to Mr. Garza’s decision to appeal after signing a waiver. Are the things you wrote in Confession of Error not also applicable with equal force here?
No.
I’m honestly surprised that no one posted this video before me.
Excellent!
By the way, why should the Hon. Justices get angry if we simply file appeals as a matter of form to protect ourselves from IAC claims?
Out here in the far hinterlands, arraignments now take a very long time because of all of the inapplicable advisements that the local judges have to give to all defendants for the same reasons that Mr. Greenfield propounds for always file a Notice of Appeal (so no advisement gets missed and the case remanded).
Defendants who are manifestly United States citizens are advised that they may be removed or deported from the United States. Defendants are told that they may be compelled to register as sex offenders even when not charged with a sex offense. Defendants with multiple felonies are advised that they may lose their rights to own and/or possess firearms. Non-drug defendants are advised about possible loss of student loans.
I hated Padilla, not because non-citizen defendants shouldn’t be fully informed of collateral consequences of conviction, but because SCOTUS dumped it on us to do so rather than make a judicial responsibility.
Same rule applied after Padilla. Just tell every client that ICE is coming for them. You couldn’t go wrong. If ICE doesn’t snatch them, no harm, no foul. If ICE does snatch them, you advised them. It’s just like cops’ magical ability to smell marijuana in sealed containers.
For those of you following who are not attorneys, I am being sarcastic. I actually try to find out if the offense is removable/deportable, and for many offenses between serious and trivial, there is no firm authority whatsoever.
You missed my favorite, dear RedditLaw. “Are you satisfied with the representation provided by your attorney?” As if the defendant is supposed to know whether they were actually provided competent representation.
And the fact that those who say “no” often have some cockamamie, otherworldly reason why.