Amicus Curiae Brief — Gilberto Garza, Jr., Petitioner v. Idaho
Supreme Court briefAug 16, 2018
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No. 17-1026
IN THE
Supreme Court of the United States
————
GILBERTO GARZA, JR.,
Petitioner,
v.
STATE OF IDAHO,
Respondent.
————
On Writ of Certiorari
to the Supreme Court of Idaho
————
BRIEF OF THE IDAHO ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AND
THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AS
AMICI CURIAE IN SUPPORT OF PETITIONER
————
W. ALEX HARRIS
MOLOLAMKEN LLP
430 PARK AVE.
NEW YORK , NY 10022
(212) 607-8160
LAUREN M. WEINSTEIN
Counsel of Record
ROBERT K. KRY
MOLOLAMKEN LLP
The Watergate, Suite 660
600 New Hampshire Ave., N.W.
Washington, D.C. 20037
(202) 556-2000
lweinstein@mololamken.com
Counsel for Amici Curiae
(Additional Counsel Listed on Inside Cover)
:,/621(3(6 35,17,1* &2 ,1& ±
± :$6+,1*721 '&
JONAH HORWITZ
IDAHO ASSOCIATION OF
CRIMINAL DEFENSE
LAWYERS
702 W. Idaho St., Suite 900
Boise, ID 83702
(208) 345-5183
jonah_horwitz@fd.org
BRIAN MCCOMAS
IDAHO ASSOCIATION OF
CRIMINAL DEFENSE
LAWYERS
77 Van Ness Ave., Suite 101
San Francisco, CA 94102
(208) 320-0383
mccomas.b@gmail.com
CRAIG DURHAM
IDAHO ASSOCIATION OF
CRIMINAL DEFENSE
LAWYERS
223 N. 6th St., Suite 325
Boise, ID 83702
(208) 331-5530
chd@fergusondurham.com
QUESTION PRESENTED
Does the “presumption of prejudice” recognized in
Roe v. Flores-Ortega, 528 U.S. 470 (2000), apply where a
criminal defendant instructs his trial counsel to file a
notice of appeal but trial counsel decides not to do so
because the defendant’s plea agreement included an
appeal waiver?
(i)
TABLE OF CONTENTS
Page
Interest of Amici Curiae ............................................
1
Summary of Argument ...............................................
3
Argument ......................................................................
5
I. A Presumption of Prejudice Is
Appropriate Because Defendants
Often Succeed on Appeal Despite
Waivers .............................................................
5
A. Defendants Often Succeed on
Appeal Based on Issues Beyond the
Scope of Their Particular Waivers..........
6
B. Defendants Often Succeed on
Appeal Even on Claims Within the
Scope of a Waiver ...................................... 11
C. The Decision Below Ignores the
Potential for Meritorious Claims
Even in Cases Involving Appeal
Waivers ....................................................... 20
II. Postconviction Proceedings Are Not an
Adequate Substitute for Direct Appellate
Review ............................................................... 22
A. Claims That Are Not Raised on
Direct Appeal Generally Cannot Be
Raised in Postconviction
Proceedings ................................................ 23
B. Higher Pleading Standards Apply
in Postconviction Proceedings ................. 24
C. There Is No Constitutional Right
to Counsel in Postconviction
Proceedings ................................................ 26
Conclusion ..................................................................... 27
(iii)
iv
TABLE OF AUTHORITIES
Page(s)
CASES
Cal. Pac. Bank v. FDIC,
885 F.3d 560 (9th Cir. 2018) ..............................
Campbell v. United States,
686 F.3d 353 (6th Cir. 2012) ..............................
Campusano v. United States,
442 F.3d 770 (2d Cir. 2006) ...............................
Coleman v. Thompson,
501 U.S. 722 (1991) .............................................
Ex parte De Leon,
400 S.W.3d 83 (Tex. Crim. App. 2013).............
Evitts v. Lucey, 469 U.S. 387 (1985) .....................
Fields v. State, 155 Idaho 532 (2013) ....................
Gonzales v. State,
151 Idaho 168 (Ct. App. 2011) ..........................
Hughes v. State,
148 Idaho 448 (Ct. App. 2009) ..........................
Hurlow v. United States,
726 F.3d 958 (7th Cir. 2013) ..............................
Judd v. State,
148 Idaho 22 (Ct. App. 2009) ............................
Martinez v. United States,
No. 05-cr-123-12, 2008 WL 4889665
(E.D. Pa. Nov. 12, 2008) ....................................
Massaro v. United States,
538 U.S. 500 (2003) .............................................
Mathis v. United States,
No. 7:09-cr-139-1BO, 2012 WL 1156438
(E.D.N.C. Apr. 6, 2012) .....................................
Melton v. State, 148 Idaho 339 (2009) ..................
25
5
5
26
15
26
24
26
23
12
26
22
23
18
26
v
TABLE OF AUTHORITIES—Continued
Page(s)
Murphy v. State,
143 Idaho 139 (Ct. App. 2006) .......................... 25
Murphy v. State, 156 Idaho 389 (2014) ................ 26
Nelson v. State,
157 Idaho 847 (Ct. App. 2014) .......................... 26
Nuñez v. United States,
546 F.3d 450 (7th Cir. 2008) .............................. 20
Pentico v. State,
159 Idaho 350 (Ct. App. 2015) .......................... 24
People v. Smith,
143 A.D.3d 31 (1st Dep’t 2016), aff ’d,
30 N.Y.3d 626 (2017) .......................................... 15
Reynolds v. United States,
No. 12-12-RGA, 2014 WL 6983354
(D. Del. Dec. 9, 2014) ......................................... 22
Roe v. Flores-Ortega,
528 U.S. 470 (2000) ....................................... passim
In re Sealed Case,
702 F.3d 59 (D.C. Cir. 2012) .......................... 10, 13
Self v. State,
145 Idaho 578 (Ct. App. 2007) .......................... 25
Small v. State,
132 Idaho 327 (Ct. App. 1998) .......................... 25
Solano v. United States,
812 F.3d 573 (7th Cir. 2016) .............................. 22
State v. Colyer, 98 Idaho 32 (1976) ....................... 23
State v. Cope, 142 Idaho 492 (2006) ...................... 23
State v. Hansen, 156 Idaho 169 (2014) ................. 11
State v. Hernandez,
121 Idaho 114 (Ct. App. 1991) .......................... 23
vi
TABLE OF AUTHORITIES—Continued
Page(s)
State v. Holdaway, 130 Idaho 482 (1997) ............ 11
State v. Payne, 146 Idaho 548 (2008) ................... 24
State v. Rendon,
No. 38275, 2012 WL 9492805
(Idaho Ct. App. May 11, 2012).......................... 19
State v. Rodriguez,
No. 45233, 2018 WL 700168
(Idaho Ct. App. Feb. 5, 2018) ........................... 19
State v. Straub, 153 Idaho 882 (2013)................... 10
State v. Wicklund,
No. 38697, 2011 WL 11067224
(Idaho Ct. App. Dec. 29, 2011).......................... 11
State v. Zichko, 129 Idaho 259 (1996)................... 25
United States v. Adams,
814 F.3d 178 (4th Cir. 2016) ........................... 17, 18
United States v. Almonte-Nuñez,
771 F.3d 84 (1st Cir. 2014) ................................ 15, 16
United States v. Andis,
333 F.3d 886 (8th Cir. 2003) .............................. 12
United States v. Aquino-De La Rosa,
139 F. App’x 298 (1st Cir. 2005) ....................... 14
United States v. Atkinson,
354 F. App’x 250 (6th Cir. 2009) ....................... 15
United States v. Attar,
38 F.3d 727 (4th Cir. 1994) ................................ 12
United States v. Benson,
553 F. App’x 660 (8th Cir. 2014) ....................... 10
United States v. Booker,
543 U.S. 220 (2005) .......................................... 14, 20
vii
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Castro,
704 F.3d 125 (3d Cir. 2013) ............................ 18, 19
United States v. Chapa,
602 F.3d 865 (7th Cir. 2010) ..............................
6
United States v. Chem. &
Metal Indus., Inc.,
677 F.3d 750 (5th Cir. 2012) .............................. 10
United States v. Cheney,
571 F.3d 764 (8th Cir. 2009) .............................. 19
United States v. Cooley,
590 F.3d 293 (5th Cir. 2009) .............................. 15
United States v. Davis,
689 F.3d 349 (4th Cir. 2012) ..............................
6
United States v. Dawson,
587 F.3d 640 (4th Cir. 2009) .............................. 16
United States v. Doss,
No. 1:12-cr-326, 2017 WL 1709397
(M.D. Pa. May 3, 2017) ...................................... 21
United States v. Droganes,
728 F.3d 580 (6th Cir. 2013) ..............................
6
United States v. Dunlap,
No. 10-190, 2010 WL 4614557
(W.D. Pa. Nov. 5, 2010) ..................................... 21
United States v. Egwuekwe,
No. 1:14-cr-6, 2017 WL 5009100
(M.D. Pa. Nov. 2, 2017)...................................... 21
United States v. Gonzalez-Lopez,
548 U.S. 140 (2006) ............................................. 21
United States v. Grimes,
739 F.3d 125 (3d Cir. 2014) ...............................
6
viii
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Guillen,
561 F.3d 527 (D.C. Cir. 2009) ........................... 12
United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004) .......................... 12
United States v. Hardman,
778 F.3d 896 (11th Cir. 2014) .......................... 6, 12
United States v. Hartshorn,
163 F. App’x 325 (5th Cir. 2006) ....................... 11
United States v. Henderson,
72 F.3d 463 (5th Cir. 1995) ................................ 12
United States v. Hernandez,
242 F.3d 110 (2d Cir. 2001) ............................... 12
United States v. Hull,
No. 16 C 2096, 2017 WL 6733689
(N.D. Ill. Dec. 19, 2017) ..................................... 22
United States v. Hunt,
843 F.3d 1022 (D.C. Cir. 2016) ....................... 6, 11
United States v. Jacobson,
15 F.3d 19 (2d Cir. 1994) ................................... 11
United States v. Joiner,
183 F.3d 635 (7th Cir. 1999) .............................. 12
United States v. Jones,
667 F.3d 477 (4th Cir. 2012) .............................. 19
United States v. Khattak,
273 F.3d 557 (3d Cir. 2001) ............................ 12, 13
United States v. Lonjose,
663 F.3d 1292 (10th Cir. 2011) ..........................
6
United States v. Lovelace,
565 F.3d 1080 (8th Cir. 2009) ............................ 16
ix
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Mabry,
536 F.3d 231 (3d Cir. 2008) ..................... 12, 20, 21
United States v. Obak,
884 F.3d 934 (9th Cir. 2018) .............................. 19
United States v. Oladimeji,
463 F.3d 152 (2d Cir. 2006) ............................. 6, 10
United States v. Olson,
880 F.3d 873 (7th Cir. 2018) .............................. 13
United States v. Ortega-Hernandez,
804 F.3d 447 (D.C. Cir. 2015) ........................... 19
United States v. Palmer,
456 F.3d 484 (5th Cir. 2006) ..............................
7
United States v. Parenteau,
506 F. App’x 430 (6th Cir. 2012) ....................... 11
United States v. Pease,
240 F.3d 938 (11th Cir. 2001) ............................ 10
United States v. Pena,
314 F.3d 1152 (9th Cir. 2003) ............................ 15
United States v. Portillo-Cano,
192 F.3d 1246 (9th Cir. 1999) ............................ 15
United States v. Preston,
598 F. App’x 465 (8th Cir. 2015) ....................... 11
United States v. Quirindongo-Collazo,
213 F. App’x 10 (1st Cir. 2007) ......................... 14
United States v. Rodriguez-Perez,
184 F. App’x 451 (5th Cir. 2006) ....................... 15
United States v. Santiago-Burgos,
750 F.3d 19 (1st Cir. 2014) ................................
6
United States v. Scallon,
683 F.3d 680 (5th Cir. 2012) ............................ 6, 15
x
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Schulte,
436 F.3d 849 (8th Cir. 2006) .............................. 10
United States v. Selvy,
619 F.3d 945 (8th Cir. 2010) ..............................
6
United States v. Sistrunk,
432 F.3d 917 (8th Cir. 2006) .............................. 10
United States v. Speelman,
431 F.3d 1226 (9th Cir. 2005) ............................
6
United States v. Spruill,
292 F.3d 207 (5th Cir. 2002) ........................... 13, 15
United States v. Story,
439 F.3d 226 (5th Cir. 2006) .............................. 20
United States v. Suarez,
879 F.3d 626 (5th Cir. 2018) .............................. 25
United States v. Teeter,
257 F.3d 14 (1st Cir. 2001) ............................. 12, 13
United States v. Velazquez,
855 F.3d 1021 (9th Cir. 2017) ............................ 14
United States v. Waupoose,
394 F. App’x 320 (7th Cir. 2010) ....................... 10
United States v. Wingo,
789 F.3d 1226 (11th Cir. 2015) ....................... 13, 14
United States v. Woltmann,
610 F.3d 37 (2d Cir. 2010) ................................. 17
United States v. Zink,
107 F.3d 716 (9th Cir. 1997) .............................. 10
Washington v. Lampert,
422 F.3d 864 (9th Cir. 2005) .............................. 12
Watson v. United States,
493 F.3d 960 (8th Cir. 2007) ..............................
5
xi
TABLE OF AUTHORITIES—Continued
Page(s)
Workman v. State,
144 Idaho 518 (2007) ....................................... 24, 26
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES
U.S. Const. amend. VIII ........................................
9
18 U.S.C. § 3553(a) .................................................. 17
28 U.S.C. § 2255 .................................................... 10, 18
Idaho Code § 19-4901(b) ......................................... 23
Idaho Code § 19-4903 .............................................. 24
Fed. R. App. P. 28(a)(8).......................................... 25
Fed. R. Crim. P. 11(b)(3)........................................ 13
Idaho App. R. 35(a)(4) ............................................ 25
OTHER AUTHORITIES
Idaho Dep’t of Corr., Death Row,
https://www.idoc.idaho.gov/
content/prisons/death_row ...............................
Idaho Dep’t of Corr.,
Supervised Population Snapshot,
https://dash.idoc.idaho.gov/ ..............................
Plea Agreement,
United States v. Baxter,
No. 3:10-cr-00074
(M.D. Tenn. filed Feb. 15, 2013), Dkt. 43 ......
Plea Agreement,
United States v. Brooks,
No. 1:14-cr-00209-TWP-TAB
(S.D. Ind. filed July 28, 2015), Dkt. 139 ..........
26
26
9
9
xii
TABLE OF AUTHORITIES—Continued
Page(s)
Plea Agreement,
United States v. Campbell,
No. 4:16-mj-03179-JR
(D. Ariz. filed Aug. 31, 2016), Dkt. 27 ..............
Plea Agreement,
United States v. Cervantes,
No. 5:09-cr-00011-VAP
(C.D. Cal. filed Mar. 31, 2010), Dkt. 127 .........
Plea Agreement,
United States v. Daniels,
No. 3:11-cr-00008-WKW-CSC
(M.D. Ala. filed Feb. 16, 2012), Dkt. 203 .........
Plea Agreement,
United States v. Flanders,
No. 2:12-cr-00363-TLN-EFB
(E.D. Cal. filed Feb. 2, 2015), Dkt. 59 .............
Plea Agreement,
United States v. Fortuna,
No. 1:12-cr-00636-NLH
(D.N.J. filed Aug. 15, 2013), Dkt. 109 ..............
Plea Agreement,
United States v. Irish,
No. 1:13-cr-00142-PB
(D.N.H. filed Dec. 11, 2014), Dkt. 102 .............
Plea Agreement,
United States v. Lopez,
No. 1:04-cr-00209-LY-1
(W.D. Tex. filed Sept. 20, 2004), Dkt. 73-2......
Plea Agreement,
United States v. Mangels,
No. 9:16-cr-00006-DLC
(D. Mont. filed June 13, 2016), Dkt. 50............
8
9
7
8
8
8
7
10
xiii
TABLE OF AUTHORITIES—Continued
Page(s)
Plea Agreement,
United States v. Martinez,
No. 8:04-cr-00567-EAK-TGW
(M.D. Fla. filed Oct. 17, 2005), Dkt. 67 ............
Plea Agreement,
United States v. Montgomery,
No. 1:13-cr-00273-CG-C-1
(S.D. Ala. filed Feb. 7, 2014), Dkt. 17 ..............
Plea Agreement,
United States v. Newton,
No. 1:13-cr-00094-LPS-1
(D. Del. filed Sept. 19, 2013), Dkt. 48 ..............
Plea Agreement,
United States v. Stolkner,
No. 2:15-cr-00143-JDL
(D. Maine filed Mar. 29, 2016), Dkt. 116 .........
Plea Agreement,
United States v. Torres,
No. 2:12-cr-00154-KJD-GWF-1
(D. Nev. filed Dec. 31, 2013), Dkt. 60 ..............
Plea Agreement,
United States v. Wong,
No. 4:11-cr-427-PJH-1
(N.D. Cal. filed Jan. 12, 2017), Dkt. 43 ............
Susan R. Klein, et al.,
Waiving the Criminal Justice System,
52 Am. Crim. L. Rev. 73 (2015) ........................
8
8
8
8
9
9
5
IN THE
Supreme Court of the United States
————
NO. 17-1026
GILBERTO GARZA, JR.,
Petitioner,
v.
STATE OF IDAHO,
Respondent.
————
On Writ of Certiorari
to the Supreme Court of Idaho
————
BRIEF OF THE IDAHO ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AND THE
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS AS AMICI CURIAE
IN SUPPORT OF PETITIONER
————
INTEREST OF AMICI CURIAE1
Established in 1989, the Idaho Association of Criminal
Defense Lawyers (“IACDL”) is a nonprofit, voluntary
organization of attorneys. Currently, IACDL has over
1
No counsel for a party authored this brief in whole or in part; no
such counsel or party made a monetary contribution intended to
fund the preparation or submission of the brief; and no person other
than amicus, its members, and its counsel made such a contribution.
The parties’ letters consenting to the filing of this brief have been
filed with the Clerk.
2
400 lawyer members, all of whom practice criminal defense. IACDL’s membership includes both public defenders and private counsel, attorneys who work in both
state and federal courts, and attorneys who focus on trials, appeals, postconviction, and federal habeas proceedings. One of IACDL’s primary goals is to improve the
quality of representation provided to criminal defendants
in Idaho, especially for those who cannot afford to retain
counsel. For those reasons, IACDL has a strong commitment to ensuring that Idaho defendants receive adequate assistance of counsel at trial and that they are fully
able to effectuate their rights to appeal.
The National Association of Criminal Defense Lawyers (“NACDL”) is a nonprofit, voluntary professional
bar association that works on behalf of criminal defense
attorneys and strives to ensure justice and due process
for those accused of crime or misconduct. NACDL was
founded in 1958. It has a nationwide membership of
many thousands of direct members—up to 40,000, counting affiliates. NACDL’s members include private criminal defense lawyers, public defenders, military defense
counsel, law professors, and judges. NACDL is the only
nationwide professional bar association for public defenders and private criminal defense lawyers.
Given the size and breadth of IACDL’s and NACDL’s
memberships, the organizations have substantial practical expertise regarding how defense attorneys, their clients, and courts operate. IACDL and NACDL likewise
have insight into how each of those actors deals with the
issues implicated by this case, i.e., the scope and validity
of plea agreements and appeal waivers, and ineffective
assistance of counsel claims.
3
SUMMARY OF ARGUMENT
This case arises from counsel’s failure to file notices of
appeal against the client’s instructions in two different
cases. In 2015, Mr. Garza signed guilty pleas containing
waivers of his rights to appeal. Pet. App. 44a ¶ 7, 49a ¶ 6.
But the trial court “advised Garza of his appeal rights
anyway.” Id. at 3a. After sentencing, Mr. Garza asked
his trial counsel to file notices of appeal. See ibid. Counsel refused. See ibid.
Mr. Garza then filed petitions for postconviction relief,
arguing, among other things, that his plea was involuntary and that his counsel was ineffective for failing to file
notices of appeal. Pet. App. 29a-30a. The Idaho Supreme
Court affirmed dismissal of the petitions, holding that
Mr. Garza could not show ineffective assistance of counsel because he could not prove any prejudice from his
counsel’s failure to follow instructions. See id. at 38a-39a.
That decision was wrong: Mr. Garza was entitled to a
presumption of prejudice, a presumption that is appropriate in this case notwithstanding the presence of an appeal waiver.
I. An attorney’s failure to file a notice of appeal badly disadvantages a defendant. As this Court held in Roe
v. Flores-Ortega, 528 U.S. 470 (2000), that failure “demands a presumption of prejudice” because it results in
the “forfeiture of a proceeding.” Id. at 483. That remains true even where a defendant has agreed to an appeal waiver.
Appeal waivers vary dramatically in form and scope.
Thus, defendants will often have viable appellate claims
despite appeal waivers, simply because the claims fall
outside the scope of the waiver. Moreover, one thing that
all waivers have in common is that they allow defendants
4
to pursue at least some claims on appeal. No waiver categorically bars every type of appeal.
Given those facts, it is no surprise that defendants
have often succeeded on appeal despite waivers. In some
cases, defendants have prevailed on arguments that fall
beyond the scope of their particular waivers. In others,
they have succeeded in challenging their convictions and
sentences despite even the broadest waivers, based on
the involuntariness of the plea, the inadequate factual basis for the plea, or breach of the plea agreement by the
government—to name only a few bases for relief.
There is thus no reason to deviate from the presumption of prejudice that applies under Flores-Ortega simply
because the plea agreement contains a waiver. Defendants whose counsel refuse to file a notice of appeal suffer
the same fate whether or not they have agreed to a waiver: They forfeit their direct appeals—appeals that may
well have been successful despite the waiver. The same
presumption of prejudice should therefore apply in both
circumstances.
II. Although a defendant wrongfully denied an appeal
could still attempt to pursue certain claims on collateral
review, that review is an inadequate substitute for a direct appeal. Issues generally may not be raised for the
first time in postconviction proceedings. As a result, a
defendant whose attorney failed to file a notice of appeal
may never have an opportunity to raise certain claims.
Even if a defendant can raise a claim in postconviction
proceedings, the defendant will typically have to do so
under heightened pleading standards. And the defendant will also normally have to do so without the benefit of
counsel. Those obstacles create an intolerable risk that
defendants who involuntarily signed guilty pleas will end
up in prison.
5
The judgment below should be reversed.
ARGUMENT
I. A PRESUMPTION OF PREJUDICE IS APPROPRIATE
BECAUSE DEFENDANTS OFTEN SUCCEED ON APPEAL
DESPITE WAIVERS
This Court held in Roe v. Flores-Ortega, 528 U.S. 470
(2000), that prejudice should be presumed where counsel
fails to notice an appeal against the client’s instructions
because that failure results in the “forfeiture of a proceeding.” Id. at 483. An appeal waiver does not provide
a sufficient reason to deviate from that presumption.
Appeal waivers differ dramatically in form and content
across jurisdictions. See Susan R. Klein, et al., Waiving
the Criminal Justice System, 52 Am. Crim. L. Rev. 73,
122-126 (2015) (collecting examples). Some waivers apply
only to direct appeals, some waive only certain errors in
sentencing or trial, some permit appeals on all issues
with certain exceptions, and some expressly permit defendants to bring certain substantive claims. Even the
broadest waivers may be successfully challenged on the
ground that the plea was involuntary, among others. See
Campbell v. United States, 686 F.3d 353, 358 (6th Cir.
2012) (“[W]aiver[s] of appeal rights can be challenged on
various * * * grounds * * * .”); Watson v. United States,
493 F.3d 960, 964 (8th Cir. 2007) (appeal waivers “d[o] not
foreclose appeal altogether”); Campusano v. United
States, 442 F.3d 770, 777 (2d Cir. 2006) (Sotomayor, J.)
(appellate relief is “not inconceivable” even if defendant
seems to have “sign[ed] away the right to appeal”).
As a result, defendants who agree to waivers may still
bring certain claims on appeal—including claims that fall
outside the scope of the waiver or challenges to the validity of the plea. Examples abound of defendants who have
succeeded on such claims.
6
An attorney’s decision, over the client’s express instructions, to forfeit the client’s appeal can thus have profound effects. Regardless of an appeal waiver, forfeiting
an appeal can be the difference between conviction or no
conviction. Or it can affect the amount of time a person
spends behind bars. A presumption of prejudice is necessary to ensure that defendants do not suffer the consequences of their attorneys’ unilateral decisions not to notice their appeals.
A. Defendants Often Succeed on Appeal Based on
Issues Beyond the Scope of Their Particular
Waivers
Many appeal waivers do not even purport to bar all
potentially available claims. Often, waivers are written
or interpreted to bar only certain claims, leaving others
available for appellate review. The federal courts of appeals unanimously agree that “[a] valid and enforceable
appeal waiver * * * only precludes challenges that fall
within its scope.” United States v. Hardman, 778 F.3d
896, 899 & n.2 (11th Cir. 2014) (“All eleven * * * circuits
with criminal jurisdiction agree * * * .”).2 Thus, even in
2
See also United States v. Santiago-Burgos, 750 F.3d 19, 22-23 (1st
Cir. 2014) (similar); United States v. Grimes, 739 F.3d 125, 128-129
(3d Cir. 2014) (similar); United States v. Droganes, 728 F.3d 580, 586
(6th Cir. 2013) (similar); United States v. Davis, 689 F.3d 349, 354355 (4th Cir. 2012) (similar); United States v. Scallon, 683 F.3d 680,
682 (5th Cir. 2012) (similar); United States v. Lonjose, 663 F.3d 1292,
1297 (10th Cir. 2011) (similar); United States v. Chapa, 602 F.3d 865,
868 (7th Cir. 2010) (similar); United States v. Selvy, 619 F.3d 945,
950-951 (8th Cir. 2010) (similar); United States v. Speelman, 431
F.3d 1226, 1229 (9th Cir. 2005) (similar); see, e.g., United States v.
Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016) (permitting appeal because waiver did not “unambiguously foreclose [defendant’s] challenges”); United States v. Oladimeji, 463 F.3d 152, 156 (2d Cir. 2006)
(determining whether challenge “fall[s] within the scope of [defendant’s] appeal waiver”).
7
cases involving appeal waivers, defendants will often
have potentially meritorious appellate claims based on
issues beyond the scope of the waiver. That prospect
alone forecloses any argument that a presumption of
prejudice is inappropriate for cases involving appeal
waivers.
1. The variations in the scope of appeal waivers are
almost infinite. Certain waivers, for example, apply only
to challenges to the defendant’s sentence, not to the underlying conviction. See, e.g., Plea Agreement ¶ 7, United States v. Lopez, No. 1:04-cr-00209-LY-1 (W.D. Tex.
filed Sept. 20, 2004), Dkt. 73-2 (“Defendant expressly
waives the right to appeal his sentence on any ground
* * * .” (emphasis added)). Those waivers necessarily
leave open broad grounds for appeal.
In United States v. Palmer, 456 F.3d 484 (5th Cir.
2006), for example, the defendant signed an appeal waiver that barred appeals of the “sentence imposed” but did
not expressly mention direct appeals from his conviction.
Id. at 486-487. The defendant sought to appeal his conviction on the ground that there was no adequate factual
basis for his guilty plea. Id. at 489. The court allowed
the appeal, holding that “the language barring a sentencing appeal” did not “bar[ ] appeal of a conviction.” Id. at
488. “A defendant’s waiver of his right to appeal a sentence is just that,” the court explained—“it does not also
constitute a waiver of his right to challenge a conviction.”
Ibid. The court ultimately vacated one count, finding
that the plea was “based on facts precluding conviction.”
Id. at 492.
2. Some waivers expressly allow defendants to bring
certain specific substantive claims on direct appeal.
Claims of prosecutorial misconduct, for example, are often expressly carved out. See, e.g., Plea Agreement at 9-
8
10, United States v. Daniels, No. 3:11-cr-00008-WKWCSC (M.D. Ala. filed Feb. 16, 2012), Dkt. 203 (waiver
covering “any and all rights” to appeal except “the right
to appeal on the ground of * * * prosecutorial misconduct”); Plea Agreement ¶ 9, United States v. Campbell,
No. 4:16-mj-03179-JR (D. Ariz. filed Aug. 31, 2016), Dkt.
27 (similar). So are challenges based on newly discovered
evidence or changes in law. See, e.g., Plea Agreement ¶ 4,
United States v. Stolkner, No. 2:15-cr-00143-JDL (D.
Maine filed Mar. 29, 2016), Dkt. 116 (“waiver * * * shall
not apply to appeals based on a right that has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review”); Plea Agreement ¶ 13, United States v. Irish, No. 1:13-cr-00142-PB
(D.N.H. filed Dec. 11, 2014), Dkt. 102 (similar).
Other waivers permit defendants to raise certain errors relating to their sentencing proceedings. Many permit defendants to appeal if the sentence exceeds the applicable guidelines range. See, e.g., Plea Agreement ¶ 15,
United States v. Newton, No. 1:13-cr-00094-LPS-1
(D. Del. filed Sept. 19, 2013), Dkt. 48. Others limit review
to certain issues, such as “any right [the defendant] may
have * * * to appeal the sentencing court’s determination
of the criminal history category.” Plea Agreement at 11,
United States v. Fortuna, No. 1:12-cr-00636-NLH
(D.N.J. filed Aug. 15, 2013), Dkt. 109. Others permit an
appeal if the sentence imposed exceeds the stipulated
maximum. See, e.g., Plea Agreement at 9-10, United
States v. Flanders, No. 2:12-cr-00363-TLN-EFB (E.D.
Cal. filed Feb. 2, 2015), Dkt. 59; Plea Agreement
¶ 24(a)(1)-(2), United States v. Montgomery, No. 1:13-cr00273-CG-C-1 (S.D. Ala. filed Feb. 7, 2014), Dkt. 17 (similar); see also Plea Agreement at 11, United States v.
Martinez, No. 8:04-cr-00567-EAK-TGW (M.D. Fla. filed
9
Oct. 17, 2005), Dkt. 67 (allowing challenges on “ground
that the sentence violates the Eighth Amendment”).
Other waivers preserve arguments relating to rulings
on motions to suppress evidence. See, e.g., Plea Agreement at 11, United States v. Torres, No. 2:12-cr-00154KJD-GWF-1 (D. Nev. filed Dec. 31, 2013), Dkt. 60 (permitting appeal based on “the District Court’s denial of
[defendant’s] motion to suppress” as to “the inventory
search of [defendant’s] vehicle”). Or they preserve the
defendant’s “ability to appeal [certain] conditions of supervised release.” See, e.g., Plea Agreement at 10-11,
United States v. Cervantes, No. 5:09-cr-00011-VAP (C.D.
Cal. filed Mar. 31, 2010), Dkt. 127.
Some waivers expressly permit challenges to the voluntariness of the plea (claims that courts generally permit regardless of the waiver’s language, see pp. 12-13,
infra). See, e.g., Plea Agreement ¶ 18, United States v.
Baxter, No. 3:10-cr-00074 (M.D. Tenn. filed Feb. 15,
2013), Dkt. 43 (waiver “shall [not] apply to a claim of involuntariness”). Others expressly permit claims for ineffective assistance of counsel (which courts likewise normally permit regardless of the waiver’s specific language,
see pp. 11-12, infra). See, e.g., Plea Agreement ¶ 15,
United States v. Brooks, No. 1:14-cr-00209-TWP-TAB
(S.D. Ind. filed July 28, 2015), Dkt. 139 (“This * * * waiver does not encompass claims that Defendant received
ineffective assistance of counsel in the negotiation of the
plea or plea agreement.”); Plea Agreement ¶ 2, United
States v. Wong, No. 4:11-cr-427-PJH-1 (N.D. Cal. filed
Jan. 12, 2017), Dkt. 43 (similar); Plea Agreement ¶ 8,
10
United States v. Mangels, No. 9:16-cr-00006-DLC (D.
Mont. filed June 13, 2016), Dkt. 50 (similar).3
3. Even seemingly broad appeal waivers have been
interpreted to exclude certain claims.
In State v. Straub, 153 Idaho 882 (2013), for example,
the Supreme Court of Idaho held that a challenge to a
restitution order fell outside the scope of a broadly worded waiver. Id. at 886. The defendant “waive[d] the right
to appeal any issues regarding the conviction, including
all matters involving the plea or sentencing.” Id. at 885.
The defendant argued that the waiver did “not encompass his right to appeal from the district court’s restitution order since restitution proceedings are not part of a
defendant’s sentence.” Id. at 886 (quotation marks omitted). The court agreed, concluding that the restitution
order was an abuse of discretion and vacating the order.
See id. at 887, 890.4
3
Courts sometimes find that ineffective assistance of counsel claims
“fall outside the scope” of appeal waivers, but defer them to § 2255
proceedings to allow further development of the record. See, e.g.,
United States v. Benson, 553 F. App’x 660, 661 (8th Cir. 2014); United States v. Waupoose, 394 F. App’x 320, 322 (7th Cir. 2010); cf.
United States v. Pease, 240 F.3d 938, 943 n.5 (11th Cir. 2001) (assuming Apprendi issue fell “outside the scope of th[e] appeal waiver”).
4
See also In re Sealed Case, 702 F.3d 59, 63-65 (D.C. Cir. 2012) (defendant “did not knowingly waive his right to appeal the restitution
order” because appeal waiver was ambiguous); United States v.
Schulte, 436 F.3d 849, 850 (8th Cir. 2006) (“A waiver limited to
‘whatever sentence is imposed’ does not foreclose an appeal of a restitution order * * * .” (quoting United States v. Sistrunk, 432 F.3d
917, 918 (8th Cir. 2006)); Oladimeji, 463 F.3d at 156-157 (restitution
order not covered by waiver of right to appeal “sentence”); United
States v. Chem. & Metal Indus., Inc., 677 F.3d 750, 752 (5th Cir.
2012) (similar); United States v. Zink, 107 F.3d 716, 717-718 (9th Cir.
1997) (similar).
11
Courts have identified numerous other issues as beyond the scope of appeal waivers. See, e.g., United States
v. Jacobson, 15 F.3d 19, 22-23 & n.1 (2d Cir. 1994) (reading “agreement narrowly” to find that challenge to
court’s reliance on defendant’s “naturalized status as the
basis for the sentence” had not been waived); United
States v. Parenteau, 506 F. App’x 430, 433-434 (6th Cir.
2012) (argument that district court failed to give notice of
its reliance on testimony from another proceeding at sentencing was beyond scope of waiver of right to “appeal
any sentence imposed”); United States v. Preston, 598 F.
App’x 465, 466 (8th Cir. 2015) (“challenge to the district
court’s jurisdiction [wa]s beyond the scope of the appeal
waiver”).5
B. Defendants Often Succeed on Appeal Even on
Claims Within the Scope of a Waiver
Even where a claim falls within the literal scope of an
appeal waiver, courts have allowed defendants to pursue
certain types of claims. Many defendants have succeeded
in obtaining relief on appeal based on such challenges.
1. The federal courts of appeals agree, for example,
that even the broadest waivers do not bar ineffective as5
See also State v. Hansen, 156 Idaho 169, 175-176 (2014) (waiver applied only to one count of conviction); State v. Holdaway, 130 Idaho
482, 484 (1997) (denial of post-judgment motion not barred by waiver
that applied only to “judgment and sentence”); State v. Wicklund,
No. 38697, 2011 WL 11067224, at *1 (Idaho Ct. App. Dec. 29, 2011)
(similar); United States v. Hartshorn, 163 F. App’x 325, 329 (5th Cir.
2006) (“condition of supervised release that [defendant] not be released to the Southern District of Texas [ ]or to the residence of his
biological family” was “unauthorized by statute” and fell “outside the
scope of [defendant’s] appeal waiver”); Hunt, 843 F.3d at 1028 (“By
waiving his right to appeal any ‘term of supervised release,’ [defendant] did not necessarily give up the right to appeal a condition of
such release.”).
12
sistance of counsel claims. See, e.g., Hurlow v. United
States, 726 F.3d 958, 966 (7th Cir. 2013) (“[A] waiver does
not bar a challenge regarding the validity of a plea
agreement (and necessarily the waiver it contains) on
grounds of ineffective assistance of counsel * * * .”);
United States v. Guillen, 561 F.3d 527, 530 (D.C. Cir.
2009) (similar); United States v. Mabry, 536 F.3d 231, 243
(3d Cir. 2008) (similar); Washington v. Lampert, 422 F.3d
864, 871 (9th Cir. 2005) (similar); United States v. Hahn,
359 F.3d 1315, 1327 (10th Cir. 2004) (en banc) (similar);
United States v. Hernandez, 242 F.3d 110, 113-114 (2d
Cir. 2001) (similar); United States v. Henderson, 72 F.3d
463, 465 (5th Cir. 1995); United States v. Attar, 38 F.3d
727, 732-733 (4th Cir. 1994).
The federal courts of appeals have also uniformly held
that a defendant may challenge a guilty plea as involuntary or uninformed despite an appeal waiver. See, e.g.,
United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003)
(en banc) (“[A] defendant may knowingly and voluntarily
enter into a plea agreement waiving the right to a jury
trial, but nonetheless fail to have knowingly and voluntarily waived other rights—including appellate rights.”);
United States v. Teeter, 257 F.3d 14, 18 (1st Cir. 2001)
(similar); United States v. Khattak, 273 F.3d 557, 558 (3d
Cir. 2001); United States v. Joiner, 183 F.3d 635, 644-645
(7th Cir. 1999). An element of any challenge to the voluntariness of a plea is whether the trial judge made it sufficiently clear that the defendant was waiving the right to
appeal. See Hardman, 778 F.3d at 899 (“For an appeal
waiver to be enforced, the government must show either
that (1) the district court specifically questioned the defendant about the provision during the plea colloquy, or
(2) it is manifestly clear from the record that the defendant fully understood the significance of the waiver.” (quo-
13
tation marks omitted)); Khattak, 273 F.3d at 563 (similar).6
Courts have similarly held that a defendant can appeal
a conviction as lacking an adequate factual basis under
Federal Rule of Criminal Procedure 11(b)(3) despite a
facially applicable appeal waiver. See, e.g., United States
v. Spruill, 292 F.3d 207, 215 (5th Cir. 2002).
Defendants have succeeded in obtaining relief on all
those types of claims. In United States v. Olson, 880
F.3d 873 (7th Cir. 2018), for example, the Seventh Circuit
refused to enforce an appeal waiver that was not knowing
and voluntary, holding that “an invalid waiver cannot insulate an invalid plea.” Id. at 880. “[B]ecause the district
court never asked the right questions” during the plea
colloquy, the court did “not know whether [the defendant
had] entered a voluntary and intelligent guilty plea” and
would not enforce the terms of the agreement. Id. at 875.
The court thus reversed the conviction. See id. at 881.
Likewise, in United States v. Wingo, 789 F.3d 1226
(11th Cir. 2015), the Eleventh Circuit vacated a conviction on the basis that the district court had failed to conduct a competency hearing. Id. at 1228. The court rejected the argument that the sentence appeal waiver
barred the defendant’s “claim that he was incompetent to
6
See also, e.g., In re Sealed Case, 702 F.3d at 63-65 (defendant did
not “knowingly waive his right to appeal the restitution order” because Rule 11 colloquy did not make clear that waiver covered restitution order); Teeter, 257 F.3d at 27 (refusing to enforce waiver
“[g]iven the court’s failure to make inquiry into the waiver, its unfortunate contradiction of the waiver’s terms, and the lack of any correction, then or thereafter”). That inquiry is particularly important
here, where, although the plea agreements contained waivers, the
trial court “advised Garza of his appeal rights anyway.” Pet. App.
3a.
14
plead guilty and face sentencing,” explaining that the
“appeal waiver itself would be invalid if [the defendant]
lacked the mental capacity to understand and appreciate
the nature and consequences of the plea agreement.” Id.
at 1234 n.8.
Similarly, in United States v. Aquino-De La Rosa, 139
F. App’x 298 (1st Cir. 2005), the defendant “waive[d] the
right to appeal * * * [his] guilty plea and any other aspect
of [his] conviction,” as well as “[t]he adoption by the District Court at sentencing of [certain specifically identified] positions.” Id. at 299. The defendant appealed, arguing that resentencing was required under United
States v. Booker, 543 U.S. 220 (2005). See Aquino-De La
Rosa, 139 F. App’x at 299. The government “moved for
summary affirmance on the grounds that defendant
waived his right to appeal in his plea agreement.” Ibid.
The First Circuit “decline[d] to enforce the waiver because its terms were not clearly explained during the
plea colloquy.” Ibid. “[T]he district court failed to call
defendant’s attention to the appeal waiver and, instead,
affirmatively sought and obtained confirmation of defendant’s understanding that he had an unqualified right
to appeal his sentence.” Ibid. The court ultimately
agreed with the defendant regarding the alleged Booker
error and vacated the sentence. Id. at 300.7
Many other courts have similarly granted relief on the
basis that defendants did not knowingly and voluntarily
agree to appeal waivers. See, e.g., United States v. Velazquez, 855 F.3d 1021, 1033 (9th Cir. 2017) (holding “ap7
See also United States v. Quirindongo-Collazo, 213 F. App’x 10, 12
(1st Cir. 2007) (finding appeal waiver unenforceable because, during
sentencing hearing, “there was no mention by any party of the appeal waiver, nor of any effect that waiver might have on appellant’s
right to appeal,” and vacating sentence on basis of Booker error).
15
peal waiver * * * unenforceable” where defendant was
“constructively denied her * * * right to counsel” and vacating conviction); United States v. Atkinson, 354 F.
App’x 250, 252 (6th Cir. 2009) (similar); United States v.
Rodriguez-Perez, 184 F. App’x 451, 453 (5th Cir. 2006)
(similar); United States v. Pena, 314 F.3d 1152, 1154 n.1
(9th Cir. 2003) (similar); United States v. Portillo-Cano,
192 F.3d 1246, 1252 (9th Cir. 1999); People v. Smith, 143
A.D.3d 31, 34 (1st Dep’t 2016), aff ’d, 30 N.Y.3d 626
(2017); Ex parte De Leon, 400 S.W.3d 83, 89-91 (Tex.
Crim. App. 2013).
Finally, courts have granted relief based on inadequacies in the factual basis for the plea. In Spruill, for example, the defendant appealed his conviction on the
ground that there was an inadequate factual basis for his
plea. 292 F.3d at 215. The court did not dispute that the
claim fell within “the waiver of appeal provisions in [the]
plea agreement,” which “waived the right to appeal [the
defendant’s] conviction and sentence.” Id. at 211-215.
But the court nonetheless held that the waiver did not
bar review because the defendant could not be “prosecuted (and imprisoned) for conduct that does not violate
the law.” Id. at 215 (quotation marks omitted). The
court thus vacated the conviction. See id. at 221.
2. Courts also grant relief on appeal despite waivers
where ordinary contract principles preclude enforcement
of the waiver. Like contracts, plea agreements will be
enforced (or not) according to ordinary contract principles. See United States v. Scallon, 683 F.3d 680, 682 (5th
Cir. 2012) (applying “ ‘ordinary principles of contract interpretation’ ” (quoting United States v. Cooley, 590 F.3d
293, 296 (5th Cir. 2009))).
In United States v. Almonte-Nuñez, 771 F.3d 84 (1st
Cir. 2014), for example, the waiver “foreclosed [the de-
16
fendant] from appealing only if he was ‘sentenced in accordance with the terms and conditions set forth in the
Sentence Recommendation provisions’ of the Agreement.” Id. at 88. But the district court imposed sentences that “were not in conformity with the Agreement’s
sentence recommendation provisions,” rendering the
waiver “a dead letter.” Id. at 88-89. Addressing the merits of the defendant’s appeal, the court found that the
sentence imposed on one count exceeded the statutory
maximum and vacated that sentence. Id. at 92-93.
As in contract law, moreover, one side’s breach can excuse the other side’s performance. In United States v.
Dawson, 587 F.3d 640 (4th Cir. 2009), for example, the
Fourth Circuit recognized that “[a] defendant’s waiver of
appellate rights cannot foreclose an argument that the
government breached its obligations under the plea
agreement.” Id. at 644 n.4. The court thus vacated the
defendant’s sentence on the basis that the government
“breached the plea agreement when the AUSA failed to
recommend to the district court at sentencing that [the
defendant] receive a two-level minor participant reduction.” Id. at 645, 648. Indeed, the government did not
even “seek to enforce [the] appeal waiver” because it
conceded the breach. Id. at 644 n.4.
Similarly, in United States v. Lovelace, 565 F.3d 1080
(8th Cir. 2009), the Eighth Circuit held an appeal waiver
unenforceable where the government had “breached the
[plea] agreement by advocating a higher [offense] level”
than specified in the agreement. Id. at 1087. The court
thus considered the defendant’s argument that the district court abused its sentencing discretion and vacated
the judgment on that basis. Id. at 1092-1093.
Also as in contract law, plea agreements will be construed to give effect to the parties’ bargain. Following
17
that principle, in United States v. Woltmann, 610 F.3d 37
(2d Cir. 2010), the Second Circuit declined to enforce a
waiver because doing so would have “denied the parties
their bargain and reasonable expectations.” Id. at 42.
The parties had entered into an agreement providing
that “ ‘the court [wa]s required to consider any applicable
Guidelines provisions as well as other factors enumerated
in 18 U.S.C. § 3553(a),’ ” and that “ ‘the defendant agrees
not to . . . appeal . . . the conviction or sentence in the
event that the Court imposes a term of imprisonment of
27 months or below.’ ” Id. at 39. The district court refused to consider the government’s 5K1.1 letter requesting a below-Guidelines sentence because it “believed that
because of the appeal waiver, any sentence at or below 27
months was appropriate, regardless of whether or how
the 5K1.1 letter and the § 3553(a) factors—if considered—would bear on the sentence.” Ibid. The Second
Circuit vacated the sentence, finding that the district
court “improperly ‘relied’ on” and “misread” the Agreement. Id. at 40. “In so doing,” the court explained, “the
district court failed to give effect to the parties’ expectations and deprived [the defendant] of the benefit that he
(and the government) agreed he would receive from signing the Agreement (i.e., a weighing of the 5K1.1 letter
and the § 3553 factors).” Ibid.
3. Courts have likewise refused to enforce waivers
where doing so would undermine the fundamental fairness of the proceedings or result in a manifest miscarriage of justice.
In United States v. Adams, 814 F.3d 178 (4th Cir.
2016), for example, the Fourth Circuit vacated a conviction on the basis of actual innocence despite the fact that
“neither party argue[d] that [the defendant’s] waiver was
invalid, and there [wa]s no evidence in the record to sup-
18
port such a conclusion.” Id. at 182. The defendant had
pleaded guilty to one count each of robbery, using and
carrying a firearm during a crime of violence, and being a
felon in possession of a firearm. See id. at 180. The plea
agreement permitted him “to challenge his conviction or
sentence” only on “the basis of ineffective assistance of
counsel or prosecutorial misconduct.” Ibid. The defendant later sought to vacate his felon-in-possession conviction on the basis of a new Fourth Circuit decision that
rendered his prior convictions misdemeanors, not felonies. Id. at 181. In light of that decision, the defendant
was actually innocent of the felon-in-possession count.
Id. at 182-183. The court “conclude[d] that [his] claim of
actual innocence [wa]s outside the scope of the appeal
waiver” and vacated the conviction. Id. at 182, 185.
Similarly, in Mathis v. United States, No. 7:09-cr-1391BO, 2012 WL 1156438 (E.D.N.C. Apr. 6, 2012), the court
concluded that whether the defendant “was properly
classified as a career offender” in light of a change in law
was an error “the defendant could not have reasonably
contemplated at the time of the plea agreement” and was
thus “not barred by [the] appeal waiver, even if that
waiver was knowing and voluntary.” Id. at *5 (quotation
marks omitted). Addressing the merits, the court held
that the defendant was “no longer a career offender,”
granted his request for postconviction relief pursuant to
28 U.S.C. § 2255, and vacated his sentences. Mathis,
2012 WL 1156438, at *6.
And in United States v. Castro, 704 F.3d 125 (3d Cir.
2013), the Third Circuit found that the defendant had entered into a “knowing and voluntary waiver” that “foreclosed[d] his appeal” from his false-statement conviction.
Id. at 137. However, the court declined to enforce the
waiver because the record was “devoid of evidence that
19
[the defendant] made a false statement.” Ibid. The court
thus reversed the conviction to avoid “a manifest miscarriage of justice.” Id. at 138, 144 (quotation marks omitted).
4. Finally, a defendant may succeed on appeal despite an appeal waiver because the waiver itself can be
waived.
In Idaho, for example, appeal waivers have no effect if
the State chooses not to invoke them on appeal (i.e., if the
State waives the waiver). See, e.g., State v. Rendon,
No. 38275, 2012 WL 9492805, at *1 n.1 (Idaho Ct. App.
May 11, 2012) (State “fail[ed] to raise” waiver); State v.
Rodriguez, No. 45233, 2018 WL 700168, at *1 n.1 (Idaho
Ct. App. Feb. 5, 2018) (similar). Federal courts follow the
same rule. See, e.g., United States v. Cheney, 571 F.3d
764, 769 (8th Cir. 2009) (“[T]he government does not contend that [defendant’s] guilty plea bars him from challenging the factual basis for his plea—in effect, waiving
any claim to rely on a possible waiver * * * .”); United
States v. Obak, 884 F.3d 934, 937 (9th Cir. 2018) (holding
that “the government waived its ability to rely on [the
defendant’s appeal] waiver” because “the government’s
brief * * * did not raise the waiver issue”).
Defendants have succeeded on claims that would ordinarily have been precluded precisely because the waiver
was waived. See, e.g., United States v. Ortega-Hernandez, 804 F.3d 447, 449, 451 (D.C. Cir. 2015) (holding that
court “need not enforce an appeal waiver” barring appeals of sentence “when the government ha[d] not asked
[it] to do so” and instructing district court to vacate sexoffender registration condition on remand); United
States v. Jones, 667 F.3d 477, 486 (4th Cir. 2012) (declining to “sua sponte enforce” waiver and holding that district court’s imposition of career offender enhancement
20
was error); United States v. Story, 439 F.3d 226, 229, 232233 (5th Cir. 2006) (finding that “the government ha[d]
waived” waiver of “right to appeal [defendant’s] sentence
on all grounds” and remanding for resentencing in light
of Booker error).
C. The Decision Below Ignores the Potential for
Meritorious Claims Even in Cases Involving
Appeal Waivers
The courts below asserted that where a defendant accepts an appeal waiver in a plea agreement, no appellate
relief remains available. See, e.g., Pet. App. 36a (“When a
defendant has waived his right to appeal in an enforceable plea agreement, dismissal—not consideration on the
merits—is the fate that awaits any appeal the defendant
files.”); id. at 26a (similar); id. at 13a (similar). Federal
courts following the minority approach have likewise
claimed that “the ‘presumption of prejudice’ ” under Flores-Ortega “really does not suit the situation in which a
waiver is present” because the “entitlement” to pursue
an appeal “disappears” once the defendant agrees to a
waiver. Mabry, 536 F.3d at 244; see Nuñez v. United
States, 546 F.3d 450, 454-456 (7th Cir. 2008) (similar).
That logic is flawed.
This Court held in Flores-Ortega that prejudice must
be presumed where counsel fails to file a notice of appeal
because that decision causes “the forfeiture of a proceeding itself.” 528 U.S. at 483. The same is true where the
defendant has signed an appeal waiver. Regardless of
the waiver, counsel’s failure to file a notice of appeal invariably results in the forfeiture of a judicial proceeding.
And, as shown above, the proceeding can—and often
does—result in substantive relief on appeal, even in the
presence of a purported waiver.
21
This Court has held that a presumption of prejudice is
appropriate where the “consequences” of an error are
“unquantifiable and indeterminate.” United States v.
Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (quotation
marks omitted). An attorney’s failure to file a notice of
appeal over the client’s instructions is such an error, regardless of whether there is an appeal waiver. Where
counsel refuses to notice an appeal, the court simply
“would have to speculate” about how a hypothetical direct appeal would have played out. Id. at 151. That is the
kind of error for which a presumption of prejudice is appropriate. See Flores-Ortega, 528 U.S. at 483 (“[W]e
cannot accord any presumption of reliability to judicial
proceedings that never took place.” (quotation marks and
citation omitted)).
Abandoning the presumption of prejudice for cases involving appeal waivers would not significantly reduce any
burdens on the courts. With or without a presumption of
prejudice, defendants will surely continue to file postconviction motions based on their attorneys’ failures to file
notices of appeal. And, as a result, courts addressing
their ineffective assistance of counsel claims will have to
determine whether the appeal waiver would have precluded their claims on appeal. Courts following the minority approach already undertake that onerous analysis.
See, e.g., Mabry, 536 F.3d at 237 (court has “an affirmative duty both to examine the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice”); United States v.
Egwuekwe, No. 1:14-cr-6, 2017 WL 5009100, at *6-8
(M.D. Pa. Nov. 2, 2017) (examining same); United States
v. Doss, No. 1:12-cr-326, 2017 WL 1709397, at *4-6 (M.D.
Pa. May 3, 2017) (similar); United States v. Dunlap,
22
No. 10-190, 2010 WL 4614557, at *2-4 (W.D. Pa. Nov. 5,
2010) (similar).8
Nor is there any basis for limiting the presumption’s
applicability based on the scope of the particular waiver
in the case. As shown above, courts have found certain
claims to be beyond the scope of even seemingly broad
appeal waivers. And courts have regularly allowed defendants to pursue various types of claims on appeal even
when they fall within the literal scope of a waiver.
Moreover, as shown above, waivers vary significantly
in form and scope. Thus, unless this Court applies a uniform presumption of prejudice to all failures to file a notice of appeal at the client’s direction, courts will inevitably be asked to address the issue for each different type
of appellate waiver. There is no need to waste the courts’
time and resources deciding the issue piecemeal for every different type of appellate waiver. What matters is
that all waivers permit some form of appeal. Accordingly, all defendants who instruct their counsel to file a notice of appeal are prejudiced when counsel fails to do so.
II. POSTCONVICTION PROCEEDINGS ARE NOT AN
ADEQUATE SUBSTITUTE FOR DIRECT APPELLATE
REVIEW
In some cases, defendants may be able to pursue their
claims in postconviction proceedings. For a number of
8
See also Solano v. United States, 812 F.3d 573, 576-578 (7th Cir.
2016) (refusing to presume prejudice and instead determining
whether underlying claim fell within scope of appellate waiver after
defendant brought ineffective-assistance claim based on counsel’s
failure to appeal); United States v. Hull, No. 16 C 2096, 2017 WL
6733689, at *3 (N.D. Ill. Dec. 19, 2017) (similar); Reynolds v. United
States, No. 12-12-RGA, 2014 WL 6983354, at *2-3 (D. Del. Dec. 9,
2014) (similar); Martinez v. United States, No. 05-cr-123-12, 2008
WL 4889665, at *7-9 (E.D. Pa. Nov. 12, 2008) (similar).
23
reasons, however, those proceedings cannot adequately
substitute for a direct appeal.
A. Claims That Are Not Raised on Direct Appeal
Generally Cannot Be Raised in Postconviction
Proceedings
Often, depriving a defendant of an appeal will result in
the forfeiture of any review at all. Generally, “claims not
raised on direct appeal may not be raised on collateral
review.” Massaro v. United States, 538 U.S. 500, 504
(2003). Thus, if an attorney decides not to file a notice of
appeal because a plea agreement includes a waiver, the
defendant will often be unable to challenge the validity of
the plea in postconviction proceedings.
Idaho is no exception. Under Idaho law, a “claim or
issue which was or could have been raised on appeal
may not be considered in post-conviction proceedings.”
Hughes v. State, 148 Idaho 448, 462 (Ct. App. 2009) (emphasis added); see ibid. (“An application for postconviction relief is not a substitute for an appeal.” (citing
Idaho Code § 19-4901(b)). The Idaho courts have determined that at least some challenges to the validity of a
guilty plea should be raised on direct appeal. See State v.
Hernandez, 121 Idaho 114, 116 (Ct. App. 1991) (“A defendant’s claim that his plea of guilty was involuntarily
given is an attack on the validity of the original conviction, and must be timely raised on a direct appeal from
the judgment of conviction.”); cf. State v. Colyer, 98 Idaho
32, 33 (1976) (vacating judgment of conviction because
“the record does not adequately show that appellant understood the consequences of a plea of guilty”); State v.
Cope, 142 Idaho 492, 496-497 (2006) (determining that
record showed the plea was knowing, intelligent, and voluntary). The State frequently seeks to dismiss postconviction petitions relating to the validity of guilty pleas on
24
the basis that the petitioner could and should have raised
the claim on direct appeal. See, e.g., Workman v. State,
144 Idaho 518, 524 (2007) (“[T]he State and the district
court observed that many of [petitioner’s] claims regarding his guilty plea either were or should have been raised
on direct appeal.”).
Proposing that defendants like Mr. Garza wait to raise
claims until postconviction review lays an unfair trap: By
that point, it may be too late to raise the claims at all.
B. Higher Pleading Standards Apply in Postcon-
viction Proceedings
The pleading standards for a postconviction petitioner
are typically far higher than they are on direct appeal.
Under Idaho law, for example, a “petition for postconviction relief initiates a proceeding that is civil in nature.” Pentico v. State, 159 Idaho 350, 353 (Ct. App.
2015). But, unlike the average civil complaint, a postconviction petition “must contain much more than a short
and plain statement of the claim that would suffice for a
complaint.” Id. at 354 (emphasis added); see also Fields
v. State, 155 Idaho 532, 536 (2013) (same). Instead, “a
petition for post-conviction relief must be verified with
respect to facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached or the petition
must state why such supporting evidence is not included
with the petition.” Pentico, 159 Idaho at 354; Fields, 155
Idaho at 536 (citing Idaho Code § 19-4903). “In other
words, the petition must present or be accompanied by
admissible evidence supporting its allegations or the petition will be subject to dismissal.” Pentico, 159 Idaho at
354; see State v. Payne, 146 Idaho 548, 560-561 (2008)
(similar).
25
The stringent pleading standards for postconviction
petitioners have real teeth. Idaho courts routinely deny
relief where petitioners do not submit the required evidence. See, e.g., Self v. State, 145 Idaho 578, 581 (Ct.
App. 2007) (dismissing petition because petitioner failed
to provide affidavit or deposition testimony by expert
supporting ineffectiveness claim); Murphy v. State, 143
Idaho 139, 150 (Ct. App. 2006) (dismissing petition because petitioner failed to proffer admissible evidence establishing details of how juror allegedly slept through
trial); Small v. State, 132 Idaho 327, 333 (Ct. App. 1998)
(dismissing petition because petitioner failed to introduce
medical testimony concerning effect of medication she
was on during trial).
None of those standards applies to a criminal defendant prosecuting a direct appeal. All the defendant must
do to adequately present an issue on direct appeal is support it with “propositions of law, authority, or argument.”
State v. Zichko, 129 Idaho 259, 263 (1996); see Fed. R.
App. P. 28(a)(8); Idaho App. R. 35(a)(4); Cal. Pac. Bank v.
FDIC, 885 F.3d 560, 570 (9th Cir. 2018) (“arguments are
waived” only where “the appellant does not present any
argument to support its assertions and cites no authority” or presents only “inadequately briefed and perfunctory arguments”); see, e.g., United States v. Suarez, 879
F.3d 626, 639 (5th Cir. 2018) (appellant’s “brief sufficiently presented his argument” where it set out legal standard and cited record). A defendant should not have to
satisfy a more challenging pleading standard just because counsel failed to notice the appeal the defendant
wanted and was entitled to pursue.
26
C. There Is No Constitutional Right to Counsel in
Postconviction Proceedings
Perhaps most importantly, “[t]here is no constitutional
right to an attorney in state post-conviction proceedings.”
Coleman v. Thompson, 501 U.S. 722, 752 (1991). By contrast, appointed counsel must be furnished to indigent
defendants on direct appeal. See Evitts v. Lucey, 469
U.S. 387, 393-394 (1985).
Similarly, under Idaho law, a postconviction petitioner
has no statutory right to postconviction counsel except in
capital cases. See Murphy v. State, 156 Idaho 389, 395
(2014). In non-capital postconviction cases—i.e., the
overwhelming majority of such actions—the appointment
of counsel “lies within the discretion of the district court.”
Melton v. State, 148 Idaho 339, 341 (2009).9 Idaho appellate courts regularly affirm decisions denying counsel to
postconviction petitioners. See, e.g., Nelson v. State, 157
Idaho 847, 856 (Ct. App. 2014); Gonzales v. State, 151
Idaho 168, 172-173 (Ct. App. 2011); Judd v. State, 148
Idaho 22, 24-26 (Ct. App. 2009).
A postconviction proceeding where the defendant is
without legal assistance cannot serve as an adequate replacement for a direct appeal where the defendant has
the invaluable benefit of an attorney. In Workman, for
example, the Supreme Court of Idaho upheld the denial
of postconviction counsel while rejecting the defendant’s
arguments that his plea was involuntary and never formally entered. See 144 Idaho at 527-529. Those are ex9 Only a tiny percentage of Idaho prisoners are under sentence of
death. See Idaho Dep’t of Corr., Supervised Population Snapshot,
https://dash.idoc.idaho.gov/ (26,044 prisoners as of Aug. 15, 2018);
Idaho Dep’t of Corr., Death Row, https://www.idoc.idaho.gov/
content/prisons/death_row (9 prisoners on death row as of Aug. 15,
2018).
27
actly the sort of issues that can be raised on direct appeal, even with a waiver. See pp. 12-13, supra. The
State’s approach would obligate defendants whose lawyers refuse to file notices of appeal to litigate pro se the
very same issues that they could and should have litigated on direct appeal with all the advantages of representation.
* * *
Idaho’s postconviction scheme exemplifies why a presumption of prejudice is appropriate where counsel fails
to file a notice of appeal. Channeling claims into postconviction proceedings forces defendants to pursue their
claims without the benefit of legal representation, to
overcome onerous pleading standards, and to risk losing
the claims altogether. It creates an intolerable risk that
defendants who involuntarily signed guilty pleas will end
up in prison. When a defense attorney deprives a client
of the chance for a direct appeal, the only way to ensure
that risk does not materialize is by presuming prejudice.
CONCLUSION
The judgment of the Supreme Court of Idaho should
be reversed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.