Petition for Writ of Certiorari — Justin Cole Milam, Petitioner v. United States
Supreme Court briefMar 28, 2019
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NO. _____________
In The
Supreme Court of the United States
-------------------------Ƈ-------------------------
JUSTIN COLE MILAM,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
-------------------------Ƈ------------------------ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
-------------------------Ƈ-------------------------
PETITION FOR WRIT OF CERTIORARI
-------------------------Ƈ-------------------------
Deborrah L. Newton
Counsel of Record
NEWTON LAW
557 East Edenton Street
Raleigh, North Carolina 27601
(919) 931-2294
newtonatlaw1@aol.com
Counsel for Petitioner
Dated: March 28, 2019
THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036
(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com
i
QUESTIONS PRESENTED
I.
Are appeal waivers presented in federal criminal plea agreements an
unconstitutional overreach by the Government preventing review of
constitutional questions [raised in the appeal] at the Appellate Division
in violation of due process guaranteed by the Fifth and Fourteenth
Amendments?
Subpart A: Can a plea containing an appeal waiver ever be
knowing and voluntary where the defendant is “bargaining” for
prospective sentencing favor of a Government who is not bound
to perform (thus illusory), and
Subpart B: Where he is not counseled by a defense pursuing any
constitutional protections or mitigation?
II.
Should [claims outside the waiver including IAC] be limited to “face of
record” standard where that precludes review of failure to act or false
inducement not appearing in the record, insulating failure by defense
counsel to protect or fully advise, as well as illusory inducements, on
direct review?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iv
PETITION FOR WRIT OF CERTIORARI ................................................................... 1
OPINION AND ORDER BELOW ................................................................................. 1
JURISIDICTION ........................................................................................................... 1
CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 1
INTRODUCTION .......................................................................................................... 2
STATEMENT OF THE CASE ....................................................................................... 7
REASONS FOR GRANTING THE PETITION ............................................................ 8
I.
The Question Presented Is The Subject Of An Acknowledged Split
Regarding the Rationale and Standards of Review for Approving
Appeal Waivers....................................................................................... 12
II.
The Decision Below Is “Wrong And Deeply Troubling” ........................ 22
III.
The Question Presented Is Important And Recurs Frequently ........... 24
IV.
The Question Presented Is Squarely Presented ................................... 25
CONCLUSION............................................................................................................. 27
APPENDIX:
Unpublished Opinion of
The United States Court of Appeals
For the Fourth Circuit
entered January 4, 2019 ........................................................................ 1a
iii
Judgment of
The United States Court of Appeals
For the Fourth Circuit
entered January 4, 2019 ........................................................................ 4a
Judgment in a Criminal Case of
The Eastern District of North Carolina
entered April 5, 2018 .............................................................................. 6a
Defendant’s Notice of Appeal
filed April 5, 2018 ................................................................................. 14a
Memorandum of Plea Agreement
filed August 21, 2017............................................................................ 16a
iv
TABLE OF AUTHORITIES
Page(s)
CASES
Barnes v. Lynaugh,
817 F.2d 336 (5th Cir. 1987) ............................................................................. 15
Brady v. U.S.,
397 U.S. 742 (1970) ..................................................................................... 14, 15
Douglas v. People of State of Cal.,
372 U.S. 353 (1963) ........................................................................................... 24
Garza v. Idaho,
__ U.S. __ (27 Feb. 2019, Pet. 17-1026) ..................................................... 12, 24
Hagar v. Reclamation Dist.,
111 U.S. 701 (1884) ............................................................................................. 3
Hurtado v. California,
110 U.S. 516 (1884) ............................................................................................. 3
Johnson v. Zerbst,
304 U.S. 458 (1937) ........................................................................................... 20
McNabb v. United States,
318 U.S. 332 (1943) ........................................................................................... 22
North Carolina v. Pearce,
395 U.S. 711 (1969) ......................................................................................... 3, 4
Olmstead v. United States,
277 U.S. 438 (1928) ..................................................................................... 21, 22
Patton v. United States,
281 U.S. 276 (1929) ........................................................................................... 20
People v. Butler,
43 Mich. App. 270, 204 N.W.2d 325 (1972) ...................................................... 23
People v. Harrison,
386 Mich. 269, 191 N.W.2d 371 (1971)............................................................. 23
v
People v. Jasper,
107 Misc. 2d 992, 436 N.Y.S.2d 18 (Sup. Ct. 1981) ......................................... 15
People v. Juliano,
74 A.D.2d 881, 426 N.Y.S.2d 23 (1980) ............................................................ 15
People v. Ledrow,
53 Mich. App. 511, 220 N.W.2d 336 (1974) ...................................................... 23
People v. Ramos,
30 A.D.2d 848, 292 N.Y.S.2d 938 (1968) .......................................................... 16
People v. Smith,
141 A.D.2d 988, 531 N.Y.S.2d 38 (1988) .......................................................... 15
People v. Stevenson,
60 Mich. App. 614, 231 N.W.2d 476 (1975) ................................................ 16, 23
People v. Ventura,
139 A.D.2d 196, 531 N.Y.S.2d 526 (1988) ........................................................ 16
People v. Williams,
143 A.D.2d 162, 531 N.Y.S.2d 807 (1988) ........................................................ 15
Rinaldi v. Yeager,
384 U.S. 305 (1966) ............................................................................................. 4
Smith v. United States,
360 U.S. 1 (1958) ............................................................................................... 20
State v. Ethington,
121 Ariz. 572, 592 P.2d 768 (1979) ............................................................. 16, 23
State v. McKinney,
406 So.2d 160 (La. 1981) ................................................................................... 15
United States v. Andis,
333 F.3d 886 (8th Cir., 2003) ............................................................................ 19
United States v. Ataya,
__F.3d __ (6th Cir. 16-2611) (Decided 3-2-2018) .............................................. 16
United States v. Cockerham,
237 F.3d 1179 (10th Cir.2001) .......................................................................... 19
vi
United States v. Elliott,
264 F.3d 1171 (10th Cir. 2001) ......................................................................... 19
United States v. Gill,
55 F.2d 399 (D. N.M. 1931) ............................................................................... 20
United States v. Guillen,
561 F.3d 527 (D.C. 2009) ........................................................................... 16, 17
United States v. Hahn,
359 F.3d 1315 (2004) ......................................................................................... 19
United States v. Johnson,
999 F. Supp. 437 (D.D.C. 1997) ........................................................................ 18
United States v. Lutchman,
__ F.3d __ (2d Cir. 6 Dec. 2018) (17-291).......................................................... 19
United States v. Melancon,
972 F.2d 556 (1992) ........................................................................................... 16
United States v. Mutschler,
152 F. Supp. 3d 1331 (W.D. Washington) (2016) ............................................. 17
United States v. Raynor,
989 F. Supp. 43 (D.D.C. 1997) .......................................................................... 18
United States v. Teeter,
257 F.3d 14 (1st Cir. 2001) ........................................................................ 19, 20
United States v. Vanderwerff,
2012 WL 2514933, at 1 (D. Colo. June 28, 2012) ............................................. 17
Vitek v. Jones,
445 U.S. 480 (1980) ........................................................................................... 14
CONSTITUTIONAL PROVISIONS
Mich. CONST. art. I, sec. 20 .......................................................................................... 23
U.S. CONST. amend. V .......................................................................................... 1, 2, 14
U.S. CONST. amend. VI .......................................................................................... 12, 20
vii
U.S. CONST. amend XIV ............................................................................................. 1, 2
STATUTE
28 U.S.C. § 1254(1) ........................................................................................................ 1
RULE
Fed. R. Crim. P. 35................................................................................................... 1, 13
GUIDELINE
U.S.S.G. § 5k1.1 ....................................................................................................... 1, 13
OTHER AUTHORITIES
Andrew Dean, “Challenging Appeal Waivers”,
61 Buffalo Law Review 1191 (2013) ........................................................................ 3, 10
Dalton, Taking the Right to Appeal (More or Less) Seriously,
95 Yale L. J. 62 (1985) ................................................................................................. 26
Gregory M. Dyer & Brendon Judge, Criminal Defendants' Waiver of the Right
to Appeal--An Unacceptable Condition of a Negotiated Sentence or Plea
Bargain,
65
Notre
Dame
L.
Rev.
649
(1990).
http://scholarship.law.nd.edu/ndlx/vol65/iss4/3 ............................................................ 4
Holly P. Pratesi, Waive Goodbye to Appellate Review of Plea Bargaining:
Specific Performance of Appellate Waiver Provisions Should be Limited to
Extraordinary Circumstances, 81 Brooklyn L. Rev. (2016) ....................................... 10
Nancy J. King & Michael E. O’Neill, Appeal Waivers and the Future of
Sentencing Policy, 55 Duke L.J. 209 (2005) ......................................................... 10, 24
P. Carrington, Meador and Rosenburg, Justice on Appeal 2 (1976) ......................... 21
R. Martineau, Fundamentals of Modern Appellate Advocacy 2 (1985)..................... 21
Robert E. Scott & William J. Stuntz Plea Bargaining as a
Contract 101 Yale L.J. 1909 (1992) ............................................................................. 17
viii
Susan R. Klein Waiving the Criminal Justice System: An Empirical and
Constitutional Analysis, University of Texas School of Law Public Law and
Legal
Theory
Research
Paper
Series
Number
556
(http://ssrn.com/abstract=2422545) ............................................................................ 13
USSC.gov/research/data-reports/overview-federal-criminal-cases-fiscal-year2012; 2013; 2014; 2015; 2016; 2017 and www.uscourts.gov/statisticsreports/federal-judicial-caseload-statistics-2012;
2013;
2014;
2015;
2016; 2017 .............................................................................................................. 10, 13
PETITION FOR WRIT OF CERTIORARI
Petitioner Justin Cole Milam respectfully petitions this Court for a writ of
certiorari to review the judgment of the Fourth Circuit Court of Appeals in this case.
OPINION AND ORDER BELOW
The Fourth Circuit Court of Appeals’ opinion (Pet. App. 1a-4a) is unpublished.
The District Court’s Judgment (Pet. App. 6a - 12a) is unpublished.
JURISDICTION
The judgment of the Fourth Circuit Court of Appeals was entered on January
4, 2019. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL
PROVISIONS INVOLVED
The Fifth and Fourteenth Amendment [applicable to the States] to the U.S.
Constitution provide that “No person ... shall be deprived of life, liberty, or property,
without due process of law...”.
The Fourteenth Amendment directs no State
“shall...deny to any person within its jurisdiction the equal protection of the laws.”
2
INTRODUCTION
The Supreme Court has applied the Fifth and Fourteenth Amendments’ due
process clause to protect a defendant’s statutory right to appeal a criminal conviction.
The Court has held that unreasonable deterrents or impediments placed upon the
right to appeal violate the defendant’s constitutional right to due process.
The
Supreme Court has not reached the question of whether bargaining away a
defendant’s right to appeal constitutes an unreasonable impediment to appellate
review.
Defendant contends waiver of the right to appeal made during the plea
bargaining process constitutes an unconstitutional impediment to the appellate
process in violation of the Fifth and Fourteenth Amendment and equal protection of
the laws.
Since the 1990s, appeal waivers have become official government policy in
Justice Department federal criminal plea agreements. This Court has not expressly
held plea agreements to be a contract; however, in all respects this is a contract and
as such defenses, including illusory terms, should apply and be an avenue of relief
where the agreement with appeal waiver is unconscionable, terms illusory, there is
undue influence, duress, or circumstances giving rise to results adverse to public
policy considerations. The “epidemic” of appeal waivers joins an arsenal of nonnegotiable items attendant to resolving criminal prosecutions with which prosecutors
can easily overreach, to include acceptance of responsibility points, promises to
consider without obligation 5k1.1 and Rule 35 sentence reduction motions, dismissal
3
of charges [often resulting from “stacking”, Andrew Dean, “Challenging Appeal
Waivers”, 61 Buffalo Law Review 1191, 1210] in exchange for “timely” pleas, and
threats to seek maximums upon refusal to plead.
Courts in the country apply different standards in deciding on motions to
dismiss appeal whether to uphold appeal waivers.
To prevail on a procedural due process violation claim, a criminal defendant
must satisfy the Court that 1) there was a deprivation; 2) of life, liberty or property;
and 3) in violation of procedural safeguards. This Court has recognized that the right
to appeal, once established, constitutes due process and the unfettered right to open
and equal access to the Courts shall not be impeded. See, Hagar v. Reclamation Dist.,
111 U.S. 701, 708 (1884). “Due process of law is [process which], following the forms
of law, is appropriate to the case and just to the parties affected. It must be pursued
in the ordinary mode prescribed by law; it must be adapted to the end to be attained;
and whenever necessary to the protection of the parties, it must give them an
opportunity to be heard respecting the justice of the judgment sought. Any legal
proceeding enforced by public authority, whether sanctioned by age or custom or
newly devised in the discretion of the legislative power, which regards and preserves
these principles of liberty and justice, must be held to be due process of law.” Id. at
708; Accord, Hurtado v. California, 110 U.S. 516, 537 (1884).
Any impediment of the custom of appeal is violation of that process due. North
Carolina v. Pearce, 395 U.S. 711, 724 (1969) (Justice Stewart, concluding, “...A
defendant’s exercise of a right to appeal must be free and unfettered.”) Quoting from
4
its decision in Rinaldi v. Yeager, 384 U.S. 305, 310-11 (1966), the Court emphasized
that while “[t]his Court has never held that the States are required to establish
avenues of appellate review, ... it is now fundamental that, once established, these
avenues must be kept free of unreasoned distinctions that can only impede open and
equal access to the courts.” 395 U.S. at 724.1
Here,
because
a
young,
naive
and
unwary
defendant
misled
by
underperforming [or coercive] counsel and the illusory promise of a sentencing
consideration by the Government signed a plea agreement containing waiver of
appeal, he was deprived of liberty [26 years] without regular due process of law.
Despite matters outside the appeal waiver, including ineffective assistance of counsel
and prosecutorial misconduct, as well as whether the plea was knowing and
voluntary based thereon, the circuit court declined review of complete failure of
process below.
Courts acknowledge uniformly plea waivers; however, the reasoning is in
conflict as to the underpinnings for such approval, creating disparity.
Moreover, the Justice Department employs discretion whether to enforce plea
waivers, creating disparity. Where, as here, the Government does not perform (nor
does it purport to promise to perform the illusory offer of substantial assistance
reduction driving the plea bargain), the waiver remains valid, and the Government
enforces it at the appellate division, subverting justice.
1
Gregory M. Dyer & Brendon Judge, Criminal Defendants’ Waiver of the Right to Appeal--An
Unacceptable Condition of a Negotiated Sentence or Plea Bargain, 65 Notre Dame L. Rev. 649 (1990).
http://scholarship.law.nd.edu/ndlx/vol65/iss4/3.
5
Where courts find plea agreements a valid exercise of contract between the
parties, they fail to analyze the validity of the waivers under the illusory nature of
the bargain for substantial assistance where by statute only the Justice Department
can file the reduction motions. Indeed, only the Justice Department can determine
the quality of the assistance without explanation or review.
Finally, waivers of the right to appeal precede possible error, forcing a false
“knowing and voluntary” requirement on a defendant prior to sentencing. No sound
public policy is advanced by such prophylactic procedure.
It is not a valid exercise of this Court’s oversight authority to enforce the
Constitution on behalf of the individual to decline review in order to slowly minimize
the impact on appeal waivers. The right to resort to the appellate division, once
established, must remain without exception “unfettered.” Appeal waivers are not a
valid exercise of Governmental authority and employing that as a condition of
negotiated plea in criminal cases invades the solemn oversight of the appellate
division with no sound public policy rationale.
There can be no greater miscarriage of justice than a 26 year prison term for a
21 year old with no prior record premised upon an unexamined plea and judgment
secured by false, coerced, or futile promises. This result attacks the very foundation
upon which criminal justice exists, to wit: to ensure adequate deterrence but equal
punishment for the same offense within the constitutional guidelines developed
through cases and code. Where no robust defense protected an unwary, naive accused
from a prosecutor willing to overreach unchecked, it is imperative the appellate
6
division act as an effective, reliable relief through consistently applied rationale, and
not as a toothless milquetoast abandoning its oversight. Appeal waivers as presently
employed nationally with inconsistent rationale on appeal upholding them do not
serve justice, carry far too much opportunity for abuse outside the record, and all but
eliminates a core function of our Constitutional duty to protect the individual. Milam
raised below substantial constitutional questions, which remain unexamined because
review was barred by the appeal waiver he failed to understand.
He should be heard fully on appeal.
The Court should grant certiorari.
7
STATEMENT OF THE CASE
1.
Defendant was not indicted in the district court; criminal information was filed
21 August 2017 alleging “manufacture of child pornography”. On 22 August
2017 the district court set the matter for “plea to criminal information” for 10
October 2017. Defendant entered a plea on 12 October 2017 to that charge.
The Memorandum of Plea contained an appeal waiver. Sentencing and
judgment was first set for 9 January 2018; however, the district court
expressed concern there was no psychological evaluation and continued the
matter for that presentation. Sentencing proceeded 5 April 2018, and
Defendant was sentenced to 312 months. The Court described in the
Statement of Reasons that this 26 year sentence was a “variance” sentence on
a guideline of life, statutory cap of 30 years. See, App. 1a.
2.
Defendant filed a pro se, handwritten Notice of Appeal from lock-up on 5 April
2018. Defense counsel did not file Notice of Appeal upon request.
3.
Defendant’s brief was filed in the Fourth Circuit Court of Appeals on 18
October 2018, raising constitutional issues as well as ineffective assistance of
counsel and sufficiency of the factual basis to support the offense to which
defendant pled.
4.
The Government moved to dismiss the appeal without responding to the
defendant’s brief in reliance upon the appeal waiver.
5.
On 4 January 2019 the Circuit Court in an unpublished decision granted the
Government’s motion on all issues except those it considered outside the appeal
waiver, and as to those, the Court declined to hear IAC on direct appeal
(including the argument that counsel’s performance resulted in failure of
knowing and voluntary plea, including the appeal waiver) and summarily
announced the facts were sufficient to support the guilty plea without
elaboration.
8
REASONS FOR GRANTING THE PETITION
There is an abiding injustice recurring in the criminal courts of the United
States each and every day because a Government who bears enormous and
overwhelming power over the outcome in a criminal case forces a plea in which a
defendant has no choice – prior to potential error occurring – but to agree to forego
all effective appellate review, and to do so prospectively, abandoning confrontation of
the evidence against him, challenge of the sufficiency thereof, or correction of any
error during the process or at a later sentencing proceeding, all for the most often
futile hope of sentence relief which is itself solely at the discretion of the Government
pursuant to 5K1.1 and Rule 35, and facilitated often as here by failure of the defense
to pursue any protections leading to an unknowing and involuntary -- or indeed
coerced -- plea including an appeal waiver.
This unequal – or no – bargaining power results in denial of due process where,
as here, the defendant appeals an unjust (possibly illegal and unconstitutionally
imposed) sentence for which he had no challenge conducted at the trial court level by
the defense (therefore no “ineffectiveness appearing of record”), and the appellate
division on motion by the Government takes the position it is bound by the waiver
and declines the appellate review, dismissing the appeal, and otherwise not reviewing
IAC on that “of record” standard.
It is not sufficient to hold that the defendant retains some issues on appeal
where, as here, the appellate division summarily and routinely refuses to address
IAC (leading directly to failure of knowing and voluntariness) on direct appeal,
9
referring defendant (at this point pro se) back to the trial court, and then otherwise
the court, as here, assumes the sufficiency of the factual basis without elaboration
evading further review.
Denial of review at the appellate level is no different than denial of appeal by
refusing to file the notice at the trial court level. While in this case defense counsel
failed to file the notice of appeal, the defendant offered to his jailer a hand-written
notice of appeal on the date of the judgment, evidencing his lack of comprehension of
the appeal waiver and distrust of his defense.
Due process does not require efficient justice; it does require effective justice.
Injecting an additional layer of review, to wit: motion to dismiss the appeal for appeal
waiver, prior to the appellate division reviewing the merits on direct appeal upon
unwary defendants at the demand of a Government enforcing an unconscionable
contract with illusory promises is efficient prosecution, eliminating due process at the
direct detriment to individual liberty, something due process is specifically designed
to avoid. To aver the bargaining power is equal in this process is a legal fiction
designed to do nothing more than move cases at the cost of individual protections.
This the Constitutional guarantee of due process and equal protection of law does not
allow.
No just result can issue from this process, evidenced by the many appeals
nonetheless filed in the United States courts where waivers are contained in the plea
agreement. Although an exact figure would be impossible to determine, appeal
10
waivers have become standard fare in plea agreements.2 As early as 2003, a USSG
study revealed that nearly two-thirds of plea agreements that year contained appeal
waivers.3 In the 9th Circuit, 90% of plea agreements contain an appeal waiver; in the
2nd, 76%.4 Their use continues to increase, yet appeals have not declined. U.S.
Sentencing Commission and U.S. Courts statistical reports show that as a percentage
of cases sentenced, appeals between 2012 and 2017 varied from 14.9% to 18.1% per
year, with the highest percentage occurring in 2017.5
If anything, efficiency is benefitted by eliminating this preliminary motion to
dismiss, and banning appeal waivers. The Government should not be in the position
of foreclosing appellate review as an interested party. It is precisely because most
criminal cases in federal court resolve by plea, and of those the vast majority contain
by boilerplate inclusion an appeal waiver, that this practice eroding due process must
cease. Citizens before the Court deserve the careful, unencumbered review of an
objective appellate division, without interference by the very Government pursuing
the conviction and incarceration of the defendant. This is particularly so when the
Government coerces the plea with the thin enticement of favor at sentencing, and is
the only party who can actually request the favor or decline to do so without criticism.
With an acquiescent [or coercive] defense counsel who both fails to test the evidence
2 Holly P. Pratesi, Waive Goodbye to Appellate Review of Plea Bargaining: Specific Performance of
Appellate Waiver Provisions Should be Limited to Extraordinary Circumstances, 81 Brooklyn L. Rev.
(2016).
3 Nancy J. King and Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke
L. Journal 209, 212 (2005)
4 Andrew Dean, Challenging Appeal Waivers, 61 Buffalo L. Journal 1191, 1197 (2013)
5 USSC.gov/research/data-reports/overview-federal-criminal-cases-fiscal-year-2012; 2013; 2014; 2015;
2016; 2017 and www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2012; 2013;
2014; 2015; 2016 2017
11
and, as here, coerces the defendant into an unwarned plea, the defendant is left
without remedy in this process, despite matters outside the waiver. This represents
a grossly unbalanced bargaining position, and an inappropriate process all but
eliminating the appellate division’s solemn role of oversight, as occurred at the
Circuit level in this case.
To be very clear: In this case an extraordinarily naïve 20 year old raised in a
fundamentalist Christian family secluded from outside influences socially, with no
prior criminal record, who used his cell phone to view and trade child pornography in
secret with no evidence of any actual victim in the judgment subject of any abuse by
him, who was misled by his defense attorney - who failed on this empty record to
pursue any defense or mitigation - telling him his parents wanted him to plead guilty
to a manufacturing cp plea including an appeal waiver on the counsel that if not he
would go to prison for life and if he did he would get “5-7 years” for substantial
assistance for which he had no hope to pursue or receive, received 26 years in federal
custody. Indeed, the only facts in any way supportive of the appeal in the record came
from the prosecution and the judge, not the defense. He is the only child of a couple
who are lawful citizens from a nice home. He was in college at Liberty University at
the time of his arrest. The evidence all existed on his cell phone. No competent
psychological mitigation was developed for the District Court to aid in her judgment.
Because of that lack of any competent defense or mitigation in the record, the Circuit
Court refused to review this matter for IAC; it summarily deemed the [unchallenged]
“facts” sufficient without illumination of what those compelling facts were; and
12
otherwise it held the [thus coerced involuntary and unknowing] waiver precluded
further review of constitutional error raised below.
This obscene process violates all Constitutional protections to which this
individual was entitled. To say this is a unique case is not to understand what occurs
in district courts all across this Nation. A cooperative, overworked or lazy defense
combined with a prosecution which seeks to eliminate all avenues to impede finality
of the judgment, enforced by a district court taking a hands-off approach to such and
finally approved by an appellate division unguided by consistent rationale facilitates
the process, all for the purpose of efficiency. For efficiency, this child will spend more
time in prison than he has been alive. He deserves better than we have given him.
The Constitution promises him effective justice, not efficient prosecution. This Court
must enforce that promise.
I.
The Question Presented Is The Subject Of An Acknowledged Split Regarding
the Rationale and Standards of Review for Approving Appeal Waivers.
This Court in Garza v. Idaho recently opined on the Sixth Amendment right to
counsel for the defense and failure to file a notice of appeal in a case in which
defendant entered into a plea agreement containing an appeal waiver. This Court
said matters outside the waiver are viable, and failure to file the notice of appeal
when requested was violation of the duty of counsel.
No Circuit Court published has decided that appeal waivers are an
unconstitutional overreach by the Government in an unbalanced bargaining
relationship. However, 83 of 94 federal districts have boilerplate plea agreements
13
containing appeal waivers6; thus in almost 90% of our federal courts, the United
States Department of Justice seeks to foreclose appeal by waiver, while promising to
consider favors to which by statute they are not bound (Rule 35 and 5k1.1), and as
such are illusory to entice defendants being threatened with harsh punishments to
enter into pleas. The rational for same differs by Circuit. The incidents of reduction
for substantial assistance in cp cases vary across all circuits, creating gross disparity.
Reduction for substantial assistance in these cases is statistically rare in EDNC.
This process is defective, rift with abuse, facilitated by ineffective counsel who
are unlikely to be reprimanded (as here) because of the standard on direct review (“of
record” ineffectiveness), and unnecessary to effect efficient justice. Indeed, in light of
the fact that the Justice Department while retaining the option whether to enforce
the appeal waivers after defendant’s brief is filed in individual cases (dependent upon
argument) nevertheless recently more routinely does so, there is compelling
argument that efficiency has suffered, and the time it takes to review the case below
is longer. U.S. Sentencing Commission and U.S. Courts statistical reports show that
as a percentage of cases sentenced, appeals between 2012 and 2017 varied from 14.9%
to 18.1% per year, with the highest percentage occurring in 2017.7
6 Susan R. Klein Waiving the Criminal Justice System: An Empirical and Constitutional Analysis,
University of Texas School of Law Public Law and Legal Theory Research Paper Series Number 556
(http://ssrn.com/abstract=2422545).
7 USSC.gov/research/data-reports/overview-federal-criminal-cases-fiscal-year-2012; 2013; 2014; 2015;
2016; 2017 and www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2012; 2013;
2014; 2015; 2016 2017
14
As such, there is no just, consistent or reasonable rationale for appeal waivers.
They do not facilitate efficiency; they only facilitate efficient prosecution without
appellate review.
The distinctions given for impeding appellate review based upon the presence
of an appeal waiver are “unreasoned”.
As an initial matter, it is not for the
Government to decide what due process requires, it is for courts in interpreting it.
Vitek v. Jones, 445 U.S. 480, 489 (1980). This Court - it is asserted - approved appeal
waivers expressly in Brady v. U.S., 397 U.S. 742 (1970). However, Brady concerned
“the defendant’s consent that judgment of conviction may be entered without a
trial -- a waiver of his right to trial before a jury or a judge.” The Court elaborated:
“Waivers of constitutional rights not only must be voluntary, but must be knowing,
intelligent acts done with sufficient awareness of the relevant circumstances and
likely consequences.” Id. at 749. The Court assumed competent counsel. In that
case, the defendant argued that possibility of death precluded the voluntariness of
his decision not to go to trial; however, in Brady the co-defendant pled and stood ready
to testify against him, and it was that impetus the Court found compelling for the
plea forgoing trial by jury with the possibility of death sentence. Reduced exposure
of outcomes does not invalidate the plea, according to the Court. Id. at 752: “We
decline to hold, however, that a guilty plea is compelled and invalid under the Fifth
Amendment whenever motivated by the defendant’s desire to accept the certainty or
probability of a lesser penalty rather than face a wider range of possibilities extending
15
from acquittal to conviction and a higher penalty authorized by law for the crime
charged.”
Appeal waivers are not so well aligned with the rationale in Brady, that is to
“preclude the possibility of the maximum penalty authorized by law”, Id. at 753. One
can engage in negotiated plea to affect the concerns addressed by the Court in Brady,
without going that step too far to preclude all objective review of the proceedings by
the appellate division, which has no rational relationship to trial by jury and the
sentencing.
Moreover, finality of the judgment is simply not a valid rationale when
juxtaposed against the range of possible errors which could occur warranting review.
Where an appeal might ensue, now we have an appeal, and motion to dismiss
litigation requiring review of the appellate division, prior to appeal, if any. As Justice
Stewart observed, the courts should ensure the avenue to correct injustices remains
unfettered, which greatly outweighs any perceived efficiency of a system permitting
waiver of review of the appellate division of constitutional or other error affecting the
quality of our system of justice.
Other courts approving appeal waivers include the following rationale:
Defendant knowingly and voluntarily entered into the waiver, Barnes v. Lynaugh, 817
F.2d 336 (5th Cir. 1987); State v. McKinney, 406 So.2d 160 (La. 1981); People v.
Williams, 143 A.D.2d 162, 531 N.Y.S.2d 807 (1988); People v. Smith, 141 A.D.2d 988,
531 N.Y.S.2d 38 (1988); People v. Juliano, 74 A.D.2d 881, 426 N.Y.S.2d 23 (1980);
People v. Jasper, 107 Misc. 2d 992, 436 N.Y.S.2d 18 (Sup. Ct. 1981). See, N.D.L.W.
16
Vol. 65, page 652. These courts do not address whether the appeal waivers should be
allowed at all.
Courts holding waivers invalid cite public policy reasons, that it is an
important state interest to afford appeal and no legitimate state interest is furthered
by its waiver. People v. Ventura, 139 A.D.2d 196, 531 N.Y.S.2d 526 (1988). Appeal is
an important right to be preserved as a necessary safeguard. People v. Ramos, 30
A.D.2d 848, 292 N.Y.S.2d 938 (1968).
Public policy forbids prosecutors from
insulating themselves from review by bargaining away defendant’s rights to appeal.
State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979); People v. Stevenson, 60 Mich.
App. 614, 231 N.W.2d 476 (1975).
In United States v. Melancon, 972 F.2d 556 (1992), the Fifth Circuit court
recognized the district court’s discretion whether to accept appeal waivers, and that
there may be sound policy reasons for refusing to accept such waivers. The Sixth
and D.C. Circuits will not enforce waiver if result of IAC. United States v. Ataya, __
F.3d __ (6th Cir. 16-2611) (Decided 3-2-2018) (Enforceability of appellate waiver
stands or falls with validity of the agreement, whether knowing and voluntary as a
whole); United States v. Guillen, 561 F.3d 527 (D.C. 2009) (Where defendant makes
colorable claim of IAC in agreeing to the waiver, waiver is not enforceable). The
Guillen Court said: “By waiving the right to appeal his sentence, the defendant does
not agree to accept any defect or error that may be thrust upon him by either an
ineffective attorney or an errant sentencing court. Rather, the defendant waives his
right to contest only a sentence within the statutory range and imposed under fair
17
procedures; his waiver relieves neither his attorney nor the district court of their
obligations to satisfy applicable constitutional requirements.” Id. at 530.
Courts critical of the appeal waiver are: United States v. Mutschler, 152 F.
Supp. 3d 1331 (W.D. Washington) (2016) ( “This Matter has prompted the Court to
question the now nationwide practice of routinely approving plea agreements
containing unilateral waivers of the right to appeal...Yet, in perhaps no other context
involving such unequal bargaining positions have the courts so fully abdicated their
responsibility for evaluating the conscionability of the parties’ agreement. Federal
prosecutors in virtually every district have been permitted to demand that
defendants entering guilty pleas waive almost the entire panoply of rights, including
the right to appeal.....Guilty pleas are generally negotiated outside the courtroom,
between just the lawyers, without the defendant, and in the absence of any witnesses
or recording mechanism. This “scandalously casual” process of “horse trading,” which
determine who goes to prison and for how long, is not some adjunct to the criminal
justice system; it is the criminal justice system.” citing Robert E. Scott & William J.
Stuntz Plea Bargaining as a Contract 101 Yale L.J. 1909 (1992) (unilateral appeal
waiver, government free to appeal).
In United States v. Vanderwerff, 2012 WL
2514933, at 1 (D. Colo. June 28, 2012) the defendant was indicted on three charges
relating to the possession of child pornography. In a proposed plea agreement, the
prosecution agreed to dismiss two of the charges if the defendant pled guilty and
waived his right to appeal “any matter in connection with [the] prosecution.” This
would reduce the potential sentence to probation to ten years of imprisonment.
18
District
Judge
John
Kane
rejected
the
plea
agreement,
reasoning
that
“[i]ndiscriminate acceptance of appellate waivers undermines the ability of appellate
courts to ensure the constitutional validity of convictions and to maintain consistency
and reasonableness in sentencing decisions.” In August of 2012, Judge Kane accepted
a new plea agreement with a recommended sentence of no more than twelve years.
The new agreement did not contain an appeal waiver. In United States v. Johnson,
999 F. Supp. 437 (D.D.C. 1997) District Judge rejected a plea agreement with an
appeal waiver, stating that waiver of right to appeal was inherently uninformed and
unintelligent. In United States v. Raynor, 989 F. Supp. 43, 44 (D.D.C. 1997) District
Judge Paul Friedmand rejected a plea agreement with an appeal waiver on “knowing
and voluntary” grounds, saying in his opinion a defendant can never knowingly and
intelligently waive the right to appeal or collaterally attack a sentence that has not
yet been imposed.
Some courts provide an “escape hatch” for miscarriage of justice; North
Carolina does not. First Circuit: “We caution, however, that because such waivers
are made before any manifestation of sentencing error emerges, appellate courts
must remain free to grant relief from them in egregious cases. When all is said and
done, such waivers are meant to bring finality to proceedings conducted in the
ordinary course, not to leave acquiescent defendants totally exposed to future
vagaries (however harsh, unfair, or unforeseeable). Our basic premise, therefore, is
that if denying a right of appeal would work a miscarriage of justice, the appellate
court, in its sound discretion, may refuse to honor the waiver. As a subset of this
19
premise, we think that the same flexibility ought to pertain when the district court
plainly errs in sentencing.” United States v. Teeter, 257 F.3d 14 (1st Cir. 2001); Eighth
Circuit: “Even when these conditions are met, however, we will not enforce a waiver
where to do so would result in a miscarriage of justice.” United States v. Andis, 333
F.3d 886 (8th Cir. 2003); Tenth Circuit: “This analysis calls for the court of appeals,
in reviewing appeals brought after a defendant has entered into an appeal waiver, to
determine: (1) whether the disputed appeal falls within the scope of the waiver of
appellate rights; (2) whether the defendant knowingly and voluntarily waived his
appellate rights; and (3) whether enforcing the waiver would result in a miscarriage
of justice as we define herein. Court then defines miscarriage of justice: Appellate
waivers are subject to certain exceptions, including [1] where the district court relied
on an impermissible factor such as race, [2] where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, [3] where
the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise
unlawful.” United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001) (citing United
States v. Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001)). United States v. Hahn,
359 F.3d 1315 (2004).
Second Circuit seems to be retreating from sanctioning appeal waivers.
United States v. Lutchman, __ F.3d __ (2d Cir. 6 Dec. 2018) (17-291) (On direct appeal,
plea agreement with appeal waiver was not supported by consideration, declining to
enforce it. However, arguments meritless, affirming the district court.)
20
The rationale for upholding waiver of fundamental constitutional rights does
not support waiving the right to appeal. See, Patton v. United States, 281 U.S. 276
(1929) (Defendants may waive right to jury trial, a right established to protect the
accused); Johnson v. Zerbst, 304 U.S. 458 (1937) (Defendants may waive Sixth
Amendment right to counsel, designed to protect accused from his own ignorance of
law and rights); Smith v. United States, 360 U.S. 1 (1958) (Defendants may waive
prosecution by indictment, adopting United States v. Gill, 55 F.2d 399 (D. N.M. 1931)
(applying Patton). See, N.D.L.R., vol 65, page 662. As such, the rationale for waiving
these rights is that the rights were “guaranteed for the protection of defendants”. Id.
Although the defendant may waive these rights, query as to how this Court
[and the appropriate state Bar] would view a prosecutor’s inclusion of a waiver of
right to counsel in a plea agreement. The plea agreement is a contract, but certain
provisions are so one-sided that they shock the conscience and would render the
agreement unconscionable and void. It is submitted that the right to appeal is just
such a right. Yet in many cases, the defendant is faced with “pay to play.” “The
benefit is very real; in some cases, the government without such a waiver might not
be willing to plea-bargain at all.” United States v. Teeter, 257 F.3d 14 (1st Cir. 2001).
Nancy Gertner, a former U.S. federal judge and law professor at Harvard Law School
suggested in an op-ed in the New York Times (Feb. 4, 2016) that, “You can’t bargain
away your right to counsel; you shouldn’t be allowed to bargain away your right to
appeal...The right to appeal should not be in the marketplace.” She quoted from one
of her own cases, “the idea of maximizing a defendant’s power by allowing him to sell
21
whatever he has, the market for plea bargains, like every other market, should not
be so deregulated that the conditions essential to assuring basic fairness are
undermined.” She went on to point out that having a lawyer is not enough. The
lawyer may not have communicated or not have mentioned the consequences of the
plea or who simply cut corners. In many respects, waiver of the right to appeal looks
very much like the retainer agreement of a lawyer who seeks to have his client waive
future malpractice or the informed consent of a surgeon who seeks the same.
Not only does the appeal protect defendants, of more universal importance it
protects the very common law upon which our system of justice, stare decisis, depends
and relies. See, R. Martineau, Fundamentals of Modern Appellate Advocacy 2 (1985).
It facilitates the maintenance of judicial integrity. Citing to, P. Carrington, Meador
and Rosenburg, Justice on Appeal 2 (1976) (“...[A]ppellate courts serve as the
instrument of accountability for those who make the basic decisions in trial courts...”).
Abdication of the right to review and to correct errors below thus would erode the
very fabric of our justice system and the integrity of our trial courts. Justice Brandeis
wrote in Olmstead v. United States, 277 U.S. 438, 485 (1928), (Brandeis, J., and
Holmes, J., dissenting):
In a government of laws, existence of the government will be imperiled
if it fails to observe the law scrupulously. Our Government is the potent,
the omnipresent teacher. For good or for ill, it teaches the whole
people by its example. Crime is contagious. If the Government becomes
a law-breaker, it breeds contempt for law; it invites every man to become
a law unto himself it invites anarchy. To declare that in the
administration of the criminal law end justifies the means -- to declare
that the Government may commit crimes in order to secure the
conviction of a private criminal -- would bring terrible retribution.
Against that pernicious doctrine this Court should resolutely set its face.
22
As observed by Bryer and Judge, McNabb v. United States, 318 U.S. 332 (1943)
adopted the Olmstead dissent’s views on judicial integrity, saying “Plainly, a
conviction resting on evidence secured through such a flagrant disregard of the
procedure cannot be allowed to stand without making the courts themselves
accomplices in the willful disobedience of law.” The authors opine, “[b]y allowing
prosecutors to secure from defendants a waiver of their rights to appeal, courts are
becoming accomplices to police violations and trial court errors. Injustice taints the
entire court system when alleged police violations and trial court errors are rendered
permanently isolated from review.” N.D.L.R., Vol.65, page 664.
Of no minor consideration, appeal waivers are not necessary to the plea
negotiation in resolving many criminal cases.
II.
The Decision Below Is “Wrong And Deeply Troubling”.
Allowing the federal district and circuit courts to engage in the legal fiction
that a defendant has some bargaining power in plea negotiations to enable justice to
turn a blind eye to due process on appellate review without restraint is disingenuous
and deeply troubling. The result is slamming the door of any just review on worthy
causes, and allows the Government to avoid a check on its overreach.
This is
particularly so when, as in each and every case in the United States when a criminal
defendant pleads guilty, the defendant entering these agreements must waive
appellate review of errors before they occur, and in reliance upon no promise that the
Government will in fact file any sentencing relief because that discretion is solely and
23
exclusively up to them. This is a fundamental absurdity which is well past its
expiration date.
There is no rational reason for waiving prospectively errors to preclude
appellate review. To do so threatens justice’s body of work and credibility. It is
precisely because errors are unforeseen that appellate review is the cornerstone of
liberty and justice. This process is flat out bad public policy. Some courts have
reasoned that public policy forbids prosecutors from insulating themselves from
review by bargaining away defendants’ rights to appeal. See, Ethington, 121 Ariz.
572, 592 P.2d 768 (1979); Stevenson, 60 Mich. App. 614, 231 N.W. 2d 476 (1975),
allowing the remedy of an appeal. Courts in at least one jurisdiction invalidated the
waiver based on a state constitutional right to appeal. People v. Harrison, 386 Mich.
269, 191 N.W.2d 371 (1971); People v. Ledrow, 53 Mich. App. 511, 220 N.W.2d 336
(1974); People v. Butler, 43 Mich. App. 270, 204 N.W.2d 325. See also Mich. Const.
art. I, sec. 20. (Cited by, N.D.L.R. Vol. 54, page 654.) Those courts said “...permitting
the prosecution to induce a defendant to waive appellate rights in exchange for a plea
agreement would be constitutionally impermissible because it chills the exercise of
the defendant’s constitutional right to appeal a criminal conviction.” Citing, Harrison,
386 Mich. 269, 191 N.W.2d 371; Butler, 43 Mich. App. 270, 204 N.W.2d 325.” Id.
This process erodes the very foundation of due process and equal protection of
the law, and does not add any benefit on balance, except “finality of judgment” - which
is a concept that does not advance individual protections guaranteed by the
Constitution.
24
III.
The Question Presented Is Important And Recurs Frequently.
The importance of this issue – whether the Government should be
prospectively foreclosing appellate review of a criminal judgment as the cost of
possible favorable – but illusory sentencing, enforced by the appellate division – is
self-evident. Douglas v. People of State of Cal., 372 U.S. 353, 355 (1963) (recognizing
that it would be “invidious” to deny criminal defendants the right to a counseled direct
appeal.) To respond that the defendant is not denied due process where he received
an appeal with an appeal waiver because the notice was filed is to engage in further
legal fiction where the denial then is accomplished by the appellate division upon
motion to dismiss by the Government enforcing the appeal waiver. To respond that
matters outside the waiver are subject to review is also a fallacy where the circuit
courts refuse to hear IAC claims on direct appeal – referring a now pro se defendant
back to the trial court, and as to other claims the appellate division will summarily
dismiss without examination where a waiver exists. As discussed in Nancy J. King
& Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke
L.J. 209, 231, 232 fig.7 (2005) (observing that 90% of plea agreements in the Ninth
Circuit and 65 % of plea agreements across all circuits included appeal waivers), this
issue continues to arise with great frequency and will not be in any way abated by
this Court’s ruling in Garza that counsel must file the notice of appeal. Indeed, as
evidenced by Milam, the Circuit Courts on motion by the Government enforcing the
waiver will then be the ones allowing the Government, the district court and counsel
25
for the defense to evade appellate review, all at the expense of individual liberty
interests.
Appellate review is a sacrosanct (Dalton, Taking the Right to Appeal (More or
Less) Seriously, 95 Yale L. J. 62 (1985)) check on an error-prone system of justice.
Eliminating that independent and full review at the demand of the Government
holding all the power over a most often incarcerated person in any way violates due
process of the individual. There are simply too many opportunities for abuse, error,
human failing and oversight to fashion any rule to compensate for appellate waivers.
The best, and most direct, course is for this Court to opine appeal waivers are an
unconstitutional overreach by the Government, banning them in criminal pleas.
IV.
The Question Presented Is Squarely Presented.
The question upon which the lower court opined was the only issue resolving
the appeal on motion of the Government to dismiss the appeal. While the Circuit
Court found two issues outside the appeal waiver (IAC [but not taking up the knowing
and voluntary argument contained therein] and insufficiency of evidence), it declined
to engage in review of IAC because it did not appear “of record” and summarily
dismissed sufficiency of the evidence without elaborating, effectively foreclosing any
meaningful appellate review on direct appeal. See, Appendix A, Judgment of the
Fourth Circuit Court of Appeals.
No reasonable argument could be made that this issue requires further
percolation.
The result in this case tracks the result in each and every circuit
confronting a motion to dismiss an appeal for appeal waiver; in each and every single
26
case, effective appellate review is foreclosed by a waiver signed prior to subsequently
alleged error occurring, and enforced by a Government who had all the power in the
bargaining process and who had no obligation to deliver what the defendant hoped
he was bargaining for – albeit on widely varied Circuit rationale as described supra.
It is time to stop employing this legal fiction against unwary defendants and allow
the appellate division to perform their oversight role unhindered by the Government’s
self-serving, and insulating, motions to dismiss.
The Garza case leaves open the question of whether an appeal waiver can ever
pass muster with the due process clause and, if so, by what standards its
constitutionality shall be determined. Today, whether a particular appeal waiver is
enforceable depends largely upon where the defendant lives. Had the defendant in
this case lived 50 miles west in the North Carolina Middle District, his plea
agreement would have contained no appeal waiver. Appeal waivers are subject to
different rules and interpreted differently from jurisdiction to jurisdiction.
The issue is not simply whether defendant engaged in a knowing and voluntary
plea [with appeal waiver] -- although he did not -- as that inquiry is far too subjective
to be of sufficient reliability. The crucial issue is whether appeal waivers should be
condoned as a bargaining tool by the Government. The answer to that question is no.
27
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
/s/ Deborrah L. Newton
Deborrah L. Newton
Newton Law
557 East Edenton Street
Raleigh, NC 27601
newtonatlaw1@aol.com
Attorney for Petitioner
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.