Amicus Curiae Brief — Garza v. Idaho, 139 S. Ct. 45 (2018) (No. 17-1026)

No. 17-1026

In The

Supreme Court of the Anited States

ca

GILBERTO GARZA JR.,

Petitioner,

STATE OF IDAHO,

Respondent.

+

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF IDAHO

e

BRIEF OF AMICUS CURIAE

THE ETHICS BUREAU AT YALE

IN SUPPORT OF PETITIONER

+

Lawrence J. Fox

Counsel of Record

George W. and Sadella D. Crawford

Visiting Lecturer in Law

YALE LAW SCHOOL

127 Wall Street

New Haven, Connecticut 06511

(203) 432-9358

lawrence.fox@yale.edu

Counsel for Amicus Curiae Dated: February 22, 2018

THE LEX GROUPDC ¢ 1050 Connecticut Avenuc, NW * Suite 500, #5190 * Washington, DC

200.36 (202) 955-0001 * (800) 856-4419 * www.theiexgroup.com

TABLE OF CONTENTS

TABLE OF AUTHORITIEG ...................sssssssessssssseesees ii

CONSENT TO FILE AS AMICUS CURIAE............. 1

INTEREST OF AMICUS CURIAE................ccccc0c00000 1

SUMMARY OF ARGUMENT. ..................:cccceeeeeeeeeeees 2

PTIATIEEIO TE cncecececescssesesevsvesecccssvenconescnctosnnnenneteenineseees 4

|. Criminal Defendants Have a Right to

Counsel Who Will File a Notice of Appeal

OUD Ty SE vitctcavconsesvuiceiebintitintedindnasebetiends 4

A. Fundamental Principles of

Constitutional Law, Legal Ethics,

and Agency Law Vest the Final

Decision to Appeal in the Client ................ 5

B. Counsel Are Required To File a

Notice of Appeal Even When They

Fail To Identify Any Appealable

SOD cccccosnicnsentiessonsnndaiainiiiasiaidastaddibisiiabiiin 8

Il. This Court Should Grant Certiorari To

Preserve the Role of Courts as the Final

RG OF cc cscectesesnstenvsinntatsncininsapestane 12

I11.The Decision Below Creates Needless

Confusion and Uncertainty for Criminal

ii

TABLE OF AUTHORITIES

CASES

Anders v. California,

I ceebes passim

Blackledge v. Perry,

nie oadlintnrdinnennetionaeseine 10

C.LR. v. Banks,

EE TE A a 7

Douglas v. California,

EE a 6, 14

Evitts v. Lucey,

ER 13, 14, 16

Faretta v. California

a 7

Garza v. State,

405 P.3d 576 (Idaho 2017)...........0...0..0000cccc cece 17

Griffin v. Illinois,

ee 16

Holland v. Florida,

Le 6

il

Lafler v. Cooper,

BGC U.S. 156 (2OUZ) .............ccececeenereneenseneenonensnees 16

Lane v. Brown,

B72 U.S. 477 (1963) ..........--ccccccereereeeesenseenenenes 3, 12

Maples v. Thomas,

565 U.S. 266 (2012) ..............cccc-eeeeeeeeneenensnnennnneees 6

McCoy v. Court of Appeals of Wisconsin, Dist. 1,

486 U.S. 429 (1988) .............ccc-cccceeeeeee 8, 10, 11, 14

Menna v. New York,

423 U.S. 61 (1975) ..........-.0.-cceseeeneeeeceeseenenenensennes 10

Missouri v. Frye,

BGG U.S. 134 (2012) ............cccceceneeeeeeecceeennennennees 15

Nix v. Whiteside,

475 U.S. 157 (1986) ............cccccceceeceeeneneenennnnnnnnennne 6

Offutt v. United States,

BAB U.S. 11 (19GA) ............ccceccceeceeenenennnnnnnenenennnes 15

Penson v. Ohio,

488 U.S. 75 (1988) ...........-.-cc-cceeceeneneenennnnenes 10, 14

Rodriquez v. United States,

906 U.S. SB7 (1GBB) .............2--00e0eeeeeeeeorereesessenes 3, 5

iv

Roe v. Flores-Ortega,

528 U.S. 470 (2000)...

Smith v. Robbins,

528 U.S. 258 (2000)............................

Suggs v. United States,

391 F.2d 971 (D.C. Cir. 1968)...

United States v. Marin,

961 F.2d 493 (4th Cir. 1992) 000...

United States v. Sandoval-Lopez,

409 F.3d 1193 (9th Cir. 2005)...

Wheat v. United States,

GD OE, BE CIID oscccnncccccceesenesessesss

CONSTITUTIONAL PROVISION

U.S. Const. amend. VI..............................

RULES

Model Rules of Prof! Conduct pmbI.

Model Rules of Prof] Conduct r. 1.7 cmt. 1

SE Ee 13

Model Rules of Prof! Conduct r. 3.1

EL TE Ee ea ee 9

OTHER AUTHORITIES

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

EE SO OE ee 7

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

ERS Ce ee 6, 11

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

ee EE Ce 6

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

ST ctccciniicinitininninnidsietiatintatiotesantesies 7

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

GS SF Eee 6, 15

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

eC ieitiniiicdanctndinisneteednptininnnitinns 10

Editorial, Trial Judge to Appeals Court: Review Me,

N.Y. Times (July 16, 2012),

http://www.nytimes.com/20 12/07/17/opinion/trial-

judge-to-appeals-court-review-me.html.............. 16

Jacob Szewczyk, Comment, Following Orders:

Campbell v. United States, The Waiver of

Appellate Rights, and the Duty of Counsel,

64 Cath. U. L. Rev. 489 (2015)............................ 14

Joel Cohen, When Lawyers Admit “Ineffectiveness,”

N.Y. L.d. (Apr. 13, 2010),

https://www.stroock.com/siteFiles/Pub918.pdf .. 17

Lauren Gregorcyk, Note, A Justified Obligation:

Counsel’s Duty to File a Requested Appeal in a

Post-Waiver Situation, 20 Wash. &

Lee J. Civil Rts. & Soc. Just. 141 (2013) ............ 17

Model Code of Judicial Conduct Canon |

SE Te AE EE itcticiciviesininterntirecttepienmventieneetens 15

Model Code of Judicial Conduct r. 2.2

Model Code of Judicial Conduct r. 2.5-2.7

BF EE eee 12

Nancy J. King & Michael E. O’Neill, Appeal Waivers

and the Future of Sentencing Policy,

55 Duke L.J. 209 (2005) ...................cccceececeeeeeeeee 12

Restatement (Third) of Agency § 8.09(2)

Re 7

Restatement (Third) of the Law Governing Lawyers

§ 110 cmt. f (Am. Law Inst. 2000)......................... 9

Restatement (Third) of the Law Governing Lawyers

§ 110(1) (Am. Law Inst. 2000)......................0........ 9

Restatement (Third) of the Law Governing Lawyers

§ 21 (Am. Law Inst. 2000)......................0ccceeseeeeeees 8

Restatement (Third) of the Law Governing Lawyers

§ 22(1) (Am. Law inst. 2000)...........................00004. 7

Robert E. Scott & William J. Stuntz, Symposium:

Punishment, Plea Bargaining as Contract,

101 Yale L.J. 1909 (1902)....................00cceceecceeeeees 15

CONSENT TO FILE AS AMICUS CURIAE

Pursuant to Rule 37, this brief is filed with the

consent of the parties. The brief is submitted by the

Ethics Bureau at Yale in support of Petitioner.

Letters of consent from both parties to this appeal

have been lodged with the Clerk of the Court. No

counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary

contribution intended to fund the preparation or

submission of this brief.

INTEREST OF AMICUS CURIAE

The Ethics Bureau at Yale! is a clinic composed

of sixteen law school students supervised by an

experienced practicing lawyer, lecturer, and ethics

teacher. The Bureau has drafted amicus briefs in

matters involving lawyer and judicial conduct and

ethics; has assisted defense counsel with ineffective

assistance of counsel claims implicating issues of

professional responsibility; and has _ provided

assistance, counsel and guidance on a pro bono basis

to not-for-profit legal service providers, courts, and

law schools.

Because this case implicates a lawyer’s ethical

obligations to obey his client’s objectives during the

course of the representation, the Bureau believes it

' The Ethics Bureau at Yale is a student clinic of the Yale Law

School. The views expressed herein are not necessarily those of

Yale University or Yale Law School. This brief was not written

in whole or in part by counsel for any party, and no person or

entity other than Amicus Curiae has made a monetary

contribution to the preparation and submission of this brief.

might assist the Court in resolving the important

issues presented.

SUMMARY OF ARGUMENT

This case implicates an important question

that has divided lower courts for over a decade:

whether when a defendant asks his lawyer to file an

appeal and the lawyer fails to do so because the

defendant signed an appeal waiver as part of a plea

agreement, a court should presume that the

defendant was prejudiced by his counsel’s conduct.

The majority of lower courts to address the question

have presumed prejudice when evaluating ineffective

assistance of counsel claims in this context. The court

below, however, did not. Because this Court’s Sixth

Amendment jurisprudence, as well as legal ethics and

agency law, make clear that the client retains final

control over the decision to appeal, Amicus believes

that the decision below was wrongly decided and that

courts should presume prejudice in these cases.

The facts of this case are straightforward and

undisputed. In 2015, Gilberto Garza, Jr. pled guilty

separately to aggravated assault and possession of

controlled substance. Both plea agreements included

an appeal waiver. Mr. Garza subsequently told his

lawyer that he wanted to appeal his sentence. But,

despite this instruction, his lawyer did not file an

appeal because he concluded that “Mr. Garza [had]

received the sentence(s) he bargained for” and that

“an appeal was problematic because [Mr. Garza]

waived his right to appeal.” Pet. App. 52a. Mr. Garza

filed a pro se petition for post-conviction relief

alleging that his counsel rendered ineffective

assistance of counsel by refusing to file to a notice of

appeal at his request. The Supreme Court of Idaho

affirmed the District Court’s and Court of Appeals’

denial of relief.

The Constitution, the ethical code of the Idaho

Supreme Court, and the common law vest the decision

to file an appeal in the client. This rule reflects the

fundamental precept that the client, not the lawyer,

has the final say over the objectives of a

representation. This Court has already concluded

that courts should presume prejudice when a lawyer

fails to file a notice of appeal at the request of his

client. See Rodriquez v. United States, 395 U.S. 327

(1969). That presumption applies no less in cases in

which a lawyer believes that an appeal would be

frivolous. The Constitution and basic tenets of legal

ethics and agency law protect a defendant’s right to

file an appeal that non-judicial actors deem frivolous.

See Anders v. California, 386 U.S. 738, 744 (1967).

And because appellate waivers bar only a subset of

potential appeals, it is essential that a court review

the merits of a claim.

This case also represents an assault on the

fundamental role of courts and defense lawyers in our

criminal justice system. The decision below would

usurp from courts the ability to conduct an

independent review of the merits of an appeal,

upending the traditional division of authority in the

courtroom—where lawyers serve as advocates and

judges as final arbiters. In effect, it “confers upon

[actors] outside the judicial system power to take from

an indigent all hope of any appeal at all.” Lane v.

Brown, 372 U.S. 477, 485 (1963). Furthermore, the

current disagreement among lower courts regarding

the proper division of authority in this context has left

defense lawyers deeply confused as to their

responsibility under the Sixth Amendment to file

appeals that plea agreements appear to bar.

In light of these considerations, Amicus urges

this Court to grant certiorari and reverse the

judgment of the court below.

ARGUMENT

I. Criminal Defendants Have a Right to

Counsel Who Will File a Notice of

Appeal on Their Behalf.

The client, not the lawyer, has the authority to

decide whether to appeal a case. This Court has held

that, under the Sixth Amendment, it is ineffective

assistance of counsel for a lawyer to refuse to file a

requested appeal. See Roe v. Flores-Ortega, 528 U.S.

470, 476-77 (2000). Principles of legal ethics and

agency law likewise specify that the decision to appeal

is under the client’s sole control. These authorities

make clear that the client retains control over the

decision to appeal even when counsel believes that the

appeal might be frivolous. In reliance on this well-

established understanding of the attorney-client

relationship, defendants entrust their lawyers to

carry out their instructions. Thus, when a lawyer fails

to file a requested appeal, the lawyer violates the

Constitution and fundamental principles of legal

ethics and agency law.

5

A. Fundamental Principles of Constitutional Law,

Legal Ethics, and Agency Law Vest the Final

Decision to Appeal in the Client.

The defendant’s right to appeal is central to the

protections provided by the Sixth Amendment. This

Court has held that the Sixth Amendment guarantees

defendants effective assistance of counsel, and that a

lawyer who ignores his client’s instructions to file an

appeal is presumed to have rendered ineffective

assistance. See Flores-Ortega, 528 U.S. at 477. This

clear delineation of authority is critical because a

lawyer who fails to file a requested appeal does not

merely neglect his professional duty, but also deals

his client “the serious denial of the entire judicial

proceeding itself.” Jd. at 483. Indeed, this Court has

gone even farther, ruling that counsel must not only

perform the simple task of filing a notice of appeal,

but must also “act[] in the role of an active advocate

in behalf of his client,” a role which “requires that he

support his client’s appeal to the best of his ability.”

Anders v. California, 386 U.S. at 744. As a

consequence, a defendant whose lawyer fails to file a

requested appeal is entitled to a new appeal without

demonstrating that it would likely have been

successful. See Rodriquez, 395 U.S. at 330.

The defendant's right to decide whether to

appeal his case is a vital procedural protection. Most

significantly, ignoring a client’s express decision to

appeal is “professionally unreasonable . . . because a

defendant who instructs counsel to initiate an appeal

reasonably relies upon counsel to file the necessary

notice.” Flores-Ortega, 528 U.S. at 477. Defendants

whose lawyers ignore their instructions are often left

to file “petitions for relief from time limitations on

filing appeals or . . . postconviction collateral attacks

on the ground of inadequate representation.” ABA

Standards for Criminal Justice Prosecution Function

and Defense Function Standard 4-8.3 cmt. (3d ed.

1993). Moreover, many of these defendants, like Mr.

Garza, will be forced to make these claims pro se. As

this Court wrote when it recognized the right to

counsel for a first appeal, “[w]hen an indigent is forced

to run this gantlet of a preliminary showing of merit,

the right to appeal does not comport with fair

procedure.” Douglas v. California, 372 U.S. 353, 357

(1963). Defendants rely on counsel to pursue their

objectives. To allow lawyers to do otherwise would

undermine the sanctity of the attorney-client

relationship and defendants’ Sixth Amendment

rights.

Principles of legal ethics and agency law

likewise prescribe that, throughout the course of a

representation, clients retain control over final

decisions and, specifically, the decision to appeal.”

The American Bar Association, for example, has made

clear that “[t]he decision whether to appeal must be

the defendant's own choice.” ABA Standards for

Criminal Justice Prosecution Function and Defense

Function Standard 4-8.2(a) (3d ed. 1993); see also id.

2 This Court has previously looked to national ethical standards

in construing constitutional requirements. See, e.g., Nix v.

Whiteside, 475 US. 157, 167 (1986) (citing to common

understandings of professional ethics in construing lawyers’

Sixth Amendment duties when a client plans to present perjured

testimony at trial). Principles of agency law have often been used

to illuminate a lawyer's duties in the course of representation.

See Maples v. Thomas, 565 U.S. 266, 283 (2012); Holland v.

Florida, 560 U.S. 631, 659-60 (2010) (Alito, J., concurring).

4-8.2(b) (“Defense counsel should take whatever steps

are necessary to protect the defendant's rights of

appeal.”); id. 4-5.2(a)(v) (noting that “[clertain

decisions relating to the conduct of the case are

ultimately for the accused and others are ultimately

for defense counsel,” and providing that the decisions

to be made by defendants include “whether to

appeal”). The Restatement of Law Governing

Lawyers likewise states that the decision to appeal a

criminal prosecution is reserved to the client. See

Restatement (Third) of the Law Governing Lawyers §

22(1) (Am. Law Inst. 2000).

This assignment of authority reflects broader

principles of agency law and legal ethics which give

the client control over final decisions. It is well-

established under the common law that lawyers are

their clients’ agents. See C.1_R. v. Banks, 543 U.S. 426,

436 (2005) $#(describing the attorney-client

relationship as “a quintessential principal-agent

relationship”). A lawyer remains at all times bound to

respect his client’s fundamental wishes regarding the

objectives of the representation. See Restatement

(Third) of Agency § 8.09(2) (Am. Law Inst. 2006) (“An

agent has a duty to comply with all lawful

instructions received from the principal .. . .”); see also

Faretta v. California, 422 U.S. 806, 820 (1975) (“[The

Sixth Amendment] speaks of the ‘assistance’ of

counsel, and an assistant, however expert, is still an

assistant.”). The Restatement of Law Governing

Lawyers and the Model Rules of Professional

Conduct? likewise assign the authority to define the

objectives of the representation to the client. See

® The Idaho Rules of Professional Conduct follow the Model Rules

in all relevant respects.

Restatement (Third) of the Law Governing Lawyers §

21; Model Rules of Prof! Conduct r. 1.2(a) (Am. Bar

Ass’n 1983). In keeping with these broader principles,

the law assigns the decision whether to appeal—an

objective of the representation—+to the client.

In this case, Mr. Garza clearly conveyed that

he wanted to appeal his case, and his lawyer violated

the Sixth Amendment as well as principles of legal

ethics and agency law when his lawyer disregarded

that direction. Mr. Garza’s lawyer acknowledged that

Mr. Garza instructed him to file an appeal in his

affidavit in the District Court. See Pet. App. 52a. Once

Mr. Garza established as one of his objectives to

appeal, his lawyer should not have deviated from that

objective. Defense counsel's failure to carry out his

professional obligations forced Mr. Garza to petition,

initially pro se, to regain his right to appeal—a right

that his lawyer had given up against his wishes. A

lawyer who puts his client in such a position has acted

in a way that is “professionally unreasonable.” Flores-

Ortega, 528 U.S. at 477.

B. Counsel Are Required To File a Notice of

Appeal Even When They Fail To Identify Any

Appealable Issues.

This Court has recognized a tension between

the constitutional right of defendants to have an

active advocate on appeal and the professional

obligation of counsel not to file frivolous appeals. See

McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486

U.S. 429, 437 (1988). But in reconciling this tension,

this Court has not wavered from the principle that

defendants have a right to file an appeal and to the

effective assistance of counsel in doing so. Instead, it

has addressed the problem of frivolous appeals by

recommending that lawyers follow the procedure

described in Anders v. California. That is, when a

client asks his lawyer to file an arguably frivolous

appeal, the lawyer should file a notice of appeal,

submit “a brief referring to anything in the record

that might arguably support the appeal,” and request

permission to withdraw. Anders, 386 U.S. at 744. This

procedure, requiring lawyers to file “Anders briefs,”

allows defense counsel to act “with honor and without

conflict,” id., but even more importantly, it preserves

defendants’ right to appeal.

Principles of legal ethics strike a similar

balance between defendants’ constitutional right to

counsel and lawyers’ professional obligation not to file

frivolous appeals. As a general rule, counsel may not

file frivolous arguments. See Model Rules of Prof!

Conduct r. 3.1; Restatement (Third) of the Law

Governing Lawyers § 110(1). But lawyers’

professional obligations “are subordinate to federal or

state constitutional law that entitles a defendant in a

criminal matter to the assistance of counsel in

presenting a claim that otherwise would be

prohibited.” Model Rules of Prof! Conduct r. 3.1; see

also Restatement (Third) of the Law Governing

Lawyers § 110 cmt. f (“[A] lawyer representing a

convicted person on appeal may be required to file a

so-called Anders brief in the event the lawyer

concludes that there is no nonfrivolous ground on

which the appeal can be maintained.”). The ethical

rules governing lawyers’ conduct likewise draw an

important distinction between assisting a client on

appeal—-which is cons.ututionally required——and

10

actively deceiving the court or opposing parties—

which is prohibited. See ABA Standards for Criminal

Justice Prosecution Function and Defense Function

Standard 4-8.3(c).

Requiring lawyers to abide by their clients’

wishes and file an appeal serves a number of vital

interests. Most importantly, these procedures

preserve defendants’ right to appeal. As this Court

has noted, “a defendant who instructs counsel to

initiate an appeal reasonably relies upon counsel to

file the necessary notice.” Flores-Ortega, 528 U.S. at

477. Without a rule ensuring that counsel file such a

notice, a defendant may lose his right to any form of

appellate review.

These procedures also improve the process by

which appeals go forward. Anders briefs, for example,

“provide the appellate courts with a basis for

determining whether appointed counsel have fully

performed their duty to support their clients’ appeal

to the best of their ability” and also “provide[] an

independent inducement to counsel to perform a

diligent review” of the case. Penson v. Ohio, 488 U.S.

75, 81, 82 & n.4 (1988) (quoting McCoy, 486 U.S. at

439). This review by both counsel and the court is

essential even in the appeal waiver context because a

valid waiver does not automatically preclude a

defendant from challenging the sentence or

conviction, for example, when the appeal goes “to the

very power of the State to bring the defendant into

court to answer the charge brought against him.”

Blackledge v. Perry, 417 U.S. 21, 30 (1974) (vindictive

prosecution); see Menna v. New York, 423 U.S. 62

(1975) (double jeopardy); see also United States v.

11

Marin, 961 F.2d 493, 496 (4th Cir. 1992) (use of a

“constitutionally impermissible factor such as race” at

sentencing). It is also important to note that the

timing for filing a notice of appeal is often extremely

short, which suggests that lawyers should not

foreclose the possibility of a meritous appeal at this

stage. Cursory review does not satisfy a defendant's

right to effective counsel and may lead to additional

for Criminal Justice Prosecution Function and

Defense Function Standard 4-8.2 cmt.

This case implicates a particularly stark set of

facts. Here, Mr. Garza’s lawyer not only offered a

“conclusory statement that the appeal was meritless,”

McCoy, 486 U.S. at 443, but also never presented this

conclusory statement to a court for further review. See

Smith v. Robbins, 528 U.S. 259, 281 (2000) (noting

that a “flaw with the procedures” in past cases “was

that there was only one tier of review’). Instead,

defense counsel simply concluded that “Mr. Garza

received the sentence(s) he bargained for” and told

Mr. Garza “that the appeal was problematic because

he waived his right to appeal” in his plea agreement.

Pet. App. at 52a.

The conclusory statement by Mr. Garza’s

lawyer does not satisfy the Sixth Amendment right to

counsel. Instead, it is unclear whether Mr. Garza’s

lawyer “diligently investigated the possible grounds

of appeal.” Anders, 386 U.S. at 742. And even if he had

conducted a more diligent investigation, Mr. Garza’s

lawyer would still not have had the unilateral

authority to waive his client’s right to appeal. As the

preceding Section made clear, the Constitution and

12

rules of legal ethics vest the final decision to appeal in

the defendant. Any decision that vests the authority

in the lawyers can “not meet constitutional

standards.” Lane, 372 U.S. at 485.

Il. This Court Should Grant Certiorari To

Preserve the Role of Courts as the

Final Arbiter of Appeals.

Whether an appeal raises any non-frivolous

issues is a decision for the appellate court—not

defense counsel—to make. When a lawyer fails to file

a requested appeal, that disobedience not only

undermines the client’s right to decide whether to

appeal, but also usurps the authority of the court to

decide the merits of the appeal. Direct appellate

review is entirely eliminated. Thus, in addition to

safeguarding the fundamental rights of criminal

defendants, the procedures set forth in Anders protect

important judicial interests.

First, effective defense counsel must be

required to file a notice of appeal so that appellate

courts retain their role as neutral decision makers.

The ethical rules governing the conduct of legal actors

divide authority between counsel and courts, and

ultimately courts are supposed to decide whether

appeals are meritorious. See Model Code of Judicial

Conduct r. 2.5-2.7 (Am. Bar Ass’n 1990); Nancy J.

King & Michael E. O'Neill, Appeal Waivers and the

Future of Sentencing Policy, 55 Duke L.J. 209, 223

(2005). In Anders, this Court stated that counsel must

“support his client’s appeal to the best of his ability,”

and then the court must conduct “a full examination

of all the proceedings, to decide whether the case is

13

wholly frivolous.” Anders, 386 U.S. at 744. This proper

division of labor in the courtroom helps to advance the

ethical duties of both judges and lawyers.

One of defense counsel's most critical roles is

that of an advocate. Accordingly, lawyers not only

lack the authority to determine if an appeal should be

granted, but would violate the duty of loyalty owed to

their clients by exercising such authority. The Model

Rules of Professional Conduct provide that, as

advocates, lawyers must “zealously assert{] the

client’s position under the rules of the adversary

system.” Model Rules of Prof] Conduct pmblL.; see also

Model Rules of Prof] Conduct r. 1.7 cmt. 1 (“Loyalty

and independent judgment are essential elements in

the lawyer's relationship to a client.”). As this Court

has held, while an effective “attorney need not

advance every argument, regardless of merit, urged

by the appellant,” counsel “must play the role of an

active advocate, rather than a mere friend of the court

assisting in a detached evaluation of the appellant’s

claim.” Evitts v. Lucey, 469 U.S. 387, 394 (1985).

The judge, rather than defense counsel, is

charged with providing this “detached evaluation.” It

is the unique role of judges to decide the merits of the

cases that come before them. See Model Code of

Judicial Conduct r. 2.2 (“A judge shall uphold and

apply the law, and shall perform all duties of judicial

office fairly and impartially.”). The most fundamental

“role [of] a court is as arbiter of the interests of

Government and accused.” Suggs v. United States,

391 F.2d 971, 975 (D.C. Cir. 1968). Thus, Anders was

meant to ensure that appellate judges “successfully

and constitutionally perform that function” by

14

“consider|[ing] a presentation devoted to arguments

for the accused, leaving it to [the court] to determine

whether and to what extent they have merit.” Jd. In

this case, however, when Mr. Garza’s lawyer failed to

file a notice of appeal, he unilaterally appointed

himself to preside over his own client’s appeal—and

then proceeded to do so in direct contravention of Mr.

Garza’s interests. See Jacob Szewczyk, Comment,

Following Orders: Campbell v. United States, The

Waiver of Appellate Rights, and the Duty of Counsel,

64 Cath. U. L. Rev. 489, 512 (2015).

Anders briefs, moreover, ensure that courts

carry out their role competently by directing

reviewing judges to those parts of the record that

might arguably support the appeal. See McCoy, 486

U.S. at 442; Model Code of Judicial Conduct r. 2.5(A)

(obligating judges to perform their duties

“competently and diligently”). In Anders, this Court

established a procedure that would allow defense

counsel to ethically provide adequate “assistance to

his client and to the court.” Anders, 386 U.S. at 744

(emphasis added). Without the effective assistance of

counsel, an appeal might devolve into a “meaningless

ritual,” since, for virtually any layperson, “the

services of a lawyer will . . . be necessary to present

an appeal in a form suitable for appellate

consideration on the merits.” Evitts, 469 U.S. at 393-

94 (quoting Douglas, 372 U.S. at 358). Anders briefs,

therefore, serve the “valuable purpose of assisting the

court” in competently determining both whether

“counsel in fact conducted the required detailed

review of the case” and whether “the appeal is indeed

so frivolous that it may be decided without an

adversary presentation.” Penson, 488 U.S. at 81-82

15

(1988); see also Anders, 386 U.S. at 745. Cf. ABA

Standards for Criminal Justice Prosecution Function

and Defense Function Standard 4-8.3 cmt. (noting

that it “is also in the public interest” to expeditiously

obtain complete and final determinations of all cases).

Lastly, without a notice of appeal, judges may

not reliably fulfill their duty to protect the legitimacy

of the legal system. The First Canon of the Model

Code of Judicial Conduct states that judges, as the

final arbiters of every case over which they preside,

“shall uphold and promote the independence,

integrity, and impartiality of the judiciary, and shall

avoid impropriety and the appearance of

impropriety.” Model Code of Judicial Conduct Canon

1. The proper division of responsibility between

judges and lawyers on appeal is one way for courts to

protect their “independent interest in ensuring that

criminal trials are conducted within the ethical

standards of the profession and that legal proceedings

appear fair to all who observe them.” Wheat v. United

States, 486 U.S. 153, 160 (1988); see also Offutt v.

United States, 348 U.S. 11, 14 (1954) (‘Justice must

not only be done, it must appear to be done.”).

Moreover, this judicial duty is especially important in

the plea bargaining context. For, today, plea

bargaining “is not some adjunct to the criminal justice

system; it is the criminal justice system.” Missouri v.

Frye, 566 U.S. 134, 144 (2012) (quoting Robert E.

Scott & William J. Stuntz, Symposium: Punishment,

Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912

(1992)).

When lawyers fail to file notices of appeal,

courts simply cannot guarantee defendants an

16

“adequate and effective” appeal. Griffin v. Iilinois,

351 U.S. 12, 20 (1956). Appellate judges are rendered

powerless, incapable of guarding against the

accidental waiver of viable claims by defense lawyers.

As a result, the very purpose of systems of appeal as

of right—to “assure that only those who are validly

convicted have their freedom drastically curtailed” —

are dangerously undercut. Evitis, 469 U.S. at 400.

The judiciary has a duty to protect every individual

defendant's fundamental rights and, in turn, to

uphold the integrity of the legal system writ large.

Ill. The Decision Below Creates Needless

Confusion and Uncertainty for

Criminal Defense Lawyers.

The decision below reflects a longstanding split

of authority regarding a criminal defense lawyer's

duty to file an appeal in the post-waiver context.

Criminal defense lawyers remain unsure of their legal

and ethical duties when faced with plea bargains that

include appellate waivers. Moreover, this issue comes

up frequently, due in part to the pervasiveness of plea

bargaining. The overwhelming majority of criminal

cases are resolved through plea _ bargaining

negotiations. See Lafler v. Cooper, 566 U.S. 156, 170

(2012) (“[C}riminal justice today is for the most part a

system of pleas, not a system of trials.”).

The prevalence of plea bargaining only

amplifies the need for clarification in this case. See

Editorial, Trial Judge to Appeals Court: Review Me,

N.Y. Times (July 16, 2012),

http://www.nytimes.com/2012/07/17/opinion/trial-

judge-to-appeals-court-review-me.html. Since the

17

Sentencing Reform Act of 1984, appellate waivers

have only increased in popularity with judges and

prosecutors’ offices around the country. See Lauren

Gregorcyk, Note, A Justified Obligation: Counsei’s

Duty to File a Requested Appeal in a Post-Waiver

Situation, 20 Wash. & Lee J. Civil Rts. & Soc. Just.

141, 147-148 (2013).

The current disagreement among lower courts

has fostered significant uncertainty for criminal

defense lawyers. The decision below only adds to the

confusion. Lawyers need to know not only whether

filing a notice of appeal in this context is frivolous, but

also whether it is constitutionally required. Asking

criminal defense lawyers to sift through inconsistent

or contradictory standards notably jeopardizes the

ability of defense lawyers to perform as competent

counsel. Indeed, the current split of authority has

resulted in an anomalous state of affairs in which

lawyers in some states—such as in Idaho—may be

subject to one constitutional standard in state court

and another in federal court. Compare Garza v. State,

405 P.3d 576 (idaho 2017), with United States v.

Sandoval-Lopez, 409 F.3d 1193 (9th Cir. 2005).

In addition, criminal defense lawyers have a

personal interest in understanding the law regarding

ineffective assistance of counsel because being found

“ineffective” directly affects their professional

standing. See Joel Cohen, When Lawyers Admit

“Ineffectiveness,” NY.LdJd. (Apr. 13, 2010),

https://www.stroock.com/siteFiles/Pub9 18.pdf

(“There is nothing worse for a criminal lawyer than

personal guilt for having waged an inadequate

defense that results in a miscarriage of justice for his

18

client.”). In deciding to file an appeal in the post-

waiver context, criminal defense lawyers might worry

that they must choose whether to pursue their clients’

interests or to follow a more convenient or

professionally beneficial course. In short, the current

split of authority leaves criminal defense lawyers in

the dark as to whether their decision to file an appeal

from a plea agreement containing an appeal waiver

might amount to ineffective assistance of counsel.

This Court should therefore grant certiorari and

clarify the obligations of criminal defense lawyers in

this recurrent situation.

CONCLUSION

Criminal defense lawyers should be

constitutionally required to file an appeal where

directed to do so by their client, even if their client

signed a plea agreement containing an appeal waiver.

To hold otherwise would undermine the right to

effective assistance of counsel under the Sixth

Amendment, fundamental requirements of ethics and

agency law, and the traditional division of authority

between defense lawyers and courts in the criminal

justice system. Further, defense counsel should know

the scope of their duty to file an appeal so that they

are able to both protect their clients’ constitutional

rights and avoid compromising their professional

standing. Defendants, not their counsel, should have

the ultimate authority to choose to appeal. For these

reasons, Amicus urges this Court to grant certiorari

and reverse the judgment below.

19

Respectfully Submitted,

/s/ Lawrence J. Fox

Lawrence J. Fox

Counsel of Record

George W. and Sadella D. Crawford

Visiting Lecturer in Law

Yale Law School

127 Wall Street

New Haven, CT 06511

(203) 432-9358

lawrence. fox@yale.edu

Counsel for Amicus Curiae

No. 17-1026

3n the

Supreme Court of the Anited States

+>

GILBERTO GARZA JR.,

Petitioner,

Vv.

STATE OF IDAHO,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF IDAHO

BRIEF OF AMICUS CURIAE

IDAHO ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF PETITIONER

Jonah Horwitz John J. Korzen

702 W. Idaho Street Counsel of Record

Suite 900 WAKE FOREST UNIVERSITY

Boise, ID 83702 SCHOOL OF LAW

(208) 345-5183 APPELLATE ADVOCACY CLINIC

Jonah_Horwitz@fd.org Post Office Box 7206

Winston-Salem, NC 27109

Craig Durham (336) 758-5832

223 N. 6 Street korzenjj@wfu.edu

Suite 325

Boise, ID 83702 Brian Mccomas

(208) 331-5530 77 Van Ness Avenue

chd@fergusondurham.com Suite 101

San Francisco, CA 94102

Kenneth Stringfield (208) 320-0383

213 S. 10” Avenue meccomas.b.c@gmail.com

Caldwell, ID 83605

(208) 459-6879

kstringfieldlaw@gmail.com

Counsel for Amicus Curiae

CibsouMeere Appellate Bervices, LLC

B06 Kast Cary Street? Bichmend, VA s8218

804-248.777¢ © wee .gibsoumeore.aet

TABLE OF CONTENTS

Page:

po F.C i

INTEREST OF AMICUS CURIAE ......00000000............. 1

REASONS FOR GRANTING THE WRIT................. 2

I. THE QUESTION PRESENTED IS

EE 2

li. APPELLATE WAIVERS RESULT

FROM UNEQUAL BARGAINING

Sua lidicsiiciameceantbcidinietanesinnsaniibetnadscererneeceses: 5

Ill. REVIEW WILL CLARIFY THE

DUTIES OF DEFENSE COUNSEL.............. 8

Se IIIED UT cscrscuscetesnessnesonsensssenssncegsecsnsesiovessnennssce 11

TABLE OF AUTHORITIES

Cases:

Anders v. California,

ee

Brady v. Maryland,

BO Ce Ge Ge rcrnccennemnesescnensnnussenanss

Campbell v. United States,

686 F.3d 353 (6th Cir. 2012)..................

Campusano v. United States,

442 F.3d 770 (2d Cir. 2006) ...................

Carnival Cruise Lines, Inc. v. Shute,

GD DE, GED Gar ep evcccccccccesesvinecevseescosces

Lee v. United States,

eee

Missouri v. Frye,

566 U.S. 134 (2012)..................cccccereceees

Penson v. Ohio,

Se ee Fe Ge enctericcessesieerenmannnen

Richardson-Merrell, Inc. v. Koller,

AT2 U.S. 424 (1985) ......c.cccceccecseseeseeseeeees

Roe v. Flores-Ortega,

ee

Smith v. Robbins,

SE UW, SD Ga cncccvsccccccccserecnecosescnces

Page(s):

ices passim

ill

Strickland v. Washington,

Ey HEE cinncccnsurecesesesecscessconenscceesees

United States v. Cronic,

ee

United States v. Garrett,

402 F.3d 1262 (10th Cir. 2005).......................

United States v. Gomez-Perez,

215 F.3d 315 (2d Cir. 2000) ................0.ccccc0e0e

United States v. Raynor,

989 F. Supp. 43 (D.D.C. 1997) .......0...-cccce00000--

United States v. Sandoval-Lopez,

409 F.3d 1193 (9th Cir. 2005)..........................

Rules:

SIE oe icerienetacinnentndpnapsansenatincouseseussouse

Other Authorities:

Alexandra W. Remelt,

An Unjust Bargain: Plea Bargains and

Waiver of the Right to Appeal,

BR AGA Be, BING. BIE GIO... ccccececevececccocessececesess

Beth Schwarzapfel,

Defendants Kept in the Dark About Evidence,

Until It’s Too Late, New York Times,

https://www.nytimes.com/2017/08/07/nyregion/

defendants-kept-in-the-dark-about-

evidence-until-its-too-late. htm]

Ee

iv

Daniel P. Blank,

Plea Bargain Waivers Reconsidered:

A Legal Pragmatist’s Guide to Loss,

Abandonment and Alienation,

68 Fordham L. Rev. 2011 (2000)............................. 6

Jacob Szewcyzk,

Following Orders: Campbell v. United States,

The Waiver of Appellate Rights, and the

Duty of Counsel,

64 Cath. U. L. Rev. 489 (2015)....................-.ececeeeees 5

Lauren Gregorcyk,

A Justified Obligation: Counsel’s Duty to File a

Requested Appeal in a Post-Waiver Situation,

20 Wash. & Lee J. Civ. Rts. &

ER SESS Se aan oe Moa 5

Nancy J. King & Michael E. O'Neill,

Appeal Waivers and the Future of

Sentencing Policy,

Se ene 4,5

Robert K. Calhoun,

Waiver of the Right to Appeal,

23 Hastings Const. L.Q. 127 (1995)...................00 6

Steven L. Chanenson,

Guidelines from Above and Beyond,

I Tita: SG, I i icnnisrinttissinnsiiesnicincnieiio 6

INTEREST OF AMICUS CURIAE!

Established in 1989, the Idaho Association of

Criminal Defense Lawyers (L[ACDL) is a non-profit,

voluntary organization of attorneys. Currently,

LACDL has over 400 lawyer members, all of whom

practice criminal defense. [ACDL’s membership

includes both public defenders and private counsel,

attorneys who work in both state and federal court,

and attorneys who focus on trials, appeals, post-

conviction, and federal habeas proceedings. One of

LACDL’s primary goals is to improve the quality of

representation provided to criminal defendants in

Idaho, especially those who cannot afford to retain

counsel. For those reasons, IACDL has a strong

commitment to ensure that Idaho defendants receive

adequate assistance of counsel at trial, and that they

are able to fully effectuate their right to an appeal.

Furthermore, given the size and breadth of

IACDL’s membership, the organization has

substantial expertise in the practical circumstances

on the ground in Idaho regarding how defense

attorneys, their clients, and courts operate. IACDL

likewise has insight into how each of those actors

deals with the issues implicated by the case at bar,

i.e., plea agreements, waivers of appellate rights,

notices of appeal, and ineffective-assistance claims.

Accordingly, LACDL has both the interest and the

knowledge to assist the Court with its resolution of

the petition for certiorari.

' This brief was not authored in whole or part by counsel for a party.

No one other than amicus curiae made a monetary contribution to

preparation or submission of this brief. Pursuant to Rule 37.2(a),

counsel of record for all parties received 10 days’ notice of the filing

of this brief and provided written consent to its filing.

REASONS FOR GRANTING THE WRIT

IACDL agrees fully with the contentions made in

the Petition for a Writ of Certiorari and offers the

additional points below in support of Petitioner.

I. THE QUESTION PRESENTED IS

IMPORTANT.

In addition to the acknowledged circuit split, (Pet.

8-9), the Question Presented is especially important

because it involves a defendant deprived of a

“proceeding itself” and arises frequently.

First, this Court has repeatedly protected the

rights of individuals who have forfeited a judicial

proceeding due to the decisions or performance of

their attorney. See Roe v. Flores-Ortega, 528 U.S. 470

(2000). In Flores-Ortega, this Court described the

distinction, based on a long line of case law, between

ineffective assistance that merely causes “a judicial

proceeding of disputed reliability” and ineffective

assistance that causes “the forfeiture of a proceeding

itself.” 528 U.S. at 483 (citing Smith v. Robbins, 528

U.S. 259 (2000); Penson v. Ohio, 488 U.S. 75 (1988);

United States v. Cronic, 466 U.S. 648 (1984)).

This Court held, “[W]hen counsel’s constitutionally

deficient performance deprives a defendant of an

appeal that he otherwise would have taken, the

defendant has made out a successful ineffective

assistance of counsel claim entitling him to an appeal.”

Flores-Ortega, 528 U.S. at 484. Courts should presume

prejudice “with no further showing from the defendant

of the merits of his underlying claims when the

violation of the right to counsel rendered the

proceeding . . . entirely nonexistept.” /d. (citing

Strickland v. Washington, 466 U.S. oat 693-96 (1984)).

For more than a decade, Circuit Courts have

interpreted Flores-Ortega to apply when defendants

entered a plea agreement that included an appellate

waiver. See, e.g., Campusano v. United States, 442

F.3d 770, 774 (2d Cir. 2006) (Sotomayor, J.); United

States v. Garrett, 402 F.3d 1262, 1265-66 (10th Cir.

2005). For example, the Second Circuit reasoned that

“important constitutional rights require some

exceptions to the presumptive enforceability of [an

appellate] waiver. . .. These constitutional protections

are endangered if counsel fails to pursue an appeal

without advising a client of the reasons for doing so.”

Campusano, 442 F.3d at 774-75 (citing United States

v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000)).

Likewise, the Tenth Circuit reasoned that the

presumption of prejudice in post-waiver cases “serves

to safeguard important interests with concrete and

potentially dispositive consequences which can be

guaranteed only by the direct-appeal process and the

concomitant right to counsel.” Garrett, 402 F.3d at

1265-66.

Just last Term, this Court reaffirmed the

importance of the Flores-Ortega presumption of

prejudice where an attorney’s “deficient performance

arguably led . . . to the forfeiture of a proceeding

itself.” Lee v. United States, 137 S. Ct. 1958, 1965

(2017) (citing Flores-Ortega, 528 U.S. at 483).

Rejecting the Government’s argument that a

petitioner seeking to overturn a guilty plea could not

show prejudice because he would have been unlikely

to succeed at trial, this Court stated that the

presumption of reliability in judicial proceedings “has

no place where, as here, a defendant was deprived of

a proceeding altogether.” Id. at 1967.

Petitioner here was similarly “deprived of a

proceeding altogether,” a direct appeal. Because such

complete deprivations are so important to ineffective

assistance claims under Strickland, the Question

Presented should be reviewed.

Second, the Question Presented will frequently

recur until this Court acts to resolve the issue. The

vast majority of criminal convictions follow plea

agreements. See, e.g., Missouri v. Frye, 566 U.S. 134,

143 (2012) (“Ninety-seven percent of federal

convictions and ninety-four percent of state

convictions are the result of guilty pleas.”). Moreover,

most plea agreements include an appellate waiver.

See, e.g., 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) (sixty-five percent of

plea agreements across the Federal circuits include

appellate waivers).

Due to the ubiquity of plea agreements and

appellate waivers, some defendants will continue to

find themselves in the same position as Petitioner:

desiring to appeal after a guilty plea, but with counsel

who choose not to file a notice of appeal because of an

appellate waiver. Indeed, the Question Presented has

arisen with such regularity since Flores-Ortega that

ten of the federal Circuit Courts have decided it. See

Campbell v. United States, 686 F.3d 353, 359 (6th Cir.

2012) (surveying cases from the Second, Third, Fourth,

Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and

Eleventh Circuits and concluding that “prevailing

precedent from the Supreme Court, the Sixth Circuit,

and the majority of our sister circuits mandates that

even [after an appellate waiver] a defendant is entitled

to counsel who will follow through on express

instructions to proceed with an appeal”).

Scholarly attention further shows the importance

of the Question Presented. See, e.g., Jacob Szewcyzk,

Comment, Following Orders: Campbell v. United

States, The Waiver of Appellate Rights, and the Duty

of Counsel, 64 Cath. U. L. Rev. 489, 513 (2015)

(“holding that defense counsel has _ provided

ineffective assistance of counsel when failing to

follow orders from his client to file an appeal, even if

his client has waived that right, is the best way to

protect defendants’ rights and ability to make

decisions regarding their own criminal

proceedings”); Lauren Gregorcyk, Note, A Justified

Obligation: Counsel’s Duty to File a Requested

Appeal in a Post-Waiver Situation, 20 Wash. & Lee

J. Civ. Rts. & Soc. Just. 141, 174 (2013) (“appellate

waivers should not alter pre-existing obligations

between defense attorneys and their clients, like the

obligation to file a requested appeal”); King &

O'Neill, supra, 55 Duke L.J. at 256 (“Appeal waivers

are firmly entrenched in plea agreement practice in

federal courts.”).

In sum, the Question Presented is important and

frequently recurring. It is fully developed. It is not

going away. It merits this Court’s review.

Il. APPELLATE WAIVERS RESULT FROM

UNEQUAL BARGAINING POWER.

One dubious defense of the minority position is

that criminal defendants must live with the deal

they have struck, a “freedom of contract” type of

argument. See, e.g., Pet. App. 14a (“a plea agreement

is a bilateral contract, to which both the State and

defendant are bound”). As an initial matter, this

argument misunderstands the effect of the bargain

that has been struck by the defendant. As Petitioner

6

explains, a defendant who has signed a plea waiver

maintains the right to appeal a number of important

constitutional issues. Pet. 10.

The argument also presumes that criminal

defendants have significant bargaining power when

negotiating a plea agreement. The reality on the

ground is quite different. See, e.g., Steven L.

Chanenson, Guidelines from Above and Beyond, 58

Stan. L. Rev. 175, 182 (2005) (“there is reason to

question how much real trading occurs”); Robert K.

Calhoun, Waiver of the Right to Appeal, 23 Hastings

Const. L.Q. 127, 211 (1995) (“appeal waivers look . . .

more like the price of admission to engage in the plea

bargaining process at all”); Alexandra W. Remelt, An

Unjust Bargain: Plea Bargains and Waiver of the

Right to Appeal, 51 B.C. L. Rev. 871, 904 (2010)

(discussing how defendants have little choice but to

accept plea agreements); Daniel P. Blank, Plea

Bargain Waivers Reconsidered: A Legal Pragmatist’s

Guide to Loss, Abandonment and Alienation, 68

Fordham L. Rev. 2011, 2014 (2000) (discounting the

notion that the ability to waive appellate rights

operates as a bargaining chip).

Plea agreements are akin to contracts of adhesion,

which are, as this Court has noted, “form contracts

offered on a take-or-leave basis by a party with

stronger bargaining power to a party with weaker

power.” Carnival Cruise Lines, Inc. v. Shute, 499 U.S.

535, 600 (1991). Prosecutors set the terms of plea

agreements and present the fully drafted document to

defense counsel, not the other way around. The plea

agreements Petitioner entered are good examples,

both containing nearly identical terms in what

appears to be a sort of fill-in-the-blanks template.

Compare Pet. App. 40a-45a with Pet. App. 46a-50a.

Some courts and commentators have recognized

the inherent inequality in bargaining power betweer

prosecutors and defendants. See United States v.

Raynor, 989 F. Supp. 43, 49 (D.D.C. 1997) (describing

plea negotiations as “inherently unfair; it is a one-

sided contract of adhesion; it will undermine the error

correcting function of the courts of appeals in

sentencing.”). Prosecutors determine the actual

charge or charges brought against the defendant,

which in turn determine the ultimate sentence that

will result from the charges. Remelt, supra, 51 B.C. L.

Rev. at 888. Prosecutors then create the terms of the

plea agreement, and it is up to the defendant to enter

into the contract on a take-it or leave-it basis. Id.

The lack of bargaining power is particularly

alarming in the ten states that do not require

prosecutors to provide discovery until shortly before

trial. See Beth Schwarzapfel, Defendants Kept in the

Dark About Evidence, Until It’s Too Late, New York

Times (Aug. 7, 2017), https://)www.nytimes.com/2017/

08/07/nyregion/defendants-kept-in-the-dark-about-

evidence-until-its-too-late.html. In those jurisdictions,

prosecutors often plea bargain without having

provided information that could potentially be helpful

to the defense, including disclosures required by this

Court in Brady v. Maryland, 373 U.S. 83 (1963);

Schwarzapfel, supra (noting “lower courts have split

over whether Brady material must be turned over

before a plea”).

In short, a criminal defendant's “freedom of

contract” should not prevent a presumption of

prejudice from arising when counsel fails to file an

appeal based on an appeal waiver.

Ill. REVIEW WILL CLARIFY THE DUTIES

OF DEFENSE COUNSEL.

By resolving the question presented, this Court

will provide needed clarity to defense attorneys

regarding their duty to file a notice of appeal and their

related duty to consult with their clients regarding an

appeal. First, the minority position allows attorneys

to decide whether to appeal, not their clients. The

State of Idaho argued below, for example, that

Petitioner’s “appeal waivers negated the duty his trial

counsel otherwise would have had to file appeals at

his request.” Pet. App. 30a. In accepting this

argument, the minority position ignores the long-held

understanding that it is defendants who make the

ultimate decision to appeal. See, e.g., Richardson-

Merrell, Inc. v. Koller, 472 U.S. 424, 435 (1985) (“As a

matter of professional ethics, . . . the decision to

appeal should turn entirely on the client’s interest.”);

Flores-Ortega, 528 U.S. at 479 (“the decision to appeal

rests with the defendant”); ABA Criminal Justice

Standar? 4-5.2(a)(v) (“The decisions which are to be

made by the accused after full consultation with

counsel include . . . whether to appeal.”).

Second, the minority position also allows defense

attorneys to neglect their duty to consult with their

clients about an appeal. This Court held in Flores-

Ortega that defense counsel “has a constitutionally

imposed duty” to consult with a defendant who has

“reasonably demonstrated to counsel that he was

interested in appealing.” 528 U.S. at 480; see also id.

at 488 (Breyer, J., concurring) (“in my view . . . counsel

does ‘almost always’ have a constitutional duty to

consult with a defendant about an appeal after a

trial”). Here, it is apparent that Petitioner’s attorney

failed to discharge his duty to consult, despite

Petitioner asking him to appeal in “numerous phone

calls and letters.” Pet. App. 3a; see also Flores-Ortega,

528 U.S. at 493-94 (Ginsburg, J., concurring in part

and dissenting in part) (“I think it plain that the duty

to consult was not satisfied in this case”).

The court below misread Flores-Ortega as broadly

not compelling a presumption of projudice in the

“failure to consult context,” Pet. App. 10a, while

ignoring this Court’s clear holdings that a duty to

consult arises when a client has demonstrated an

interest in appealing and that a presumption of

prejudice does arise when counsel’s performance

“deprives a defendant of an appeal that he otherwise

would have taken.” 528 U.S. at 484.

Overlooking these duties, the minority position

places undue weight on a defense attorney’s duty not

to file “frivolous” litigation. See Pet. App. 13a, 26a.

More than a half-century ago, this Court provided a

remedy for defense counsel who are asked to file an

appeal they believe to be frivolous, in Anders v.

California, 386 U.S. 738, 744-45 (1967). The solution

is not to ignore the client’s request to appeal. The

court below did not make a single reference to Anders.

See Pet. App. la-15a.

Finally, this Court’s review will prevent the

anomaly, created by the split in courts below, that

defense attorneys in the same town have varying

duties based on whether they are in state court or

federal court. Due to the conflict between the Idaho

Supreme Court and the Ninth Circuit, which follows

the majority rule, the performance of a Boise attorney

in state court is not presumed to be prejudicial if he

ignores a client’s request to appeal, while im federal

court it is. Compare Pet. App. 15a (“This Court does

10

not presume counsel to be automatically ineffective

when counsel declines to file an appeal in light of an

appeal waiver.”) with United States v. Sandoval-

Lopez, 409 F.3d 1193, 1197 (9th Cir. 2005) (if “it is

true that he explicitly told his lawyer to appeal his

case and his lawyer refused, then we are required by

Flores-Ortega to conclude that it was deficient

performance not to appeal and that Sandoval-Lopez

was prejudiced”).

Therefore, this Court’s review is needed to clarify

the constitutional duties of defense counsel related to

appellate filing and consultation when their clients’

plea agreements contain an appellate waiver.

11

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

/s/ John J. Korzen ___

Jonah Horwitz John J. Korzen

702 W. Idaho Street Counsel of Record

Suite 900 WAKE FOREST UNIVERSITY

Boise, [ID 83702 SCHOOL OF LAW

(208) 345-5183 APPELLATE ADVOCACY

Jonah_Horwitz@fd.org CLINIC

Post Office Box 7206

Craig Durham Winston-Salem, NC 27109

223 N. 6% Street (336) 758-5832

Suite 325 korzenjj@wfu.edu

Boise, ID 83702

(208) 331-5530 Brian Mccomas

chd@fergusondurham.com 77 Van Ness Avenue

Suite 101

Kenneth Stringfield San Francisco, CA 94102

213 S. 10% Avenue (208) 320-0383

Caldwell, ID 83605 meccomas.b.c@gmail.com

(208) 4596879

kstringfieldlaw@gmail.com

Dated: February 22, 2018