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

No. 17-1026

In The

Supreme Court of the Gnited States

+

GILBERTO GARZA JR.,

Petitioner,

STATE OF IDAHO,

Respondent.

+

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF IDAHO

°

BRIEF OF AMICUS CURIAE

THE ETHICS BUREAU AT YALE

IN SUPPORT OF PETITIONER

+

Lawrence J. Fox Susan D. Reece Martyn

Counsel of Record Stoepler Professor of

George W. and Law and Values

Sadella D. Crawford UNIVERSITY OF TOLEDO

Visiting Lecturer in Law COLLEGE OF LAW

YALE LAW SCHOOL 2801 West Bancroft Street

127 Wall Street Toledo, Ohio 43606

New Haven, CT 06511 (419) 530-4212

(203) 432-9358 susan.martyn@utoledo.edu

lawrence.fox@yale.edu

Counsel for Amicus Curiae Dated: August 17, 2018

THE LEX GROUP" ¢@ 1050 Connecticut Avenue, N.W. @ Suite 500, #5190 © Washington, D.C. 20036

(202) 955-0001 @ (BOO) 856-4419 @ www.thelexgroup.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIRG ......:cccsssssccvsssssesesscscesesees iv

INTEREST OF AMICUS CURIAE............0000c00e0e00000 1

SUMMARY OF ARGUMENT. .....00.........cccccseeeeeeeeseees 2

REE ITE xcrvinrnnnnnnnnnininniiminttaiia 7

I. A Lawyer May Not Override a

Client’s Decision to File a Notice

of Appeal Because the Client

Signed a Plea Agreement with an

B.

The Client, Not the

Lawyer, Has the Authority

to Decide Whether to

RIOD cecvecsienininetaprinnmsnins

Because All Appeal

Waivers Are Partial, the

Mere Existence of a Plea

Waiver Could Never

Render the Filing a Notice

of Appeal Frivolous..............

seeseve 7

eeeeeee 8

ii

C. The Client Retains Full

Control Over the Decision

to File a Notice of Appeal,

Even if a Court Later

Determines that an

Argument Made on Appeal

Breached the Plea

Ce

Counsel’s Failure to File a Notice

of Appeal, Over Mr. Garza’s

Express Wishes, Violated the

Most Basic Principle of Agency

Law and Is _ Presumptively

A. A Lawyer Who

Deliberately Disregards a

Client’s Instructions to File

a Notice of Appeal Violates

the Lawyer's Obligations of

Loyalty by Disobeying the

Client’s Lawful Direction .......

B. Counsel’s Decision Not to

File a Notice of Appeal Is

Presumptively Prejudicial

Because It Forfeited Mr.

Garza’s Right to an Entire

Judicial Proceeding ................

. 12

il

Ill. The Court Should Establish a

Clear Rule that Prevents Lawyers

from Sacrificing a Client's Clearly

Expressed Desire to a

Constitutional Right. .......................... 20

A. Lawyers Need a Clear Rule

to Understand Their

Obligation to Their Clients

to File a Notice of Appeal ......... 20

B. If This Court Does Not

Presume Prejudice Here,

Defendants Will Have No

Choice but to Proceed Pro

oe 27

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Anders v. California,

386 U.S. 738 (1967).......................... 3, 9, 10, 23

Coleman v. Thompson,

GS ES 5, 19, 24

Comm’. v. Banks,

EESTI SNe mee 4,15

Douglas v. California,

372 U.S. 363 (1963)............................ 24, 25, 26

Faretta v. California,

422 U.S. 806 (1975)...................... 12, 13, 15, 26

Florida v. Nixon,

I TO 3

Gonzalez v. United States,

RES SS ASR Pe Aria 16

Holland v. Florida,

eee 4, 18,19

Illinois v. Allen,

I 13

Jones v. Barnes,

Sy Se irncennessiserieensbentenenemnindasendeines 3

Maples v. Thomas,

565 U.S. 266 (2012)................cceecerecessceeeees 18, 19

McCoy v. Court of Appeals of Wisconsin,

486 U.S. 429 (1988)...................000++ 8, 10, 11-12

McCoy v. Louisiana,

138 S. Ct. 1500 (2018).............-.........200+ 3, 7, 16

Penson v. Ohio,

© fF Syl 3, 10

Ricketts v. Adamson,

rol 6,0, | 13, 14

Rodriquez v. United States,

EE 3,17

Roe v. Flores-Ortega,

GD EE, GE Ge ececcccncencccccscccccescescons passim

Smith v. Robbins,

ER, Sa GI recess ccccccccescccsscscenescsses 12,17

State v. McKenney,

9B Idaho 551 (1977)............--..ccececssceseeeeseeeeeesees 9

Strickland v. Washington,

OO 7

United States v. Mezzanatto,

ED TEE, BE Ce ccccccccccccccscesecccsccccnscccee 11, 25

Weaver v. Massachusetts,

137 S. Ct. 1899 (2017).............-...-eereneeseereeeees 12

CONSTITUTIONAL PROVISION

| Ng Erne 2, 7, 8, 15

RULES

ITD STS “Discsnercscctsestiniatieenilénncenteenastalnipsinietiieieniadindl 20

Pe Bi, GE. . BI ccceceencsccnsasecnsssccsnssccsnocses 11

PR Site RIED). Ui s- St annceteesenceepenenieuisintienenesstncibeintuanndes 1

SS Sty GI snctcicsicerectencncdiusatiinitaiscneiniiiinnatt 11

GEENA, Ge 0 extisertnncniepsedanmanatioduidenniniania 20

eH TT cnccimintinttpeninieipetenedesmeumenttinndinis 22

Model R. Prof] Conduct r. 1.2(a).........0..0000ccccccce seen 14

Model R. Prof] Conduct r. 1.2(d)....................ccc00000- 14

Model R. Prof] Conduct r. 2.1 ...........0.....ccccccceeeeeeeees 14

Model R. of Prof] Conduct r. 3.1

ee I I nrnrstierecicncccnssscnccnsecbninnnssenstadnsaiiss 9

OTHER AUTHORITIES

ABA Standards for Criminal Justice

Prosecution Function and Defense Function

Standard 4-3.6 (3d ed. 1993) ............ccccccccececeeeeeeeeees 21

ABA Standards for Criminal Justice

Prosecution Function and Defense Function

Standard 4-8.2 (3d ed. 1993) ..................ccceeceeeeeeeeeeee 22

ABA Standards for Criminal Justice

Prosecution Function and Defense Function

Standard 4-8.3 (3d ed. 1993) ...............ccccccceeeeeeee 20, 23

ABA Standards for Criminal Justice

Prosecution Function and Defense Function

Standard 4-9.1 (4th ed. 2015).................cccccscecseeeeeeeees 5

ABA Standards for Criminal Justice

Prosecution Function and Defense Function

Standard 9.1(b) (4th ed. 2015) ......................... 7, 8,21

ABA Standards for Criminal Justice

Prosecution Function and Defense Function

Standard 4-9.2(e) (4th ed. 2015) ................0.ccccccceeees 10

Criminal Justice / Mental Health Consensus

Project, Council of State Governments (June

2002),

https://www.ncjrs.gov/pdffiles 1/nij/grants/

Daniel P. Blank, Plea Bargain Waivers

Reconsidered: A Legal Pragmatist’s Guide to

Loss, Abandonment and Alienation,

68 Fordham L. Rev. 2011 (2000) ................... 18

Felony Sentences, Bureau of Justice Statistics

(2006),

https://www.bjs.gov/index.cfm?ty=tp&tid=233

SIE ininsctinnecadssnstanensensceusteenidndsbenentininiaetasennensdiesansedass 18

Glenn R. Schmitt et al. Overview of

Federal Criminal Cases: Fiscal Year 2017,

United States Sentencing Commission (June

2018), https://www.ussc.gov/sites/default/

files/pdf/research-and-publications/research-

publications/2018/FY17_Overview_Federal_Cr

iminal Cases.pdf (2006) ................cccccceeeeeeeeeeeeeeeeeeees 18

Nancy J. King & Michael E. O’Neil, Appeal

Waivers and the Future of Sentencing Policy,

55 Duke Lid. 209 (2005)................ccccceceeeeeeeees 18

Restatement (Second) of Agency § 13

Came, Tcret Tne, GED occcocnsccccccsceccncccesccceescoccecccccsevecs 15

Restatement (Second) of Agency § 39

Came, Tarte Benth, TIED occeccescvcicccesccceveseveccsccescecesoscsseves 15

Restatement (Second) of Agency § 112

a, Ee I, Fie cerevecsncincecesensceviesinsevsccesevereeers 19

Restatement (Second) of Agency § 387

(Am. Law Inst. 2000) ................cccccccceeeeeeeeeeeeeenees 15, 16

Restatement (Second) of Agency § 394

(Am. Law Inst. 1957)...............ccccccsccssecsssserssesererensees 19

Restatement (Third) of Agency

§ 8.09(2) (Am. Law Inst. 2006)....................... 4, 15, 16

Restatement (Third) of the

Law Governing Lawyers § 22(1)

GEARED, TEP TREE, TID ceccccsctcccccevccccsccescsccseccscoscnssscccssees 8

Restatement (Third) of the

Law Governing Lawyers § 23

Ss SY III) III icici accemiesvansenenciuastentetonionine 14

Restatement (Third) of

Law Governing Lawyers § 31

Star SN Cs tiara ica cccieeritanendaneninsiasendie 19

Restatement (Third) of the Law Governing

Lawyers § 110 (Am. Law Inst. 2000) ......................... i]

Restatement (Third) of the Law Governing

Lawyers § 110(1) (Am. Law Inst. 2000)..................... i]

Robert K. Calhoun, Waiver of the Right to

Appeal, 23 Hastings Const. L. Q. 127 (19985)........... 18

Vida B. Johnson, A Plea for Funds: Using

Padilla, Lafler, and Frye to Increase Public

Defender Resources, 51 Am. Crim. L. Rev. 403

INTEREST OF AMICUS CURIAE'

The Ethics Bureau at Yale is a clinic composed

of fourteen law 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.

Amicus has no direct interest in the outcome of

this litigation. Because this case implicates a lawyer's

ethical obligation to further his client’s objectives by

obeying his client’s lawful direction, the Bureau

believes it might assist the Court in resolving the

important issues presented.

' Pursuant to Rule 37.6, Amicus affirms that no counsel for a

party authored this brief in whole or in part and that no person

other than Amicus and its counsel made a monetary contribution

to its preparation or submission. All parties have consented to

the filing of this brief. The Ethics Bureau at Yale is a student

clinic of Yale Law School. The views expressed herein are not

necessarily those of Yale University or Yale Law School.

SUMMARY OF ARGUMENT

This Court’s Sixth Amendment jurisprudence,

as well as long-standing professional responsibility

principles and agency law, make clear that a

presumption of prejudice applies when a criminal

defendant asks his lawyer to file a notice of appeal,

but the lawyer fails to do so, relying for his inaction

on the defendant's plea agreement that included an

appeal waiver. To have this Court decide otherwise

would allow lawyers to breach the most basic of

fiduciary duties to their clients: the obligation of

loyalty to obey a client’s lawful decisions regarding

the objectives of the representation.

The facts of this case are straightforward and

undisputed. In 2015, Gilberto Garza, Jr. entered into

two plea agreements: an Alford plea to aggravated

assault and a guilty plea to possession of a controlled

substance. Both plea agreements include a provision

stating that Mr. Garza “waives his right to appeal.”

Pet. App. at 44a, 49a. Mr. Garza subsequently

informed his lawyer via numerous phone calls and

letters that he wanted to appeal his sentence. /d. at

3a. But despite this instruction, counsel did not file a

notice of 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.” Jd. at 52a. Mr.

Garza filed a pro se petition for post-conviction relief,

alleging that his lawyer rendered ineffective

assistance of counsel by refusing to file to a notice of

appeal at his request. /d. at 3a. The Supreme Court of

Idaho affirmed the District Court’s and Court of

Appeals’ denial of relief.

Clients have the sole authority to decide

whether they will file an appeal. See Roe v. Flores-

Ortega, 528 U.S. 470, 477 (2000) (citing Jones v.

Barnes, 463 U.S. 745, 751 (1983)) (noting that the

“accused has [the] ultimate authority to make [the]

fundamental decision [of] whether to take an

appeal”); see also McCoy v. Louisiana, 138 S. Ct. 1500,

1508 (2018) (stating that the decision to “forgo an

appeal” is “reserved for the client”); Florida v. Nixon,

543 U.S. 175, 187 (2004) (same). It is a fundamental

precept of the ethical obligations of lawyers in the

American constitutional tradition that the client, not

the lawyer, has the final say over the objectives of the

representation. In giving meaning to that precept,

this Court requires courts to presume prejudice when

a lawyer fails to file a notice of appeal after the client

requests that one be filed. See Rodriquez v. United

States, 395 U.S. 327 (1969).

That presumption applies here, where counsel

unilaterally decided that filing a notice of appeal

would be unwise. The law protects the client’s right to

file an appeal, including an appeal that non-judicial

actors may deem imprudent or even frivolous. See

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

(describing a method for court-appointed lawyers to

withdraw from an appeal they consider meritless

while still zealously advocating for their clients); see

also Penson v. Ohio, 488 U.S. 75, 81-85 (1988)

(affirming the importance of Anders briefs). If a

lawyer cannot undermine a client’s appeal based on

the lawyer’s unilateral conclusion that the client’s

appeal is frivolous, then certainly the lawyer cannot

make that same unilateral decision during the

window to file a notice of appeal.

Contrary to a claim of the Idaho Supreme

Court, requiring lawyers to file notices of appeal even

if their clients entered plea agreements with appeal

waivers is far from an “exercise in futility.” Pet. App.

at 13a (internal quotation marks omitted). Rather, it

is essential that a court independently review the

merits of an appeal, because all appellate waivers can

only bar a subset of potential appeals. This is true

even if the client, after consultation with the

appellate lawyer, makes arguments on appeal that

could breach the client’s plea agreement. The client

retains the power and right to file a notice of appeal,

even though that choice risks triggering additional

consequences. Mr. Garza’s personal decision to

exercise his right to appeal cannot be summarily

blocked by his own lawyer.

Principles of agency law likewise mandate that

prejudice be presumed when a lawyer ignores a

client’s instructions and fails to file a notice of appeal

because the client agreed to an appeal waiver. Agency

law prescribes that lawyers, as their clients’ agents,

have a clear duty to follow a client’s lawful

instructions. See Restatement (Third) of Agency

§ 8.09(2) (Am. Law Inst. 2006). Notably, the attorney-

client relationship requires that the client, as the

principal, maintain “ultimate autonomous dominion

over the underlying claim.” Comm’r. v. Banks, 543

U.S. 426, 436 (2005). When a lawyer fails to follow a

client’s express and lawful instructions, the lawyer

not only violates his or her duties as an agent, but also

leaves the client with no lawyer at all. See Holland v.

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

in judgment) (noting that “a litigant cannot be held

constructively responsible for the conduct of an

attorney who is not operating as his agent in any

meaningful sense of that word”).

This assault on the attorney-client relationship

is particularly striking in the post-waiver context,

because by not filing a notice of appeal as instructed

by the client, the lawyer robs the client of an entire

judicial proceeding. This Court has concluded that

such a serious denial of an appellate proceeding is per

se prejudicial. See Flores-Ortega, 528 U.S. at 483.

Prejudice should therefore be presumed here, because

long-standing, basic agency law principles require

lawyers to obey their clients’ instructions. This

obedience is a crucial aspect of lawyers’ respect for

protecting their client’s constitutional rights, as well

as their client’s autonomy.

As a clinic concerned with professional

responsibility issues, we think it essential that

lawyers recognize that this situation is presumptively

prejudicial. Lawyers need only file a notice of appeal

to comply with their clients’ wishes. The task of

reviewing the client’s case for the existence of

meritorious grounds for appeal—something that the

American Bar Association requires—will be

undertaken by appellate counsel. See ABA Standards

for Criminal Justice Prosecution Function and

Defense Function Standard 9.1 (4th ed. 2015).

Likewise, defendants are entitled to a lawyer

on appeal, but not in post-conviction proceedings. See

Coleman v. Thompson, 501 U.S. 722, 752 (1991).

Therefore, if this Court does not presume prejudice

when a lawyer refuses to respect his client’s decision

to file a notice of appeal, the client will be left to prove,

pro se, in post-conviction proceedings that prejudice

existed.

A constitutionally deficient trial lawyer who

neglects a client’s express instructions deprives the

client of the benefit of a constitutionally competent

lawyer on appeal. The outcome of a criminal

proceeding should be determined in a fair and

uniform way—not through a game of procedural

Russian Roulette where a client’s access to essential

structural protections depends on the whims of an

individual, disloyal lawyer.

In light of these considerations, Amicus urges

this Court reverse the judgment of the court below.

ARGUMENT

1. A Lawyer May Not Override a Client’s

Decision to File a Notice of Appeal

Because the Client Signed a Plea

Agreement with an Appeal Waiver.

A. The Client, Not the Lawyer, Has the

Authority to Decide Whether to

Appeal.

The defendant’s right to appeal is central to the

protections provided by the Sixth Amendment, and it

is one of only a handful of rights that this Court has

specifically allocated to the defendant. See McCoy v.

Louisiana, 138 S. Ct. 1500, 1508 (“Some decisions . . .

are reserved for the client—notably, whether to plead

guilty, waive the right to a jury trial, testify in one’s

own behalf, and forgo an appeal.”). This Court has

also concluded that the Sixth Amendment guarantees

defendants effective assistance of counsel, see

Strickland v. Washington, 466 U.S. 668, 686 (1984),

and that a lawyer who ignores his or her client's

instructions to file an appeal is presumed to have

rendered ineffective assistance. See Roe v. Flores-

Ortega, 528 U.S. 470, 477 (2000).

Principles of legal ethics and agency law

likewise prescribe that, throughout the course of a

representation, the client retains control over final

decisions and, specifically, the decision to appeal. The

American Bar Association, for example, in adopting

standards for prosecutors and defense lawyers, has

announced that “[t]he ultimate decision whether to

appeal should be the client’s.” ABA Standards for

Criminal Justice Prosecution Function and Defense

Function Standard 4-9.1(b) (4th ed. 2015); see also id.

4-5.2 (noting that “[cjertain decisions relating to the

conduct of the case are ultimately for the ac. «©

others are for defense counsel,” and providing tle: tw

decisions to be made by defendants include “w! »* r

to appeal”). The Restatement of Law Gove:siug

Lawyers likewise observes 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).

In this case, Mr Garza clearly conveyed that

he wanted to file a notice of appeal. His counsel

violated the Sixth Amendment, as well as bedrock

principles of legal ethics and agency law, by

disregarding that direction. Counsel acknowledged

that Mr. Garza instructed him to file a notice of

appeal in counsel's affidavit in the District Court. See

Pet. App. 52a. Once Mr. Garza established that as one

of his objectives, his lawyer should not have deviated

from that objective.

B. Because All Appeal Waivers Are

Partial, the Mere Existence of a Plea

Waiver Could Never Render the

Filing a Notice of Appeal Frivolous.

This Court has recognized the tension between

the constitutional right of defendants to have an

active advocate on appeal and the professional

obligation of counsel not to make frivolous arguments

on appeal. See McCoy v. Court of Appeals of

Wisconsin, 486 U.S. 429, 437 (1988). Yet its holdings

have not wavered from the principle that defendants

9

have a right to file a notice of appeal and to have the

effective assistance of counsel in doing so. Instead,

this Court has addressed the problem of frivolous

arguments by recommending that lawyers follow the

procedure described in Anders v. California. 386 U.S.

738 (1967). That is, when a client asks a lawyer to file

an appeal with potentially frivolous arguments, the

lawyer should file the 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 744.2 This

procedure, requiring lawyers to file “Anders briefs,”

allows defense counsel to act “with honor and without

conflict,” while even more importantly preserving

defendants’ right to appeal. /d.

Principles of legal ethics strike a similar

balance between defendants’ constitutional right to

counsel and lawyers’ professional obligation not to

make frivolous arguments on appeal. As a general

rule, counsel may not make frivolous arguments. See

Model R. of Prof] Conduct r. 3.1 (Am. Bar Ass’n 1983);

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, cmt. 3; see also Restatement (Third) of

the Law Governing Lawyers § 110 cmt. f (“[A] lawyer

representing a convicted person on appeal may be

2 The Supreme Court of Idaho has adopted its own version of the

Anders process, requiring lawyers to brief their arguments on

the merits without withdrawing. See State v. McKenney, 98

Idaho 551, 552 (1977).

10

required to file a so-called Anders brief in the event

the lawyer concludes that there is no non-frivolous

ground on which the appeal can be maizxtained.”). In

promulgating ethical rules governing the legal

profession, the American Bar Association, like this

Court, drew an important distinction between

assisting a client on appeal—-which is constitutionally

required—and actively deceiving the court or

opposing parties—-which is prohibited. See ABA

p sce for Criminal Justice Prosecution Function

and Defense Function Standard 4-9.2(e) (4th ed.

2015).

Requiring lawyers to abide by their clients’

wishes and file notices of 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 not only the right to a

direct appeal, but also a lawyer in that appellate

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 te counsel to perform a

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

75, 81-82, n.4 (1988) (quoting McCoy v. Court of

Appeals of Wisconsin, 486 U.S. at 439 (1988)).

11

This review by both counsel and the court is

essential, even in the appeal waiver context. This is

because this Court has held that many claims fall

outside the scope of an appeal waiver, including

whether the government breached the terms of the

waiver, whether the plea or appeals waiver was

knowing and voluntary, and whether the trial lawyer

provided ineffective assistance of counsel.*

Regardless of any appeal waiver, the facts of

this case raise several issues that could potentially

have been raised on appeal. Counsel may have been

able to argue that Mr. Garza did not knowingly waive

his right to appeal, see United States v. Mezzanatto,

513 U.S. 196, 210 (1995), because Mr. Garza checked

“no” to the question of whether he was waiving his

right to appeal on a form that he filled out shortly

before his plea. R at 97.4 Similarly, during Mr. Garza’s

Rule 11 hearing, the District Court, though required

to do so by state procedures, never inquired whether

Mr. Garza understood that he was waiving his right

to appeal, or what he meant when he checked “no” on

his response form. See Idaho Crim. R. 11(d)(3); see

also Fed. R. Crim. P. 11(b)(1)(N) (requiring the same).

Indeed, the District Court explicitly told Mr. Garza:

“[Yjou have the right to appeal, and if you cannot

afford an attorney, you can request to have one

appointed at public expense.” R. at 132. The court’s

two judgments also instructed Mr. Garza that he

could appeal. /d. at 118, 121.

* Amicus refers the Court to Petitioner's Brief, sec. B(1)(a), for

additional amplification of this point.

*“R’ refers to the record on appeal to the Idaho Supreme Court.

12

Of course, counsel’s failure to file a notice of

appeal prevented these potential claims from being

reviewed. Instead, counsel offered only a “conclusory

statement that the appeal was meritless.” See McCoy

v. Court of Appeals of Wisconsin, 486 U.S. at 443; see

also 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”). 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, a partially

untrue statement, which became unreviewable. Pet.

App. at 52a.

Cc. The Client Retains Full Control

Over the Decision to File a Notice of

Appeal, Even if a Court Later

Determines that an Argument Made

on Appeal Breached the Plea

Agreement.

Although lawyers advocate for their clients and

advise them on strategy, clients are the masters of

their own defense. As a result, criminal defendants’

authority to decide whether to appeal is absolute.

This principle is a reflection of the American legal

tradition and finds particular resonance in the

defendant's right to self-representation. See Faretta v.

California, 422 U.S. 806, 819-20 (1975) (“The right to

defend is given directly to the accused; for it is he who

suffers the consequences if the defense fails.”).

Moreover, defendants have the right to

represent themselves, even though doing sc often

13

increases the likelihood of an unfavorable outcome in

their cases. See Weaver v. Massachusetts, 137 S. Ct.

1899, 1908 (2017) (stating that self-representation “is

based on the fundamental legal principle that a

defendant must be allowed to make his own choices

about the proper way to protect his own liberty”); see

also Faretta, 422 U.S. at 834 (1975) (“[Ajlthough [the

defendant] may conduct his own defense ultimately to

his own detriment, his choice must be honored out of

‘that respect for the individual which is the lifeblood

of the law.” (citing /1linois v. Allen, 397 U.S. 337, 350-

51 (1970))).

Mr. Garza did not lose his right to file a notice

of appeal merely because the hypothetical arguments

he might make on appeal could breach an existing

plea agreement. To the extent that filing a notice of

appeal puts the client’s entire plea agreement at risk,

that is a choice that the client—not the lawyer—is

entitled to make.

This Court has recognized that a defendant

chooses whether to honor or breach a plea agreement.

For instance, in Ricketts v. Adamson, the defendant

signed a plea agreement that required him to testify

against his co-defendants at trial. 483 U.S. 1, 3 (1987).

He did, but when his co-defendants had their

convictions overturned and faced retrial, the

defendant refused to testify, arguing that the plea

agreement did not require him to do so. /d. at 4. This

Court ultimately ruled against the defendant and

found him in breach of his agreement, a breach whose

consequences he had to accept because he made a

“choice” to challenge the agreement, having “clearly

appreciated and understood the consequences were

14

he found to be in breach of the agreement.” /d. at 11-

12.

The reasoning in Ricketts relies on a

defendant’s autonomy to make difficult decisions that

impact his own defense. It would stand the rationale

of Ricketts on its head to hold the defendant in

Ricketts responsible for the consequences of his choice

to risk breaching a plea agreement, while also

depriving Mr. Garza of that same choice because he

happened to have a disloyal lawyer who sabotaged his

wishes.

Only a handful of exceptions allow lawyers to

avoid carrying out their clients’ instructions.

Lawyers, not clients, have authority over decisions

required by law or a court order, see Restatement

(Third) of the Law Governing Lawyers § 23, and

lawyers are not permitted to “counsel a client to

engage, or assist a client, in conduct that the lawyer

knows is criminal or fraudulent.” Model R. Prof!

Conduct r. 1.2(d). Neither exception applies here,

where the decision to file an appeal is unequivocally

granted to Mr. Garza, and filing a notice of appea! is

not only permitted, but required. In all other matters,

lawyers must consult with clients about “the means

by which [a client’s objectives] are to be pursued.”

Model R. Prof] Conduct r. 1.2(a).

In this case, rules of professional responsibility

would have required counsel to fully inform Mr.

Garza of any risks pertaining to filing a notice of

appeal. See Model R. Prof] Conduct r. 2.1, cmt. 5 (A

lawyer may have to offer advice “when a lawyer

knows that a client proposes a course of action that is

15

likely to result in substantial adverse legal

consequences to the client . . . .”). Obligatory ethical

principles similarly required that Mr. Garza, the

client, have the final say on whether to file a notice of

appeal.

I. Counsel’s Failure to File a Notice of

Appeal, Over Mr. Garza’s Express Wishes,

Violated the Most Basic Principle of

Agency Law and Is Presumptively

Prejudicial.

A. A Lawyer Who Deliberately

Disregards a Client’s Instructions to

File a Notice of Appeal Violates the

Lawyer's Obligations of Loyalty by

Disobeying the Client’s Lawful

Direction.

The relationship between a client and a lawyer

is, at its core, “a quintessential principal-agent

relationship.” Comm’r v. Banks, 543 U.S. 426, 436

(2005). As is true of most _principal-agent

relationships, a defendant may rely on a lawyer's

special skills and expertise to achieve a particular

result. See id. Despite this reliance, a defendant

retains “ultimate dominion and control over the

underlying claim.” Jd.; see also Faretia v. California,

422 U.S. 806, 819-20 (1975) (“[The Sixth Amendment}

speaks of the ‘assistance’ of counsel, and an assistant,

however expert, is still an assistant.”). A lawyer, as a

client’s agent, is obligated to act exclusively on behalf

of and for the sole benefit of the client, the principal.

See Banks, 543 U.S. at 436 (citing Restatement

(Second) of Agency §§ 13, 39, 387 (Am. Law Inst.

16

2000)); see also Restatement (Third) of Agency §

8.09(2) (2006). A lawyer’s failure to act within the

bounds of that relationship thus runs afoul of not only

Sixth Amendment jurisprudence, but also agency law.

Principles of agency law specify that a lawyer

is bound to act in accordance with a defendant’s

wishes. The Restatement of Agency, for instance,

provides that a lawyer has a duty to comply with all

of a defendant’s lawful instructions concerning the

lawyer’s actions taken on behalf of the defendant. See

Restatement (Third) of Agency § 8.09(2) (2006). In

particular, the very premise of a principal-agent

relationship is that the agent’s actions are consistent

with the principal’s manifestation of assent. See id. at

cmt. b.

Any action taken by a lawyer over a

defendant’s objection “[has] the effect of revoking the

agency with respect to the action in question.”

Gonzalez v. United States, 553 U.S. 242, 254 (2008)

(Scalia, J., concurring in judgment); see also McCoy v.

Louisiana, 138 S. Ct. 1500, 1509 (2018) (“Presented

with express statements of the client’s will . . . counsel

may not steer the ship the other way.”). Therefore,

when a lawyer acts outside the bounds of the

attorney-client relationship by undermining a client’s

decision, that lawyer can no longer be considered the

defendant’s agent.

Even though Mr. Garza expressly instructed

counsel to file a notice of appeal in numerous phone

calls and letters, counsel failed to do so. Pet. App. At

3a. Instead, counsel pursued a strategy that was

fundamentally incompatible with Mr. Garza’s express

17

wishes. Because Mr. Garza’s decision was not only

lawful, but also constitutionally protected, counsel, as

Mr. Garza’s agent, had a duty to obey. But in

overriding Mr. Garza’s lawful and constitutionally

protected decision, counsel defied his client and no

longer served as Mr. Garza’s agent. Counsel not only

violated a fundamental tenet of the attorney-client

relationship, he also completely deprived Mr. Garza

of a direct appeal represented by counsel.

B. Counsel’s Decision Not to File a

Notice of Appeal Is Presumptively

Prejudicial Because It Forfeited Mr.

Garza’s Right to an Entire Judicial

Proceeding.

When a lawyer’s constitutionally deficient

performance causes the forfeiture of “an entire

judicial proceeding,” the lawyer’s conduct mandates a

presumption of prejudice. Roe v. Flores-Ortega, 528

U.S. 470, 483 (2000). The denial of an appellate

proceeding is per se prejudicial because courts can

afford no “presumption of reliability” to proceedings

that never occurred. /d. (citing Smith v. Robbins, 528

U.S. 259, 286 (2000)).

Additionally, in these cases, a defendant need

neither show actual prejudice by “specify[ing] the

points he would raise were his right to appeal

reinstated,” nor demonstrate the likelihood of success

on appeal. Rodriquez v. United States, 395 U.S. 327,

330 (1969); see also Flores-Ortega, 528 U.S. at 485. As

this Court observed in Rodriquez, “|t|hose whose right

to appeal has been frustrated should be treated

exactly like any other appellants; they should not be

18

given an additional hurdle to clear just because their

rights were violated at some earlier stage in the

proceedings.” 395 U.S. at 330. Here, Mr. Garza’s

situation is right on point: counsel’s decision to

override Mr. Garza’s instructions to file an appeal

robbed Mr. Garza of an entire judicial proceeding.

Therefore, counsel's failure to file an appeal on behalf

of Mr. Garza is presumptively prejudicial.

The policy rationale underlying Flores-Ortega’s

and Rodriquez’s mandate requiring

that courts presume prejudice is even more salient

today, when over 97 percent of federal and 94 percent

of state cases are resolved with plea agreements

and their often concomitant appellate waivers.

See Glenn R. Schmitt et al., Overview of

Federal Criminal Cases: Fiscal Year 2017, United

States Sentencing Commission 1, 5 (June 2018),

https://www.ussc.gov/sites/default/files/pdf/research-

and-publications/research-publications/2018/FY17_

Overview_Federal_Criminal_Cases.pdf; Felony

Sentences, Bureau of Justice Statistics (2006),

https://www.bjs.gov/index.cfm?ty=tp&tid=233#pubs;

Daniel P. Blank, Plea Bargain Waivers Reconsidered:

A Legal Pragmatist’s Guide to Loss, Abandonment

and Alienation, 68 Fordham L. Rev. 2011, 2029

(2000); Robert K. Calhoun, Waiver of the Right to

Appeal, 23 Hastings Const. L. Q. 121, 128-29 (1995).

For instance, one study found that in nearly two-

thirds of federal cases settled by plea agreement, the

defendant waived the right to an appeal. See Nancy J.

King & Michael E. O’Neil, Appeal Waivers and the

Future of Sentencing Policy, 55 Duke L.J. 209, 212

(2005).

19

Counsel’s decision to blatantly defy Mr. Garza’s

constitutionally protected choice deprived him of a

lawyer. In both Maples v. Thomas, 565 U.S. 266

(2012), and Holland v. Florida, 560 U.S. 631 (2010),

this Court relied on agency law to make a salient

point that is also relevant here: a client “cannot be

charged with the acts or omissions of an attorney who

has abandoned him.” Maples, 565 U.S. at 283. This is

because after a lawyer severs the principal-agent

relationship, a lawyer “no longer acts, or fails to act,

as the client’s representative.” Jd. at 281 (citing

Restatement (Third) of Law Governing Lawyers § 31,

cmt. f (1998)); see also id. at 284 (citing Restatement.

(Second) of Agency §§ 112, 394 cmt. a (1957)). In

essence, “[clommon sense dictates that a litigant

cannot be held constructively responsible for the

conduct of an attorney who is not operating as his

agent in any meaningful sense of that word.” Holland,

560 U.S. at 659 (Alito, J., concurring in judgment); see

also Coleman v. Thompson, 501 U.S. 722, 752-54

(1991). Maples and Holland involved lawyers who, by

completely disregarding their clients’ decisions, did

not operate as the clients’ agents at all.

In this case, by failing to file a notice of appeal,

counsel similarly severed the principal-agent

relationship between Mr. Garza and himself, thus

leaving Mr. Garza with no lawyer and no ability to file

his own notice of appeal. Counsel here deliberately

ignored Mr. Garza’s repeated, lawful instructions. By

blatantly disobeying his client’s direction to file a

notice of appeal, counsel removed himself as Mr.

Garza’s agent. Counsel’s obvious, avoidable, and

serious error demands a presumption of prejudice.

20

Ill. The Court Should Establish a Clear Rule

that Prevents Lawyers from Sacrificing a

Client’s Clearly Expressed Desire to a

Constitutional Right.

A. Lawyers Need a Clear Rule to

Understand Their Obligation to

Their Clients to File a Notice of

Appeal.

Both the states and the federal government

typically impose short time periods within which to

file a notice of appeal in a criminal case. For example,

this window is forty-two days in Idaho and fourteen

days in federal court. See Idaho App. R. 14; Fed. R.

App. P. 4. This makes the filing of a notice of appeal a

ministerial act, which protects the client’s right after

notice is filed to sufficiently consider the merits of a

direct appeal.

Once an appeal is noticed, appellate lawyers

are ethically required to make a serious evaluation of

the merits of their clients’ appeal. The American Bar

Association has recognized that “a defendant is

entitled to more than merely a reflexive or negative

reaction to the supposed errors that the convicted

defendant thinks are present in the case.” ABA

Standards for Criminal Justice Prosecution Function

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

1993).5 More specifically, the ABA has advised that

5 Although the ABA released the Fourth Edition of the ABA

Standards for Criminal Justice Prosecution Function and

Defense Function in 2015, it has not yet published or adopted

the associated comments. Therefore, this brief refers to the Third

Edition when citing to comments to this publication.

21

“[djefense counsel should consider engaging or

consulting with an expert in criminal appeals in order

to determine issues related to making a decision to

appeal.” ABA Standards for Criminal Justice

9.1(b) (4th ed. 2015). Further, considering whether

there are non-frivolous grounds for appeal is more

complicated than simply reviewing the four corners of

the record of conviction.

The ABA contemplates two primary categories

of appellate issues for which this is true. First, and of

particular relevance where a client has entered a

guilty plea, the lawyer should “take up, evaluate, and

pursue any question that might affect the validity of

the judgment of conviction and sentence.” Jd. Second,

“in some instances, even when the existing doctrine

does not support a case for reversal on appeal, there

may be a sound basis for arguing for an extension,

modification, or reversal of existing law.” Jd. A

lawyer's careful consideration of whether there is a

legitimate basis for a client’s desired appeal is

particularly critical because most issues are forfeited

if they are not raised on direct appeal. See ABA

Standards for Criminal Justice Prosecution Function

and Defense Function Standard 4-3.6 cmt. (3d ed.

1993). In light of the ramifications of forfeiting a

client’s appeal right a client who has explicitly

expressed a desire to file a notice of appeal certainly

deserves a more thorough consideration of these

questions.

The trial lawyer who believes that a client has

no non-frivolous grounds for appeal must file a notice

of appeal to protect his client’s right to a consideration

22

of the merits. In Idaho, as in many other states, a trial

lawyer who represents an indigent defendant is

required to continue to represent that person after the

trial or plea bargain, short of a showing of good cause

for withdrawal before filing the notice of appeal. See

Idaho App. R. 45.1(b).

The ABA Standards for Criminal Justice

Defense Function recognize this friction explicitly and

state, “|tlo make the right to counsel meaningful,

representation must be continuous throughout the

criminal process.” ABA Standards for Criminal

Justice Prosecution Function and Defense Function

Standard 4-8.2 cmt. (3d ed. 1993). As a result, trial

counsel who will not represent a client on appeal has

a special obligation to protect that client’s appeal

right, and thus may have to file the notice. /d.

Alternatively, the client could represent himself in

the appellate proceedings, but would only be able to

file a notice of appeal pro se if not represented by

counsel. Therefore, here as well trial counsel would

have to withdraw, the court would have to permit the

defendant to proceed without a lawyer, and the

defendant would have to learn the mechanics of filing

a notice of appeal on his own. This Court should not

require defendants to go to such terrific lengths,

because “a defendant who instructs counsel to initiate

an appeal reasonably relies upon counsel to file the

necessary notice.” Roe v. Flores-Ortega, 528 U.S. 470,

477 (2000).

There is no merit to the argument that

requiring lawyers to file notices of appeal when

requested by their clients will force them to make

frivolous arguments on appeal. First, appellate

23

counsel very often differs from trial counsel. As a

result, the fact that a client’s trial lawyer files a notice

of appeal does not mean that the trial lawyer will also

file the appellate brief in the case. Second, appellate

lawyers may not decline to file an appellate brief —

they are instead required to file a brief under Anders

v. California when they believe there are no non-

frivolous grounds for appeal. 386 U.S. 738, 744-45

(1967). Finally, lawyers who file notices of appeal on

their clients’ behalf, but ultimately decide there are

no non-frivolous grounds on which to appeal, may

“seek to persuade the defendant to withdraw the

appeal.” ABA Standards for Criminal Justice

Prosecution Function and Defense Function Standard

4-8.3 cmt. (3d ed. 1993).

There is a substantial risk of overlooking

meritorious grounds for appeal when a lawyer has a

short period to review a client’s case. This brief

window also affords neither lawyers nor clients time

to complete the withdrawal process so that the client

or a new lawyer may file such a notice of appeal

instead. The ministerial function of filing a notice of

appeal does not in any way resemble the task of

making arguments on appeal. Thus, were this Court

to permit lawyers to refuse to file an appeal, it would

be depriving defendants of their constitutional right

to a thorough review of the merits on appeal.

24

B. If This Court Does Not Presume

Prejudice Here, Defendants Will

Have No Choice but to Proceed Pro

Se to Demonstrate Prejudice

Because They Had Constitutionally

Deficient Trial Counsel Who Failed

to Obey Them.

It is fundamentally unfair to require

defendants to proceed pro se to demonstrate prejudice

simply because they had constitutionally deficient

trial counsel. This Court held that every individual,

regardless of wealth, has a constitutional right to

access appellate counsel with whom to consult, review

the record, and litigate issues on appeal. See Douglas

v. California, 372 U.S. 353, 356 (1963). However,

there is no such right in post-conviction proceedings.

See Coleman v. Thompson, 501 U.S. 722, 752 (1991).

As a result, if this Court does not presume prejudice

where a lawyer ignores a client's instructions and

refuses to file a notice of appeal because the client’s

plea contained an appeal waiver, the client will have

to demonstrate that the lawyer's constitutional

deficiency resulted in actual prejudice. By virtue of

being appointed a constitutionally deficient trial

lawyer who ignored express instructions, the client

will be deprived of the benefit of a constitutionally

competent lawyer on appeal.

It is manifestly unjust to saddle those who have

been deserted by counsel with the burden of showing

they were prejudiced by lawyers who defied their

exclusive right to direct the filing of a notice of appeal.

Those who suffer from this defective counsel will be

disproportionately indigent defendants, who are often

25

represented by lawyers with much higher case-loads

than private lawyers. See Vida B. Johnson, A Plea for

Funds: Using Padilla, Lafler, and Frye to Increase

Public Defender Resources, 51 Am. Crim. L. Rev. 403,

423-26 (2014). The poor, who are already

overrepresented in the criminal justice system, will

also be unable to hire a lawyer for their post-

conviction proceedings and, thus, will be obligated to

proceed pro se. Like under California’s system before

Douglas was decided—-where appellate counsel was

denied to those whose cases were deemed non-

meritorious by a district court——“the discrimination is

not between ‘possibly good and obviously bad cases,’

but between cases where the rich man can require the

court to listen to argument of counsel before deciding

on the merits, but a poor man cannot.” Douglas, 372

U.S. at 357.

This Court has held that “[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.” Id. Where a defendant has already

entered a guilty plea, one issue that cannot be waived

is whether the plea was made knowingly, voluntarily,

and competently. See United States v. Mezzanatto,

513 U.S. 196 (1995).

An appeal on these bases is more complex than

other appellate issues in two primary ways. The first

is that these may occur where a client has

a diminished capacity, and thus will have

a particularly difficult time representing himself.

Those with mental health challenges are

overrepresented in the criminal justice system. See

Criminal Justice / Mental Health Consensus Project,

26

Council of State Governments (June 2002),

https://www_.ncjrs.gov/pdffiles 1/nij/grants/197103.

pdf. In fact, Mr. Garza specifically indicated on his

guilty plea form that he himself suffers from mental

illness. See R. at 95, 107. Second, many claims that a

plea was not knowing, intelligent, and voluntary arise

from the ineffective assistance of counsel. It is both

unfair and nonsensical to make a defendant’s ability

to press such claims dependent on the very lawyer

who may have acted ineffectively. To ask a defendant

who is unrepresented to independently demonstrate

that these issues were present at trial, and that trial

counsel prejudiced the outcome of the case, is to

punish the defendant for the constitutional failings of

his lawyer.

Finally, a lawyer who refuses to file a notice of

appeal for a client also unfairly deprives that client of

the constitutional right to appellate counsel. As

discussed infra in Section Illa, there is only a short

window during which a notice of appeal can be filed.

A lawyer who independently decides not to file such a

notice and runs out the clock on that period deprives

a defendant of the right to an appellate counsel who

might have found meritorious grounds for appeal as

guaranteed in Douglas. The lawyer also prevents the

client from exercising the right to self-representation

on appeal. See Faretia v. California, 422 U.S. 806

(1975).

Were the Court not to presume prejudice where

lawyers override their clients’ decisions to appeal

their cases, criminal defendants will bear the unfair

burden of having to demonstrate prejudice pro se.

Additionally, defendants will be denied access to

27

appellate counsel who might find meritorious

arguments where trial counsel (looking at his or her

own conduct) found none. These burdens will fall

disproportionately on the poor, reopening the door to

the type of invidious discrimination in appellate

proceedings this Court has worked to stamp out for

more than half a century.

CONCLUSION

This case raises the most fundamental of

constitutional issues at the intersection of the right to

counsel and a lawyer's ethical obligations. Quite

simply, Mr. Garza and criminal defendants similarly

situated are entitled to have any appeal they wish to

file be noticed in a timely way, even if the notice

follows a guilty plea by the client. Failure by counsel

to file such a notice is an error of constitutional

dimensions.

For these reasons, the Idaho Supreme Court’s

judgment should be reversed.

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, Connecticut 06511

(203) 432-9358

lawrence.fox@yale.edu

28

Susan D. Reece Martyn

Stoepler Professor of Law and Values

UNIVERSITY OF TOLEDO COLLEGE OF LAW

2801 West Bancroft Street

Toledo, Ohio 43606

(419) 530-4212

susan.martyn@utoledo.edu