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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0809%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0809%3A11. Public record. Not legal advice.