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

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## Record

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

## Text

No. 17-1026

IN THE

Supreme Court of the Anited States

GILBERTO GARZA, JR.,
Petitioner,
Vv.

STATE OF IDAHO,

Respondent.

On Writ of Certiorari
to the Supreme Court of Idaho

BRIEF OF THE IDAHO ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AND
THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AS
AMICI CURIAE IN SUPPORT OF PETITIONER

W. ALEX HARRIS LAUREN M. WEINSTEIN
MOLOLAMKEN LLP Counsel of Record

430 PARK AVE. ROBERT K. KRY

NEw YorK, NY 10022 MOLOLAMKEN LLP
(212) 607-8160 The Watergate, Suite 660

600 New Hampshire Ave., N.W.
Washington, D.C. 20037

Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover)

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WasnincTon, D.C. 20002

JONAH HORWITZ

IDAHO ASSOCIATION OF
CRIMINAL DEFENSE
LAWYERS

702 W. Idaho St., Suite 900

Boise, [ID 83702

(208) 345-5183

jonah horwitz@fd.org

BRIAN MCCOMAS

IDAHO ASSOCIATION OF
CRIMINAL DEFENSE
LAWYERS

77 Van Ness Ave., Suite 101

San Francisco, CA 94102

(208) 320-0383

mecomas.b@gmail.com

CRAIG DURHAM

IDAHO ASSOCIATION OF
CRIMINAL DEFENSE
LAWYERS

223 N. 6th St., Suite 325

Boise, ID 838702

(208) 331-5530

chd@fergusondurham.com

QUESTION PRESENTED
Does the “presumption of prejudice” recognized in
Roe v. Flores-Ortega, 528 U.S. 470 (2000), apply where a
criminal defendant instructs his trial counsel to file a
notice of appeal but trial counsel decides not to do so
because the defendant’s plea agreement included an
appeal waiver?

(i)

Il.

TABLE OF CONTENTS

A Presumption of Prejudice Is
Appropriate Because Defendants
Often Succeed on Appeal Despite

ER ee

A. Defendants Often Succeed on
Appeal Based on Issues Beyond the

Seope of Their Particular Waivers..........

B. Defendants Often Succeed on
Appeal Even on Claims Within the

Ie Oe PN eececensccsesctnnentsesnemncscsescee

C. The Decision Below Ignores the
Potential for Meritorious Claims
Even in Cases Involving Appeal
Waivers

Posteonviction Proceedings Are Not an

Adequate Substitute for Direct Appellate
Review

Argument iesdieanstibiiepiabpeaeiadieniectnaincnnntigntn

A. Claims That Are Not Raised on
Direct Appeal Generally Cannot Be
Raised in Postconviction
Proceedings

B. Higher Pleading Standards Apply

in Posteonviction Proceedings.................

C. There Is No Constitutional Right

iv

TABLE OF AUTHORITIES
Page(s)
CASES
Cal. Pac. Bank v. FDIC,

885 F.3d 560 (9th Cir. 2018)..............ccccccceeeeeeee 25
Campbell v. United States,

686 F.3d 353 (6th Cir. 2012) 0000... cccccccceeeeees 5
Campusano v. United States,

442 F.3d 770 (2d Cir. 2006) .............ccccceecceveeeeees 5
Coleman v. Thompson,

Lk Ream 26
Kz parte De Leon,

400 S.W.3d 83 (Tex. Crim. App. 2013)............. 15
Evitts v. Lucey, 469 U.S. 387 (1985)... 26
Fields v. State, 155 Idaho 582 (2013)................... 24
Gonzales v. State,

151 Idaho 168 (Ct. App. 2011) .0............ccccceceeees 26
Hughes v. State,

148 Idaho 448 (Ct. App. 2009) .0...........ccccceeseene 23
Hurlow v. United States,

726 F.3d 958 (7th Cir. 2013)...............cc0-seeeeees 12
Judd v. State,

148 Idaho 22 (Ct. App. 2009) 26
Martinez v. United States,

No. 05-cr-123-12, 2008 WL 4889665

(E.D. Pa. Nov. 12, 2008) ..............c.ccecceeees 22
Massaro v. United States,

538 U.S. 500 (2003) cehaiaiiatebaiaads 23
Mathis v. United States,

No. 7:09-cr-139-1BO, 2012 WL 1156438

(E.D.N.C. Apr. 6, 2012) 18
Melton v. State, 148 Idaho 339 (2009) .................. 26

Vv

TABLE OF AUTHORITIES—Continued

Page(s)
Murphy v. State,

143 Idaho 139 (Ct. App. 2006) 25
Murphy v. State, 156 Idaho 389 (2014)................ 26
Nelson v. State,

157 Idaho 847 (Ct. App. 2014) .0............ccceeeeee 26
Nufiez v. United States,

546 F.3d 450 (7th Cir. 2008) .............ccccecceeeeeees 20
Pentico v. State,

159 Idaho 350 (Ct. App. 2015) 02.0... 24
People v. Smith,

143 A.D.3d 31 (1st Dep’t 2016), aff'd,

30 N.Y.3d a 15
Reynolds v. United States,

No. 12-12-RGA, 2014 WL 6983354

Ce 22
Roe v. Flores-Ortega,

ES passim
In re Sealed Case,

702 F.3d 59 (D.C. Cir. 2002) 2....ccc.ccccceeceneeeee 10, 13
Self v. State,

145 Idaho 578 (Ct. App. 2007) 2.0.2.2... 25
Small v. State,

132 Idaho 327 (Ct. App. 1998) ................... 25
Solano v. United States,

812 F.3d 573 (7th Cir. 2016) 22
State v. Colyer, 98 Idaho 32 (1976) 23
State v. Cope, 142 Idaho 492 (2006) ..............000«» 23
State v. Hansen, 156 Idaho 169 (2014)................. 11
State v. Hernandez,

121 Idaho 114 (Ct. App. 1991) ..........ccccccoeeeee 23

vi
TABLE OF AUTHORITIES—Continued

Page(s)

State v. Holdaway, 130 Idaho 482 (1997) ............ 11
State v. Payne, 146 Idaho 548 (2008) ................... 24
State v. Rendon,

No. 38275, 2012 WL 9492805

(Idaho Ct. App. May 11, 2012).......................... 19
State v.

No. 45233, 2018 WL 700168

(Idaho Ct. App. Feb. 5, 2018) »
State v. Straub, 153 Idaho 882 (2013)................... 10
State v. Wicklund,

No. 38697, 2011 WL 11067224

(Idaho Ct. App. Dec. 29, 2011) 11
State v. Zichko, 129 Idaho 259 (1996)................... 25
United States v. Adams,

814 F.3d 178 (4th Cir. 2016) 17, 18
United States v. Almonte-Nufez,

771 F.3d 84 (ist Cir. 2014) 15, 16
United States v. Andis,

333 F.3d 886 (8th Cir. 2008) ...2.0......-ccccccceceneee 12
United States v. Aquino-De La Rosa,

139 F. App’x 298 (1st Cir. 2005) ....................... 14
United States v. Atkinson,

354 F. App’x 250 (6th Cir. 2009) 15
United States v. Attar,

38 F.3d 727 (4th Cir. 1994)............-cceccecceeseeesee 12
United States v. Benson,

553 F. App’x 660 (8th Cir. 2014)....................... 10

United States v. Booker,
543 U.S. 220 (2005) 14, 20

vii
TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Castro,

704 F.3d 125 (3d Cir. 2013) 18, 19
United States v. Chapa,

F.3d 865 (7th Cir. 2010)............. 6
United States v. Chem. &

Metal Indus., Inc.,

677 F.3d 750 (Sth Cir. 2012)... eeecccccecneeeeee 10
United States v.

571 F.3d 764 (8th Cir. " 2009) oeines 19
United States v. Cooley,

590 F.3d 293 (Sth Cir. 2009) ..........ccccccceeceeeeeee 15
United States v. Davis,

689 F.3d 349 (4th Cir. 2012) a
United States v. Dawson,

587 F.3d 640 (4th Cir. 2009) bis -_
United States v. Doss,

No. 1:12-er-326, 2017 WL 1709397

(M.D. Pa. May 3, 2017) we 21
United States v.

728 F.3d 580 (6th Cir. 2013) 6
United States v. Dunlap,

No. 10-190, 2010 WL 4614557

ea 21
United States v.

No. 1:14-er-6, 2017 WL 5009100

(M.D. Pa. Nov. 2, 2017) 21
United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) 21

United States v. Grimes,
Ta9 F’ 3d 125 (Ad Cir. 2014) ..............000<000.20------- 6

TABLE OF AUTHORITIES—Continued

United States v. Guillen,
561 F.3d 527 (D.C. Cir. 2009)

Page(s)

United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004)

United States v. Hardman,

778 F.3d 896 (11th Cir. 2014)
United States v. Hartshorn,

163 F. App’x 325 (5th Cir. 2006).......

United States v. Henderson,

72 F.3d 463 (Sth Cir. 1995)

United States v. Hernandez,
242 F.3d 110 (2d Cir. 2001)

United States v. Hull,
No. 16 C 2096, 2017 WL 6733689
(N.D. Ill. Dee. 19, 2017)

United States v. Hunt,
843 F.3d 1022 (D.C. Cir. 2016)

United States v. Jacobson,
15 F.3d 19 (2d Cir. 1994)

United States v. Joiner,
183 F.3d 635 (7th Cir. 1999)

United States v. Jones,
667 F.3d 477 (4th Cir. 2012)

United States v. Khattak,
273 F.3d 557 (3d Cir. 2001)

United States v. Lonjose,
663 F.3d 1292 (10th Cir. 2011)

United States v. Lovelace,

ix
TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Mabry,

536 F.3d 231 (3d Cir. 2008) ..................... 12, 20, 21
United States v. Obak,

884 F.3d 934 (9th Cir. 2018) ...0........ccccccccceceeees 19
United States v. Oladimeji,

463 F.3d 152 (2d Cir. 2006) ...00.....cccccccees 6, 10
United States v. Olson,

880 F.3d 873 (7th Cir. 2018) ..............ccccccecceneee 13
United States v. Ortega-Hernandez,

804 F.3d 447 (D.C. Cir. 2015) ...........nee 19
United States v. Palmer,

456 F.3d 484 (5th Cir. 2006) ............cccccccneee 7
United States v. Parenteau,

506 F. App’x 430 (6th Cir. 2012)... 11
United States v. Pease,

240 F.3d ET 10
United States v. Pena,

314 F.3d 1152 (9th Cir. 2008)............................ 15
United States v. Portillo-Cano,

192 F.3d 1246 (9th Cir. 1999) 202... ccccceneee 15
United States v. Preston,

598 F. App’x 465 (8th Cir. 2015)....................... 11
United States v. Quirindongo-Collazo,

213 F. App’x 10 (1st Cir. 2007) ......................... 14
United States v. Rodriguez-Perez,

184 F. App’x 451 (5th Cir. 2006)....................... 15
United States v. Santiago-Burgos,

750 F.3d 19 (ist Cir. 2014) 20.002... ccccccccccccceeeeee 6
United States v. Scallon,

683 F.3d 680 (5th Cir. 2012) ...........cccccceeeeeees 6, 15

x

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Schulte,

436 F.3d 849 (8th Cir. 2006) ...........ccccceceneee 10
United States v. Selvy,

619 F.3d 945 (8th Cir. 2010)............. 6
United States v. Sistrunk,

432 F.3d 917 (8th Cir. 2006) 2.00... cccccccceeeee 10
United States v. S:

431 F.3d 1226 (9th Cir. 2005) aeeineeieeetaaeemitens 6
United States v. Spruill,

292 F.3d 207 (5th Cir. 2002) 200. ......ccccccccceeee 13, 15
United States v. Story,

439 F.3d 226 (5th Cir. 2006) .0.......cccccccccceeceeee 20
United States v. Suarez,

879 F.3d 626 (5th Cir. 2018) ..0.......ccccccceeseneee 25
United States v. Teeter,

257 F.3d 14 (Ast Cir. 2001) .0......ccccccccceeeeene 12, 13
United States v. Velazquez,

855 F.3d 1021 (9th Cir. 2017) .............ccccccceseeee 14
United States v. Waupoose,

394 F. App’x 320 (7th Cir. 2010)....................... 10
United States v. Wingo,

789 F.3d 1226 (11th Cir. 2015)....................... 13, 14
United States v. Woltmann,

610 F.3d 37 (2d Cir. 2010) 2.00... ccccccccecceeeenees 17
United States v. Zink,

107 F.3d 716 (9th Cir. 1997) ..000...0..ccccccccesseneee 10
Washington v. Lampert,

422 F.3d 864 (9th Cir. 2005) ..0......cccccccccceccenees 12
Watson v. United States,

493 F.3d 960 (8th Cir. 2007) ..........cccccceserereneees 5

xi
TABLE OF AUTHORITIES—Continued

Page(s)
Workman v. State,
144 Idaho 518 (2007) ............ccccccccccccceeeececeeneeee 2A, 26
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES
U.S. Const. amend. VIII ..................cccceccceeeeeeeneeeees i)
18 U.S.C. § S55B(a) .............0cccceeceeeee a 17
CE En 10, 18
Idaho Code § 19-4901(b)................ 23
Idaho Code § 19-4908 ..0...........cccccccceceececessneesnnneeeeees 24
Fed. R. App. P. 28(a)(8)..............cecceeeeeeeeee aa
Fed. R. Crim. P. 110°D)(8)...........cc.ccccccceeeseneeeneeeeenees 13
Idaho App. R. 35(a)(4) .............ceccecceseereereesensenseneeee 25
OTHER AUTHORITIES
Idaho Dep’t of Corr., Death Row,
https://www.idoc.idaho.gov/
content/prisons/death row ................-0-ee0-0 26
Idaho Dep’t of Corr.,
S ised Population Snapshot,
https://dash.idoc.idaho.gov/ .................c-.-0--0-» 26
Plea
United States v. Baxter,
No. 3:10-cr-00074
(M.D. Tenn. filed Feb. 15, 2013), Dkt. 43...... 8]
Plea Agreement,
United States v. Brooks,
No. 1:14-cr-00209-TWP-TAB

(S.D. Ind. filed July 28, 2015), Dkt. 139........... 9

-
TABLE OF AUTHORITIES—Continued
Page(s)

Plea Agreement,
United States v. Campbell,
No. 4:16-mj-08179-J R
(D. Ariz. filed Aug. 31, 2016), Dkt. 27.............. 8

Plea Agreement,
United States v. Cervantes,
No. 5:09-er-00011-VAP
(C.D. Cal. filed Mar. 31, 2010), Dkt. 127......... sf)

Plea Agreement,
United States v. Daniels,

No. 3:11-cr-00008-WKW-CSC
(M.D. Ala. filed Feb. 16, 2012), Dkt. 203......... 7

Plea Agreement,
United States v. Flanders,

No. 2:12-cr-00863-TLN-EFB
(E.D. Cal. filed Feb. 2, 2015), Dkt. 59 ............. 8

Plea Agreement,
United States v. Fortuna,

No. 1:12-cr-00636-NLH
(D.N.J. filed Aug. 15, 2013), Dkt. 109.............. x

Plea Agreement,
United States v. Irish,
No. 1:13-cr-00142-PB
(D.N.H. filed Dec. 11, 2014), Dkt. 102............. s

Plea Agreement,
United States v. Lopez,
No. 1:04-cr-00209-LY-1
(W.D. Tex. filed Sept. 20, 2004), Dkt. 73-2...... 7

Plea
United States v. Mangels,
No. 9:16-cr-00006-DLC
(D. Mont. filed June 13, 2016), Dkt. 50............ 10

TABLE OF AUTHORITIES—Continued

Page(s)

Plea Agreement,
United States v. Martinez,
No. 8:04-cr-00567-EAK-TGW
(M.D. Fla. filed Oct. 17, 2005), Dkt. 67............ 8

Plea Agreement,
United States v. Montgomery,

No. 1:13-cr-00273-CG-C-1
(S.D. Ala. filed Feb. 7, 2014), Dkt. 17.............. s

Plea Agreement,
United States v. Newton,
No. 1:13-cr-00094-LPS-1
(D. Del. filed Sept. 19, 2013), Dkt. 48 .............. 8

Plea Agreement,
United States v. Stolkner,
No. 2:15-cr-00143-JDL
(D. Maine filed Mar. 29, 2016), Dkt. 116......... s

Plea Agreement,

United States v. Torres,

No. 2:12-cr-00154-K.JD-GWF-1

(D. Nev. filed Dec. 31, 2013), Dkt. 60 .............. i)

Plea Agreement,
United States v. Wong,
No. 4:11-cr-427-PJH-1
(N.D. Cal. filed Jan. 12, 2017), Dkt. 43............ y

Susan R. Klein, et al,
Waiving the Criminal Justice System,
52 Am. Crim. L. Rev. 73 (2015) ...............-00-++ 5

IN THE

Supreme Court of the Anited States

No. 17-1026

GILBERTO GARZA, JR.,
Petitioner,
Vv.

STATE OF IDAHO,

Respondent.

On Writ of Certiorari
to the Supreme Court of Idaho

BRIEF OF THE IDAHO ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AND THE
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS AS AMICI CURIAE
IN SUPPORT OF PETITION’ R

INTEREST OF AMICI CURIAE'
Established in 1989, the Idaho Association of Criminal
Defense Lawyers (“IACDL”) is a nonprofit, voluntary
organization of attorneys. Currently, IACDL has over

' No counsel for a party authored this brief in whole or in part; no
such counsel or party made a monetary contribution intended to
fund the preparation or submission of the brief; and no person other
than amicus, its members, and its counsel made such a contribution.
The parties’ letters consenting to the filing of this brief have been
filed with the Clerk.

2

400 lawyer members, all of whom practice criminal de-
fense. LACDL’s membership includes both public de-
fenders and private counsel, attorneys who work in both
state and federal courts, and attorneys who focus on tri-
als, appeals, postconviction, and federal habeas proceed-
ings. One of LACDL’s primary goals is to improve the
quality of representation provided to criminal defendants
in Idaho, especially for those who cannot afford to retain
counsel. For those reasons, LACDL has a strong com-
mitment to ensuring that Idaho defendants receive ade-
quate assistance of counsel at trial and that they are fully
able to effectuate their rights to appeal.

The National Association of Criminal Defense Law-
yers (“NACDL”) is a nonprofit, voluntary professional
bar association that works on behalf of criminal defense
attorneys and strives to ensure justice and due process
for those accused of crime or misconduct. NACDL was
founded in 1958. It has a nationwide membership of
many thousands of direct members—up to 40,000, count-
ing affiliates. NACDL’s members include private crimi-
nal defense lawyers, public defenders, military defense
counsel, law professors, and judges. NACDL is the only
nationwide professional bar association for public de-
fenders and private criminal defense lawyers.

Given the size and breadth of [ACDL’s and NACDL’s
memberships, the organizations have substantial practi-
cal expertise regarding how defense attorneys, their cli-
ents, and courts operate. LACDL and NACDL likewise
have insight into how each of those actors deals with the
issues implicated by this case, ie., the scope and validity
of plea agreements and appeal waivers, and ineffective
assistance of counsel claims.

3
SUMMARY OF ARGUMENT

This case arises from counsel’s failure to file notices of
appeal against the client’s instructions in two different
cases. In 2015, Mr. Garza signed guilty pleas containing
waivers of his rights to appeal. Pet. App. 44a 17, 49a 16.
But the trial court “advised Garza of his appeal rights
anyway.” /d. at 3a. After sentencing, Mr. Garza asked
his trial counsel to file notices of appeal. See ibid. Coun-
sel refused. See ibid.

Mr. Garza then filed petitions for postconviction relief,
arguing, among other things, that his plea was involun-
tary and that his counsel was ineffective for failing to file
notices of appeal. Pet. App. 29a-30a. The Idaho Supreme
Court affirmed dismissal of the petitions, holding that
Mr. Garza could not show ineffective assistance of coun-
sel because he could not prove any prejudice from his
counsel’s failure to follow instructions. See id. at 38a-39a.
That decision was wrong: Mr. Garza was entitled to a
presumption of prejudice, a presumption that is appro-
priate in this case notwithstanding the presence of an ap-
peal waiver.

I. An attorney’s failure to file a notice of appeal bad-
ly disadvantages a defendant. As this Court held in Roe
v. Flores-Ortega, 528 U.S. 470 (2000), that failure “de-
mands a presumption of prejudice” because it results in
the “forfeiture of a proceeding.” /d. at 483. That re-
mains true even where a defendant has agreed to an ap-
peal waiver.

Appeal waivers vary dramatically in form and scope.
Thus, defendants will often have viable appellate claims
despite appeal waivers, simply because the claims fall
outside the scope of the waiver. Moreover, one thing that
all waivers have in common is that they allow defendants

4

to pursue at least some claims on appeal. No waiver cat-
egorically bars every type of appeal.

Given those facts, it is no surprise that defendants
have often succeeded on appeal despite waivers. In some
cases, defendants have prevailed on arguments that fall
beyond the scope of their particular waivers. In others,
they have succeeded in challenging their convictions and
sentences despite even the broadest waivers, based on
the involuntariness of the plea, the inadequate factual ba-
sis for the plea, or breach of the plea agreement by the
government—to name only a few bases for relief.

There is thus no reason to deviate from the presump-
tion of prejudice that applies under F'lores-Ortega simply
because the plea agreement contains a waiver. Defend-
ants whose counsel refuse to file a notice of appeal suffer
the same fate whether or not they have agreed to a waiv-
er: They forfeit their direct appeals—appeals that may
well have been successful despite the waiver. The same
presumption of prejudice should therefore apply in both
circumstances.

II. Although a defendant wrongfully denied an appeal
could still attempt to pursue certain claims on collateral
review, that review is an inadequate substitute for a di-
rect appeal. Issues generally may not be raised for the
first time in postconviction proceedings. As a result, a
defendant whose attorney failed to file a notice of appeal
may never have an opportunity to raise certain claims.

Even if a defendant can raise a claim in postconviction
proceedings, the defendant will typically have to do so
under heightened pleading standards. And the defend-
ant will also normally have to do so without the benefit of
counsel. Those obstacles create an intolerable risk that
defendants who involuntarily signed guilty pleas will end

up in prison.

5
The judgment below should be reversed.

ARGUMENT
I. A PRESUMPTION OF PREJUDICE IS APPROPRIATE
BECAUSE DEFENDANTS OFTEN SUCCEED ON APPEAL
DESPITE WAIVERS

This Court held in Roe v. Flores-Ortega, 528 U.S. 470
(2000), that prejudice should be presumed where counsel
fails to notice an appeal against the client’s instructions
because that failure results in the “forfeiture of a pro-
ceeding.” /d. at 483. An appeal waiver does not provide
a sufficient reason to deviate from that presumption.

Appeal waivers differ dramatically in form and content
across jurisdictions. See Susan R. Klein, et al, Waiving
the Criminal Justice System, 52 Am. Crim. L. Rev. 73,
122-126 (2015) (collecting examples). Some waivers apply
only to direct appeals, some waive only certain errors in
sentencing or trial, some permit appeals on all issues
with certain exceptions, and some expressly permit de-
fendants to bring certain substantive claims. Even the
broadest waivers may be successfully challenged on the
ground that the plea was involuntary, among others. See
Campbell v. United States, 686 F.3d 353, 358 (6th Cir.
2012) (“[W]aiver{s] of appeal rights can be challenged on
various * * * grounds * * *.”); Watson v. United States,
493 F.3d 960, 964 (8th Cir. 2007) (appeal waivers “d[o] not
foreclose appeal altogether”); Campusano v. United
States, 442 F.3d 770, 777 (2d Cir. 2006) (Sotomayor, J.)
(appellate relief is “not inconceivable” even if defendant
seems to have “sign|ed] away the right to appeal”).

As a result, defendants who agree to waivers may still
bring certain claims on appeal—including claims that fall
outside the scope of the waiver or challenges to the valid-
ity of the plea. Examples abound of defendants who have
succeeded on such claims.

6

An attorney’s decision, over the client’s express in-
structions, to forfeit the client’s appeal can thus have pro-
found effects. Regardless of an appeal waiver, forfeiting
an appeal can be the difference between conviction or no
conviction. Or it can affect the amount of time a person
spends behind bars. A presumption of prejudice is nec-
essary to ensure that defendants do not suffer the conse-
quences of their attorneys’ unilateral decisions not to no-
tice their appeals.

A. Defendants Often Succeed on Appeal Based on
Issues Beyond the Scope of Their Particular
Waivers

Many appeal waivers do not even purport to bar all
potentially available claims. Often, waivers are written
or interpreted to bar only certain claims, leaving others
available for appellate review. The federal courts of ap-
peals unanimously agree that “[a] valid and enforceable
appeal waiver ** * only precludes challenges that fall
within its scope.” United States v. Hardman, 778 F 3d
896, 899 & n2 (11th Cir. 2014) (“All eleven * * * circuits
with criminal jurisdiction agree * * *.”).2 Thus, even in

* See also U/nited States v. Santiago-Burgos, 750 F 3d 19, 22-23 (ist
Cir. 2014) (similar); United States v. Grimes, 739 F 3d 125, 128-129
(3d Cir. 2014) (similar); U/nited States v. Droganes, 728 ¥ 3d 580, 586
(6th Cir. 2013) (similar); United States v. Davis, 689 F 3d 349, 354-
355 (4th Cir. 2012) (similar); /nited States v. Scallon, 683 F 3d 680,
682 (Sth Cir. 2012) (similar); United States v. Lonjose, 663 F 3d 1292,
1297 (10th Cir. 2011) (similar); United States v. Chapa, 602 F 3d 865,
868 (7th Cir. 2010) (similar); United States v. Selvy, 619 F 3d 945,
950-951 (8th Cir. 2010) (similar); United States v. Speelman, 431
F.3d 1226, 1229 (9th Cir. 2005) (similar); see, eg., United States v.
Hunt, 843 F 3d 1022, 1027 (D.C. Cir. 2016) (permitting appeal be-
cause waiver did not “unambiguously foreclose [defendant’s| chal-
lenges”); United States v. Oladimeyi, 463 F 3d 152, 156 (2d Cir. 2006)
(determining whether challenge “fall[s| within the scope of [defend-
ant’s| appeal waiver”).

7
cases involving appeal waivers, defendants will often
have potentially meritorious appellate claims based on
issues beyond the scope of the waiver. That prospect
alone forecloses any argument that a presumption of
prejudice is inappropriate for cases involving appeal
waivers.

1. The variations in the scope of appeal waivers are
almost infinite. Certain waivers, for example, apply only
to challenges to the defendant’s sentence, not to the un-
derlying conviction. See, e.g., Plea Agreement 17, U/nit-
ed States v. Lopez, No. 1:04-cr-00209-LY-1 (W.D. Tex.
filed Sept. 20, 2004), Dkt. 73-2 (“Defendant expressly
waives the right to appeal his sentence on any ground
***.” (emphasis added)). Those waivers necessarily
leave open broad grounds for appeal.

In United States v. Palmer, 456 F 3d 484 (5th Cir.
2006), for example, the defendant signed an appeal waiv-
er that barred appeals of the “sentence imposed” but did
not expressly mention direct appeals from his conviction.
Id. at 486-487. The defendant sought to appeal his con-
viction on the ground that there was no adequate factual
basis for his guilty plea. /d at 489. The court allowed
the appeal, holding that “the language barring a sentenc-
ing appeal” did not “bar{ | appeal of a conviction.” Jd. at
488. “A defendant’s waiver of his right to appeal a sen-
tence is just that,” the court explained—‘“it does not also
constitute a waiver of his right to challenge a conviction.”
Ibid. The court ultimately vacated one count, finding
that the plea was “based on facts precluding conviction.”
Id. at 492.

2. Some waivers expressly allow defendants to bring
certain specific substantive claims on direct appeal.
Claims of prosecutorial misconduct, for example, are of-
ten expressly carved out. See, e.g., Plea Agreement at 9-

8

10, United States v. Daniels, No. 3:11-cr-00008-WKW-
CSC (M.D. Ala. filed Feb. 16, 2012), Dkt. 208 (waiver
covering “any and all rights” to appeal except “the right
to appeal on the ground of * * * prosecutorial miscon-
duct”); Plea Agreement 19, United States v. Campbell,
No. 4:16-mj-03179-JR (D. Ariz. filed Aug. 31, 2016), Dkt.
27 (similar). So are challenges based on newly discovered
evidence or changes in law. See, e.g., Plea Agreement 14,
United States vy. Stolkner, No. 2:15-cr-00143-JDL (D.
Maine filed Mar. 29, 2016), Dkt. 116 (“waiver * * * shall
not apply to appeals based on a right that has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review”); Plea Agree-
ment 913, United States vy. Irish, No. 1:13-cr-00142-PB
(D.N.H. filed Dec. 11, 2014), Dkt. 102 (similar).

Other waivers permit defendants to raise certain er-
rors relating to their sentencing proceedings. Many per-
mit defendants to appeal if the sentence exceeds the ap-
plicable guidelines range. See, e.g., Plea Agreement 9 15,
United States v. Newton, No. 1:13-cr-00094-LPS-1
(D. Del. filed Sept. 19, 2013), Dkt. 48. Others limit review
to certain issues, such as “any right [the defendant] may
have * * * to appeal the sentencing court’s determination
of the criminal history category.” Plea Agreement at 11,
United States v. Fortuna, No. 1:12-cr-00636-NLH
(D.N.J. filed Aug. 15, 2013), Dkt. 109. Others permit an
appeal if the sentence imposed exceeds the stipulated
maximum. See, eg., Plea Agreement at 910, United
States v. Flanders, No. 2:12-cr-00363-TLN-EFB (E.D.
Cal. filed Feb. 2, 2015), Dkt. 59; Plea Agreement
124(aX(1){2), United States v. Montgomery, No. 1:13-cr-
00273-CG-C-1 (S.D. Ala. filed Feb. 7, 2014), Dkt. 17 (simi-
lar); see also Plea Agreement at 11, United States v.
Martinez, No. 8:04-cr-00567-EAK-TGW (M.D. Fa. filed

9

Oct. 17, 2005), Dkt. 67 (allowing challenges on “ground
that the sentence violates the Eighth Amendment”).

Other waivers preserve arguments relating to rulings
on motions to suppress evidence. See, e.g., Plea Agree-
ment at 11, United States v. Torres, No. 2:12-cr-00154-
KJD-GWF-1 (D. Nev. filed Dec. 31, 2013), Dkt. 60 (per-
mitting appeal based on “the District Court’s denial of
[defendant’s} motion to suppress” as to “the inventory
search of |defendant’s| vehicle”). Or they preserve the
defendant’s “ability to appeal [certain] conditions of su-
pervised release.” See, e.g., Plea Agreement at 10-11,
United States v. Cervantes, No. 5:09-cr-00011-VAP (C.D.
Cal. filed Mar. 31, 2010), Dkt. 127.

Some waivers expressly permit challenges to the vol-
untariness of the plea (claims that courts generally per-
mit regardless of the waiver’s language, see pp. 12-13,
infra). See, e.g., Plea Agreement 118, United States v.
Bazter, No. 3:10-cr-00074 (M.D. Tenn. filed Feb. 15,
2013), Dkt. 43 (waiver “shall [not] apply to a claim of in-
voluntariness”). Others expressly permit claims for inef-
fective assistance of counsel (which courts likewise nor-
mally permit regardless of the waiver’s specific language,
see pp. 11-12, infra). See, eg., Plea Agreement 1915,
United States v. Brooks, No. 1:14-cr-00209-TWP-TAB
(S.D. Ind. filed July 28, 2015), Dkt. 139 (“This * * * waiv-
er does not encompass claims that Defendant received
ineffective assistance of counsel in the negotiation of the
plea or plea agreement.”); Plea Agreement 12, United
States v. Wong, No. 4:11-cr-427-PJH-1 (N.D. Cal. filed
Jan. 12, 2017), Dkt. 43 (similar); Plea Agreement 198,

10

United States v. Mangels, No. 9:16-cr-00006-DLC (D.
Mont. filed June 13, 2016), Dkt. 50 (similar).*

3. Even seemingly broad appeal waivers have been
interpreted to exclude certain claims.

In State v. Straub, 153 Idaho 882 (2013), for example,
the Supreme Court of Idaho held that a challenge to a
restitution order fell outside the scope of a broadly word-
ed waiver. /d. at 886. The defendant “waive/d] the right
to appeal any issues regarding the conviction, including
all matters involving the plea or sentencing.” /d. at 885.
The defendant argued that the waiver did “not encom-
pass his right to appeal from the district court’s restitu-
tion order since restitution proceedings are not part of a
defendant’s sentence.” /d. at 886 (quotation marks omit-
ted). The court agreed, concluding that the restitution
order was an abuse of discretion and vacating the order.
See id. at 887, 890.*

* Courts sometimes find that ineffective assistance of counsel claims
“fall outside the scope” of appeal waivers, but defer them to § 2255
proceedings to allow further development of the record. See, ¢..,
United States v. Benson, 553 F . App’x 660, 661 (8th Cir. 2014); U/nit-
ed States v. Waupoose, 394 F. App’x 320, 322 (7th Cir. 2010); ef.
United States v. Pease, 240 F 3d 988, 943 n.5 (11th Cir. 2001) (assum-
ing Apprendi issue fell “outside the scope of th{e] appeal waiver”).

* See also Jn re Sealed Case, 702 F 3d 59, 63-65 (D.C. Cir. 2012) (de-
fendant “did not knowingly waive his right to appeal the restitution
order” because appeal waiver was ambiguous); [/nited States v.
Schulte, 436 F 3d 849, 850 (8th Cir. 2006) (“A waiver limited to
‘whatever sentence is imposed’ does not foreclose an appeal of a res-
titution order * * *.” (quoting United States v. Sistrunk, 432 F 3d
917, 918 (8th Cir. 2006)); Oladimeji, 463 F 3d at 156-157 (restitution
order not covered by waiver of right to appeal “sentence”); United
States v. Chem. & Metal Indus. Inc., 677 F 3d 750, 752 (Sth Cir.
2012) (similar); United States v. Zink, 107 F 3d 716, 717-718 (9th Cir.
1997) (similar).

11

Courts have identified numerous other issues as be-
yond the scope of appeal waivers. See, e.g., United States
v. Jacobson, 15 F.3d 19, 22-23 & n.1 (2d Cir. 1994) (read-
ing “agreement narrowly” to find that challenge to
court’s reliance on defendant’s “naturalized status as the
basis for the sentence” had not been waived); United
States v. Parenteau, 506 F. App’x 430, 433-434 (6th Cir.
2012) (argument that district court failed to give notice of
its reliance on testimony from another proceeding at sen-
tencing was beyond scope of waiver of right to “appeal
any sentence imposed”); United States v. Preston, 598 F.
App’x 465, 466 (8th Cir. 2015) (“challenge to the district
court’s jurisdiction |[wa]s beyond the scope of the appeal
waiver”).°

B. Defendants Often Succeed on Appeal Even on

Claims Within the Scope of a Waiver

Even where a claim falls within the literal scope of an
appeal waiver, courts have allowed defendants to pursue
certain types of claims. Many defendants have succeeded
in obtaining relief on appeal based on such challenges.

1. The federal courts of appeals agree, for example,
that even the broadest waivers do not bar ineffective as-

° See also State v. Hansen, 156 Idaho 169, 175-176 (2014) (waiver ap-
plied only to one count of conviction); State v. Holdaway, 130 Idaho
482, 484 (1997) (denial of post-judgment motion not barred by waiver
that applied only to “judgment and sentence”); State v. Wicklund,
No. 38697, 2011 WL 11067224, at *1 (Idaho Ct. App. Dec. 29, 2011)
(similar); United States v. Hartshorn, 163 F . App’x 325, 329 (5th Cir.
2006) (“condition of supervised release that [defendant] not be re-
leased to the Southern District of Texas [ Jor to the residence of his
biological family” was “unauthorized by statute” and fell “outside the
scope of [defendant’s] appeal waiver”); Hunt, 843 F.3d at 1928 (“By
waiving his right to appeal any ‘term of supervised release,’ [defend-
ant] did not necessarily give up the right to appeal a condition of
such release.”).

12

sistance of counsel claims. See, e.g., Hurlow v. United
States, 726 F.3d 958, 966 (7th Cir. 2013) (“[A] waiver does
not bar a challenge regarding the validity of a plea
agreement (and necessarily the waiver it contains) on
grounds of ineffective assistance of counsel * * *.”);
United States v. Guillen, 561 F.3d 527, 530 (D.C. Cir.
2009) (similar); United States v. Mabry, 536 F.3d 231, 243
(3d Cir. 2008) (similar); Washington v. Lampert, 422 F.3d
864, 871 (9th Cir. 2005) (similar); United States v. Hahn,
359 F.3d 1315, 1327 (10th Cir. 2004) (en banc) (similar);
United States v. Hernandez, 2A2 F.3d 110, 113-114 (2d
Cir. 2001) (similar); United States v. Henderson, 72 F.3d
463, 465 (5th Cir. 1995); United States v. Attar, 38 F.3d
727, 732-733 (4th Cir. 1994).

The federal courts of appeals have also uniformly held
that a defendant may challenge a guilty plea as involun-
tary or uninformed despite an appeal waiver. See, e.g.,
United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003)
(en banc) (“{A] defendant may knowingly and voluntarily
enter into a plea agreement waiving the right to a jury
trial, but nonetheless fail to have knowingly and voluntar-
ily waived other rights—including appellate rights.”);
United States v. Teeter, 257 F.3d 14, 18 (1st Cir. 2001)
(similar); United States v. Khattak, 273 F.3d 557, 558 (3d
Cir. 2001); United States v. Joiner, 183 F 3d 635, 644-645
(7th Cir. 1999). An element of any challenge to the volun-
tariness of a plea is whether the trial judge made it suffi-
ciently clear that the defendant was waiving the right to
appeal. See Hardman, 778 F.3d at 899 (“For an appeal
waiver to be enforced, the government must show either
that (1) the district court specifically questioned the de-
fendant about the provision during the plea colloquy, or
(2) it is manifestly clear from the record that the defend-
ant fully understood the significance of the waiver.” (quo-

13
tation marks omitted)); Khattak, 273 F.3d at 563 (simi-
lar).

Courts have similarly held that a defendant can appeal
a conviction as lacking an adequate factual basis under
Federal Rule of Criminal Procedure 11(b)(3) despite a
facially applicable appeal waiver. See, e.g., U/nited States
v. Spruill, 292 F 3d 207, 215 (5th Cir. 2002).

Defendants have succeeded in obtaining relief on all
those types of claims. In United States v. Olson, 880
F.3d 873 (7th Cir. 2018), for example, the Seventh Circuit
refused to enforce an appeal waiver that was not knowing
and voluntary, holding that “an invalid waiver cannot in-
sulate an invalid plea.” Jd. at 880. “[Bjecause the district
court never asked the right questions” during the plea
colloquy, the court did “not know whether [the defendant
had] entered a voluntary and intelligent guilty plea” and
would not enforce the terms of the agreement. /d. at 875.
The court thus reversed the conviction. See id. at 881.

Likewise, in United States v. Wingo, 789 F.3d 1226
(11th Cir. 2015), the Eleventh Circuit vacated a convic-
tion on the basis that the district court had failed to con-
duct a competency hearing. /d. at 1228. The court re-
jected the argument that the sentence appeal waiver
barred the defendant’s “claim that he was incompetent to

* See also, ag., In re Sealed Case, 702 F 3d at 63-65 (defendant did
not “knowingly waive his right to appeal the restitution order” be-
cause Rule 11 colloquy did not make clear that waiver covered resti-
tution order); Teeter, 257 F.3d at 27 (refusing to enforce waiver
“|gliven the court’s failure to make inquiry into the waiver, its unfor-
tunate contradiction of the waiver’s terms, and the lack of any cor-
rection, then or thereafter”). That inquiry is particularly important
here, where, although the plea agreements contained waivers, the
trial court “advised Garza of his appeal rights anyway.” Pet. App.
3a.

14
plead guilty and face sentencing,” explaining that the
“appeal waiver itself would be invalid if [the defendant]
lacked the mental capacity to understand and appreciate
the nature and consequences of the plea agreement.” /d.
at 1234 n.8.

Similarly, in United States v. Aquino-De La Rosa, 139
F. App’x 298 (ist Cir. 2005), the defendant “waivejd] the
right to appeal * * * [his] guilty plea and any other aspect
of [his] conviction,” as well as “[tJhe adoption by the Dis-
trict Court at sentencing of [certain specifically identi-
fied] positions.” /d. at 299. The defendant appealed, ar-
guing that resentencing was required under United
States v. Booker, 543 U.S. 220 (2005). See Aquino-De La
Rosa, 139 F. App’x at 299. The government “moved for
summary affirmance on the grounds that defendant
waived his right to appeal in his plea agreement.” /bid.
The First Circuit “decline[d] to enforce the waiver be-
cause its terms were not clearly explained during the
plea colloquy.” Jbid. “(Tyhe district court failed to call
defendant’s attention to the appeal waiver and, instead,
affirmatively sought and obtained confirmation of de-
fendant’s understanding that he had an unqualified right
to appeal his sentence.” Jbid. The court ultimately
agreed with the defendant regarding the alleged Booker
error and vacated the sentence. Jd. at 300."

Many other courts have similarly granted relief on the
basis that defendants did not knowingly and voluntarily
agree to appeal waivers. See, e.g., United States v. Ve-
lazquez, 855 F.3d 1021, 1033 (9th Cir. 2017) (holding “ap-

" See also United States v. Quirindongo-Collazo, 213 F. App’x 10, 12
(1st Cir. 2007) (finding appeal waiver unenforceable because, during
sentencing hearing, “there was no mention by any party of the ap-
peal waiver, nor of any effect that waiver might have on appellant's
right to appeal,” and vacating sentence on basis of Booker error).

15

peal waiver * ** unenforceable” where defendant was
“constructively denied her * * * right to counsel” and va-
cating conviction); United States v. Atkinson, 354 F.
App’x 250, 252 (6th Cir. 2009) (similar); United States v.
Rodriquez-Perez, 184 F. App’x 451, 453 (5th Cir. 2006)
(similar); United States v. Pena, 314 F.3d 1152, 1154 n.1
(9th Cir. 2003) (similar); United States v. Portillo-Cano,
192 F “id 1246, 1252 (9th Cir. 1999); People v. Smith, 143
A.D.3d 31, 34 (ist Dep’t 2016), aff’d, 30 N.Y.3d 626
(2017); Ex parte De Leon, 400 S.W.3d 83, 89-91 (Tex.
Crim. App. 2013).

Finally, courts have granted relief based on inadequa-
cies in the factual basis for the plea. In Spruill, for ex-
ample, the defendant appealed his conviction on the
ground that there was an inadequate factual basis for his
plea. 292 F.3d at 215. The court did not dispute that the
claim fell within “the waiver of appeal provisions in [the]
plea agreement,” which “waived the right to appeal [the
defendant’s] conviction and sentence.” Jd. at 211-215.
But the court nonetheless held that the waiver did not
bar review because the defendant could not be “prose-
cuted (and imprisoned) for conduct that does not violate
the law.” /d at 215 (quotation marks omitted). The
court thus vacated the conviction. See id. at 221.

2. Courts also grant relief on appeal despite waivers
where ordinary contract principles preclude enforcement
of the waiver. Like contracts, plea agreements will be
enforced (or not) according to ordinary contract princi-
ples. See United States v. Scallon, 683 F.3d 680, 682 (5th
Cir. 2012) (applying “‘ordinary principles of contract in-
terpretation’” (quoting U/nited States v. Cooley, 590 F 3d
293, 296 (5th Cir. 2009))).

In United States v. Almonte-Nujiez, T71 F.3d 84 (ist
Cir. 2014), for example, the waiver “foreclosed [the de-

16

fendant| from appealing only if he was ‘sentenced in ac-
cordance with the terms and conditions set forth in the
Sentence Recommendation provisions’ of the Agree-
ment.” /d. at 88. But the district court imposed sentenc-
es that “were not in conformity with the Agreement’s
sentence recommendation provisions,” rendering the
waiver “a dead letter.” /d. at 88-89. Addressing the mer-
its of the defendant’s appeal, the court found that the
sentence imposed on one count exceeded the statutory
maximum and vacated that sentence. /d. at 92-93.

As in contract law, moreover, one side’s breach can ex-
cuse the other side’s performance. In United States v.
Dawson, 587 F 3d 640 (4th Cir. 2009), for example, the
Fourth Circuit recognized that “[a] defendant’s waiver of
appellate rights cannot foreclose an argument that the
government breached its obligations under the plea
agreement.” /d. at 644 n.4. The court thus vacated the
defendant’s sentence on the basis that the government
“breached the plea agreement when the AUSA failed to
recommend to the district court at sentencing that [the
defendant] receive a two-level minor participant reduc-
tion.” Jd. at 645, 648. Indeed, the government did not
even “seek to enforce [the] appeal waiver” because it
conceded the breach. /d. at 644 n.4.

Similarly, in United States v. Lovelace, 565 F.3d 1080
(8th Cir. 2009), the Eighth Circuit held an appeal waiver
unenforceable where the government had “breached the
[plea] agreement by advocating a higher [offense] level”
than specified in the agreement. /d. at 1087. The court
thus considered the defendant’s argument that the dis-
trict court abused its sentencing discretion and vacated
the judgment on that basis. /d. at 1092-1093.

Also as in contract law, plea agreements will be con-
strued to give effect to the parties’ bargain. Following

17

that principle, in United States v. Woltmann, 610 F.3d 37
(2d Cir. 2010), the Second Circuit declined to enforce a
waiver because doing so would have “denied the parties
their bargain and reasonable expectations.” /d. at 42.
The parties had entered into an agreement providing
that “‘the court [wa]s required to consider any applicable
Guidelines provisions as well as other factors enumerated
in 18 U.S.C. §3553(a),’” and that “‘the defendant agrees
not to ... appeal ... the conviction or sentence in the
event that the Court imposes a term of imprisonment of
27 months or below.’” /d. at 39. The district court re-
fused to consider the government’s 5K1.1 letter request-
ing a below-Guidelines sentence because it “believed that
because of the appeal waiver, any sentence at or below 27
months was appropriate, regardless of whether or how
the 5K1.1 letter and the §3553(a) factors—if consid-
ered—would bear on the sentence.” Jbid. The Second
court “improperly ‘relied’ on” and “misread” the Agree-
ment. Jd. at 40. “In so doing,” the court explained, “the
district court failed to give effect to the parties’ expecta-
tions and deprived [the defendant] of the benefit that he
(and the government) agreed he would receive from sign-
ing the Agreement (ie., a weighing of the 5K1.1 letter
and the §3553 factors).” /bid.

3. Courts have likewise refused to enforce waivers
where doing so would undermine the fundamental fair-
ness of the proceedings or result in a manifest miscar-
riage of justice.

In United States v. Adams, 814 F.3d 178 (4th Cir.
2016), for example, the Fourth Circuit vacated a convic-
tion on the basis of actual innocence despite the fact that
“neither party argue|d] that [the defendant’s] waiver was
invalid, and there [wa]s no evidence in the record to sup-

18

port such a conclusion.” /d. at 182. The defendant had
pleaded guilty to one count each of robbery, using and
carrying a firearm during a crime of violence, and being a
felon in possession of a firearm. See id. at 180. The plea
agreement permitted him “to challenge his conviction or
sentence” only on “the basis of ineffective assistance of
counsel or prosecutorial misconduct.” Jbid. The defend-
ant later sought to vacate his felon-in-possession convic-
tion on the basis of a new Fourth Circuit decision that
rendered his prior convictions misdemeanors, not felo-
nies. /d. at 181. In light of that decision, the defendant
was actually innocent of the felon-in-possession count.
Id. at 182-183. The court “conclude[d] that [his] claim of
actual innocence [wa]s outside the scope of the appeal
waiver” and vacated the conviction. /d. at 182, 185.

Similarly, in Mathis v. United States, No. 7:09-cr-139-
1BO, 2012 WL 1156438 (E.D.N.C. Apr. 6, 2012), the court
concluded that whether the defendant “was properly
classified as a career offender” in light of a change in law
was an error “the defendant could not have reasonably
contemplated at the time of the plea agreement” and was
thus “not barred by [the] appeal waiver, even if that
waiver was knowing and voluntary.” /d. at *5 (quotation
marks omitted). Addressing the merits, the court held
that the defendant was “no longer a career offender,”
granted his request for postconviction relief pursuant to
28 U.S.C. $2255, and vacated his sentences. Mathis,
2012 WL 1156438, at *6.

And in United States v. Castro, 704 F.3d 125 (3d Cir.
2013), the Third Circuit found that the defendant had en-
tered into a “knowing and voluntary waiver” that “fore-
closed|d] his appeal” from his false-statement conviction.
Id. at 137. However, the court declined to enforce the
waiver because the record was “devoid of evidence that

19

{the defendant] made a false statement.” /bid. The court
thus reversed the conviction to avoid “a manifest miscar-
riage of justice.” /d. at 138, 144 (quotation marks omit-
ted).

4. Finally, a defendant may succeed on appeal de-
spite an appeal waiver because the waiver itself can be
waived.

In Idaho, for example, appeal waivers have no effect if
the State chooses not to invoke them on appeal (7.¢., if the
State waives the waiver). See, ¢g., State v. Rendon,
No. 38275, 2012 WL 9492805, at *1 n.1 (Idaho Ct. App.
May 11, 2012) (State “failjed] to raise” waiver); State v.
Rodriguez, No. 45233, 2018 WL 700168, at *1 n.1 (Idaho
Ct. App. Feb. 5, 2018) (similar). Federal courts follow the
same rule. See, e.g., United States v. Cheney, 571 F.3d
764A, 769 (8th Cir. 2009) (“[T he government does not con-
tend that [defendant’s] guilty plea bars him from chal-
lenging the factual basis for his plea—in effect, waiving
any claim to rely on a possible waiver * * *.”); United
States v. Obak, 884 F 3d 934A, 937 (9th Cir. 2018) (holding
that “the government waived its ability to rely on [the
defendant’s appeal] waiver” because “the government’s
brief * * * did not raise the waiver issue”).

Defendants have succeeded on claims that would ordi-
narily have been precluded precisely because the waiver
was waived. See, e.g., United States v. Ortega-Hernan-
dez, 804 F.3d 447, 449, 451 (D.C. Cir. 2015) (holding that
court “need not enforce an appeal waiver” barring ap-
peals of sentence “when the government hajd] not asked
[it] to do so” and instructing district court to vacate sex-
offender registration condition on remand); United
States v. Jones, 667 F.3d 477, 486 (4th Cir. 2012) (declin-
ing to “sua sponte enforce” waiver and holding that dis-
trict court’s imposition of career offender enhancement

20

was error); U/nited States v. Story, 439 F 3d 226, 229, 232-
233 (5th Cir. 2006) (finding that “the government hajd}
waived” waiver of “right to appeal |defendant’s] sentence
on all grounds” and remanding for resentencing in light
of Booker error).

C. The Decision Below Ignores the Potential for
Meritorious Claims Even in Cases Involving
Appeal Waivers

The courts below asserted that where a defendant ac-
cepts an appeal waiver in a plea agreement, no appellate
relief remains available. See, e.g., Pet. App. 36a (“When a
defendant has waived his right to appeal in an enforce-
able plea agreement, dismissal—not consideration on the
merits—is the fate that awaits any appeal the defendant
files.”); id. at 26a (similar); id. at 13a (similar). Federal
courts following the minority approach have likewise
claimed that “the ‘presumption of prejudice’” under F'lo-
res-Ortega “really does not suit the situation in which a
waiver is present” because the “entitlement” to pursue
an appeal “disappears” once the defendant agrees to a
waiver. Mabry, 536 F.3d at 244; see Nuiiez v. United
States, 546 F.3d 450, 454-456 (7th Cir. 2008) (similar).
That logic is flawed.

This Court held in Flores-Ortega that prejudice must
be presumed where counsel fails to file a notice of appeal
because that decision causes “the forfeiture of a proceed-
ing itself.” 528 U.S. at 483 The same is true where the
defendant has signed an appeal waiver. Regardless of
the waiver, counsel's failure to file a notice of appeal in-
variably results in the forfeiture of a judicial proceeding.
And, as shown above, the proceeding can—and often
does—result ir substantive relief on appeal, even in the
presence of a purported waiver.

21

This Court has held that a presumption of prejudice is
appropriate where the “consequences” of an error are
“unquantifiable and indeterminate.” United States v.
Gonzalez-Lopez, 548 US. 140, 150 (2006) (quotation
marks omitted). An attorney’s failure to file a notice of
appeal over the client’s instructions is such an error, re-
gardiess of whether there is an appeal waiver. Where
counsel refuses to notice an appeal, the court simply
“would have to speculate” about how a hypothetical di-
rect appeal would have played out. /d. at 151. That is the
kind of error for which a presumption of prejudice is ap-
propriate. See Flores-Ortega, 528 U.S. at 483 (“[Wle
cannot accord any presumption of reliability to judicial
proceedings that never took place.” (quotation marks and
citation omitted)).

Abandoning the presumption of prejudice for cases in-
volving appeal waivers would not significantly reduce any
burdens on the courts. With or without a presumption of
prejudice, defendants will surely continue to file posteon-
viction motions based on their attorneys’ failures to file
notices of appeal. And, as a result, courts addressing
their ineffective assistance of counsel claims will have to
determine whether the appeal waiver would have pre-
cluded their claims on appeal. Courts following the mi-
nority approach already undertake that onerous analysis.
See, e.g., Mabry, 536 F.3d at 237 (court has “an affirma-
tive duty both to examine the knowing and voluntary na-
ture of the waiver and to assure itself that its enforce-
ment works no miscarriage of justice”); U/nited States v.
Eqwuekwe, No. 1:14-cr-6, 2017 WL 5009100, at *6-8
(M.D. Pa. Nov. 2, 2017) (examining same); United States
v. Doss, No. 1:12-er-326, 2017 WL 1709397, at *4-6 (M.D.
Pa. May 3, 2017) (similar); United States v. Dunlap,

22

No. 10-190, 2010 WL, 4614557, at *2-4 (W.D. Pa. Nov. 5,
2010) (similar).*

Nor is there any basis for limiting the presumption’s
applicability based on the scope of the particular waiver
in the case. As shown above, courts have found certain
claims to be beyond the scope of even seemingly broad
appeal waivers. And courts have regularly allowed de-
fendants to pursue various types of claims on appeal even
when they fall within the literal scope of a waiver.

Moreover, as shown above, waivers vary significantly
in form and scope. Thus, unless this Court applies a uni-
form presumption of prejudice to all failures to file a no-
tice of appeal at the client’s direction, courts will inevita-
bly be asked to address the issue for each different type
of appellate waiver. There is no need to waste the courts’
ry different type of appellate waiver. What matters is
that all waivers permit some form of appeal. According-
ly, all defendants who instruct their counsel to file a no-
tice of appeal are prejudiced when counsel fails to do so.
Il. POSTCONVICTION PROCEEDINGS ARE Not AN

ADEQUATE SUBSTITUTE FoR DIRECT APPELLATE

REVIEW

In some cases, defendants may be able to pursue their
claims in postconviction proceedings. For a number of

* See also Solano v. United States, 812 F 3d 573, 576-578 (7th Cir.
2016) (refusing to presume prejudice and instead determining
whether underlying claim fell within scope of appellate waiver after
defendant brought ineffective-assistance claim based on counsel's
failure to appeal); United States v. Hull, No. 16 C 2096, 2017 WL
6733689, at *3 (N.D. DL Dec. 19, 2017) (similar); Reynolds v. United
States, No. 12-12-RGA, 2014 WL 6983354, at *2-3 (D. Del. Dec. 9,
2014) (similar); Martinez v. United States, No. 05-cr-123-12, 2008
WL 4889665, at *7-9 (E_D. Pa. Nov. 12, 2008) (similar).

23

reasons, however, those proceedings cannot adequately
substitute for a direct appeal.

A. Claims That Are Not Raised on Direct Appeal
Generally Cannot Be Raised in Postconviction
Proceedings

Often, depriving a defendant of an appeal will result in
the forfeiture of any review at all. Generally, “claims not
raised on direct appeal may not be raised on collateral
review.” Massaro v. United States, 538 U.S. 500, 504
(2003). Thus, if an attorney decides not to file a notice of
appeal because a plea agreement includes a waiver, the
defendant will often be unable to challenge the validity of
the plea in postconviction proceedings.

Idaho is no exception. Under Idaho law, a “claim or
issue which was or could have been raised on appeal
may not be considered in post-conviction proceedings.”
Hughes v. State, 148 Idaho 448, 462 (Ct. App. 2009) (em-
phasis added); see ibid. (“An application for post-
conviction relief is not a substitute for an appeal.” (citing
Idaho Code §19-4901(b)). The Idaho courts have deter-
mined that at least some challenges to the validity of a
guilty plea should be raised on direct appeal. See State v.
Hernandez, 121 Idaho 114, 116 (Ct. App. 1991) (“A de-
fendant’s claim that his plea of guilty was involuntarily
given is an attack on the validity of the original convic-
tion, and must be timely raised on a direct appeal from
the judgment of conviction.”); ef. State v. Colyer, 98 Idaho
32, 33 (1976) (vacating judgment of conviction because
“the record does not adequately show that appellant un-
derstood the consequences of a plea of guilty”); State v.
Cope, 142 Idaho 492, 496-497 (2006) (determining that
record showed the plea was knowing, intelligent, and vol-
untary). The State frequently seeks to dismiss postcon-
viction petitions relating to the validity of guilty pleas on

24

the basis that the petitioner could and should have raised
the claim on direct appeal. See, e.g., Workman v. State,
144 Idaho 518, 524 (2007) (“{Tjhe State and the district
court observed that many of [petitioner’s] claims regard-
ing his guilty plea either were or should have been raised
on direct appeal.”).

Proposing that defendants like Mr. Garza wait to raise
claims until postconviction review lays an unfair trap: By
that point, it may be too late to raise the claims at all.

B. Higher Pleading Standards Apply in Postcon-

viction Proceedings

The pleading standards for a postconviction petitioner
are typically far higher than they are on direct appeal.
Under Idaho law, for example, a “petition for post-
conviction relief initiates a proceeding that is civil in na-
ture.” Pentico v. State, 159 Idaho 350, 353 (Ct. App.
2015). But, unlike the average civil complaint, a postcon-
viction petition “must contain much more than a short
and plain statement of the claim that would suffice for a
complaint.” Jd. at 354 (emphasis added); see also Fields
v. State, 155 Idaho 532, 536 (2013) (same). Instead, “a
petition for post-conviction relief must be verified with
respect to facts within the personal knowledge of the pe-
titioner, and affidavits, records, or other evidence sup-
porting its allegations must be attached or the petition
must state why such supporting evidence is not included
with the petition.” Pentico, 159 Idaho at 354; Fields, 155
Idaho at 536 (citing Idaho Code §19-4903). “In other
words, the petition must present or be accompanied by
admissible evidence supporting its allegations or the peti-
tion will be subject to dismissal.” Pentico, 159 Idaho at
354; see State v. Payne, 146 Idaho 548, 560-561 (2008)
(similar).

25

The stringent pleading standards for postconviction
petitioners have real teeth. Idaho courts routinely deny
relief where petitioners do not submit the required evi-
dence. See, eg., Self v. State, 145 Idaho 578, 581 (Ct.
App. 2007) (dismissing petition because petitioner failed
to provide affidavit or deposition testimony by expert
supporting ineffectiveness claim); Murphy v. State, 143
Idaho 139, 150 (Ct. App. 2006) (dismissing petition be-
cause petitioner failed to proffer admissible evidence es-
tablishing details of how juror allegedly slept through
trial); Small v. State, 132 Idaho 327, 333 (Ct. App. 1998)
(dismissing petition because petitioner failed to introduce
medical testimony concerning effect of medication she
was on during trial).

None of those standards applies to a criminal defend-
ant prosecuting a direct appeal. All the defendant must
do to adequately present an issue on direct appeal is sup-
port it with “propositions of law, authority, or argument.”
State v. Zichko, 129 Idaho 259, 263 (1996); see Fed. R.
App. P. 28(a)(8); Idaho App. R. 35(a)(4); Cal Pac. Bank v.
FDIC, 885 F.3d 560, 570 (9th Cir. 2018) (“arguments are
waived” only where “the appellant does not present any
argument to support its assertions and cites no authori-
ty” or presents only “inadequately briefed and perfuncto-
ry arguments”); see, ¢.g., United States v. Suarez, 879
F.3d 626, 639 (5th Cir. 2018) (appellant’s “brief sufficient-
ly presented his argument” where it set out legal stand-
ard and cited record). A defendant should not have to
satisfy a more challenging pleading standard just be-
cause counsel failed to notice the appeal the defendant
wanted and was entitled to pursue.

26

C. There Is No Constitutional Right to Counsel in
Postconviction Proceedings

Perhaps most importantly, “({tJhere is no constitutional
right to an attorney in state post-conviction proceedings.”
Coleman v. Thompson, 501 U.S. 722, 752 (1991). By con-
trast, appointed counsel must be furnished to indigent
defendants on direct appeal. See Evitis v. Licey, 469
U.S. 387, 393-394 (1985).

Similarly, under Idaho law, a postconviction petitioner
has no statutory right to postconviction counsel except in
capital cases. See Murphy v. State, 156 Idaho 389, 395
(2014). In non-capital postconviction cases—ie., the
overwhelming majority of such actions—the appointment
of counsel “lies within the discretion of the district court.”
Melton v. State, 148 Idaho 339, 341 (2009).° Idaho appel-
late courts regularly affirm decisions denying counsel to
postconviction petitioners. See, e.g., Nelson v. State, 157
Idaho 847, 856 (Ct. App. 2014); Gonzales v. State, 151
Idaho 168, 172-173 (Ct. App. 2011); Judd v. State, 148
Idaho 22, 24-26 (Ct. App. 2009).

A postconviction proceeding where the defendant is
without legal assistance cannot serve as an adequate re-
placement for a direct appeal where the defendant has
the invaluable benefit of an attorney. In Workman, for
example, the Supreme Court of Idaho upheld the denial
of postconviction counsel while rejecting the defendant’s
arguments that his plea was involuntary and never for-
mally entered. See 144 Idaho at 527-529. Those are ex-

® Only a tiny percentage of Idaho prisoners are under sentence of
death. See Idaho Dep’t of Corr., Supervised Population Snapshot,
https-//dash.idoc.idaho.gov/ (26,044 prisoners as of Aug. 15, 2018);
Idaho Dep’t of Corr., Death Row, https://www.idoc.idaho.gov/
content/prisons/death row (9 prisoners on death row as of Aug. 15,
2018).

27

actly the sort of issues that can be raised on direct ap-
peal, even with a waiver. See pp. 12-13, supra. The
State’s approach would obligate defendants whose law-
yers refuse to file notices of appeal to litigate pro se the
very same issues that they could and should have litigat-
ed on direct appeal with all the advantages of representa-
tion.

*>?.

Idaho’s postconviction scheme exemplifies why a pre-
sumption of prejudice is appropriate where counsel fails
to file a notice of appeal. Channeling claims into postcon-
viction proceedings forces defendants to pursue their
claims without the benefit of legal representation, to
overcome onerous pleading standards, and to risk losing
the claims altogether. It creates an intolerable risk that
defendants who involuntarily signed guilty pleas will end
up in prison. When a defense attorney deprives a client
of the chance for a direct appeal, the only way to ensure
that risk does not materialize is by presuming prejudice.

CONCLUSION

The judgment of the Supreme Court of Idaho should

be reversed.

W. ALEX HARRIS LAUREN M. WEINSTEIN
MOLOLAMKEN LLP Counsel of Record
430 Park Ave. ROBERT K. KRY
New York, NY 10022 MOLOLAMKEN LLP
(212) 607-8160 The Watergate, Suite 660
600 New Hampshire Ave., NW.

JONAH HORWITZ Washington, D.C. 20037
IDAHO ASSOCIATION OF (202) 556-2000

CRIMINAL DEFENSE lweinstein@mololamken.com

LAWYERS
702 W. Idaho St., Suite 900 CRAIG DURHAM
Boise, ID 83702 IDAHO ASSOCIATION OF
(208) 345-5183 CRIMINAL DEFENSE
jonah horwitz@fd_org LAWYERS

223 N. 6th St., Suite 325

BRIAN MCCOMAS Boise, ID 83702
IDAHO ASSOCIATION OF (208) 331-5530

CRIMINAL DEFENSE chd@fergusondurham.com

LAWYERS
Ti Van Ness Ave., Suite 101
San Francisco, CA 94102
(208) 320-0383
mecomas.b.c@gmail.com

ay st Cori

AUGUST 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0809%3A12. Public record. Not legal advice.