When Senior Judge John Kane rejected the plea agreement, not because he had any difficulty with the deal cut as far as the defendant was concerned, but that the government gratuitously threw in the now-ubiquitous waiver of appeal, the Tenth Circuit said no. Judge Kane’s position was that the government provided no additional consideration for the waiver. The Circuit’s view was, “So what? That’s the deal.”
In Garza v. Idaho, the Supreme Court issued one of those head-scratching decisions that gave the appearance of good news while accomplishing little, if nothing, to help. The Court extended the rule of Roe v. Flores-Ortega, that failure of counsel to file a Notice of Appeal was, per se, ineffective assistance of counsel.
This was a significant decision, as if would otherwise fall to the defendant to meet the requirements of Strickland v. Washington to show that counsel’s screw-up, the failure to file the notice, would survive the second-prong of the test, that there was a reasonable probability of a different outcome. In other words, you had to show a probability that you would win the appeal to get the right to appeal. This was not only an absurd burden, but gave cover to inexcusable failure. A first-level appeal is a right, so failure to file a notice is an unjustifiable failure.
But then came the waiver. Much to the surprise of judges and advocates, Newton’s Third Law kicked in, and the government came up with a way to cut deals and avoid having to fight out the case anyway on appeal. Routinely included in plea agreements was a clause stating that the defendant waived certain rights on appeal, including the right to challenge his sentence provided it was within the range anticipated by the plea agreement.
It may smell odd, but the waivers made sense in that if the government lived up to its end of the bargain, the defense didn’t get a second chance at relitigating the case. He got the benefit of the bargain, to the extent anyone considers a federal plea negotiation a benefit or a bargain, and that was that. Judge Kane recognized the coercive nature of the inclusion of the waiver, just one more burden rammed down the defendant’s throat for which there was no additional consideration. It was the same plea deal as before, plus a waiver, as if the defendant had much of a choice in the matter.
But rather than face the waiver issue, the Supremes went for a side issue, that even a defendant whose plea agreement waived appeal had a presumptive right to file a notice of appeal, and failure to do so, even in the face of a waiver, in the absence of any appealable issue, was ineffective assistance of counsel.
This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.
Whenever Justice Sonia Sotomayor writes the Court’s opinion, a defendant wins, Whenever a defendant wins, we cheer. But what did we win?
That an appeal waiver does not bar claims outside its scope follows from the fact that, “[a]lthough the analogy may not hold in all respects, plea bargains are essentially contracts.” Puckett v. United States, 556 U. S. 129, 137 (2009).
As with any type of contract, the language of appeal waivers can vary widely, with some waiver clauses leaving many types of claims unwaived. Additionally, even a waived appellate claim can still go forward if the prosecution forfeits or waives the waiver. E.g., United States v. Story, 439 F. 3d 226, 231 (CA5 2006). Accordingly, a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.
There should be no question that there are exceptions to appeal waivers, but they’re outliers, rarely occurring. When they do occur, it should be incumbant on defense counsel to recognize them, as that’s why the Sixth Amendment provides the right to effective assistance of counsel. And if they fail to do so, then IAC should be presumed. Of course, this is a condemnation of the rule of Strickland more than an extension of Flores-Ortega. Or to get even closer to the crux of the problem, the allowance of appeal waivers at all.
The irony here is that the Court continues its embrace of appeal waivers, not to mention Strickland, while giving defendants who demand an appeal despite, as was the case with Garza here, getting the sentence for which he bargained, a right without a purpose. Garza’s lawyer was presumed to provide ineffective assistance for not filing a Notice of Appeal even though Garza has no appealable issue and no chance of prevailing on appeal.
But if Justice Sotomayor’s concern is real, then why should there be any need to file a Notice of Appeal at all? It’s just a piece of paper, a pro forma submission, the purpose of which is now lost to the ages. Rather than make this an IAC problem, where defense counsel should now file a Notice just for kicks and to avoid being hauled on the carpet for failing to do so even though there is nothing to appeal, just presume a notice has been filed for all defendants and see what comes of it.
There’s no difference between eliminating the requirement for the filing of a notice of appeal and mandating that defense counsel file the form regardless of an effective appeal waiver in a plea agreement. If there is nothing to appeal, there will be nothing to appeal either way.
As for poor Gilberto Garza, he won and gained nothing but his name on a Supreme Court opinion, as he will get his right to appeal and an assigned lawyer will submit an Anders brief in his honor. It’s not that there couldn’t have been appealable issues behind his waiver, but that there appears to be nothing. As Justice Clarence Thomas wrote in dissent:
Garza’s counsel quite reasonably declined to file an appeal for that purpose, recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain. Yet, the majority finds Garza’s counsel constitutionally ineffective, holding that an attorney’s performance is per se deficient and per se prejudicial any time the attorney declines a criminal defendant’s request to appeal an issue that the defendant has waived. In effect, this results in a “defendant-alwayswins” rule that has no basis in Roe v. Flores-Ortega, 528 U. S. 470 (2000), or our other ineffective-assistance precedents, and certainly no basis in the original meaning of the Sixth Amendment.
If the Supreme Court wanted to give meaning to a defendant’s right to appeal following a plea agreement, the solution is getting rid of Strickland and appeal waivers, not creating a presumption of ineffective assistance that goes nowhere.