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February 27, 2019

SCOTUS, ruling 6-3, refuses to let appeal waivers impact ineffectiveness claims when attorney improperly fails to appeal

The Supreme Court this morning handed down an opinion in Garza v. Idaho, No. 17-1026 (S. Ct. Feb. 27, 2019) (available here), a case concerning the distinctive Sixth Amendment jurisprudence addressing whether defense counsel has been constitutionally deficient when failing to appeal upon a defendant's instructions.  The ruling in the case is 6-3, with Justice Sotomayor delivering the opinion of the Court, which was joined by the Chief Justice as well as Justices Ginsburg, Breyer, Kagan and Kavanaugh.  Here is how the opinion gets started:

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), this Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” Id., at 484. 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.

Justice Thomas filed a dissenting opinion, which Justices Gorsuch joined in full and Justice Alito joined in part. (The last part of the dissent reviews originalist approaches to the Sixth Amendment, and only Justice Gorsuch joined that part). The dissent starts this way:

Petitioner Gilberto Garza avoided a potential life sentence by negotiating with the State of Idaho for reduced charges and a 10-year sentence. In exchange, Garza waived several constitutional and statutory rights, including “his right to appeal.” App. to Pet. for Cert. 44a, 49a.  Despite this express waiver, Garza asked his attorney to challenge on appeal the very sentence for which he had bargained.  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-always-wins” 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. I respectfully dissent.

February 27, 2019 at 10:39 AM | Permalink


I would have dealt with this under Strickland's prejudice prong, that is that even assuming (without deciding) that the failure to file is deficient the outcome would not likely come out any different. I would not treat failure to file a doomed appeal as any sort of systemic error, at least so long as the attorney did not mislead the offender that an appeal was forthcoming.

Posted by: Soronel Haetir | Feb 28, 2019 5:44:20 PM

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Posted by: Steve | Feb 28, 2019 11:23:56 PM

I thought this case was pretty much compelled by Roe-Ortega. Once you find that the complete denial of an appeal is presumptively prejudicial as Roe-Ortega did, the outcome is pretty much pre-ordained. Where the Idaho court's screwed up was holding that the fact of the plea agreements changed the legal analysis. Under Roe-Ortega, the correct use of the plea waiver was as evidence to resolve any factual dispute about whether Garza wanted to appeal and his attorney refused to follow the client's directives on an issue in which the client has the final say. (The fact that defense attorneys apparently frequently disregard client decisions over matters that properly belong to the client -- whether to concede guilt, whether to plead, whether the client should testify at trial, and whether to appeal -- should be troubling to all sides.)

Posted by: tmm | Mar 1, 2019 10:46:20 AM

I think this is clearly the right result, even if it leads to a relatively absurd result (a result that isn't worth fighting this much over). Appeals are a client's fundamental decision that the attorney can't waive. There's a whole Anders procedure for this scenario. Given that, it seems clear structural error to deprive the defendant of this right regardless of how pointless it is.

That being said, the remedy is he'll get a new lawyer who will file either an appeal or an Anders and then the appeal will be denied.

Posted by: Erik M | Mar 1, 2019 2:11:46 PM

So, now does the defendant face the prospect of a life sentence? He would in North Carolina under GS 15A-1335. When potential clients want me to represent them on withdrawing a guilty plea, I tell the story of State v Rico. Mr. Rico was charge with First Degree Murder. He pleaded guilty to voluntary manslaughter. He filed a pro se motion challenging the plea. The Supreme Court ruled in his favor on withdrawing the plea, and then remanded for trial on the charge of First Degree Murder. Watch out for what you ask for!


Posted by: bruce cunningham | Mar 1, 2019 4:11:48 PM

Bruce, potentially (which is something that counsel should discuss with Garza before proceeding with the appeal, understanding that Garza has the final say on whether to proceed with the appeal).

In my experience, in most cases with appeal waives or IAC waivers, the government merely tries to enforce the waiver. Obviously, if government asked to set aside plea based on a violation of the plea agreement, the plea court would have to look at same issues as appellate court (and those issues would be raised on appeal from any order setting aside appeal) -- namely the scope of the waiver, the validity of the waiver, and whether the issues raised on appeal actually violated the appeal waiver. However, if Garza succeeds on the appeal and the plea is invalidated, that should restore the case to the status quo before the plea.

My state normally does not have express appeal waivers as part of the plea bargain because, as a matter of law, appeals after a guilty plea are limited and conditional guilty pleas are not allowed. A similar issue, however, arises in IAC cases and a typical part of the evidence at a hearing on such claims is emphasizing to the defendant that, if he is allowed to withdraw his plea, he is back to facing the full range of possible charges and could end up with a much worse result than he got in the plea bargain.

Posted by: tmm | Mar 1, 2019 5:12:01 PM


"in most cases, the government merely tries to enforce the waiver."

I have had several cases where the prosecutor said in open court, he would prosecute the def for all of the charges that were dismissed as a part of the plea arrangement. In another case, the DA told me to tell the def that the State would consent to his motion to vacate the plea. That was ominous.

Usually, it is the def who gets themselves into this pickle by filing a pro se motion to withdraw the plea. When I draft motions to withdraw plea, I always hedge my bets by saying the relief sought is conditioned on the judge ruling on a preliminary issue that would insure the defendant couldn't get more time than he had already.

For example, a claim based on double jeopardy or an eighth amendment as applied claim. An opening paragraph sort of like this, "In the event the Court rules that any sentence in excess of the sentence already imposed would violate the Eighth Amendment, as applied to the particular facts of this particular case, the Defendant seeks a ruling that the entry of the plea was not an intelligent, knowing, and voluntary waiver of the Defendant's Sixth Amendment right to a jury trial.""

Posted by: bruce cunningham | Mar 1, 2019 5:39:54 PM

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