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May 8, 2024

Notable pending cert petition asks Justices to resolve split over reach of appeal waivers in a notable setting

I recently noticed that an intriguing and distinctive federal case that I heard about some months ago was flagged here as a "Petition of the Week" over at  SCOTUSblog.  I recommend the full SCOTUSblog post for the case details, but here is the start and close of that post:

The vast majority of criminal cases — 98% of those in federal court, and 95% of those in state court — are resolved through plea bargains.  As a condition for pursuing a lesser conviction or shorter sentence, prosecutors may also require someone who pleads guilty to a crime to sign away their right to appeal.  This week, we highlight petitions that ask the court to consider, among other things, whether a plea deal with an explicit waiver of the right to appeal bars defendants from later asking a court to vacate their conviction if the conduct of which they were accused, it turns out, was not a crime at all....

In Khadr v. United States, Khadr asks the justices to grant review and reverse the D.C. Circuit’s ruling.  He argues that the courts of appeals are divided over whether criminal defendants can  ever waive their right to argue that their conviction was legally invalid by pleading guilty. Just as “[p]lea agreements based upon non-criminal conduct cannot” support a conviction, Khadr writes, nor do general waivers of appeal “bar appellants from seeking review of their convictions for conduct that is not criminal.”

The full cert petition in Khadr is available at this link, and here is how it presents the question that the Justices will consider at a conference later this month:

Plea agreements often include a general waiver of the right to appeal. Circuits are divided over whether the inclusion of such a term bars a defendant from bringing a direct appeal of a conviction, when a subsequent controlling judicial decision has held that the conduct to which the defendant pled guilty was not a crime.  The Second, Third, and Fourth Circuits hold that an appeal may proceed.  In the decision below, a divided panel of the D.C. Circuit joined the Seventh and Ninth Circuits in holding that it may not.

Does a plea agreement that includes a general appellate waiver foreclose a direct appeal when a defendant has pled guilty to conduct that was not criminal?

May 8, 2024 at 09:59 AM | Permalink


I'd be shocked if SCOTUS reverses. Jones v. Hendrix shows that the court's current majority doesn't see a problem with holding legally innocent people in prison once some form of "finality" has been established through a bar on appeals.

Posted by: Jacob Berlove | May 8, 2024 10:11:16 AM


Posted by: federalist | May 8, 2024 11:23:43 AM

The time for a defendant and his lawyer to conclude that the charged behavior is not actually a crime is BEFORE they enter the plea, not afterward. Generally the defense has weeks or months to make that decision. If they have any doubt the conduct was criminal, fine, don't plead guilty and go litigate it. But once you make your decision, having been given adequate time and resources to do so, don't go back on your word.

And let's get real. It's not that the defense wants to limit finality. The defense wants to discard finality 100%, to be able to litigate out to infinity.

Posted by: Bill Otis | May 8, 2024 6:05:46 PM

Bill Otis: The issue here is what happens when the law changes AFTER the defendant has entered into his plea agreement? An example is the Supreme Court's decision in Ruan v. United States, 497 U.S. ___, 142 S. Ct. 2370, 213 L.Ed.2d 706 (2022), where the Court changed the mens rea for physicians writing prescriptions who are charged with violating 21 U.S. Code sec. 841(a). Now, after a physician shows that he had a DEA license to write prescriptions, the Government must also prove that the physician knew that he was violating or intended to violate section 841(a). The Sixth Circuit has even modified their Pattern Jury Instructions to accomodate and comply with the Ruan decision. In it's Response Brief, the Government has conceded that the Ruan decision has retroactive effect on collateral review, for purposes of Motions for Habeas Corpus and Petitions for Writs of Error Coram Nobis. See, United States v. Robert L. Ignasiak, Jr., Case No. 3:08-cr-0027-LC-ZCB (Doc. #535)(N.D. Fla. filed Aug. 17, 2022). Sixth Circuit law also indicates that the Ruan decision should be entitled to retroactive effect. See, Dimora v. United States, 973 F.3d 496, 502-507 (6th Cir.2020). By now, the 1 year after Ruan was decided during which physicians who pleaded guilty could have moved to set aside their pleas and convictions by Motion for Habeas Corpus (28 U.S. Code sec. 2255) has expired. A Kentucky physician who was convicted following a trial of violating 841(a) in 2002 has filed a Petition for a Writ of Error Coram Nobis, arguing that his convictions must be set aside because the jury that convicted him was not properly instructed on the mens rea (as altered by Ruan), resulting in a fundamental defect in the proceedings and a complete miscarriage of justice. See, United States v. Ali Hadi Sawaf, Case No. 3:01-CR-0047-KCC (E.D. Ky. filed Sept. 11,2023). So far, the District Judge has sat on the Petition and done nothing. Eight months since the Petition was filed, the Judge has not even required the Government to respond to the Petition, even though the Petition was served on the Government at the time it was filed in 2023. Dr. Sawaf is now 82 years old.

Posted by: Jiim Gormley | May 8, 2024 9:44:31 PM

Jim Gormley --

The waiver agreement as I wrote it says nothing about coram nobis. Neither for that matter does any other plea agreement I ever heard of, and I've heard of a lot.

Posted by: Bill Otis | May 8, 2024 11:11:57 PM

By my count, I read about 250 federal plea agreements a year. For randomness, I pulled the last one I read, one from ED Washington. It hardly matters... they're all pretty much the same.

"Defendant expressly waives the right to file any post-conviction motion attacking Defendant's conviction and sentence, including a motion pursuant to 28 U.S.C. § 2255, except one based on ineffective assistance of counsel..."

"[A]ny post-conviction motion" easily includes a petition for writ of error coram nobis within its expansive sweep.

Any argument that plea waivers do not encompass coram nobis simply because "petition for writ of error coram nobis" is not specifically identified is frivolous. See, e.g., Hinkson v. United States, No. 21-40174, 2022 U.S. App. LEXIS 5983, at *7 n.3 (5th Cir. Mar. 8, 2022) ("Because we find that the appellate waiver in Hinkson's guilty plea bars his petition for the writ of coram nobis, we need not consider the alternate grounds that the district court found for its denial..."); Brown v. United States, No. 21-5046, 2022 U.S. App. LEXIS 8450, at *4 (6th Cir. Mar. 29, 2022) ("Brown's argument that a writ of coram nobis falls outside the reach of his waiver is unsupported by any authority. A writ of coram nobis is an alternative way to collaterally attack a conviction when relief under §§ 2255 and 2241 is unavailable because the individual is no longer in custody").

Posted by: Tom Root | May 9, 2024 7:56:13 AM

Tom Root.

I wrote my version 30 years ago and 3000 miles away. Whether other offices use my wording decades later is not up to me.
BTW, could you detail your criminal record?

Posted by: Bill Otis | May 9, 2024 11:53:20 AM


Hang on bro. Your version is the one used by "Janet Reno's DOJ, and routinely used thereafter by, among others, Michael Mukasey, Eric Holder, Loretta Lynch, Jeff Sessions, Bill Barr, and now for the last few years Merrick Garland? THAT waiver? The one that's been upheld by all the circuits? For going on 30 years?"

Why are you washing your hands of it now? Strut your stuff! This coram nobis notion sounds like defense bar BS to me. Criminal predators should get one bite at the apple, at most.

When you save the taxpayers the expense of a trial, you need to actually pony up something in exchange. Go to prison and shut your legal mouth for as long as the judge says you should stay behind bars. Easy peasy.

President Trump is going to make sure we get a whole lot more finality in our legal system. MAGA

Posted by: MAGA 2024 | May 9, 2024 9:31:29 PM

Real-life student of the law here. I agree with Bill. Let's be real. The time for knowing if you are breaking the law is before you do it.

If you're not sure, you need a jury to help you decide whether you have confessed, or or innocent.

Coram nobis "has been allowed where the defendant has pleaded guilty through mistake, duress, or fraud". "The Writs of Error Coram Nobis" in Duke Bar Journal 29 (Robinson: 1951) at 33.

What is pleading guilty? If you confess, who really will accept your punishment?

What happens when you read in the law journals, that "no contest" can be overturned on appeal, only to discover the newspaper thinks "no contest" is a confession?

What's the difference between confession and innocence? Who decides? The judge, the jury, the executioner, or you?

Posted by: Isaac | May 14, 2024 7:23:42 PM

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