In Garza v. Idaho, the Supreme Court recently ruled 6-3 that, if a defendant wants to appeal, defense counsel must always file a notice of appeal — even if the defendant has signed an appeal waiver and even if counsel judges an appeal to be frivolous or self-defeating. The opinion clarifies trial counsel’s obligations during the post-trial period. And the lineup of the Justices is potentially revealing.
Mr. Garza entered into a plea agreement that included a clause stating he “waive[d] his right to appeal.” After sentencing, however, Mr. Garza clearly and repeatedly told his lawyer that he wished to appeal. Trial counsel did not file a notice of appeal, telling Mr. Garza “that an appeal was problematic because he waived his right to appeal.”
Later, Mr. Garza sought post-conviction relief, claiming that trial counsel rendered ineffective assistance by failing to file a notice of appeal despite Mr. Garza’s requests. The Supreme Court’s prior decision in Roe v. Flores-Ortega lent support to Mr. Garza’s claim. The Court had held in Flores-Ortega that trial counsel’s failure to file a notice of appeal when the client requests an appeal amounts to ineffective assistance of counsel. But the Idaho courts denied Mr. Garza’s claim, purporting to distinguish Flores-Ortega on the basis of the appeal waiver in Mr. Garza’s case.
The Supreme Court reversed in an opinion authored by Justice Sotomayor and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan, and Kavanaugh. Assessing the two elements of an ineffective assistance of counsel claim — deficient performance and prejudice — the Court held that, even in the face of appeal waiver, both elements are met when counsel disregards a defendant’s request to file an appeal.
Addressing the deficient performance element, the Court rejected the State’s argument that counsel could strategically decide not to file an appeal for fear of risking a breach of the plea agreement. The Court explained that, first, “simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope.” Second, “the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make.” The Court noted that defense counsel’s obligation to perform the “purely ministerial task” of filing a notice of appeal did not imply an obligation to file a merits brief in the court of appeals, as defense counsel may move to withdraw from representing the defendant on appeal if the appeal would be frivolous.
Addressing the prejudice element, the Court held that a presumption of prejudice applied because counsel’s deficient performance “forfeit[ed] an appellate proceeding all together,” and there was no principled way to assess the reliability of a proceeding that never took place. An appeal waiver does not show that a defendant has no right to an appellate proceeding, the Court explained, because there are some issues that can always be appealed notwithstanding an appeal waiver — including but not limited to the issue of whether the appeal waiver itself was knowing and voluntary. The Court rejected the federal government’s argument for a case-by-case assessment of whether the defendant planned to raise an issue outside the scope of the appeal waiver as unworkable.
Justices Thomas, Gorsuch, and Alito dissented. Justice Thomas authored the dissent, which Justice Gorsuch joined in full and Justice Alito joined only in part. In the section joined by each of the dissenters, Justice Thomas maintained that a case-by-case inquiry into deficient performance and prejudice should be required. In a more radical section of the dissent, joined only by Justice Gorsuch, Justice Thomas argued that the Sixth Amendment, as originally understood and ratified, “meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Thus, Justice Thomas (and Justice Gorsuch) suggested that landmark decisions reading the Sixth Amendment to require “counsel at taxpayers’ expense” (i.e., Gideon) and to guarantee “effective counsel” (i.e., Strickland) were wrongly decided. At a minimum, Justice Thomas maintained “the Court should tread carefully before extending our precedents in this area.”
- Whether to appeal is up to the client. The defendant’s right to decide whether to appeal his case is a vital procedural protection.While defense counsel may advise the client that an appeal would be pointless, the client’s decision to proceed on appeal controls — just like the client controls other final decisions including whether to plead guilty or go to trial. An amicus brief filed in the Garza litigation explains why fundamental principles of constitutional law and legal ethics vest the final decision to appeal in the client.
- If the client wants to appeal, counsel must file a notice of appeal, even if the plea agreement contains an appellate waiver. Defense counsel must always file a notice of appeal when the client expresses the desire to appeal. In Roe v. Flores-Ortega, the Supreme Court held that when an attorney “disregards specific instructions from the defendant to file a notice of appeal,” the attorney has rendered deficient representation, and the defendant should be “presum[ed]” to have suffered prejudice. 528 U.S. 470 (2000). Garza teaches that the existence of an appeal waiver in a plea agreement does not change counsel’s fundamental obligations in this area.
- Garza resolves a circuit split but doesn’t really change Tenth Circuit law. Since 2005, the Tenth Circuit has applied the rule in Flores-Ortega with equal force where a defendant enters a guilty plea containing an appeal waiver. In U.S. v. Garrett, the Tenth Circuit held that an “[a]ppellate waiver does not foreclose all appellate review” a sentence, and if the defendant “actually asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal.”See US v Garrett, 402 F.3d 1262, 1266 (10th Cir. 2005).
- Of course, you may end up filing an Anders brief. If you think the appeal is frivolous, keep in mind the procedure under Anders v California, 386 U.S. 738, 744 (1967). That is, when a client asks his lawyer to file an arguably frivolous appeal, the lawyer should file a notice of appeal, submit “a brief referring to anything in the record that might arguably support the appeal,” and request permission to withdraw. This procedure, requiring lawyers to file “Anders briefs,” allows defense counsel to act “with honor and without conflict,” and it preserves defendants’ right to appeal. For additional requirements on Anders briefs in the Tenth Circuit, see the Tenth Circuit Rules on the subject, particularly 10th Cir. R. 46.4(B)(1) through (3), and US v Cervantes, 795 F.3d 1189, 1190 (10th Cir. 2015).
- Don’t just assume an appellate waiver is enforceable. Like it or not, appeal waivers are a part of plea agreements in the Tenth Circuit. But appellate waivers are not absolute and even the broadest waivers can sometimes be challenged. Review the appellate waiver enforcement analysis in US v Hahn, the key case on the issue in the Tenth Circuit, to determine if the appeal falls within the scope of the appellate waiver, if the defendant knowingly and voluntarily waived his appellate rights, or whether waiver will result in a miscarriage of justice.