Opinion analysis: Defense lawyer’s refusal to file requested appeal constitutes ineffective assistance, despite defendant’s appeal waiver

When a defense lawyer decides not to file an appeal of a guilty plea despite his client’s request, he renders ineffective assistance of counsel, even if the client waived his right to appeal in the plea agreement, the Supreme Court ruled Tuesday in Garza v. Idaho.

In a 6-3 majority opinion, Justice Sonia Sotomayor held that the presence of an appeal waiver did not render the Supreme Court’s 2000 decision in Roe v. Flores-Ortega inapplicable, as the Idaho Supreme Court had ruled below. Flores-Ortega, which did not involve an appeal waiver, held that whenever an attorney’s deficient performance costs a defendant an appeal that he would otherwise have pursued, prejudice is presumed for purposes of determining whether the defendant’s counsel provided ineffective assistance. Both the state of Idaho and the United States, as amicus curiae, had argued that the ineffective-assistance-of-counsel analysis should be different when the defendant has waived appeal.

In 2015, Gilberto Garza Jr. entered into plea agreements with respect to charges of aggravated assault and possession with intent to deliver methamphetamine. The state of Idaho agreed not to pursue burglary and grand theft charges; not to refer him for federal prosecution on a possible felon-in-possession charge; and not to seek an anti-recidivist sentencing enhancement that could theoretically have resulted in a life sentence. Both plea agreements contained a provision waiving Garza’s right to appeal — a practice that has become commonplace throughout the nation.

Shortly after he was sentenced, Garza repeatedly asked his lawyer to file an appeal. The lawyer reminded Garza that he had waived his right to an appeal, but did not disclose that no notice of appeal had been filed. The deadline to file passed, leading the Idaho post-conviction courts to deny relief.

Before the U.S. Supreme Court, Idaho made two distinct arguments for why the presence of an appeal waiver should make Flores-Ortega inapplicable. First, Idaho argued that a defense lawyer cannot “cause” a defendant to lose an appeal to which he had no right. If the defendant had already waived the right to an appeal, the lawyer’s decision not to file an appeal could not possibly deprive the defendant of anything.

Sotomayor and the majority rejected this argument by stressing that no appeal waiver ever eliminates all possible grounds for an appeal. For example, the right to challenge a guilty plea as involuntary is nonwaivable. Moreover, the government can itself waive the appeal waiver provision of the agreement, or it can forfeit its rights under the provision by materially breaching the agreement. It is therefore incorrect to say that the failure to file an appeal could not have deprived the defendant of an appeal.

Second, Idaho had argued that a lawyer might reasonably decide that an appeal should not be filed because it would endanger the benefits the lawyer had obtained in the plea bargain. Such a strategic decision on the part of the lawyer should bind the client, the state argued.

The Supreme Court rejected this argument as well. The decision whether to appeal ultimately lies with the client, not the lawyer. “[F]iling a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within the defendant’s prerogative,” wrote Sotomayor. Besides, she continued, filing a notice of appeal does not necessarily breach the appeal waiver; the defendant might end up asserting a claim, such as involuntariness or government breach, that lies outside the appeal waiver. (In a footnote, Sotomayor cautioned that merely being obliged to file an appeal at the client’s behest does not mean that the lawyer must raise unsupportable arguments urged by the client.)

In confirming the applicability of Flores-Ortega, the majority declined to adopt the U.S. solicitor general’s suggestion for a limited factual inquiry into prejudice. The government would have required a defendant to show either (1) that he requested, or at least expressed interest in, basing an appeal on grounds outside the scope of the waiver; or (2) that there were nonfrivolous grounds for appeal despite the waiver. Sotomayor had two reasons for rejecting this proposal, one on principle and one on practical grounds.

Her principled response was that, when an entire proceeding such as an appeal has been forfeited, the Supreme Court has not attempted to gauge the defendant’s likelihood of success on the merits. “This Court has made it clear that when deficient counsel causes the loss of an entire proceeding, it will not bend the presumption-of-prejudice rule simply because a particular defendant seems to have had poor prospects,” she stated.

Sotomayor also rejected the government’s proposal on practical grounds. Citing Professor Nancy King’s study showing that more than 90 percent of noncapital habeas petitioners are unrepresented, Sotomayor noted that courts would have no help from defense counsel in parsing the record for grounds for appeal that were not waived or are nonwaivable. Such a process would be both time-consuming and highly speculative.

Indeed, from the standpoint of judicial administration, the scales tip in favor of existing practice, stated the majority. In a passage highly reminiscent of Justice Brett Kavanaugh’s statements during oral argument, the majority noted that eight of the 10 federal courts of appeals currently employ a blanket presumption of prejudice when counsel’s deficient performance works a forfeiture of an entire appeal. “Neither Idaho nor its amici have pointed us to any evidence that it has proved unmanageable there,” stated Sotomayor.

Justice Clarence Thomas dissented. He, joined by Justices Samuel Alito and Neil Gorsuch, would have adopted a limited inquiry into prejudice resembling the government’s proposed test. Thomas agreed with the majority that the decision whether to appeal lies with a defendant; however, he continued, when a defendant signs a plea agreement containing an appeal waiver, that decision has already been made. By refusing to file an appeal, the lawyer does no more than hold the defendant to his own decision, the dissenters insisted.

But the most notable aspect of Thomas’ dissent was the final part (joined only by Gorsuch), in which he questioned the Supreme Court’s entire ineffective-assistance-of-counsel jurisprudence, on original-intent grounds. 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,” Thomas stated. Yet the Supreme Court has expanded that concept to include a right to effective counsel — a reading that “little available evidence” supports “as an original matter.” Therefore, Thomas concluded, the “Court should tread carefully before extending our precedents in this area.”

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Past case linked to in this post:

Roe v. Flores-Ortega, 528 U.S. 470 (2000)