Does an attorney’s failure to file an appeal when instructed to do so by the defendant create a presumption of prejudice even though the defendant previously signed an appeal waiver?
The Supreme Court will decide the scope and validity of appeal waivers balanced against a defendant’s right to file an appeal. Gilberto Garza, Jr. contends that Roe v. Flores-Ortega supports the proposition that there is a presumption of prejudice when an attorney fails to file an appeal when instructed, even if the defendant previously signed an appeal waiver and underlying plea bargain. The State of Idaho counters that Flores-Ortega does not create a blanket rule that an attorney’s failure to file prejudices a defendant because the defendant already waived their right and risks additional criminal charges in breaching their plea bargain agreement. The outcome of this case will affect States that use appeal waivers to prevent frivolous appeals in order to promote judicial efficiency and will determine whether an appeal waiver completely bars a defendant from seeking an appeal.
Questions as Framed for the Court by the Parties
Whether the “presumption of prejudice” recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.
In 2015, Gilberto Garza, Jr. was charged with aggravated assault and possession of a controlled substance with intent to deliver. Garza entered an Alford plea to aggravated assault and pleaded guilty to the other charge. The plea agreements provided that Garza would be sentenced to five years in prison for assault and an additional five years for possession. Additionally, the plea agreements stipulated that Garza would waive his right to an appeal. The trial court “acknowledged that Garza waived his right to appeal,” but nevertheless advised him of his appeal rights.
Around four months after entering the plea deals, Garza filed a petition for post-conviction relief for both cases. His petition argued, among other things, that he received ineffective assistance of counsel because his attorney refused to file an appeal, despite receiving several phone calls and letters from Garza urging him to do so. Garza's attorney explained that he did not file an appeal simply because the plea agreements waived Garza's right to do so. After the district court appointed a new attorney for Garza, Garza requested that the appeals period in his cases be reopened due to the ineffective assistance of counsel in those cases. The district court denied Garza’s request and the court of appeals affirmed. The Idaho Supreme Court then granted Garza's petition for review of his claim.
The Idaho Supreme Court adopted the standard for evaluating claims of ineffective assistance of counsel established by the United States Supreme Court in Strickland v. Washington. According to Strickland, a defendant claiming ineffective assistance of counsel must show two things: (1) the attorney’s representation was deficient, and (2) the deficient representation prejudiced the defendant. Though the Idaho Supreme Court acknowledged that the United States Supreme Court’s holding in Roe v. Flores-Ortega extended this standard to an attorney's failure to appeal, the court noted that there is a circuit split about whether Flores-Ortega’s holding to applies to situations where an attorney chose not to appeal because of a defendant's prior waiver of appeal. The Idaho Supreme Court noted that most federal circuit courts of appeals interpret Flores-Ortega’s holding to apply to situations similar to Garza's, where a defendant validly waived their right to appeal. This majority approach dictates that an attorney must file such an appeal if their client so requests, even if the attorney believes the appeal would be frivolous; courts are to presume prejudice to the defendant if the attorney fails to do so. The Idaho Supreme Court also noted the minority approach to this issue, which dictates that there will be no presumption of prejudice when an attorney refuses the appeal request of a defendant who previously waived their right to appeal.
The Idaho Supreme Court elected to follow the minority approach. The Court said that this minority approach is analogous to Idaho courts’ approaches to similar questions of law. For example, Idaho courts do not presume prejudice when an attorney fails to obey their client’s instruction to file a Rule 35 motion (which would permit the court to correct an erroneous sentence), even though the right has not been waived. The Court reasoned that if there is to be no presumption of prejudice for not filing a Rule 35 motion when the right to do so has not been waived, then there should not be a presumption when an attorney does not appeal precisely because the right to appeal has been waived. Furthermore, the Court opined that if a defendant were to appeal after waiving their right to do so in a plea deal, he would arguably breach the agreement and therefore permit the State to revoke the benefits of the plea agreement.
The Idaho Supreme Court affirmed the decision of the Idaho Court of Appeals. The United States Supreme Court granted Garza’s petition for a writ of certiorari on June 18, 2018.
FAILURE TO FILE AN APPEAL CREATES A PRESUMPTION OF PREJUDICE
Garza’s argument relies upon the Sixth Amendment’s guarantee for assistance of counsel during a criminal case. The right to assistance of counsel, according to Garza, has been interpreted to include the right to effective counsel. Garza states that the Supreme Court in Strickland v. Washington formulated a two-prong test to determine ineffective assistance of counsel, where an attorney’s representation of a defendant will be found ineffective if the attorney’s professional conduct was both unreasonable and prejudiced the defense. Under Strickland, Garza maintains, the defendant bears the burden of proving prejudice and demonstrating that the result of the criminal proceeding would have been different without the attorney’s unprofessional conduct. Garza cites the recent Supreme Court decision in McCoy v. Louisiana, which held that prejudice is assumed when a defense attorney makes a decision that is reserved to the defendant and makes the decision against the defendant’s wishes, which in turn causes the defendant to lose control over their representation. Garza also contends that Roe v. Flores-Ortega established a presumption of prejudice when the attorney fails to file an appeal that the defendant instructed their attorney to file. In this manner, Garza asserts that an attorney engages in unprofessional conduct by failing to follow a defendant’s request to file an appeal. Thus, Garza argues there is an automatic presumption of prejudice that requires no examination of the merits of an underlying claim because prejudice is assumed from the attorney’s failure to file an appeal when instructed.
In contrast, the State of Idaho (“Idaho”) contends that there is no presumption of prejudice nor does an attorney render deficient performance when the attorney declines to file an appeal as instructed on a matter that is barred from a valid appeal waiver. Idaho asserts that Strickland placed the burden on the defendant to demonstrate that their attorney’s performance was deficient enough to undermine the Sixth Amendment’s guarantee of assistance of counsel, and that the attorney’s deficient performance was prejudicial to the defense. Idaho further argues that Garza misinterpreted the holding in Flores-Ortega. Idaho contends that the Supreme Court in Flores-Ortega rejected a mechanical rule to hold that an attorney is automatically deficient based on failure to file an appeal because it does not comport with the Strickland requirements of analyzing specified facts to determine ineffective assistance of counsel. On the contrary, Idaho asserts that an attorney acts in a competent and reasonable manner when the attorney refuses to file an appeal that breaches the plea agreements agreed between the defendant and prosecution which would have resulted in the defendant facing additional criminal charges. Most importantly, Idaho posits that Flores-Ortega does not govern in this case because, unlike Garza, the defendant in Flores-Ortega did not waive their appeal rights and so the question of whether the attorney was deficient in relation to an appeal waiver is not applicable.
APPLYING THE REASONING OF ROE V. FLORES-ORTEGA TO APPEAL WAIVERS
Garza argues that Flores-Ortega advances the position that when an attorney fails to file an appeal as instructed, the defendant is entitled to an appeal without regard to whether the defendant previously entered a plea bargain. Furthermore, Garza argues that three rationales under Flores-Ortega support the presumption of prejudice from an attorney’s failure to file an appeal: (1) the attorney’s refusal to file an appeal constitutes an abandonment of the defendant during a critical stage of the proceeding, (2) the decision to appeal rests exclusively with the defendant and not the attorney, and (3) it is unfair to require an indigent or pro se defendant to demonstrate prejudice to appeal their case. In this regard, Garza contends that the three rationales from Flores-Ortega apply to appeal waivers to demonstrate a presumption of prejudice.
Under the first rationale, Garza claims that an attorney’s failure to file an appeal deprives a defendant of the opportunity to appeal and that an appeal waiver makes no difference. A defendant who signs an appeal waiver, Garza contends, still retains some appeal rights. In effect, according to Garza, the defendant does not completely forfeit their ability to appeal but only forfeits the appeal of certain claims. Garza asserts that an attorney’s failure to appeal despite their client’s wishes to the contrary deprives the defendant of the opportunity to bring those claims not waived on appeal, which has a serious impact on the legitimacy of the proceedings. Second, Garza makes the case that when an attorney ignores a defendant’s instruction to appeal, the attorney takes away the power to make that critical decision from the defendant. This, Garza argues, creates a presumption of prejudice because only the defendant can decide whether to appeal, not their attorney. Similar to the first rationale, Garza explains that a defendant who signs an appeal waiver still retains the discretion to appeal as well as the power to make that decision. Finally, Garza contends that any requirement imposed on a defendant to demonstrate prejudice from their attorney’s failure to appeal to regain the ability to appeal would constitute an unfair obstacle because it requires the defendant to show that their hypothetical claims have merit. Garza posits that this forces defendants to complete the complex task of identifying claims not barred by their appeal waiver, without the help of an attorney. Furthermore, Garza maintains that a presumption of prejudice does not diminish the force of appeal waivers because the government can still dismiss an appeal based on barred claims or rescind the underlying plea bargain.
Idaho disagrees with Garza’s assertion that Flores-Ortega articulates three rationales to support a presumption of prejudice when an attorney fails to file an appeal. Instead, Idaho contends that the court in Flores-Ortega held that an attorney’s failure to file an appeal only constitutes deficient performance because: (1) a defendant relies on their attorney to file an appeal, (2) a failure to file an appeal is not a strategic decision, (3) and filing an appeal is not simply a clerical task, none of which apply in this case. As a result, Idaho asserts that appeal waivers are enforceable under Idaho law and that Garza’s attorney must prove that an appeal was not barred or covered under the scope of his appeal waiver to file any appeal despite the waiver.
First, Idaho argues that a defendant who has already waived their right to appeal does not reasonably rely on their attorney to file an appeal because their counsel is rendered unable to file in the first place. In this regard, for an attorney’s performance to be consider deficient to cause prejudice, the defendant must prove that their attorney’s failure to file forfeited a right to appeal that was not waived or that the appeal waiver was invalid. Idaho asserts that, in this case, there was no forfeiture of the right to appeal because Garza had waived his right to appeal. The failure to appeal was not caused by the attorney’s actions; rather, it was caused by Garza’s decision to sign the appeal waiver. Second, in contrast to Garza’s position that the decision to appeal rests solely with the defendant, Idaho posits that an appeal waiver is a strategic decision by the attorney. The attorney cannot be said, Idaho argues, to have undertaken a decision reserved to the defendant when the defendant had previously agreed to a plea bargain and, subsequently, to an appeal waiver. Idaho points out that Garza’s attorney must evaluate the risks associated with withdrawing from the plea bargain to challenge the appeal waiver and to file an appeal.
Lastly, Idaho contends that filing an appeal is not an administrative action, but instead carries legal consequences for defendants breaching their appeal waiver. Idaho further explains that it is thus not unfair to require Garza to prove ineffective assistance of counsel because, in proving prejudice, he would have to demonstrate a willingness to challenge the validity of the waiver despite the risk of losing the plea agreement benefits. Moreover, Idaho notes that claims of deficient performance still require evidence that Garza had a right to appeal.
BURDEN ON DEFENDANTS AND ON THE COURTS
Garza argues that the Idaho Supreme Court’s position unfairly burdens (1) defendants who wish to exercise their right to an appeal and (2) courts who must deal with these issues. First, according to Garza, a defendant would have to convince a habeas court that they have an appellate claim that is neither frivolous nor barred by their appeal waiver. Garza argues that, in doing so, a defendant would likely have to do so pro se, which would be “profoundly unfair” because they would not be able to adequately demonstrate the merits of their case. This process would also be burdensome for the court system, Garza asserts, because a defendant that convinces the habeas court would then have to repeat everything to an actual appellate court; granting the defendant a new appeal outright would be more efficient by avoiding these “duplicative proceedings.” The Idaho Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers (the “Association”), in support of Garza, contends that without protecting a defendant’s right to appeal, some defendants would be forced to pursue postconviction proceedings, where they will bear the burden of higher standards of pleadings. . Additionally, the Association continues, while defendants have a right to an attorney on direct appeal, they have no such right for postconviction proceedings.
In contrast, Idaho contends that a case-by-case approach to assessing prejudice from counsel forfeiting an appeal would be no more burdensome on the courts than it is for assessing errors in plea negotiations, pre-trial motions, or trials—which courts regularly do. Idaho argues that presuming prejudice, however, would burden courts by encouraging frivolous appeals. The United States, in support of Idaho, argues that, on a case-by-case basis, courts can decide whether a defendant has a meritorious claim that can be considered on appeal if not for the waiver from the plea agreement. But, the United States maintains, if courts are to presume prejudice, a defendant would be able to force an appeal despite a valid waiver of their potential appellate claims. The United States further contends that an overwhelming majority of appeal waivers are valid, and frivolous appeals significantly burden the courts, the government, and even appointed appellate counsel. By presuming prejudice, Idaho argues, courts would be opening the floodgates to frivolous appeals.
Garza argues that permitting an attorney to disobey their client’s express order to file an appeal, simply because the attorney believes the client-defendant waived their right to appeal, violates the defendant’s autonomy in their own case. The Ethics Bureau at Yale (the “Bureau”), in support of Garza, asserts that the Sixth Amendment speaks of the assistance of counsel, meaning the defendant is to have control over the final decisions for their case. Indeed, the CATO Institute, in support of Garza, contends that allowing the attorney to effectively overrule the defendant’s decision to file for appeal violates this protected autonomy. The Bureau further posits that Idaho’s position threatens the well-established principle that a lawyer should always obey their client’s major decisions for their case. Additionally, the Association asserts that a defense attorney has a duty to consult with their clients about appeals, and the Idaho Supreme Court’s decision would essentially permit defense attorneys to neglect this duty.
Idaho contends that its position does not violate a defendant’s autonomy over their own case. Instead, Louisiana and others, in support of Idaho, argue that a defendant like Garza already did exercise their autonomy when they entered voluntarily entered a plea agreement that waived their right to an appeal. Louisiana and others further assert that an attorney who acknowledges and understands that their client waived their right to an appeal does not violate that client’s autonomy by disobeying the client’s after-the-fact regrets. Finally, Idaho clarifies that a defendant’s request to appeal despite an appeal waiver may obligate the attorney to meet with the defendant but does not necessarily require the attorney to file an almost-certainly frivolous appeal in order to comport with the defendant’s autonomy.
- Clark Neily and Jay Schweikert, Garza v. Idaho, CATO Institute (Aug. 17, 2018).
- Dan McCue, Justices to Resolve Circuit Spit Over Appeal Waivers, Courthouse News (June 18, 2018).