Notices of Appeal, Appellate Waivers, and Effective Assistance: SCOTUS Gives Us Garza v. Idaho and Another Reminder to File Those NOAs

Last week, the Supreme Court decided Garza v. Idaho, No. 17-1026, giving defendants with appellate waivers a point on the scoreboard. In Roe v. Flores-Ortega, 528 U. S. 470 (2000), the Court said that prejudice is presumed when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued. A defendant need not make any showing regarding the merits of his or her underlying claims. With Garza, the Court considered whether the same rule applies for defendants who have signed appellate waivers. The Court held “that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.”

The defendant in Garza had repeatedly told his attorney he wanted to appeal. His attorney even recognized this request, discussing it in an affidavit. The attorney pointed out the hurdle of the defendant’s appellate waiver and did not file a notice of appeal in time.

The Court began its analysis by looking at the term “appeal waiver.” While this “term is useful shorthand for clauses like those in Garza’s plea agreements, it can misleadingly suggest a monolithic end to all appellate rights,” the Court stated. Yet “no appeal waiver serves as an absolute bar to all appellate claims.” Courts widely agree that valid and enforceable appellate waivers only preclude challenges that fall within their scope. The Supreme Court reminded observers that “even a waived appellate claim can still go forward if the prosecution forfeits or waives the waiver.” And “all jurisdictions appear to treat at least some claims as unwaiveable.” Thus “a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.”

In considering notices of appeal, the Court reasoned that “filing a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within the defendant’s prerogative.” Regarding a strategic call to forgo filing a notice of appeal because of a potential claim of breach of a plea agreement, the Court did “not address what constitutes a defendant’s breach of an appeal waiver or any responsibility counsel may have to discuss the potential consequences of such a breach.” Rather, it found that “it should be clear from the foregoing that 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. And in any event, the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make.”

The Court reminded observers “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.”

Justice Thomas dissented and was joined by Justice Gorsuch and, in part, by Justice Alito. This dissent found that “Garza’s counsel quite reasonably declined to file an appeal . . . , recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain.” Justice Thomas expressed his view that “a defendant who has executed an appeal waiver cannot show prejudice arising from his counsel’s decision not to appeal unless he (1) identifies claims he would have pursued that were outside the appeal waiver; (2) shows that the plea was involuntary or unknowing; or (3) establishes that the government breached the plea agreement.”

Justice Thomas pointed out that “[t]he deficiency analysis in this case would likely be different if Garza had informed his counsel that he desired to breach the plea agreements and file an appeal—despite the waiver and in full awareness of the associated risks— for the sake of an identified goal that had any hope of being advanced by the filing of an appeal.” The majority’s rule, Justice Thomas opined, may be easy to administer, “but it undermines the finality of criminal judgments— a primary purpose of plea agreements—and disadvantages the public by allowing defendants to relitigate issues that they waived in exchange for substantial benefits.” In his view, it also burdens appellate courts that must address meritless appeals authorized by the majority’s decision. He noted that the majority’s rule could prejudice defendants because prosecutors may become less willing to offer “generous plea agreements” when courts refuse to afford the prosecution the benefit of its bargains, namely “fewer resources spent defending appeals.”

The bigger rub in the dissent involves the Sixth Amendment as a whole: “In addition to breaking from this Court’s precedent, today’s decision moves the Court another step further from the original meaning of the Sixth Amendment.” The amendment, “as originally understood and ratified,” meant that defendants have a right to employ counsel, or to use the volunteered services of counsel. But, Justice Thomas observed, “the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel.” To him, this reading means “convicted criminals can relitigate their trial and appellate claims through collateral challenges couched as ineffective-assistance-of-counsel claims. Because little available evidence suggests that this reading is correct as an original matter, the Court should tread carefully before extending our precedents in this area.”

Commentary looking at the opinion has suggested that Justice Thomas may be attacking Gideon, and it’s hard to argue with that take. Language at the end of the opinion could be classified, in popular parlance, as somewhat “savage” if you’re in the public-defense camp. For example: “our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments. I would proceed with far more caution than the Court has traditionally demonstrated in this area.”

The history and discussion in the dissenting opinion is very interesting for anyone curious about the roots of our constitutional protections, and the opinion provokes thought in multiple areas, including by observing that the Constitution, according to its terms, does not require any particular remedies for violations of its provisions. “Strickland does not explain how the Constitution requires a new trial for violations of any right to counsel.”

In the end, however, as a practical matter, the majority opinion underscores the importance of filing those notices of appeal.

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