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SCOTUS: Presumption of Prejudice Recognized in Flores-Ortega Applies Regardless of Defendant’s Appeal Waiver

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) held that the presumption of prejudice recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), applies regardless of whether a defendant has signed an appeal waiver.

Gilberto Garza, Jr. signed two plea agreements. In the agreements, Idaho agreed: not to file additional burglary charges and grand theft charges, not to refer Garza for federal prosecution of possession of ammunition by a felon, and not to seek a “persistent violator” sentencing enhancement that would expose Garza to a potential life sentence. In exchange, Garza would: enter an Alford plea to aggravated assault, plead guilty to possession with intent to deliver methamphetamine, waive his right to an appeal, and waive his right to file a motion for sentence correction or reduction of his sentence. Both parties agreed to specific sentences totaling 10 years in prison. The trial court sentenced Garza according to the terms of the agreement, stating that if the cases had been considered individually Garza might have received a harsher sentence considering his history of violent crime. 

Shortly after his sentencing, Garza told his attorney he wanted to appeal to get concurrent sentences. Instead of filing a notice of appeal, counsel informed Garza that an appeal would be “problematic” due to Garza’s appeal waiver. Garza insisted, continuously reminding his attorney by letters and phone calls that he wanted to appeal. After the time period for preserving the right to an appeal lapsed, Garza filed for postconviction relief alleging ineffective assistance of counsel (“IAC”) due to his attorney failing to file the notice of appeal despite Garza’s repeated requests. The trial court denied Garza’s motion, and the Idaho Court of Appeals affirmed. The Idaho Supreme Court also affirmed, holding that Garza did not show the deficient performance and resulting prejudice required by Strickland v. Washington, 466 U.S. 668 (1984). The Idaho Supreme Court also concluded that the presumption of prejudice recognized in Flores-Ortega when counsel fails to file a notice of appeal as instructed by the defendant does not apply when the defendant has agreed to an appeal waiver. SCOTUS granted certiorari.

The Court stated that the Sixth Amendment guarantees criminal defendants the right to counsel, and Strickland held that the right to counsel includes “the right to effective assistance of counsel.” Ordinarily, to prevail on an IAC claim, a defendant must show prejudice resulted from his attorney’s deficient performance. Strickland. But “[i]n certain Sixth Amendment contexts prejudice is presumed.” Id. No showing of prejudice is required “if the accused is denied counsel at a critical stage of his trial.” United States v. Cronic, 466 U.S. 648 (1984). Or when a defendant is left “entirely without the assistance of counsel on appeal.” Penson v. Ohio, 488 U.S. 75 (1988). Prejudice is presumed when “counsel’s constitutionally deficient performance deprives a defendant of an appeal he would have otherwise taken.” Flores-Ortega. But does that presumption apply when the defendant signs an appeal waiver?

In deciding this question, SCOTUS first examined the meaning of an appeal waiver. The Court observed that courts widely agree that “[a] valid and enforceable appeal waiver ... only precludes challenges that fall within its scope.” United States v. Hardman, 778 F.3d 896 (11th Cir. 2014). Waivers do not bar claims outside its scope because plea bargains are essentially contracts. Puckett v. United States, 556 U.S. 129 (2009). Some appeal waivers leave many types of appealable claims unwaived. Additionally, even a waived appellate claim can go forward if the prosecution forfeits or waives the waiver. United States v. Story, 439 F.3d 226 (5th Cir. 2006). And some claims are unwaivable, e.g., claims that the waiver was signed unknowingly or involuntarily. United States v. Brown, 892 F.3d 385 (D.C. Cir. 2018). An appeal waiver means giving up some, or even most, claims, yet some claims always remain.

The Court also found it necessary to consider what it means for trial counsel to file a notice of appeal. “Filing such a notice is a purely ministerial task that imposes no great burden on counsel.” Flores-Ortega. There is typically a short window of time in which to file it: 42 days in Idaho. Since transcripts and other important documents are not yet available, the requirements for the notice are generally nonsubstantive. The defendant has the ultimate authority to decide whether to take an appeal, but the attorney decides which issues to argue in the appeal. Jones v. Barnes, 463 U.S. 745 (1983). Thus, filing a notice of appeal is a simple, non-substantive act that is within the defendant’s prerogative.

When counsel fails to file a notice of appeal after being explicitly instructed to by the defendant, his performance is deficient. Flores-Ortega. Since prejudice is presumed when a defendant is denied counsel at a critical stage of the proceedings, it makes greater sense to presume prejudice when counsel’s deficiency forfeits an “appellate proceeding altogether.” Id. That rationale applies to Garza because he was denied his right to the proceeding when he had appealable issues that remained despite the waivers he signed. Thus, the Court concluded that Garza should have prevailed on his IAC claim. 

In so doing, the Court rejected the Government’s argument that a defendant in Garza’s situation should have to put forward the issues that could have been presented in the appeal. The Court observed that the majority of postconviction collateral attacks are filed by indigent prisoners proceeding pro se. The transcripts are not available to them. But more importantly, it is the attorney who decides which issues to argue in an appeal.

The Court announced: “We hold today that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver.” The Court added “that even the broadest appeal waiver does not deprive a defendant of all appellate claims.” 

Accordingly, the Court reversed the judgment of the Idaho Supreme Court and remanded for further proceedings not inconsistent with its opinion. See: Garza v. Idaho, 203 L. Ed. 2d 77 (2019). 

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