By: Dalia Deak J.D. ’19
On February 27, 2019, the U.S. Supreme Court restored the appeal rights of Mr. Gilberto Garza, Jr., and other criminal defendants like him. In a 6-3 opinion, the Court found that Mr. Garza’s defense attorney had improperly forfeited his appeal in violation of Mr. Garza’s constitutional rights — even though Mr. Garza had signed a plea agreement that contained an appeal waiver.
In 2015, Mr. Garza signed two plea agreements, each with an appeal waiver. After Mr. Garza’s plea agreements were accepted by the court, and he was sentenced, he asked his attorney to file a notice of appeal. Mr. Garza’s defense attorney refused to file the notice of appeal before the deadline, despite Mr. Garza’s repeated requests that he do so. By refusing to file the notice of appeal, Mr. Garza’s attorney cost him his appeal altogether.
As a result, Mr. Garza sought post-conviction relief in Idaho state court, alleging that by refusing to file the notice of appeal, Mr. Garza’s attorney had rendered constitutionally deficient performance. The Idaho trial court denied relief, and the Idaho Court of Appeals and Idaho Supreme Court affirmed the trial court’s decision. The Idaho Supreme Court ruled that, in order to succeed on his claim, Mr. Garza had to show deficient performance and resulting prejudice from his attorney’s actions. It also ruled that Mr. Garza could not make that showing. By requiring Mr. Garza to show prejudice instead of presuming it, the Idaho Supreme Court acknowledged that it was aligning itself with a minority of courts on the issue. Indeed, eight out of ten federal courts of appeals disagreed with the Idaho Supreme Court on this issue. The Supreme Court granted certiorari to resolve the split.
The Court began its analysis by holding that the Roe v. Flores-Ortega presumption of prejudice that applies when an attorney forfeits a proceeding a defendant would have otherwise taken continues to apply even when the defendant has signed an appeal waiver. The Court then addressed the procedural devices at play in the case: appeal waivers and notices of appeal. The Court emphasized that appeal waivers do not serve as “an absolute bar to all appellate claims.” Indeed, it noted that “[a]lthough the analogy may not hold in all respects, plea bargains are essentially contracts,” and, as with any contract, large variations in the language and scope of appeal waivers exist. As a result, directing counsel to file a notice of appeal does not mean that defendant or his counsel “undertake a quixotic or frivolous quest.” With respect to notices of appeal, the Court underscored its statements from Flores-Ortega that “[f]iling such a notice is a purely ministerial task that imposes no great burden on counsel.”
Turning to Garza’s ineffective assistance of counsel claim, first, the Court concluded that, consistent with Flores-Ortega, the decision of whether to appeal is ultimately the defendant’s to make, and, thus, Mr. Garza’s attorney had rendered constitutionally deficient performance. In doing so, the Court rejected Idaho’s argument that the risk of defendant’s breach of a plea agreement does not render counsel’s decision a strategic one. The Court emphasized that “simply filing a notice does not breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope.”
Then, turning to the “crux” of the case, the Court held that the Roe v. Flores-Ortega presumption of prejudice applies with equal force when an appeal waiver is present. The Court made clear that, as in Flores-Ortega, “to succeed in an ineffective-assistance claim in this context, a defendant need only make one showing: ‘that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.’” The Court went on to explain that the presence of an appeal waiver does not “complicate this straightforward application.” This is because the Court’s precedents make clear that the presumption of prejudice applies whenever counsel’s deficiency forfeits the defendant’s appellate proceeding altogether. This reasoning applies with equal force to Garza because he had a right to a proceeding and retained some appealable issues, despite the presence of his appeal waiver.
By ruling in Garza’s favor, the Court rejected arguments by Idaho and the United States as amicus that Mr. Garza never had a right to an appellate proceeding, stating that Mr. Garza did have a right to an appellate proceeding, but could only raise fewer claims. Second, the Court also rejected the United States’ suggested rule, indicating that the Court has consistently refused “to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit.” Finally, the Court also refused to push this type of analysis to the post-conviction context, citing a study by Professor Nancy King that over 90% of noncapital habeas petitioners are unrepresented.
Working at MacArthur Justice Center
The win in Garza was an important challenge to a fundamentally unjust practice. In that respect, it was a win, certainly for Mr. Garza, and, more broadly, for criminal defendants who sign appeal waivers. It was also a rewarding moment for the attorneys and staff that had worked on Mr. Garza’s case. I was lucky enough to play a small role in Mr. Garza’s case as an appellate intern at the MacArthur Justice Center (MJC). There, I spent the summer working with and supporting an extraordinary team: Amir Ali, the Supreme Court and Appellate Counsel at MJC, who argued the case and was counsel of record; Julius Mitchell, Caroline Li, and Ben Gunning, three talented co-interns from Harvard Law; and Earl Lin, Emily Clark, and Josh Frieman, brilliant attorneys and staff at MJC.
As an intern at MJC, my summer was focused on research and writing to support the development of the brief on behalf of Mr. Garza. Quickly, I was exposed to the fundamentals of appellate advocacy in an area of the law I had never taken a class in. This exposure came in the form of a diverse array of research and writing questions, which included combing through the record around Mr. Garza’s plea agreement, developing arguments based on the interpretation of plea agreements as contract, synthesizing Idaho criminal procedure, finding data in secondary sources, writing the first draft of a section, and researching court of appeals’ case law on what claims remain even when an appeal waiver is present. This incredible opportunity was only made better by the result. My co-interns and I eagerly e-mailed the day the decision came down. It was exhilarating to see small pieces of the work we did that summer in the Supreme Court’s words as it accepted Mr. Garza’s arguments and ruled in his favor.