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IAC for Failure to File Notice of Appeal When There is an Appeal Waiver

Does the "presumption of prejudice" recognized in Roe v. Flores-Ortega (2000) 528 U.S. 470, apply where 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? (Garza v. State (Idaho 2017) 405 P.3d 576, cert. granted 6/18/2018 (17-1026).) [Editor's Note: In Roe v. Flores-Ortega, the court held "that when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal."]

Held: The presumption of prejudice recognized in Roe v. Flores-Ortega when trial counsel fails to file a notice of appeal when instructed applies regardless of whether the defendant has signed an appeal waiver. Garza signed two plea agreements, each containing a clause stating that he waived his right to appeal. Shortly after sentencing, Garza told his attorney that he wished to appeal. Instead of filing the notice of appeal, the attorney informed Garza that an appeal would be "problematic" given his appeal waiver. After the period of time for Garza to preserve an appeal lapsed, he sought state postconviction relief alleging that his attorney had rendered ineffective assistance by failing to file a notice of appeal despite his repeated requests. The Idaho Supreme Court denied relief, holding that Garza could not show the requisite deficient performance by counsel and resulting prejudice. The U.S. Supreme Court granted certiorari to resolve a split in authority. Held: Reversed and remanded. In Roe v. Flores-Ortega (2000) 528 U.S. 470, 484, the court held that when an attorney's deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed with no further showing from the defendant of the merits of his underlying claims. In this case, the court concluded this presumption applies even when the defendant has signed an appeal waiver. This ruling is consistent with the fact that even the broadest appeal waiver does not deprive a defendant of all appellate claims. A valid and enforceable appeal waiver only precludes challenges that fall within its scope. All jurisdictions appear to treat at least some claims as unwaiveable. Most fundamentally, defendants retain the right to challenge whether the waiver itself is valid and enforceable. "Accordingly, where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant's express instructions, prejudice is presumed 'with no further showing from the defendant of the merits of his underlying claims.'" (Quoting Flores-Ortega, at p. 484.) [Editor's Note: Justice Sotomayor delivered the opinion of the court, joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Kagan, and Kavanaugh. Justice Thomas filed a dissenting opinion, joined by Justices Alito (in part) and Gorsuch.] (Garza v. Idaho (2019) __ U.S. __ (17-1026).) This case was decided on 2/27/2019.

Updated: 2/27/2019

Return to: U.S. Supreme Court Archived Issues.

 

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