Case No. 17-1026 | Idaho
Preview by Clay Wild
In Strickland v. Washington, the Supreme Court delineated a two-part test for assessing a criminal defendant’s claim of ineffective assistance of counsel. 466 U.S. 668 (1984). Under Strickland, the defendant must show (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant. Id. at 688, 692.
Sixteen years later, the Court applied this test to an ineffective assistance claim where counsel failed to file a notice of appeal, reiterating its longstanding principle that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores‑Ortega, 528 U.S. 470, 477 (2000). Importantly, the Court in Flores-Ortega held that a failure to appeal amounts to a total forfeiture of a judicial proceeding, and that the defendant is accordingly presumed to have suffered prejudice.
In the present case, Gilberto Garza, Jr., entered into plea agreements with the government on two charges. Because the agreements included appeal waivers, his attorney refused his request to file notice of an appeal. Garza claimed ineffective assistance and petitioned for postconviction relief, which was summarily denied. Garza’s appeal to the Court raises the question of whether Flores-Ortega’s “presumption of prejudice,” id. at 483, applies in cases where the trial attorney disregards a criminal defendant’s express desire to appeal specifically because the defendant waived his right to do so as a condition of a plea agreement.
Eight circuits have held that the presumption applies while two others have held it does not. Garza argues that the majority rule is justified by three primary underpinnings of Flores‑Ortega. First, Garza argues that failure to file an appeal causes the forfeiture of the entire proceeding. Second, he contends that not filing an appeal robs the defendant of a “‘fundamental decision’ entrusted to him alone.” Brief for Petitioner at 1, Garza v. Idaho, No. 17-1026 (U.S. filed Aug. 10, 2018) (quoting Flores-Ortega, 428 U.S. at 477). Third, Garza asserts that refusing the presumption would be unfair to a pro se defendant who would be forced to specify in great detail the prejudice he suffered. Garza points out that appeal waivers do not exclude all appeals, such as those for breach of the plea agreement or involuntary submission to the agreement, and that not presuming prejudice is both impractical and inefficient.
The state notes that Garza’s appeal challenges his sentence, for which the right to appeal is clearly waived by his plea agreements, and suggests that counsel’s refusal to appeal the sentence was not deficient performance. Rather, the state argues, it was a strategic choice intended to prevent the defendant from putting his agreement at risk by breaching its terms. The state further suggests that counsel’s inaction in this case did not prejudice Garza because Garza could not establish that he had a right to the appeal sought. Finally, the state refutes Garza’s belief that practical considerations support his position.
The decision in this case will not only resolve a lopsided circuit split but also could draw a bright-line rule for assessing whether a presumption of prejudice should apply for a defendant whose counsel disregarded his instruction to appeal when his plea agreement waived his right to do so.