October 30, 2018
WRIT OF CERTIORARI TO THE SUPREME COURT OF IDAHO
Petitioner Gilberto Garza, Jr., signed two plea agreements,
each arising from state criminal charges and each containing
a clause stating that Garza waived his right to appeal.
Shortly after sentencing, Garza told his trial counsel that
he wished to appeal. Instead of filing a notice of appeal,
counsel informed Garza that an appeal would be
"problematic" given Garza's appeal waiver.
After the time period for Garza to preserve an appeal lapsed,
he sought state postconviction relief, alleging that his
trial counsel had rendered ineffective assistance by failing
to file a notice of appeal despite his repeated requests. The
Idaho trial court denied relief, and the Idaho Court of
Appeals affirmed. Also affirming, the Idaho Supreme Court
held that Garza could not show the requisite deficient
performance by counsel and resulting prejudice. In doing so,
the court concluded that the presumption of prejudice
recognized in Roe v. Flares-Ortega, 528 U.S. 470,
when trial counsel fails to file an appeal as instructed does
not apply when the defendant has agreed to an appeal waiver.
Flores-Ortega's presumption of prejudice applies
regardless of whether a defendant has signed an appeal
waiver. Pp. 3-14.
(a) Under Strickland v. Washington, 466 U.S. 668, a
defendant who claims ineffective assistance of counsel must
prove (1) "that counsel's representation fell below
an objective standard of reasonableness," id.,
at 687-688, and (2) that any such deficiency was
"prejudicial to the defense," id., at 692.
However, "prejudice is presumed" in "certain
Sixth Amendment contexts," ibid., such as
"when counsel's constitutionally deficient
performance deprives a defendant of an appeal that he
otherwise would have taken," Flares-Ortega, 528
U.S.___, at 484. Pp. 3-4.
(b) This case hinges on two procedural devices: appeal
waivers and notices of appeal. No appeal waiver serves as an
absolute bar to all appellate claims. Because a plea
agreement is essentially a contract, it does not bar claims
outside its scope. And, like any contract, the language of
appeal waivers can vary widely, leaving many types of claims
unwaived. A waived appellate claim may also proceed if the
prosecution forfeits or waives the waiver or if the
Government breaches the agreement. Separately, some claims
are treated as unwaiveable. Most fundamentally, courts agree
that defendants retain the right to challenge whether the
waiver itself was knowing and voluntary.
The filing of a notice of appeal is "a purely
ministerial task that imposes no great burden on
counsel." Flores-Ortega, 528 U.S.___, at 474.
Filing requirements reflect that appellate claims are likely
to be ill defined or unknown at the filing stage. And within
the division of labor between defendants and their attorneys,
the "ultimate authority" to decide whether to
"take an appeal" belongs to the accused. Jones
v. Barnes, 463 U.S. 745, 751. Pp. 4-7.
(c) Garza's attorney rendered deficient performance by
not filing a notice of appeal in light of Garza's clear
requests. Given the possibility that a defendant will end up
raising claims beyond an appeal waiver's scope, simply
filing a notice of appeal does not necessarily breach a plea
agreement. Thus, counsel's choice to override Garza's
instructions was not a strategic one. In any event, the bare
decision whether to appeal is ultimately the defendant's
to make. Pp. 7-8.
(d) Because there is no dispute that Garza wished to appeal,
a direct application of Flores-Ortega's language
resolves this case. Flores-Ortega reasoned that
because a presumption of prejudice applies whenever
"'the accused is denied counsel at a critical stage,
'" it makes greater sense to presume prejudice when
counsel's deficiency forfeits an "appellate
proceeding altogether." 528 U.S.___, at 483. Because
Garza retained a right to appeal at least some issues despite
his waivers, he had a right to a proceeding and was denied
that proceeding altogether as a result of counsel's
deficient performance. That he surrendered many claims by
signing appeal waivers does not change things. First, the
presumption of prejudice does not bend because a particular
defendant seems to have had poor prospects. See, e.g.,
Joe Fee v. United States, 582 U.S.___, . Second, while
the defendant in Flores-Ortega did not sign an
appeal waiver, he did plead guilty, which "reduces the
scope of potentially appealable issues" on its own. 528
U.S.___, at 480. Pp. 8-10.
(e) Contrary to the argument by Idaho and the U.S.
Government, as amicus, that Garza never "had a
right" to his appeal and thus that any deficient
performance by counsel could not have caused the loss of any
such appeal, Garza did retain a right to his appeal; he
simply had fewer possible claims than some other appellants.
The Government also proposes a rule that would require a
defendant to show- on a case-by-case basis-that he would have
presented claims that would have been considered by the
appellate court on the merits. This Court, however, has
already rejected attempts to condition the restoration of a
defendant's appellate rights forfeited by ineffective
counsel on proof that the defendant's appeal had merit.
See, e.g., Rodriquez v. United States, 395 U.S. 327,
330. Moreover, it is not the defendant's role to decide
what arguments to press, making it especially improper to
impose that role upon the defendant simply because his
opportunity to appeal was relinquished by deficient counsel.
And because there is no right to counsel in postconviction
proceedings and, thus, most applicants proceed pro
se, the Government's proposal would be unfair, ill
advised, and unworkable. Pp. 10-14.
162 Idaho 791, 405 P.3d 576, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and GINSBURG, BREYER, KAGAN, and KAVANAUGH,
JJ., joined. THOMAS, J., filed a dissenting opinion, in which
GORSUCH, J., joined, and in which ALITO, J., joined as to
Parts I and II.
Roe v. Flores-Ortega, 528 U.S. 470 (2000), this
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." Id., at
484. This case asks whether that rule applies even when the
defendant has, in the course of pleading guilty, signed what
is often called an "appeal waiver"-that is, an
agreement forgoing certain, but not all, possible appellate
claims. We hold that the presumption of prejudice recognized
in Flores-Ortega applies regardless of whether the
defendant has signed an appeal waiver.
early 2015, petitioner Gilberto Garza, Jr., signed two plea
agreements, each arising from criminal charges brought by the
State of Idaho. Each agreement included a clause stating that
Garza "waive[d] his right to appeal." App. to Pet.
for Cert. 44a, 49a. The Idaho trial court accepted the
agreements and sentenced Garza to terms of prison in
accordance with the agreements.
after sentencing, Garza told his trial counsel that he wished
to appeal. In the days that followed, he would later
attest, Garza "continuously reminded" his attorney
of this directive "via phone calls and letters,"
Record 210, and Garza's trial counsel acknowledged in his
own affidavit that Garza had "told me he wanted to
appeal the sentence(s) of the court," id., at
Garza's trial counsel, however, did not file a notice of
appeal. Instead, counsel "informed Mr. Garza that an
appeal was problematic because he waived his right to
appeal." Ibid. The period of time for
Garza's appeal to be preserved came and went with no
notice having been filed on Garza's behalf.
four months after sentencing, Garza sought postconviction
relief in Idaho state court. As relevant here, Garza alleged
that his trial counsel rendered ineffective assistance by
failing to file notices of appeal despite Garza's
requests. The Idaho trial court denied relief, and both the
Idaho Court of Appeals and the Idaho Supreme Court affirmed
that decision. See 162 Idaho 791, 793, 405 P.3d 576, 578
(2017). The Idaho Supreme Court ruled that Garza, given the
appeal waivers, needed to show both deficient performance and
resulting prejudice; it concluded that he could not. See
id., at 798, 405 P.3d, at 583.
ruling that Garza needed to show prejudice, the Idaho Supreme
Court acknowledged that it was aligning itself with the
minority position among courts. For exam- pie, 8 of the 10
Federal Courts of Appeals to have considered the question
have applied Flores-Ortegds presumption of prejudice
even when a defendant has signed an appeal
waiver. 162 Idaho, at 795, 405 P.3d, at 580.
granted certiorari to resolve the split of authority. 585
U.S.___(2018). We now reverse.
Sixth Amendment guarantees criminal defendants "the
right ... to have the Assistance of Counsel for [their]
defence." The right to counsel includes "'the
right to the effective assistance of counsel.'"
Strickland v. Washington, 466 U.S. 668, 686 (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771, n.
14 (1970)). Under Strickland, a defendant who claims
ineffective assistance of counsel must prove (1) "that
counsel's representation fell below an objective standard
of reasonableness," 466 U.S.__, at 687-688, and (2) that
any such deficiency was "prejudicial to the
defense," id., at 692.
certain Sixth Amendment contexts," however,
"prejudice is presumed." Ibid. For
example, no showing of prejudice is necessary "if the
accused is denied counsel at a critical stage of his
trial," United States v. Cronic, 466 U.S. 648,
659 (1984), or left "entirely without the assistance of
counsel on appeal," Penson v. Ohio, 488 U.S.
75, 88 (1988). Similarly, prejudice is presumed "if
counsel entirely fails to subject the prosecution's case
to meaningful adversarial testing." Cronic, 466
U.S.__, at 659. And, most relevant here, prejudice is
presumed "when counsel's constitutionally deficient
performance deprives a defendant of an appeal that he
otherwise would have taken." Flores-Ortega, 528
U.S.___, at 484. We hold today that this final presumption
applies even when the defendant has signed an appeal waiver.
helpful, in analyzing Garza's case, to first address two
procedural devices on which the case hinges: appeal waivers
and notices of appeal.
begin with the term "appeal waivers." While the
term is useful shorthand for clauses like those in
Garza's plea agreements, it can misleadingly suggest a
monolithic end to all appellate rights. In fact, however,
no appeal waiver serves as an absolute bar to all appellate
courts widely agree, "[a] valid and enforceable appeal
waiver . . . only precludes challenges that fall within its
scope." United States v. Hardman, 778 F.3d 896,
899 (CA11 2014); see also ibid., n. 2 (collecting
cases from the 11 other Federal Courts of Appeals with
criminal jurisdiction); State v. Patton, 287 Kan.
200, 228-229, 195 P.3d 753, 771 (2008). That an appeal waiver
does not bar claims outside its scope follows from the fact
that, "[a]lthough the analogy may not hold in all
respects, plea bargains are essentially contracts."
Puckett v. United States, 556 U.S. 129, 137 (2009).
any type of contract, the language of appeal waivers can vary
widely, with some waiver clauses leaving many types of claims
unwaived. Additionally, even a waived appellate
claim can still go forward if the prosecution forfeits or
waives the waiver. E.g., United States v. Story, 439
F.3d 226, 231 (CA5 2006). Accordingly, a defendant who has
signed an appeal waiver does not, in directing counsel to
file a notice of appeal, necessarily undertake a quixotic or
all jurisdictions appear to treat at least some claims as
unwaiveable. Most fundamentally, courts agree that defendants
retain the right to challenge whether the waiver itself is
valid and enforceable-for example, on the grounds that it was
unknowing or involuntary. Consequently, while signing an appeal
waiver means giving up some, many, or even most appellate
claims, some claims nevertheless remain.
also important to consider what it means-and does not
mean-for trial counsel to file a notice of appeal.
such a notice is a purely ministerial task that imposes no
great burden on counsel." Flores-Ortega, 528
U.S.___, at 474. It typically takes place during a compressed
window: 42 days in Idaho, for example, and just 14 days in
federal court. See Idaho Rule App. Proc. 14(a) (2017); Fed.
Rule App. Proc. 4(b)(1)(A). By the time this window has
closed, the defendant likely will not yet have important
documents from the trial court, such as transcripts of key
proceedings, see, e.g., Idaho Rules App. Proc. 19
and 25; Fed. Rule App. Proc. 10(b), and may well be in
custody, making communication with counsel difficult, see
Peguero v. United States, 526 U.S. 23, 26 (1999).
And because some defendants receive new counsel for their
appeals, the lawyer responsible for deciding which appellate
claims to raise may not yet even be involved in the case.
requirements reflect that claims are, accordingly, likely to
be ill defined or unknown at this stage. In the federal
system, for example, a notice of appeal need only identify
who is appealing; what "judgment, order, or part thereof
is being appealed; and "the court to which the appeal is
taken." Fed. Rule App. Proc. 3(c)(1). Generally
speaking, state requirements are similarly
notice of appeal also fits within a broader division of labor
between defendants and their attorneys. While "the
accused has the ultimate authority" to decide whether to
"take an appeal," the choice of what specific
arguments to make within that appeal belongs to appellate
counsel. Jones v. Barnes, 463 U.S. 745, 751 (1983);
see also McCoy v. Louisiana, 584 U.S.___, ___ (2018)
(slip op., at 6). In other words, filing a notice of appeal
is, generally speaking, a simple, nonsubstantive act that is
within the defendant's prerogative.
that context in mind, we turn to the precise legal issues
here. As an initial matter, we note that Garza's attorney
rendered deficient performance by not filing the notice of
appeal in light of Garza's clear requests. As this Court
explained in Flores-Ortega:
"We have long held that a lawyer who disregards specific
instructions from the defendant to file a notice of appeal
acts in a manner that is professionally unreasonable. This is
so because a defendant who instructs counsel to initiate an
appeal reasonably relies upon counsel to file the necessary
notice. Counsel's failure to do so cannot be considered a
strategic decision; filing a notice of appeal is a purely
ministerial task, and the failure to file reflects