Looking Back: Garza vs. Idaho
Garza vs. Idaho is an important Supreme Court case from 2019 that dealt with an attorney’s duties to inform the client of the right to appeal a criminal conviction. This decision had not previously been listed on our blog so we are doing it now.
Garza signed two plea agreements in the State of Idaho. Each agreement included a clause stating that Garza "waive[d] his right to appeal." The court in Idaho accepted the agreements and sentenced Garza to terms of prison. Garza told his lawyer that he wanted to appeal and continuously reminded him of the same. His lawyer "informed Mr. Garza that an appeal was problematic because he waived his right to appeal." Garza's counsel did not file a notice of appeal.
Garza sought post-conviction relief in Idaho state court claiming ineffectiveness by failing to file a notice of appeal when asked. The Idaho trial court, appellate court, and State Supreme Court denied him, stating "that Garza, given the appeal waivers, needed to show both deficient performance and resulting prejudice;" and that he had not done so.
The court noted that there were several times when prejudice is presumed, including "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken." This principle comes from Roe vs. Flores-Ortega. Sotomayor wrote that the issue in Garza was "does this final presumption apply even when the defendant has signed an appeal waiver?"
First, the court looked at appeal waivers, noting that an appeal waiver could only cover things that were in its scope and that some waiver clauses leave types of claims that are not waived. Also, every jurisdiction has types of claims that cannot be waived.
The court also looked at what it meant to file a notice of appeal. Citing Flores-Ortega, the court said that "[f]iling such a notice is a purely ministerial task that imposes no great burden on counsel." Further, a notice of appeal usually just has basic information: "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.'" Further, 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.
The Supreme Court said that "Flores-Ortega held that, to succeed in an ineffective-assistance claim in this context, a defendant need make only one showing: ‘that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.'' Further, there was no dispute that Garza wished to appeal, a direct application of Flores-Oretega's language resolves this case. Justice Sotomayor indicated "it makes [...] sense to presume prejudice when counsel's deficiency forfeits an ‘appellate proceeding altogether,'' and in the same way, "Garza retained a right to appeal at least some issues despite the waivers he signed. In other words, Garza had a right to a proceeding, and he was denied that proceeding altogether as a result of counsel's deficient performance."
The fact that Garza signed a plea waiver doesn't change that. "First, this Court has made clear that when deficient counsel causes the loss of an entire proceeding, it will not bend the presumption of prejudice rule simply because a particular defendant seems to have had poor prospects." Second, "with regard to the defendant's appellate prospects, Flores-Ortega presented at most a difference of degree, not kind, and prescribed a presumption of prejudice regardless of how many appellate claims were foreclosed. See id., at 484. We do no different today. (note that Flores-Ortega pled guilty without an appeal waiver)."
The court "reaffirm[ed] 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,' with no need for a ‘further showing' of his claims' merit, … regardless of whether the defendant has signed an appeal waiver."
The government argued that Garza never had a right to his appeal and as such any deficient performance by his attorney could not have caused prejudice. The court said that "Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants."
The government argued that there should be a test requiring a defendant to show: "(1) "that he in fact requested, or at least expressed interest in, an appeal on a non-waived issue," id., at 21– 22, or (2) "‘that there were nonfrivolous grounds for appeal' despite the waiver." The court rejected this.
First, the court indicated that they have "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."
Secondly, "while it is the defendant's prerogative whether to appeal, it is not the defendant's role to decide what arguments to press...That makes it especially improper to impose that role upon the defendant simply because his opportunity to appeal was relinquished by deficient counsel."
The court said the government's idea that unwaived claims are distinguishable from waived claims by a case-by-case review doesn't hold water. "There is no right to counsel in post-conviction proceedings...and most applicants proceed pro se. That means that the Government effectively puts its faith in asking 'an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal.'" The government's idea would also be unworkable. The better rule is "When counsel's deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal."
Based on this the Supreme Court Reversed the Judgment of the Supreme Court of Idaho and remanded the case. No. 17–1026.
JEREMY'S TAKE: While the Supreme Court determined that a reading of Roe vs. Flores-Ortega decided this case pretty squarely, some Judges are going to act as if this is brand new information. If you have filed a post-conviction motion based on the failure of your attorney to file a notice of appeal, it would be in your best interest to supplement your motion with this case.
It remains on the 2255 movant (that would be the inmate) to prove that you asked your attorney to file an appeal. After a call I took today I can't state enough how important it is to either make copies of letters where you ask for a notice of appeal to be filed. Send it to your loved ones, have them upload it into Dropbox, take proactive action to make sure that your rights are protected in this realm. It may make all the difference in an evidentiary hearing.
The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. For more information on appeals please click here. If you can also add us on Facebook or Twitter.