Gilberto Garza, Jr. v. Idaho, USSC No. 17-1026, certiorari granted 6/18/18
Does the “presumption of prejudice” recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), 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?
Decision below: Garza v. State, 405 P.3d 576 (Idaho 2017)
Scotusblog page (includes links to cert petition, briefs, and commentary)
This case will be of interest to anyone handling federal criminal cases, where, according to one amicus brief (at 4), most plea agreements include a waiver of appeal. Under Flores-Ortega, if trial counsel fails to file a notice of appeal and the defendant shows he would have appeal but for trial counsel’s failure, the defendant is entitled to a presumption that counsel’s failure prejudiced the defendant. The Court reasoned that the failure to file a notice of appeal didn’t just deprive the defendant of a fair appellate proceeding; it “deprived [the defendant] of [an appellate] proceeding altogether.” 528 U.S. at 483. Lower courts have divided on whether this presumption should apply when the plea agreement includes an appeal waiver. Most courts hold it does; Idaho joined the minority holding it does not. The Seventh Circuit is also in the minority camp. Nunez v. United States, 546 F.3d 450, 455-56 (7th Cir. 2008). The Court will now resolve the division.
In terms of state practice, Wisconsin courts have cited Flores-Ortega and applied its presumption of prejudice in cases addressing ineffective assistance claims based on trial counsel’s failure to file a timely notice of intent to pursue postconviction relief under Rule 809.30, State ex rel. Kyles v. Pollard, 2014 WI 38, ¶48, 354 Wis. 2d 626, 847 N.W.2d 805, and (back when the deadline was non-extendable) a notice of appeal in a ch. 980 case, State ex rel. Seibert v. Macht, 2001 WI 67, ¶¶15-16, 244 Wis. 2d 378, 627 N.W.2d 881. But plea agreements with an appeal waiver are rare as hen’s teeth in Wisconsin, so the Court’s decision in this case will likely have little direct impact on state criminal practice.