Newly-sentenced defendants (and many attorneys for that matter) often wonder whether to appeal a conviction and sentence, despite having agreed to an appeal waiver during the plea bargaining process. Regardless of any particular defendant’s prospects of prevailing on appeal, the U.S. Supreme Court recently made clear that trial counsel’s failure to timely file a notice of appeal pursuant to his or her client’s instructions is deficient, prejudices the client, and therefore deprives the client of his constitutionally-guaranteed right to effective assistance of counsel.
In Garza v. Idaho, the defendant signed two plea agreements to resolve state criminal charges. Each plea agreement contained an appeal waiver, which in this case was a clause stating that the defendant “waive[d] his right to appeal.” Shortly after the sentencing hearing, the defendant told his lawyer that he wanted to file an appeal. The lawyer, however, did not file a notice of appeal, and told his client that “an appeal was problematic because he waived his right to appeal.” The appeal window closed with no notice having been filed on the client’s behalf.
Four months after the sentencing hearing, the defendant sought post-conviction relief in Idaho state court. He argued that his trial counsel was ineffective because he did not file the notices of appeal on his behalf. The Idaho trial court, Court of Appeals, and state Supreme Court all concluded that the defendant did not demonstrate that his trial counsel’s performance was deficient and that he was prejudiced as a result. In affirming the lower courts’ decision, the Idaho Supreme Court concluded that the presumption of prejudice, previously recognized by the U.S. Supreme Court in Roe v. Flores Ortega, does not apply when a defendant has agreed to an appeal waiver.
The U.S. Supreme Court disagreed. It held that the defendant was, in fact, prejudiced because “prejudice is presumed” when trial counsel’s “constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” The Court further explained that the presumption of prejudice is not diminished just because a particular defendant has poor prospects on appeal or fewer possible claims than some other appellants.
Garza’s takeaway is simple and straightforward. Appeal waivers – even those that seem to foreclose all possibility of success on appeal – should not discourage a defendant or his counsel from timely giving notice of appeal if the defendant so requests. Criminal law is constantly evolving, and appealable issues that might appear to fall within the scope of a waiver at first glance might not be subject to dismissal. For example, while federal prosecutors will almost always pursue dismissal of an appeal that raises issues that are squarely within the scope of a valid appeal waiver, Garza re-confirms that prosecutors have discretion as to whether to seek the enforcement of the waiver. Additionally, matters concerning the constitutionality of a statute (and whether a criminal offense has been committed at all) arguably are never subject to waiver.
That said, Garza also does not mean that trial counsel should always indiscriminately give notice of appeal prior to a full discussion with the client. For example, in some cases, an ill-considered appeal might undermine a defendant’s ability to pursue a sentence reduction through a Rule 35 motion. When a defendant expressly declines to pursue an appeal, the best practice is to adequately inform him of his appellate rights and then secure written confirmation that he elects not to appeal. Alternatively, if a defendant is not certain, trial counsel should give notice of appeal to preserve the defendant’s appellate rights.
Dhamian Blue has been recognized in the 2019 edition of Super Lawyers magazine in the Business Litigation category. He previously was recognized by the magazine as a Rising Star in 2013.
Super Lawyers is a rating service of lawyers from more than 70 practice areas. Its patented selection process includes independent research, peer nominations, and peer evaluations. No more than 5 percent of attorneys in North Carolina are recognized each year.
In United States v. Simms, No. 15-4640, in an 8 to 7 decision, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, declared 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague. Dhamian Blue represented the client on appeal.
18 U.S.C. § 924(c) criminalizes the use of a firearm in furtherance of a “crime of violence.” The issue is Simms was whether conspiracy to commit Hobbs Act robbery was a “crime of violence” as defined in § 924(c)(3)(B), also known as the “residual clause.” The residual clause defines a crime of violence as a crime that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
On appeal, Blue argued that the § 924(c) residual clause was unconstitutionally vague because similar language in the Armed Career Criminal Act was declared vague in United States v. Johnson, and identical language was declared as such in Sessions v. Dimaya. Th Court’s decision in Simms deepens the Circuit split on this issue, with four Circuits having held that the provision is unconstitutional, and three upholding the residual clause.
Today in Beckles v. United States, the US Supreme Court held that the United States Sentencing Guidelines are not subject to vagueness challenges under the Constitution’s Due Process Clause.
It has been said that the life of the law is experience. Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.
It is rare for the US Supreme Court to declare, almost unanimously, that it doesn’t know what something means. But that just happened in Johnson v. United States, a case about the proper interpretation of the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e) (the “ACCA”).
We’ll start with the facts. The defendant in Johnson is a felon with a long criminal record. In 2010, the FBI began to monitor him because of his involvement in a white supremacist organization that was suspected of planning a terrorist attack. During the investigation, the defendant told undercover agents that he planned to use explosives to attack the Mexican consulate in Minnesota, progressive bookstores, and liberals. He showed the agents an assault rifle, several semiautomatic firearms, and over 1,000 rounds of ammunition. The defendant was arrested and pleaded guilty to violating 18 U.S.C. §922(g).
THE ARMED CAREER CRIMINAL ACT HAS A 15 YEAR MANDATORY MINIMUM SENTENCE
Section 922(g) forbids convicted felons from possessing firearms (most people are familiar with the crime and commonly refer to it as “being a felon in possession of a firearm”). The law generally punishes violators with up to 10 years’ imprisonment. If, however, a defendant has three or more prior convictions for a “serious drug offense” or a “violent felony,” the ACCA increases the prison term to a minimum sentence of 15 years and a maximum sentence of life.
So, what is a “violent felony” under the ACCA? The Act defines a violent felony as:
any crime punishable by imprisonment for a term exceeding one year . . . that —
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.“
The highlighted language above is referred to as the ACCA’s “residual clause.” The question in Johnson was whether the defendant’s prior conviction for the unlawful possession of a short-barreled shotgun (under Minnesota law) was a violent felony under the residual clause. The Court held that it was not because the residual clause is unconstitutionally vague and therefore violates the Constitution’s guarantee of due process.
Let’s dig a little deeper. The Court begins its legal analysis with the Fifth Amendment:
The Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property without due process of law.” Our cases establish that the Government violates this guarantee by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. . . . The prohibition of vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,” and a statute that flouts it “violates the first essential of due process.” . . . These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.
Prior to Johnson, the Court adopted a framework called the “categorical approach” to decide whether an ACCA predicate offense is “burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injuty to another[,]” as those terms and that language is used in the ACCA text. This framework required a court to assess whether a crime is a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Johnson at 4. It further required “a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents a serious potential risk of physical injury.” Id.
The Court cited two features of the residual clause that make it unconstitutionally vague. First, the clause “leaves grave uncertainty about how to estimate the risk posed by a crime” in the judicially imagined “ordinary case.” For example, “does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence?” The Court concluded that “[t]he residual clause offers no reliable way to choose between . . . competing accounts of what” an “ordinary case” involves. Id. at 6.
Second, the clause “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” The Court offered the following as an example:
Does the ordinary burgler invade an occupied home by night or an unoccupied home by day? Does the typical extortionist threaten his victim in person with the use of force, or does he threaten his victim by mail with the revelation of embarassing personal information? By combining indeterminancy about how to measure the risk posed by a crime with indeterminancy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.”
Throughout the opinion, the Court explains its (and lower courts’) failure to develop a consistent, reliable, and predictable framework for application of the residual clause to different felonies. This failure mandated striking the clause as unconstitutionally vague. Importantly, application of the ACCA to the four specifically enumerated offenses (burglary, arson, extortion, or a crime involving the use of explosives) remains in tact.