It is becoming increasingly common for plea agreements to contain a comprehensive provision purporting to waive the client’s right of appeal.  These waivers are no more valid than the plea agreements of which they form a part, and may be attacked on the following grounds in federal court:

 

            (a)  A waiver of appeal is invalid if the government breached the plea agreement.[1]

 

            (b)  A waiver of the right to appeal is invalid if it was not satisfactorily explained during the plea colloquy and not knowingly and voluntarily made.[2]  

 

            (c)  A waiver of the right to appeal, contained in a plea agreement, is invalid if the plea agreement itself was invalid or involuntary. [3]  The waiver provision is subject to attack on all grounds on which the plea itself is vulnerable, since the terms of a plea agreement do not relieve the court from fulfilling its duties to take a voluntary plea in compliance with the Constitution and other rules, nor can they bar a defendant from showing that the underlying plea was involuntary.  Thus, where the judge failed to explain the nature of the charges at the time the plea is taken, the plea must be vacated,[4] and the appeal waiver that is part of the plea agreement is also involuntary.[5]

 

            (d)  A waiver of the right to appeal should be held invalid if the plea agreement containing it resulted from ineffective assistance of counsel.  A clause in the plea agreement cannot preclude the client from demonstrating that s/he was deprived of the effective assistance of counsel in regard to the agreement itself and the resulting plea.  A contrary holding would completely short-circuit defendants’ Sixth Amendment rights in the context of plea agreements -- a result that is constitutionally intolerable.[6]  Unfortunately, the Ninth Circuit has held that one waives the right to argue ineffective assistance of counsel at sentencing on direct appeal when one waives the right to appeal the sentence.[7]  The court did not decide, however, whether an attorney’s incompetence may be so egregious as to render a defendant’s waiver involuntary, thereby permitting an ineffective assistance claim to be raised on direct appeal.  Regardless of whether any IAC claim has been waived on direct appeal, it may always be brought in a post-conviction action.

 

            A defendant who has waived the right to appeal may still appeal a criminal sentence under certain circumstances.[8]  For example, a waiver of the right to appeal does not preclude an appeal if the sentence violates the law or is based on “an incorrect application of the sentencing guidelines.”[9] 

 

            Similar rules exist in California.  The defendant may validly waive his right to appeal as part of a plea bargain, but such waiver is proper only if knowing and intelligent.[10]  While preferable, there is no requirement that the waiver of the right to appeal be made in writing.[11]  The trial court, however, is not required to question a defendant personally, but may rely upon a written waiver form.[12]  The scope of a general waiver of the right of appeal must be analyzed in terms of the reasonable expectations of the parties.[13]

 

            The California practitioner can argue that California courts should or must establish rules analogous to the federal rules cited above concerning these waivers where state law is silent.

 

            If the waiver can be invalidated, and a late appeal started, the conviction ceases to be final for immigration purposes, and cannot support a charge of removability, so removal proceedings must be terminated.

[1] United States v. Torres, 999 F.2d 376, 378 (9th Cir. 1993); United States v. Davis, 938 F.2d 1058, 1060 (9th Cir. 1991); United States v. Gonzalez, 16 F.3d 985 (9th Cir. 1994).

[2] United States v. Portillo-Cano, 192 F.3d 1246 (9th Cir. 1999); United States v. Michlin, 34 F.3d 896, 898 (9th Cir. 1994); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991); United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990); United States v. Baty, 980 F.2d 977, 978-979 (5th Cir. 1992); United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993); see United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) [waiver invalid if not explained and record indicates defendant did not otherwise understand its full significance].

[3] United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995); United States v. Portillo-Cano, 192 F.3d 1246 (9th Cir. 1999); but cf. United States v. Vences, 169 F.3d 611 (9th Cir. 1999) (appeal waiver enforced despite judge’s failure to comply with 18 U.S.C. § 3553 requirement that judge explain reasons for imposing sentence).

[4] F.R.Crim.P. 11(c)(1); United States v. Longoria, 113 F.3d 975, 977 (9th Cir. 1997)  (“defendant’s right to be informed of the charges against him is at the core of Rule 11.”); United States v. Smith, 60 F.3d 595, 597 (9th Cir. 1995) (failure to explain the nature of the charge “requires the vacation of a plea of guilty.”); United States v. Bruce, 976 F.2d 552, 559-560 (9th Cir. 1992).

[5] United States v. Portillo-Cano, 192 F.3d 1246 (9th Cir. 1999).

[6]  See Hill v. Lockhart, 474 U.S. 52 (1985); cf. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).

[7] United States v. Nunez, 223 F.3d 956 (9th Cir. 2000).

[8] See United States v. Schuman, 127 F.3d 815, 818 n.* (9th Cir. 1997) (reviewing cases in which defendant can appeal sentence in spite of appeal waiver).

[9] United States v. Littlefield, 105 F.3d 527, 528 (9th Cir.)(1997) (per curiam) (interpreting waiver of right to appeal pursuant to a Rule 11(e)(1)(C) agreement), cert. denied, 520 U.S. 1258 (1998); United States v. Portillo-Cano, 192 F.3d 1246 (9th Cir. 1999).

[10] People v. Charles (1985) 171 Cal.App.3d 552, 557, 558-59, 217 Cal.Rptr. 402; see also People v. Castrillon (1991) 227 Cal.App. 3d 718, 721-722, 278 Cal.Rptr. 121; People v. Vargas (1993) 13 Cal.App.4th 1653 , 1660, 1662,  17 Cal.Rptr.2d 445.

[11] People v. Berkowitz (1995) 34 Cal.App.4th 671, 678, 40 Cal.Rptr.2d 150; People v. Kelly (1994) 22 Cal.App.4th 533 , 27 Cal.Rptr.2d 383.

[12] People v. Panizzon (1996) 13 Cal.4th 68 , 51 Cal.Rptr.2d 851; 913 P.2d 1061.

[13] People v. Nguyen (1993) 13 Cal.App.4th 114 , 119-120, 16 Cal.Rptr.2d 490.

APPEAL WAIVERS " POST CONVICTION RELIEF WAIVERS
Federal plea agreements now routinely involve defendants waiving constitutional and fundamental rights. Courts generally affirm such waivers, if made knowingly and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 243-44 (1969). Defense counsel should scrutinize any language that requires defendants to waive the right to challenge constitutional errors or others concerning the process by which conviction was obtained. Some tools exist to help defense counsel remove or edit such language. Courts must construe any ambiguity in defendants favor. See United States v. Isom, 580 F.3d 43, 50-52 (1st Cir. 2009). See Alan Ellis & Todd Bussert, Federal Sentencing: Stemming the Tide of Post-Conviction Waivers, http://www.alanellis.com/CM/Publications/Federal-Sentencing-Stemming-the-Tide-of-Post-Conviction-Waivers-ABA-Criminal-Justice.asp (2010).

APPEAL WAIVERS " POST CONVICTION RELIEF WAIVERS " DEFENSE COUNSEL HAS CONFLICT OF INTEREST COUNSELLING CLIENT CONCERNING WAIVER OF RIGHT TO HIS OR HER OWN EFFECTIVE ASSISTANCE
When federal plea agreements contain language that waives appeals and post-conviction challenges, defense counsel are put in a situation that could create a conflict of interest. Defense counsel would essentially need to advise defendants on a waiver of claims of ineffective assistance of counsel against themselves. Doing so would violate the Model Rules of Professional Conduct, as the defense counsel would likely not be able to provide competent representation regarding the effectiveness of their own representation. (ABA, Model Rules of Professional Conduct, Rule 4-1.7(b)(1)). Counsel in post-conviction proceedings can thus argue that the defendant was deprived of counsel with regard to that specific language of the plea agreement, thus invalidating only part of the plea agreement and preserving the rest. See Alan Ellis & Todd Bussert, Federal Sentencing: Stemming the Tide of Post-Conviction Waivers, http://www.alanellis.com/CM/Publications/Federal-Sentencing-Stemming-the-Tide-of-Post-Conviction-Waivers-ABA-Criminal-Justice.asp (2010).

Ninth Circuit

POST CON RELIEF " FEDERAL " APPEAL " WAIVER OF APPEAL
United States v. Gonzalez-Melchor, 648 F.3d 959 (9th Cir. Jul. 8, 2011) (waiver of appeal negotiated by the district court in exchange for a reduced sentence is invalid and unenforceable, in violation of Federal Rule of Criminal Procedure 11(c)(1), which prohibits judicial participation in plea negotiations, because this prohibition extends to appellate-waiver negotiations at the sentencing phase).

POST CON RELIEF " APPEAL " WAIVER OF APPEAL " AMBIGUITY " AMBIGUOUS APPEAL WAIVER NOT ENFORCABLE
United States v. Charles, 581 F.3d 927, 2009 WL 2871606 (9th Cir. Sept. 9, 2009)(although voluntary plea agreement contained a waiver of the right to appeal sentence, the defendant did not waive his right to appeal the district court's career offender determination because the appeal waiver is ambiguous as to whether he could appeal that determination).

POST CON RELIEF " APPEAL " WAIVER OF APPEAL " STANDARD OF REVIEW
United States v. Charles, 581 F.3d 927, 2009 WL 2871606 (9th Cir. Sept. 9, 2009)("We review de novo the validity of an appeal waiver. United States v. Buchanan, 59 F.3d 914, 916 (9th Cir.1995). We have stated that [a] defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made. [footnote omitted] United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir.2005). In construing an agreement, [we] must determine what the defendant reasonably understood to be the terms of the agreement when he pleaded guilty. United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir.1993) (footnote omitted). The drafter of the plea agreement, typically the government, is responsible for any lack of clarity such that ambiguities are construed in favor of the defendant. See, e.g., United States v. Cope, 527 F.3d 944, 950 (9th Cir.2008).").

POST CON RELIEF " PLEA AGREEMENT " WAIVER OF RIGHT TO CLAIM IAC
Washington v. Lambert, 422 F.3d 864 (9th Cir. 2005) (plea agreement waiver of right to set aside a conviction on grounds of ineffective assistance of counsel is not effective to preclude doing so, since the plea agreement itself, containing the waiver, is not knowing or voluntary, collecting cases); see also United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005) (leaving open possibility; collecting cases); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), cert denied, 115 S. Ct. 1957 (1995) (claim of ineffective assistance of counsel, in violation of the Sixth Amendment, can be reviewed on the merits on appeal notwithstanding a purported waiver of this right contained in a plea agreement); accord, Department of Justice, U.S. Attorney's Manual http://www.usdoj.gov/usao/eousa/foia_reading_room/ usam/title9/crm00626.htm; but see United States v. McIntosh, 492 F.3d 956, 959 (8th Cir. 2007)(plea agreement waiving right to challenge conviction for ineffective assistance of justice will be enforced unless enforcement would result in a miscarriage of justice); United States v. Snelson, No. 07-3202 (8th Cir. Feb. 10, 2009)(accord); cf. Ohio Ethics Opinion 2001-6 (2001)(it is unethical to waive of ineffective assistance of counsel claims in plea agreements); Tennessee Ethics Opinion 94-A-549 (1994)(same); North Carolina Ethics Opinion 129 (1993)(same); Vermont Ethics Opinion 95-4 (1995) (same); NACDL Ethics Advisory Committee, Proposed Formal Opinion No. 03-02 (February 2003)(it is unethical for criminal defense lawyers to participate in plea agreements that bar collateral attacks on convictions under 28 U.S.C. 2255), found at <http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/$FILE/op03-02.pdf>.

Other

CAL POST CON " APPEAL " FUGITIVE DISENTITLEMENT DOCTRINE " DEPORTED APPELLANT DOES NOT LOSE RIGHT TO CONSIDERATION OF APPEAL CRIMINAL LAW & PROCEDURE, IMMIGRATION LAW
People v. Puluc-Sique, No. A123451 People's request to extend the appellate disentitlement doctrine (applicable to fugitives) to a criminal defendant who had been deported from the country by the ICE is denied as, absent additional circumstances not presented here, a defendant who has been deported does not stand in the same shoes as one who has voluntarily placed himself beyond the court's control.

APPEAL WAIVERS " POST CONVICTION RELIEF WAIVERS
Federal plea agreements now routinely involve defendants waiving constitutional and fundamental rights. Courts generally affirm such waivers, if made knowingly and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 243-44 (1969). Defense counsel should scrutinize any language that requires defendants to waive the right to challenge constitutional errors or others concerning the process by which conviction was obtained. Some tools exist to help defense counsel remove or edit such language. Courts must construe any ambiguity in defendants favor. See United States v. Isom, 580 F.3d 43, 50-52 (1st Cir. 2009). See Alan Ellis & Todd Bussert, Federal Sentencing: Stemming the Tide of Post-Conviction Waivers, http://www.alanellis.com/CM/Publications/Federal-Sentencing-Stemming-the-Tide-of-Post-Conviction-Waivers-ABA-Criminal-Justice.asp (2010).

APPEAL WAIVERS " POST CONVICTION RELIEF WAIVERS " DEFENSE COUNSEL HAS CONFLICT OF INTEREST COUNSELLING CLIENT CONCERNING WAIVER OF RIGHT TO HIS OR HER OWN EFFECTIVE ASSISTANCE
When federal plea agreements contain language that waives appeals and post-conviction challenges, defense counsel are put in a situation that could create a conflict of interest. Defense counsel would essentially need to advise defendants on a waiver of claims of ineffective assistance of counsel against themselves. Doing so would violate the Model Rules of Professional Conduct, as the defense counsel would likely not be able to provide competent representation regarding the effectiveness of their own representation. (ABA, Model Rules of Professional Conduct, Rule 4-1.7(b)(1)). Counsel in post-conviction proceedings can thus argue that the defendant was deprived of counsel with regard to that specific language of the plea agreement, thus invalidating only part of the plea agreement and preserving the rest. See Alan Ellis & Todd Bussert, Federal Sentencing: Stemming the Tide of Post-Conviction Waivers, http://www.alanellis.com/CM/Publications/Federal-Sentencing-Stemming-the-Tide-of-Post-Conviction-Waivers-ABA-Criminal-Justice.asp (2010).

NACDL ETHICS ADVISORY COMMITTEE
Proposed Formal Opinion 03-02 (February 2003) Question Presented: NACDLs Ethics Advisory Committee, as well as the Strike Force and other committees, have received queries regarding a requirement in some federal plea agreements that bar collateral attacks on convictions under 28 U.S.C. 2255. The question presented is whether it is ethical for a criminal defense lawyer to participate in such a plea agreement. We have determined that it is not. Digest: Case law has split on this issue with the weight of authority sustaining such waivers in general, but not where the client seeks to set aside his or her conviction by claiming that the plea itself was induced by ineffective assistance. No opinion we could find discussed the ethical implications of defense counsel agreeing to a waiver of an ineffective assistance claim as a general waiver of rights in a plea agreement. It is the opinion of the NACDL Ethics Advisory Committee that, aside from the general effect the courts might give such waivers, the rules of professional ethics prohibit a criminal defense lawyer from signing a plea agreement that limits the clients ability to claim ineffective assistance of counsel because the lawyer has a conflict of interest in agreeing to such a provision because it amounts to prospective limiting of liability. Therefore, the lawyer is duty bound to object to portions of a plea agreement that limit 2255 claims and refuse to assent to such an agreement with such language in it. ... <http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/$FILE/op03-02.pdf>