Every defendant has the right to a direct appeal, but this right may be waived,[57] and this waiver will be enforced if it is voluntary and intelligent.[58] The Federal Rules of Criminal Procedure specifically require the district court, at the time of entry of a plea of guilty, to inform the defendant that s/he is waiving his right to appeal if the plea agreement contains such a waiver.[59]

 

An appeal waiver may specifically permit an appeal in certain circumstances, for example, when the sentencing court grants an upward departure from the sentencing guidelines.  In addition, the appeal waiver may not mention, and therefore not waive, appeals in certain circumstances or may waive appeal, but not post-conviction relief such as habeas corpus.  Post-conviction counsel must carefully examine the plea agreement and the circumstances surrounding the guilty plea and sentencing in order to determine what post-conviction remedies have been waived, and what remedies may remain.  The law generally provides that a plea agreement is construed against the government; something not expressly mentioned is not waived.[60]  An appeal is also permitted after a written waiver of the right to appeal if the government explicitly “waives” its own right to assert the defendant’s waiver.[61]  For further discussion of grounds on which an appeal waiver may be attacked, see § 5.68, infra.    

 

            A defendant who has waived the right to appeal may still appeal a criminal sentence under certain circumstances.[62]  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.”[63] 

[57] United States v. Shimoda, 334 F.3d 846 (9th Cir. June 26, 2003) (negotiated plea waiving right to appeal precluded defendant from arguing misapplication of sentencing guidelines).

[58] United States v. Larson, 302 F.3d 1016 (9th Cir. September 4, 2002) (defendant convicted following “stipulated-facts” trial, then sought to appeal denial of suppression motion; court of appeal held suppression motion issue was mooted by defendant’s admission to stipulated facts, which created a separate basis for conviction; case remanded to determine whether surrender of appeal was knowing and intelligent since defendant may not have known that stipulation mooted suppression issue).  The court of appeal suggested various ways in which a defendant may stipulate to a conviction, without mooting the suppression issue, including an “abbreviated court trial.”  In state court, this is sometimes considered to be a “slow plea.”

[59] See Fed. R. Crim. P. 11(c)(6).

[60] See United States v. Brown, 857 F.2d 1337 (9th Cir. 1988) (government must be strictly held to its promises); United States v. Powell, 587 F.2d 443 (9th Cir. 1978) (same).

[61] United States v. Garcia-Lopez, 309 F.3d 1121 (9th Cir. 2002).

[62] 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).

[63] 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).

POST-CON - APPEAL - APPEAL WAIVER
United States v. Felix, 561 F.3d 1036, 1040-1041 (9th Cir. Apr. 13, 2009) ("In Buchanan, the defendant knowingly and voluntarily entered into a plea agreement which included a waiver of his right to appeal. 59 F.3d at 917. However, during two subsequent sentencing hearings, the district judge stated that the defendant had the right to appeal his sentence. Id. The government did not object to the district judge's statements. Id. at 918. We noted that because of the district judge's statement, Buchanan could have had a reasonable expectation that he appeal his sentence. Id. We concluded that the wavier was unenforceable because the district judge had informed the defendant of his right to appeal. Id. Indeed, such a waiver of the right to appeal will only be enforced if the government immediately objects to the court's advisement of a right to appeal and the sentencing judge acknowledges the presence of the waiver. See United States v. Zink, 107 F.3d 716, 718(9th Cir.1997) (concluding defendant did not waive his right to appeal sentence, in part because the government did not object to the district court's advisement that defendant had the right to appeal)).

First Circuit

POST CON RELIEF " APPEAL " WAIVER " POST CON RELIEF WAIVERS " CONSTRUED NARROWLY AGAINST THE GOVERNMENT
United States v. Isom, 580 F.3d 43, 50-52 (1st Cir. 2009) (appeal and post-conviction waivers in plea agreements are construed narrowly and strictly against the government, meaning that any ambiguity is read in a defendants favor).

Second Circuit

United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (defendant was not barred by sentence appeal waiver providing court did not impose sentence in excess of 45 months where court imposed sentence of 64 months, so appeal waiver was not triggered).

POST CON RELIEF " APPEAL " WAIVER OF APPEAL UNENFORCEABLE
United States v. Woltmann, 610 F.3d 37 (2d Cir. Jul. 6, 2010) (waiver of appeal held unenforceable, and case remanded to different district judge, where original judge ignored the government's 5K1.1 motion and the 18 U.S.C. 3553 factors).

Lower Courts of Second Circuit

POST CON RELIEF - APPEAL - WAIVER OF APPEAL IN PLEA AGREEMENT DOES NOT BAR COLLATERAL ATTACK RAISING ERRORS IN MEANS BY WHICH PLEA AGREEMENT WAS REACHED
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (waiver of appeal in plea agreement does not bar collateral attack raising errors in means by which plea agreement was reached: "'There is no general bar to a waiver of collateral attack rights in a plea agreement.' Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)). 'However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been produced, here, the plea agreement.' Id. (citations omitted). Where, as here, a petitioner claims a violation of Rule 11 or the ineffectiveness of trial counsel, the Second Circuit has stated that he is not barred under the terms of the plea agreement from bringing a petition to vacate the conviction based on the legal shortcomings of the process in which the waiver was obtained. See id. at 196. Accordingly, the Court will address 'the merits of [the] petition notwithstanding [the petitioner's] general waiver of the right to collaterally attack his conviction.' Id. at 193; see also Lebron v. United States, 267 F. Supp.2d 325, 328 (E.D.N.Y. 2003).").

Ninth Circuit

POST CON RELIEF " FEDERAL " VEHICLES " DIRECT APPEAL " WAIVER
United States v. Spear, ___ F.3d ___, 2014 WL 2523649 (9th Cir. Jun. 5, 2014) (knowing and voluntary waiver of the right to appeal sentence did not waive right to appeal of conviction after plea of guilty).

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 " FEDERAL " MOTION TO WITHDRAW PLEA " APPEAL WAIVER
United States v. Rahman, 642 F.3d 1257 (9th Cir. Jul. 5, 2011) (defendant's appeal of district court's denial of motion to withdraw guilty plea fails because defendant waived appeal of the issue in the plea agreememt, which was knowingly and voluntarily made).

POST CON RELIEF - APPEAL - WAIVER OF APPEAL - AMBIGUITY - AMBIGUOUS APPEAL WAIVER NOT ENFORCABLE
United States v. Charles, 581 F.3d 927 (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 (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 - APPEAL - APPEAL WAIVER
United States v. Felix, 561 F.3d 1036, 1040-1041 (9th Cir. Apr. 13, 2009) ("In Buchanan, the defendant knowingly and voluntarily entered into a plea agreement which included a waiver of his right to appeal. 59 F.3d at 917. However, during two subsequent sentencing hearings, the district judge stated that the defendant had the right to appeal his sentence. Id. The government did not object to the district judge's statements. Id. at 918. We noted that because of the district judge's statement, Buchanan could have had a reasonable expectation that he appeal his sentence. Id. We concluded that the wavier was unenforceable because the district judge had informed the defendant of his right to appeal. Id. Indeed, such a waiver of the right to appeal will only be enforced if the government immediately objects to the court's advisement of a right to appeal and the sentencing judge acknowledges the presence of the waiver. See United States v. Zink, 107 F.3d 716, 718(9th Cir.1997) (concluding defendant did not waive his right to appeal sentence, in part because the government did not object to the district court's advisement that defendant had the right to appeal)).

POST CON - APPEAL - WAIVER OF PRE-PLEA ISSUES BY ENTRY OF PLEA
United States v. Castillo, ___ F.3d ___ (9th Cir. Sept. 22, 2006) (appeal from conviction by guilty plea for being an illegal alien in possession of a firearm dismissed where defendant's entry of an unconditional guilty plea deprived the appeals court of jurisdiction to consider his pre-plea constitutional claims, and that jurisdictional defect is not waivable by the government). http://caselaw.lp.findlaw.com/data2/circs/9th/0530401p.pdf

POST CON RELIEF - FEDERAL - APPEAL - WAIVER OF APPEAL VALID BECAUSE PLEA VALID
United States v. Pacheco-Navarette, ___ F.3d ___, 2005 WL 3502055 (9th Cir. Dec. 23, 2005) (appeals from convictions and sentences following guilty pleas to being noncitizens in possession of a firearm are dismissed for lack of jurisdiction where appeal waivers were not invalid since nothing about the plea process was unlawful).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410396p.pdf

POST CON RELIEF - FEDERAL - APPEALS - WAIVER OF APPEAL
United States v. Speelman, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (stipulation in plea agreement that defendant "knowingly, expressly and voluntarily waives the right to contest either the conviction or the sentence or the application of the sentencing guidelines in any post-conviction proceeding including any proceeding under 28 U.S.C. section 2255" held insufficient to show that he waived his right to directly appeal his sentence, since: "In common legal usage, the term 'post conviction proceeding' refers to a collateral challenge to a judgment or sentence, as opposed to a direct appeal.").

POST-CON - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO ADVISE - WAIVERS OF POST-CONVICTION RELIEF
Washington v. Lampert, 422 F.3d 864 (9th Cir. Sept. 6, 2005) (ineffective assistance where trial counsel failed to explain consequences of the stipulated sentencing agreement, and the effect of waivers of post-conviction relief)
http://caselaw.lp.findlaw.com/data2/circs/9th/0435381p.pdf

POST CON RELIEF - DIRECT APPEAL - WAIVER OF APPEAL POST CON RELIEF - GROUNDS - GUILTY PLEA WAIVES GROUNDS
United States v. Lopez-Armenta, __ F.3d __ (9th Cir. March 10, 2005) (defendant's challenge to the district court's denial of his motion to suppress is dismissed since he waived his right to appeal pretrial constitutional defects when he entered an unconditional guilty plea).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410081p.pdf

POST CON RELIEF - DIRECT APPEAL - WAIVER OF APPEAL - WAIVER INEFFECTIVE SINCE INEFFECTIVE ASSISTANCE INVALIDATED PLEA AGREEMENT POST CON RELIEF - DIRECT APPEAL -- CLAIM OF INEFFECTIVE ASSISTANCE PROPERLY RAISED ON DIRECT APPEAL AFTER APPEAL WAIVER
United States v. Jeronimo, __ F.3d __ (9th Cir. Feb. 23, 2005)      Court lacks jurisdiction to entertain appeals where there is a valid and enforceable waiver of right to appeal. United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999). Appellate court reviews de novo whether defendant has waived right to appeal by entering into plea agreement and validity of such a waiver. United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir. 2003). Waiver of 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. United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004); United States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir. 1998). Here, defendant waived all grounds, including whether the trial court abused discretion in refusing to let him withdraw his plea. Record on direct appeal insufficient to determine whether agreement was knowingly and voluntarily made. Matter should be raised in habeas. Note Berzon, J. dissent: "the majority offends logic with a basic chicken and egg scenario: It relies on a waiver whose validity is contingent upon the answer to a legal question to preclude the consideration of that very legal question." Trial counsel left defendant uninformed about a certain legal fate (sentencing as career criminal) and instead affirmatively indicated a lower sentence was possible than was actually the case. This issue could and should be dealt with on direct appeal, as the evidence had been presented to the trial court during the plea withdrawal hearing and the government did not dispute it. Ed. Note: Judge Berzon is absolutely right. There is absolutely no point in wasting everyones time and money raising an issue on habeas that can easily be reached on direct appeal.

POST CON - APPEALS - WAIVER - COMPETENT BUT SUICIDAL DEFENDANT
Dennis v. Budge, __ F.3d __ (9th Cir. Aug. 5, 2004) (fact that defendant has mental disorder that causes defendant to choose execution over appeal does not show defendant lacks capacity to make rational choice, as long as mental disorder does not affect defendants capacity to appreciate options and choose among them)

POST CONVICTION RELIEF - APPEAL - WAIVER OF APPEAL - WAIVER OF APPEAL AS TO ANY ASPECT OF SENTENCE WAIVED APPEAL OF VALIDITY OF SUPERVISED RELEASE RESTRICTIONS
United States v. Joyce, ___ F.3d ___ (9th Cir. February 3, 2004) (plea agreement waiving right to appeal conviction and "any aspect of the sentence imposed," precludes defendant from appealing restrictions imposed as special conditions of supervised release).
http://caselaw.lp.findlaw.com/data2/circs/9th/0230423p.pdf

Other

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).

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).

PRACTICE ADVISORY " POST CON RELIEF " DIRECT APPEAL " HABEAS CORPUS " PLEA AGREEMENT POSTCONVICTION WAIVERS
Over the past several years, waivers of a defendants postconviction rights"for example, habeas corpus 2255 motions"have become a standard feature of plea agreements in federal cases. While courts have upheld a knowing and intelligent relinquishment of rights, these waivers are not without limits. Specifically, ethical considerations constrain both the prosecution and defense. Criminal defendants are entitled to effective conflict-free legal representation at every stage of the prosecution. The government is forbidden from engaging in prosecutorial misconduct. Attempts by defense lawyers to insulate themselves from claims of ineffectiveness and prosecutors from prosecutorial misconduct have run afoul of at least five state bars. See Alan Ellis & Todd Bussert, Stemming the Tide of Post Conviction Waivers, ABA CRIMINAL JUSTICE (Spring 2010). The article contains a sidebar listing five of the state bar opinions. Additionally, Federal Defender Carlos Williams of the Southern District of Alabama recently obtained an informal bar opinion from the Alabama State Bar that states that the waiver forced upon defendants in his district also violates the Alabama State Bar rules of professional conduct. Accordingly, when presented with a waiver, defense counsel can easily advise the prosecutor that s/he does not want to run afoul of the bar nor should the prosecutor. The way to do this is to obtain a similar bar opinion from your state bar. Thanks to Alan Ellis and Todd Bussert.

BIBLIOGRAPHY POST-CON - WAIVERS OF RIGHTS TO POST-CONVICTION RELIEF
NACDL article: Can Defendant Waive Right to PCR? http://www.nacdl.org/public.nsf/UNID/3C37810830FFB70385256E540074C1C6?OpenDocument