Post-Conviction Relief for Immigrants

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).