Post-Conviction Relief for Immigrants

 

It is becoming increasingly common for plea agreements, particularly in federal court, 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.         The government breached the plea agreement.[274]

 

b.                  The court did not satisfactorily explain the appeal waiver to the defendant during the plea colloquy. [275]

 

c.                  The plea agreement itself was invalid or involuntary.  A waiver of appeal is enforceable only if knowingly and voluntarily made and if the requirements of the Constitution and Rule 11 were satisfied.[276]

 

d.                  The plea agreement containing it resulted from ineffective assistance of counsel.[277]  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.[278]

 

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.[279]  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.

 

            Similar rules exist in some states.  In California, for example, 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.[280]  While preferable, there is no requirement that the waiver of the right to appeal be made in writing.  The trial court, however, is not required to question a defendant personally, but may rely upon a written waiver form.[281]  The scope of a general waiver of the right of appeal must be analyzed in terms of the reasonable expectations of the parties.[282]  State practitioners can argue that state courts should or must establish rules analogous to the federal rules cited above concerning these waivers where state law is silent.

[274] United States v. Bowe, 257 F.3d 336 (4th Cir. 2001); 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). 

[275] 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).

[276] 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, 321-322 (9th Cir. 1990), cert. denied, 112 S.Ct. 1488 (1992); United States v. Arellano-Gallegos, 351 F.3d 966 (9th Cir. December 11, 2003) (waiver of right to direct appeal is invalid because of district court’s failure to comply with Rule 11).

[277] United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).

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

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

[280] People v. Charles, 171 Cal.App.3d 552, 557, 558-59, 217 Cal.Rptr. 402 (1985); see also People v. Castrillon, 227 Cal.App. 3d 718, 721-722, 278 Cal.Rptr. 121 (1991); People v. Vargas, 13 Cal.App.4th 1653, 1660, 1662, 17 Cal.Rptr.2d 445 (1993); People v. Berkowitz, 34 Cal.App.4th 671, 678, 40 Cal.Rptr.2d 150 (1995); People v. Kelly, 22 Cal.App.4th 533, 27 Cal.Rptr.2d 383 (1994).

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

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