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).

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)).

Eighth Circuit

POST CON RELIEF " APPEAL " WAIVER OF RIGHT TO APPEAL
United States v. McMillan, Slip Copy, WL 3206535 (8th Cir. Aug. 9, 2012) (court enforced an appeal waiver where defendants brief did not articulate the error in terms of a violation of any constitutional right; the issue was limited to plain error because no objection had been lodged at the time of the sentencing hearing). Note: To raise appellate challenges to unforeseen errors by the district court at the sentencing hearing for a defendant whose guilty plea agreement included an appellate waiver, defendant must couch the sentencing court's error as a constitutional violation and object to the error in the district court. In declining to articulate any predictable rule being applied in these cases, the Eighth Circuit's almost whimsical approach to whether and when to enforce an appeal waiver -- reducing the analysis to ad hoc judgments that either enforce appeal waivers or "elect to bypass the possibility of [such] waiver[s]" -- may itself raise questions about due process and equal protection of the law in the Eighth Circuit.

Ninth Circuit

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 RELIEF - APPEAL - WAIVER OF APPEAL - VALIDITY
United States v. Castillo, __ F.3d __, 2007 WL 2120232 (9th Cir. Jul. 25, 2007) (a valid guilty plea containing a waiver of the right to appeal does not deprive the court of jurisdiction over an appeal; procedural rules of court [such as Rule 11] cannot expand or contract the jurisdiction of the courts themselves or the lower courts).

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).