Campusano v. United States, Docket No. 04-5134-pr (2d Cir. March 23, 2006) (Pooler, Sotomayor, Korman (by desig’n)): A fine opinion that reaches the right result and contains enough praise of the importance of a criminal defendant’s right to appeal to warm the heart of even the most jaded appellate counsel. The issue is simply whether an attorney is required to file a notice of appeal when requested by the client, even though the client entered into a plea agreement containing an appeal waiver provision that seemingly bars an appeal. Relying on the Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Circuit held that, yes, a lawyer is indeed required to file a notice of appeal under such circumstances, and that it is per se ineffective assistance not to do so. The proper procedure is to file the notice of appeal and then — if counsel determines that there are no non-frivolous issues for appeal (because of the waiver or for whatever other reason) — to file an Anders brief requesting withdrawal from the case. See United States v. Gomez-Perez, 215 F.3d 315 (2d Cir. 2000).
A bonus is the opinon’s discussion of the possibility that valid appellate issues may exist despite the waiver. The Court pointed out that “although waivers of appeal are enforceable in all but a few situations, important constitutional rights require some exceptions to the presumptive enforceability of a waiver.” Op. 7. The Court then listed some examples, noting that “waivers are not enforceable ‘when the waiver was not made knowingly, voluntarily, and competently . . . , when the sentence was based on constitutionally impermissible factors . . . , when the government breached the plea agreemeent . . . , or when the sentencing court failed to enunciate any rationale for the defendant’s sentence.'” Op. 7 (quoting Gomez-Perez, 215 F.3d at 319).