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).
This is a very poor decision that relies on a very superficial reading of Flores-Ortega. The Court’s opinion in Flores-Ortega specifically refers to a situation in which the lawyer’s failure to appeal causes the forfeiture of a proceeding to which the defendant had a “right.” In the case of a valid appellate waiver, the defendant has waived his “right” to an appellate proceeding long before any deficient conduct on the part of his counsel. In fairness, the Ninth, Tenth, and Eleventh Circuits have made this same error in earlier decisions. But there was no reason for the 2nd Circuit to follow course.
Thanks for your comment. I disagree, however, that the existence of the waiver means that “the defendant has waived his ‘right’ to an appellate proceeding ….” That sweeps too broadly; what the defendant has waived, by entering the waiver, is the right to raise on appeal certain kinds of issues (or, granted, most kinds of issues). As the opinion points out, Second Circuit law permits a defendant to raise on appeal, even where an appellate waiver exists, a claim that the waiver was not knowingly entered into; that his sentence was selected based on constitutionally impermissible considerations; or that the judge failed to “enunciate” reasons for the sentence. So while a defendant may have waived the right to raise most appellate issues via the waiver, he has not waived the right to appeal entirely.
In any event, why not err on the side the Circuit holds? What great cost is there to allowing the appeal, and then terminating the appeal thereafter, if appropriate, via an Anders motion, withdrawal of counsel, and then summary affirmance by the Court?
What you said is true, of course. And I would concede that the defendant may still challenge on appeal (1) whether his plea actually does contain an appellate waiver and (2) whether his plea was entered into knowingly and voluntarily. The defendant may also challenge (3) any issues that do not fall within the “scope” of the appellate waiver, including issues that may not be waived as a matter of public policy.
The problem with the opinion — as well as the holdings of the 9th, 10th, and 11th Circuits — is that it doesn’t differentiate between what issues may be appealed and what issues may not be appealed.
I concede that the “costs” of the opinion are minor — probably a little bit of judicial resources, and a little bit of prosecutorial resources. I cannot argue that from a utilitarian perspective, maybe there isn’t a lot to get worked up about here.
However, if we are concerned about correctly reading Flores-Ortega, the opinion is wrong. Further, I think it is possible that a correct reading of Flores-Ortega might actually result in a channelling of the issues that may be appealed. Instead of a scattershot appeal to the district court’s sentence, a defendant (and perhaps his appellate counsel) will appeal those issues that remain appealable despite the waiver.