Friday, October 13th, 2017

What Does a Guilty Plea (Inherently) Waive?

It’s been a slow criminal law week in the Second Circuit. Last week, however, the Supreme Court heard oral argument in Class v. United States on the question of “[w]hether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.” The stakes of this decision may be low in the plea bargaining context, where the government can insist on a waiver of the right to challenge the constitutionality of the charged offense. When the defendant takes an open plea, however, the inherent waiver question matters.

Interestingly, the petitioner’s certiorari petition highlights an apparent conflict in the Second Circuit’s case law on this question.

From the petitioner’s brief:

“In United States v. Curcio, 712 F.2d 1532 (2d Cir. 1983), Judge Friendly’s opinion for the court correctly summarized the Blackledge/Menna rule: “[A] defendant who has been convicted ona plea of guilty may challenge his conviction on any constitutional ground that, if asserted before trial, would forever preclude thestate from obtaining a valid conviction against him, regardless of how much the state might endeavor to correct the defect.” Id. at 1539 (quotation marks omitted). However, more recently, the court has suggested without explanation that an unconditional plea waives all constitutional challenges. See United States v. Lasaga,328 F.3d 61, 63 (2d Cir. 2003).”

The Supreme Court will settle the matter soon. In the meantime, however, practitioners may wish to be mindful of the conflict!

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