Credit must be given to Professor Berman for spotting some great language from the Supreme Court’s recent decision in Halbert v. Michigan (link here for his discussion) that seriously undermines the Second Circuit’s decision in Morgan, which enforced an appellate waiver entered into by the defendant before Blakely was decided. Justice Ginsburg’s opinion for the majority, expecially as highlighted and construed by Justice Thomas in his dissent, contains great language gutting Morgan‘s rationale and supporting an argument that a defendant cannot waive a right that was not previously recognized — e.g., his Sixth Amendment right not to be sentenced under the mandatory Guidelines regime.
Halbert‘s primary holding is that a defendant has the constitutional right to appointed counsel on his/her first appeal, even where the state has made that appeal a discretionary one rather than one that the defendant is entitled to as a matter of right. In reaching the conclusion that Halbert’s right to counsel was violated when Michigan refused to appoint counsel to help him file a leave to appeal application, Justice Ginsburg also rejected the State’s claim that even if such a right existed, Halbert waived that right when he pled nolo contendere to the charge against him. In so doing, Justice Ginsburg explained that “at the time he entered his plea, Halbert . . . had no recognized right to appointed appellate counsel,” and cited as support Iowa v. Tovar, 541 U.S. 77 (2004) for the proposition that “waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a ‘knowing, intelligent act done with sufficient awareness of the relevant circumstances.'” 2005 WL 1469183 at *11. (NB: The passage cited from Tovar includes a quote from Brady v. United States, 397 U.S. 742 (1970), which is cited prominently by . . . . Morgan). A fair argument, based on this explanation, is that appellate waivers entered into before Blakely are not enforceable because the defendant could not have knowingly & intelligently waived his Sixth Amendment right not to be sentenced under mandatory Guidelines before Blakely, since there was “no [such] recognized right” at that time.
Recognizing the import of this statement, Justice Thomas went apopleptic. He described the statement as “bound to wreak havoc” on other areas of waiver law, and then cited as an example — yes, you guessed it — the enforcement of appellate waivers in light of Booker. As he wrote:
“For instance, suppose that a defendant waived the right to appeal his sentence after the regional Court of Appeals had held that the principle of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), did not apply to the United States Sentencing Guidelines, but before this Court held the contrary in United States v. Booker, 543 U.S. —-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The defendant could claim that, in his circuit, the Sixth Amendment right against the application of the Guidelines was “no[t] recognized,” and hence that the right was nonwaivable.”
2005 WL 1469183 at *22 fn.2. Thank you, Justice Thomas, for making the argument for all of us. (Of course, the argument is even better for those defendants who entered into their appellate waivers before Blakely was decided).