Federal Corner: Another Ineffective Assistance of Counsel Case and a Dissent by Justice Thomas – By F. R. Buck Files Jr.


As we used to say in the Marine Corps: “Listen up. This is the word.” Ignore it at your own peril!

In every case, state or federal, a lawyer representing a defendant in a criminal case is required to give notice of appeal if the client requests it—even if the court has followed a plea recommendation and the defendant has signed a waiver of appeal.


On February 27, 2019, the Supreme Court of the United States held that a defendant’s lawyer rendered deficient performance by not filing a notice of appeal in light of the defendant’s clear request that he do so—and, that his lawyer’s constitutionally deficient failure to file a notice of appeal was presumptively prejudicial, despite appeal waivers signed by the defendant. Garza v. Idaho, 2019 WL 938523 (U.S. February 27, 2019) [Opinion by Sotomayor, in which Roberts, Ginsburg, Breyer, Kagan, and Kavanaugh joined. Thomas filed a dissenting opinion, in which Gorsuch joined, and in which Alito joined as to Parts I and II.]

Usually, we would look to the opinion of the Court for the facts in the case; however, Justice Thomas does a better job of setting them out than Justice Sotomayor. His dissent begins as follows:

[The Facts in Garza]

Petitioner Gilberto Garza avoided a potential life sentence by negotiating with the State of Idaho for reduced charges and a 10-year sentence. In exchange, Garza waived several constitutional and statutory rights, including “his right to appeal.” App. to Pet. for Cert. 44a, 49a. Despite this express waiver, Garza asked his attorney to challenge on appeal the very sentence for which he had bargained. Garza’s counsel quite reasonably declined to file an appeal for that purpose, recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain.

* * *

In 2015, in accordance with two plea agreements, Garza entered an Alford plea to aggravated assault and pleaded guilty to possession with intent to deliver methamphetamine. Under the terms of the plea agreements, Idaho agreed not to (1) file additional burglary and grand theft charges; (2) refer Garza for federal prosecution on a charge of unlawful possession of ammunition by a felon, see 18 U. S. C. § 922(g)(1); or (3) seek a “Persistent violator” sentencing enhancement that would expose Garza to a potential life sentence, see Idaho Code Ann. § 19-2514 (2017). In exchange, Garza agreed to “‘waiv[e] his right to appeal’” and his right to file a motion for correction or reduction of his sentence. Ante, at ___. And both parties agreed to specific sentences totaling 10 years of imprisonment, which would be binding on the District Court if it accepted the plea agreements. See Idaho Crim. Rules 11(f)(1)(C) and (f)(3) (2017) (allowing parties to agree to a binding sentence). Thus, the judge could impose no sentence other than the 10 years for which Garza had bargained.

        The trial court accepted the plea agreements and, as required, sentenced Garza to 10 years’ imprisonment. How­ever, the court noted that if the cases had been “considered individually,” a “harsher sentence” might have been warranted due to Garza’s “history of violent crime” and the “gratuitous aggression” displayed by Garza in the aggravated-assault case. Record 336.

        Four months later, Garza filed the petitions for postconviction relief at issue here. Among other things, he claimed that his pleas were not voluntary and that his counsel had been constitutionally ineffective for failing to file an appeal despite repeated requests that he do so. For relief, Garza requested that his sentences “run concurrent.” The trial court appointed counsel to pursue Garza’s collateral challenges. It subsequently dismissed Garza’s claim that his plea was involuntary for “lack of supporting evidence,” but it allowed the ineffective-assistance claim to proceed. App. to Pet for Cert. 3a, 29a.

* * *

This is a case that you should read in its entirety. Because of space constraints, I have set out only a small portion of Justice Sotomayor’s opinion which reads, in part, as follows:

[The Presumption of Prejudice]

        In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), this Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” . . . This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.

* * *

[A Conflict Among the Circuits]

. . . 8 of the 10 Federal Courts of Appeals to have considered the question have applied Flores-Ortega’s presumption of prejudice even when a defendant has signed an appeal waiver.

* * *

We granted certiorari to resolve the split of authority. 585 U. S. ___, 138 S.Ct. 2649, 201 L.Ed.2d 1048 (2018). We now reverse.

* * *

[The Sixth Amendment and Strickland]

The Sixth Amendment guarantees criminal defendants “the right . . . to have the Assistance of Counsel for [their] defence.” The right to counsel includes “‘the right to the effective assistance of counsel.’” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). Under Strickland, a defendant who claims ineffective assistance of counsel must prove (1) “that counsel’s representation fell below an objective standard of reasonableness,” 466 U.S. at 687–688, 104 S.Ct. 2052, and (2) that any such deficiency was “prejudicial to the defense,” id., at 692, 104 S.Ct. 2052.

        “In certain Sixth Amendment contexts,” however, “prejudice is presumed.” Ibid. For example, no showing of prejudice is necessary “if the accused is denied counsel at a critical stage of his trial,” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), or left “entirely without the assistance of counsel on appeal,” Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Similarly, prejudice is presumed “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659, 104 S.Ct. 2039. And, most relevant here, prejudice is presumed “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” Flores-Ortega, 528 U.S. at 484, 120 S.Ct. 1029. We hold today that this final presumption applies even when the defendant has signed an appeal waiver.

* * *

[Garza’s Attorney Rendered Deficient Performance]

[W]e turn to the precise legal issues here. As an initial matter, we note that Garza’s attorney rendered deficient performance by not filing the notice of appeal in light of Garza’s clear requests. As this Court explained in Flores-Ortega:

 “We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon coun­sel to file the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes.” 528 U.S. at 477, 120 S.Ct. 1029 (citations omitted); see also id., at 478, 120 S.Ct. 1029.

* * *

[The Issue Before the Court]

We now address the crux of this case: whether Flores-Ortega’s presumption of prejudice applies despite an appeal waiver. The holding, principles, and facts of Flores-Ortega show why that presumption applies equally here.

[Back to Flores-Ortega]

With regard to prejudice, Flores-Ortega held that, to succeed in an ineffective-assistance claim in this context, a defendant need make only one showing: “that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” 528 U.S. at 484, 120 S.Ct. 1029. So long as a defendant can show that “counsel’s constitutionally deficient performance deprive[d him] of an appeal that he otherwise would have taken,” courts are to “presum[e] prejudice with no further showing from the defendant of the merits of his underlying claims.” Ibid. Because there is no dispute here that Garza wished to appeal, see supra, at ___, a direct application of Flores-Ortega’s language resolves this case. See 528 U.S. at 484, 120 S.Ct. 1029.

* * *

[Invoking an Ineffective Assistance of Counsel Claim]

[W]e reaffirm that, “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal,” with no need for a “further showing” of his claims’ merit, ibid., regardless of whether the defendant has signed an appeal waiver.

* * *

[The Holding of the Court]

We hold today that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver. This ruling follows squarely from Flores-Ortega and from the fact that even the broadest appeal waiver does not deprive a defendant of all appellate claims. Accordingly where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant’s express instructions, prejudice is presumed “with no further showing from the defendant of the merits of his underlying claims.” See Flores-Ortega, 528 U.S. at 484, 120 S.Ct. 1029.

[The Conclusion]

The judgment of the Supreme Court of Idaho is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.


Part III of Justice Thomas’ opinion reads, in part, as follows:

[Moving Away From the Original Meaning of the Sixth Amendment]

In addition to breaking from this Court’s precedent, today’s decision moves the Court another step further from the original meaning of the Sixth Amendment. The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” That provision “as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Padilla v. Kentucky, 559 U.S. 356, 389, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (Scalia, J., dissenting). Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel. The result is that convicted criminals can relitigate their trial and appellate claims through collateral challenges couched as ineffective-assistance-of-counsel claims. Because little available evidence suggests that this reading is correct as an original matter, the Court should tread carefully before extending our precedents in this area [emphasis added].

[The Historical Background of the Sixth Amendment]

[T]he Sixth Amendment appears to have been understood at the time of ratification as a rejection of the English common-law rule that prohibited counsel, not as a guarantee of government-funded counsel [emphasis added].

        This understanding—that the Sixth Amendment did not require appointed counsel for defendants—persisted in the Court’s jurisprudence for nearly 150 years.

* * *

[Changes to the Court’s Perception of the Sixth Amendment]

The Court began shifting direction in 1932, when it suggested that a right to appointed counsel might exist in at least some capital cases, albeit as a right guaranteed by the Due Process Clause. . . . Soon thereafter, the Court held that the Sixth Amendment secures a right to court-appointed counsel in all federal criminal cases. Johnson v. Zerbst, 304 U.S. 458, 462–463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). And in 1963, the Court applied this categorical rule to the States through the Fourteenth Amendment, stating “that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Gideon, supra, at 344, 83 S.Ct. 792. Neither of these opinions attempted to square the expansive rights they recognized with the original meaning of the “right . . . to have the Assistance of Counsel.” Amdt. 6 [emphasis added].

[The Court Should Hesitate Before Extending Our Precedents]

The Court should hesitate before further extending our precedents and imposing additional costs on the taxpayers and the Judiciary. History proves that the States and the Federal Government are capable of making the policy determinations necessary to assign public resources for appointed counsel. The Court has acknowledged as much. Betts, 316 U.S. at 471, 62 S.Ct. 1252 (declining to extend the right to counsel to the States because “the matter has generally been deemed one of legislative policy”). Before the Court decided Gideon, the Court noted that “most of the States have by legislation authorized or even required the courts to assign counsel for the defense of indigent and unrepresented prisoners. As to capital cases, all the States so provide. Thirty-four States so provide for felonies and 28 for misdemeanors.” Bute, 333 U.S. at 663, 68 S.Ct. 763 (internal quotation marks omitted). It is beyond our constitutionally prescribed role to make these policy choices ourselves. Even if we adhere to this line of precedents, our dubious authority in this area should give us pause before we extend these precedents further [emphasis added].

[Justice Thomas’ Reliance on Betts]

It has often been noted that Justice Thomas is an originalist – and that explains the reasoning in his dissent. What caught my eye, though, is his citing of Betts v. Brady, 316 U.S. 455 (1942). Betts was overruled by Gideon 55 years ago!

[The Facts in Betts]

Betts was indicted for robbery in the state of Maryland. He did not have the funds to employ counsel. At the time of his arraignment, in the Circuit Court of Carroll County, Maryland, he requested that counsel be appointed for him. Betts was advised that it was not the practice in Carroll County to appoint counsel for indigent defendants except in prosecutions for murder and rape.

[In the Circuit Court]

Betts did not waive his right to counsel, but pleaded not guilty and had a trial before the court. At his trial, he cross-examined the State’s witnesses and called witnesses of his own. Although given the opportunity, he did not take the witness stand. The judge found him guilty and imposed a sentence of eight years.

[Through the Maryland Courts to the Supreme Court]

After a proceeding through the Maryland state courts, Betts applied to the Supreme Court for a writ of certiorari. The writ was granted and Betts’ case was considered by the Supreme Court. Justice Roberts delivered the opinion of the Court, denying relief to Betts. His opinion reads, in part, as follows:

[Petitioner’s Argument That Counsel Should Be Appointed]

The petitioner, in this instance, asks us, in effect, to apply a rule in the enforcement of the due process clause. He says the rule to be deduced from our former decisions is that, in every case, whatever the circumstances, one charged with crime, who is unable to obtain counsel, must be furnished counsel by the state. Expressions in the opinions of this court lend color to the argument, but, as the petitioner admits, none of our decisions squarely adjudicates the question now presented.

* * *

[The Issue Before the Court]

The question we are now to decide is whether due process of law demands that in every criminal case, whatever the circumstances, a state must furnish counsel to an indigent defendant.

* * *

[The Appointment of Counsel Is Not a Fundamental Right]

[I]n the great majority of the states, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial. On the contrary, the matter has generally been deemed one of legislative policy. In the light of this evidence we are unable to say that the concept of due process incorporated in the Fourteenth Amendment obligates the states, whatever may be their own views, to furnish counsel in every such case. Every court has power, if it deems proper, to appoint counsel where that course seems to be required in the interest of fairness [emphasis added].

* * *

[The Fourteenth Amendment Does Not Require the Appointment of Counsel in Every Case]

As we have said, the Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel [emphasis added].


My Thoughts

  • Fortunately, except for Justice Gorsuch, the rest of the Court does not share Justice Thomas’ view of the Sixth Amendment or we might return to a pre-Gideon era.
  • How conservative is Justice Gorsuch? His joining with Justice Thomas in the dissent answers that question.
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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