Supreme Court Decision Impacts Assistance-of-Counsel Claims

On February 27, 2019, in Garza v. Idaho, 586 U.S. _ (2019), the Supreme Court of the United States, in a split decision, eased a client’s burden of establishing harm for the purposes of making an ineffective assistance of counsel argument against his former criminal defense lawyer.

The Sixth Amendment provides that a criminal defendant has the right to assistance of counsel.  A defendant who seeks relief based on a claim for ineffective assistance of counsel must ordinarily prove both that counsel’s representation fell below an objective standard of reasonableness and that such deficiency was prejudicial to the defense.  However, prejudice has been held presumed under certain circumstances.  In this regard, the Supreme Court had previously held, in Roe v. Flores-Ortega, 528 U. S. 470 (2000), that when an attorney’s deficient performance cost 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.” Id., at 484.  In Garza, the Supreme Court expanded upon this exemption to the prejudice requirement, holding that prejudice can be presumed even if the defendant waived his right to an appeal.

In Garza, the client defendant signed two plea agreements, each arising from criminal charges brought by the State of Idaho.  Both plea agreements included a clause waiving the right to appeal.  Garza was thereafter sentenced by the trial court in accordance with the terms of his plea.  However, Garza advised his attorney that he wished to pursue an appeal of his sentencing and directed counsel to file a notice of appeal. Counsel, after advising Garza an “appeal was problematic because he had waived his right to appeal,” failed to file a notice of appeal.  Several months later, Garza sought post-conviction relief, alleging ineffective assistance of counsel based on the attorney’s failure to file the notice of appeal.  Both the trial court and appellate courts denied Garza relief, holding, due to his waiver of appeal, Garza needed to show both deficient performance and resulting prejudice from counsel’s error.

The Supreme Court accepted certiorari of Garza’s appeal and reversed, holding that the  decision in Roe v. Flores-Ortega – that prejudice to the defendant is presumed when counsel’s deficient performance costs the defendant an appeal – applied even when the criminal defendant had waived the right to an appeal as part of a plea deal.  In coming to this conclusion, the Supreme Court noted a variety of circumstances which would allow for an appeal to proceed, even when the defendant agreed to waive appeal.  Specifically, the Court noted that that an appeal waiver only precludes appeals that fall within its scope, and thus appeal waivers – which vary on a case by case basis – can and may leave many types of claims un-waived.  The Court further noted that even if a claim is properly waived, the appeal could still proceed if the prosecution forfeits application of the waiver.  The Supreme Court further noted that all jurisdictions appear to treat at least some claims un-waivable.  Further, defendants retain the right to challenge whether the waiver itself is valid and enforceable.  Thus, the Supreme Court noted that “a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.”

With the foregoing in mind, the Supreme Court ruled that the holding in Flores-Ortega should be applied to presume prejudice – with no further showing from the defendant of the merits of his underlying claims –  even when an appeal waiver has been executed, as the defendant “retained the right to appeal at least some issues,” “giving him the right to a proceeding, and he was denied that proceeding altogether as a result of counsel’s deficient performance.”

While the Supreme Court’s decision in Garza is a logical extension of its prior holding in Flores-Ortega, it certainly eases a criminal client’s burden in making an ineffective assistance-of-counsel claim and certainly could lead to an increased number of these claims being made in the criminal realm.  The ultimate impact on civil liability for criminal defense lawyers remains to be seen and will certainly vary across jurisdictions; however creative lawyers may attempt to use this decision to similarly expand liability in the civil context.