Sunday, June 12, 2005

Case o' The Week: Sandoval-Lopez wins the battle . . .

An indigent defendant may have won the right to file an appeal in this habeas victory -- but could ultimately face a much higher exposure after the win. See United States v. Sandoval-Lopez, __ F.3d. __, 2005 WL 1322902 (9th Cir. June 6, 2005), available here. In Sandoval-Lopez, the Ninth held that failure to file an appeal on a defendant's request is I.A.C., no matter how foolish that demand may be.

Players: Win for Anne Walstrom of Federal Defenders of E. Wa. and Idaho.

Facts: Sandoval-Lopez was caught with fifteen pounds of heroin, having told an informant that he was a smuggler. __ F.3d. __, 2005 WL 1322902, *1. Defense counsel got a deal for misprison of a felony and a telephone count – with a combined seven year stat max, despite the much-higher exposure for the drugs. Id. In a written plea agreement, and during the plea colloquy, the defendant waived appeal – and then didn’t appeal after sentencing. Id. A year later, Sandoval-Lopez filed a habeas, alleging – among other errors – counsel’s refusal to file an appeal as instructed. Id. at *2.

Issue: "[W]hether defense counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to file a notice of appeal." Id.

Held: "Because the district court did not hold an evidentiary hearing [in response to the habeas petition] . . . we have to assume, for purposes of our analysis, that after sentencing Sandoval-Lopez asked his lawyer to appeal and his lawyer did not do as he asked . . . . As contrary to common sense as it seems, we are compelled by the law to reverse the district court." Id. at *3. "We are compelled to conclude that the district court needs to hold an evidentiary hearing to determine whether Sandoval-Lopez really did tell his lawyer to appeal and his lawyer refused though Sandoval-Lopez demanded it." Id. at *5.

Of Note: The Court is well-aware of the troubling consequences of this rule, analogizing it to a patient who demands a doctor conduct risky surgery with a low chance of success. "[E]ven though no one would think a doctor incompetent for refusing to perform unwise and dangerous surgery, the law is that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Id. at *4.

The Ninth turns to a poker analogy to illustrate Sandoval-Lopez's decision. "It may be very foolish to risk losing a seven-year plea bargain on an appeal almost sure to go nowhere, in a major heroin case. Nevertheless the client has the constitutional right . . . to bet on the possibility of winning the appeal and then wining an acquittal, just as a poker player has the right to hold the ten and queen of hearts, discard three aces, and pray that when he draws three cards, he gets a royal flush." Id. at *5 (citations omitted).

How to Use: One hopes that any written plea agreement that requires an appellate waiver offers significant consideration to the client in return. If that assumption is true, Sandoval-Lopez will probably do little to help most of our clients. Instead, it provides a mechanism for bad jailhouse lawyers to jeopardize good deals. Unfortunately, the decision encourages counsel to "paper the file," by documenting (apart from the plea agreement and plea colloquy) the defendant’s agreement to waive appeal. Ironically, that documentation may save the defendant from a significantly higher sentence somewhere down the pike, as a district court is forced to conduct a habeas evidentiary hearing on a failure to file an appeal.

For Further Reading: Which is more important, the client’s ultimate interest (like a shorter prison sentence), or his or her sovereignty (such as controlling decisions like appeals, which could jeopardize a very favorable plea agreement?) The tension between these two admirable goals – a tension familiar to any public defender – is well-illustrated in Sandoval-Lopez. For the classic example of this dilemma, revisit the tough defense decisions made during the Kaczynski trial. See article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD, website available at


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