Case o' The Week: When in Doubt, File it Out - Fabian-Baltazar and Duty to File Notice of Appeal

  Hard to savor waiver favor.

United States v. Fabian-Baltazar, 2019 WL 3418449 (9th Cir. July 30, 2019), decision available here.

Players: Per curiam decision with Judges Rawlinson, Bea, and Hurwitz. Win for ED Cal AFPD Peggy Sasso.    

Facts: Fabian-Baltazar pleaded guilty to possession for distribution of over 50 grams of meth. Id. at *1. His plea agreement had waivers of the right to appeal and collateral attack. Id. 

   After sentencing, he nonetheless filed a § 2255. The habeas motion alleged (among other things) that his trial counsel committed IAC by failing to file a notice of appeal. Id. The district court’s dismissal, based on the plea agreement waivers, was affirmed by the Ninth. Id.

   The Supreme Court granted cert., vacated, and remanded, in light of Garza v. Idaho, 139 S. Ct. 738 (2019). 

  The government declined to enforce the collateral attack waiver on remand, to the Ninth, so the Circuit analyzed the case “as involving only an appeal waiver.” Id. at *2.

Issue(s): “The parties agree that a remand is required in light of Garza but disagree about the scope of the remand. Fabian-Baltazar argues that we should simply reverse the district court’s order and direct it to address the merits . . . . The government argues that, before proceeding to the merits, the district court must first determine whether Fabian-Baltazar requested his attorney to file a notice of appeal.” Id. at *2.

Held: “Fabian-Baltazar’s § 2255 motion contends that he expressly instructed his attorney to file a notice of appeal. But, the government has never had the opportunity to challenge that assertion, because . . . . prior rulings held that the collateral attack waiver nonetheless barred the § 2255 motion. The district court therefore should determine on remand whether such an instruction was given, and if not, whether counsel failed to consult, and if so, whether that failure constituted deficient performance.” Id. at *2.

Of Note: On their surface Garza and Fabian-Baltazar are nice outcomes: the defendants may get to file appeals, despite appellate waivers. 

  Counsel in the trenches, however, worry about breach: will the government start backing out of deals when a defendant demands an appeal despite an appellate waiver? See generally Garza, 139 S. Ct. at 756 (Thomas, J., dissenting) (discussing potential life sentence – instead of imposed ten-year term -- if Garza breached plea agreements by filing an appeal).

  The facts of Fabian-Baltazar illustrate the cost-benefit conundrum. Mr. Fabian-Baltazar was caught with 2,636 grams of meth. See D.Ct. Ord. Denying Habeas Mot., 2015 WL 1497537, *5. The government kept its side of the plea-agreement bargain, and recommended five offense levels off for Acceptance and Safety Valve. The district court varied down an additional 15 months from the guideline range, to a ten-year term. See id. 

  Fabian-Baltazar’s habeas, however, complains that he didn’t get below the mand-min of ten years (a promise not made in the plea agreement). Id. at *4.

  Will Mr. Fabian-Baltazar's long quest to file an appeal ultimately end in an Anders brief and breach exposure?

  Garza may vindicate appellate rights, but it adds real challenges to defense counsel charged with advising and protecting indigent clients.   

How to Use: Beware of Fabian-Baltazar’s lessons:

1. It is per se IAC to not file an appeal when expressly requested by our clients – even if there is an appellate waiver;

2. If you “consult” with the client after sentencing (consult means, “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes,”), it is only IAC to not file notice of an appeal if we are expressly told to file by our client;

3) If you do not “consult” with your client about filing an appeal (even if there is an appellate waiver), it may be IAC.

  Id. at *2.

The punchline? Consult with clients about filing an appeal, even if there is an appellate waiver (and wise to document that discussion in a letter or memo).

                                               
For Further Reading: Rather than fuzzy law on our duties, IAC claims over alleged failures to notice appeals, and messing with habeas evidentiary hearings, wouldn’t it be simpler just to eliminate appellate waivers altogether?

  Don’t scoff: there seems to be a growing judicial skepticism to the things. In 2018, for example, the Second Circuit refused to enforce a waiver where no consideration was apparent in the plea agreement. See Second Circuit blog here. 

Image of “waiver” from https://tmcls.co.uk/faulkner-v-director-of-legal-aid-casework/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org 

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Case o' The Week: No CYA for INA & COP -- Rodriguez-Vega and Padilla Immigration Advisements for Guilty Pleas

   The Rule Against Perpetuities, we are warned, is a trap for the unwary.

  But the R.A.P. is child’s play, compared to the I.N.A..

United States v. Rodriguez-Vega, No. 13-56415 (9th Cir. Aug. 14, 2015), decision available here.

Players: Decision by Judge Reinhardt, joined by Judges Fernandez and Clifton. Big win for A.F.D. Doug Keller, Federal Defenders of San Diego, Inc.  

Facts: Born in Mexico, Rodriguez-Vega came to the United States and became an LPR at 13. Id. In her twenties she was charged with felony Attempted Transportation of Illegal Aliens and Aiding and Abetting. Id. 

She plead guilty to misdemeanor charges, with a plea agreement that warned that the convictions “may” have immigration consequences. Id. at 5-6. At the sentencing hearing, defense counsel stated that there was a “high probability” that Rodriguez-Vega would be deported, and that the conviction was “probably” considered an agg felony for purposes of immigration law. Id.

Rodriguez-Vega was promptly issued an immigration Notice to Appear, alleging she was removable because her conviction qualified as an agg felony. Id. Her habeas petition alleging IAC was denied. Id. at 6.

Issue(s): “[Rodriguez-Vega] asserts that she was deprived of effective assistance of counsel because her attorney failed to advise her that her plea agreement rendered her removal a virtual certainty, and that the court erred in dismissing her petition without holding an evidentiary hearing.” Id. at 4.

Held: “We hold that the district court . . . did err in failing to hold that under the controlling law Rodriguez-Vega’s counsel’s assistance was ineffective . . . , [W] e order the conviction vacated.” Id. “[W]e hold that Rodriguez-Vega’s counsel was required to advise her that her conviction rendered her removal virtually certain, or words to that effect.” Id. at 9 (emphasis added). 

“According to counsel’s own declaration, before Rodriguez-Vega pled guilty he never informed her that she faced anything more than the mere ‘potential’ of removal. Because the immigration consequences of her plea were clear and her removal was virtually certain, we hold counsel’s performance constitutionally ineffective.” Id. at 11.

Of Note: The Court squarely rejects the government’s arguments that Rodriguez-Vega might avoid removal under the “family member exception” for first time offenders, or receive withholding of removal, or qualify for relief under the Convention against Torture. Id. at 9. Equally irrelevant were the general immigration advisements in the government’s plea agreement and the court’s plea colloquy. Id. 

 

This is a “buck stops here” decision, and Judge Reinhardt makes it clear that the buck stops on defense counsel’s desk.

How to Use: Rodriguez-Vega plead guilty to misdemeanors. We worry about agg felonies. Yet the statute “expressly identifies Rodriguez-Vega’s [misdemeanor] conviction as a ground for removal.” Id. at 8. 

Judge Reinhardt views the immigration law as “succinct, clear, and explicit;” it means removal is “virtually certain.” A criminal defense attorney slogging through the INA provisions at page 8 of the decision may wonder if it is as clear as the Court assures. Moreover, if you misadvise a client that removal for a lesser charge is “virtually certain” – and it wasn’t – and your client then gets hammered after a hopeless trial based on that advice, an equally valid IAC claim awaits. 

Read Rodriguez-Vega and you’ll ache for some good advice from a solid immigration attorney. The National Immigrant Justice Center is a great start – a welcome resource for CJA counsel. See "Defender Initiative" here.  

                                               

For Further Reading: You’ve read the terrific decision by Judge Koh, requiring probable cause for historical cell site location data. See blog here. 

Since her decision, the Fourth Circuit has weighed in, in Graham. See decision here. 

Supreme Court bound? Professor Kerr thinks maybe. See article here.

Image of trap from http://www.thefinancialcoach.co.za/wp-content/uploads/2015/01/Self-Insurance-Trap-e1397769075987.jpg 

Image of "Buck Stops here" from http://www.historycompany.com/productimages/01755_full.jpg 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Breach to the Third -- Manzo II, Breach, IAC, and "Law of the Case"

How many times does the Ninth have to say that the government needs to keep its promises and stand by its deals?

Three, so far, in 2012 (and its only April!)

United States v. Jose Manzo, (Manzo II) 2012 U.S. App. LEXIS 6838 (Apr. 5, 2012), decision available here.

Players: Big win by ED WA AFPD Matthew Campbell. Decision by Judge Gould.

Facts: Manzo was charged with possession of precursors to manufacture meth, and with distribution of meth. Id. at *2. He went to trial on the manufacturing case and was found guilty; sentencing was continued pending resolution of the distribution case. Id.

Manzo then pleaded guilty pursuant to a plea agreement in the distribution case. Id. In the agreement the government agreed to offense level (OL) 34, and to a three-level reduction for acceptance. Id. at *2-*3.


Sentencing came, and Probation went south: the PSR grouped the two offenses, converted the precursor and meth to the marijuana equivalency as directed by the guidelines, added the marijuana amounts, and came up with offense level 38. Id. at *3. The PSR also refused to give Manzo acceptance, because he had gone to trial on the manufacturing case. Id.

At sentencing, the government abandoned the OL 34 recommendation and endorsed OL 38, and didn’t recommend the acceptance reduction. Id. at *5.

Defense counsel didn’t argue breach. Id.

Manzo – who expected no more than 14 years with his deal – got hammered with 24 at sentencing. Id. In a mem dispo (“Manzo I”) the Ninth upheld the sentence on direct appeal, under plain error review. Id. at *6.

Issue(s):

1. IAC: “Manzo argues that his counsel gave him ineffective assistance of counsel.” Id. at *8.

2. Breach: “Manzo contends that the government breached its plea agreement with respect to the distribution sentence by merely agreeing before the district court that in light of the grouping, a base offense level of 38 was a correct calculation without recommending a base offense level of 34, per the agreement’s terms, and by not recommending a downward departure for Manzo’s acceptance of responsibility.” Id. at *11.

Held:

1. IAC: “We agree with Manzo that his counsel’s failure to anticipate that the offenses would be grouped for sentencing purposes and then advise Mazo to move to withdraw his agreement was constitutionally deficient.” Id. at *9.

2. Breach: “[T]he government had agreed that a base offense level of 34 would apply to Manzo’s sentence and promised to recommend a 3-level downward departure upon Manzo’s acceptance of responsibility. At the sentencing hearing, however, the government did neither and so breached the express terms of the plea agreement.” Id. at *13.

Of Note: The second time was a charm, for Manzo.

  The present case was decided on habeas review. Three years ago, on direct appeal, a different three-judge panel of the Ninth held that the government didn’t breach. See Manzo I, 337 Fed. Appx. 643 (9th Cir. June 1, 2009) (mem.) (Per curiam, Judges Canby, Thompson and Callahan).

In this week’s habeas “Manzo II,” Judge Gould acknowledges the earlier mem dispo, but explains that his panel isn’t bound by that decision – quoting authority that explains that the “law of the case” doctrine doesn’t apply when “the first decision was clearly erroneous.” Manzo II, 2012 U.S. App. LEXIS 6838 at *13 & n.3 (citation omitted).

For appellate folks, footnote three is the most intriguing corner of this interesting case: a welcome tool to distinguish a “conclusory sentence” in a previous panel’s “summary disposition.” Id. at *13-*15 & n.3.

How to Use: “Don’t breach” seems a recent Ninth theme. See recent blogs on breach here. Judge Gould explains – yet again – what the government is to do when its plea agreement contains incorrect guideline calculations. Id. at *16. Turns out it isn’t that hard, to keep a promise: an AUSA is to acknowledge the correct guidelines, but argue for lower guidelines reflected in the negotiated deal. Id. 

With three big Ninth breach decisions in the last four months, there’s certainly plenty of guidance on how to handle the situation . . . .

For Further Reading: Judge Gould, author of Manzo II, replaced Judge Beezer when he went senior in 1996. We’re sad to report that Judge Beezer passed away last week. For a review of some notable criminal-law decisions by Judge Beezer – including the original Carty case – see blog entries here.

 Image of "Breach" from http://www.moviewallpaper.net/wpp/Ryan_Phillippe_in_Breach_Wallpaper_2_1024.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: JDA is A-OK -- Gonzalez and Joint Defense Agreements

In good times and in bad, in sickness and in health, through habeas claims of ineffective assistance of counsel: what defense agreements have joined let no district court put asunder.

United States v. Gonzalez, 2012 WL 206266 (9th Cir. Jan. 25, 2012), decision available here.

Players: Big win by ND Cal AFPD Dan Blank and Research and Writing Attorney Steven Koeninger. Decision by Judge Hawkins, joined by Judge M. Smith and DJ Duffy.

Facts: Gonzalez and his wife were both charged of an insurance scam relating to a car, and with burning the car to further the scheme (a 10-year mand-min). Id. at *1. Their trials were severed. Id. Gonzalez, who went first, was convicted of the fraud and beat the burning-of-the car charge. Id.

Gonzalez offered to testify on his wife’s behalf at her trial; her counsel demurred, and the wife was convicted of all counts. Id. The wife filed a habeas alleging ineffective assistance of counsel ("I.A.C.") for failing to offer Gonzalez’s testimony. During the habeas litigation, the government sought subpoenas of the wife’s original defense counsel. Id. Gonzalez’s defense counsel, AFPD Blank, sought quashal of the subpoenas and depositions of the wife’s trial defense counsel. This motion to quash was based on an oral  joint defense agreement (“JDA”) between Gonzalez and his wife made before the original trials. Id. at *2. The district court denied the motions to quash, holding that a habeas claim of I.A.C. trumped any JDA, and that all information to and from trial counsel bearing on the I.A.C. claim was discoverable. Id. Gonzalez filed an interlocutory appeal. Id.

Issue(s): “On appeal, the government does not advance the rationale proffered by the district court. Rather, it argues that (1) Gonzalez did not sufficiently establish on the record that a JDA actually existed, (2) that such an agreement could not exist in the circumstances here, where Gonzalez’s defense was adverse to [his wife’s], and (3) even if one existed, the court correctly held that [the wife’s] section 2255 claim acted as a unilateral waiver of the privilege in these circumstances.” Id. at *3 (note omitted).

Held: 1 & 2: Existence of JDA: “Here, there was sufficient evidence in the record to support the existence of a JDA, at least to a point.” Id. at *4. “If their mutual interest is defined more narrowly [as to the wife’s innocence relating to the use-of-fire count], then it is possible that their other adverse positions did not undermine their joint defense privilege on this specific issue.” Id. at *5. 

3. Waiver by Habeas Claim: “[A]llowing unilateral waiver of confidential communications by a single codefendant without the consent of the others would likely severely undermine the rationale for the joint defense privilege in the first place . . . [W]e conclude the district court’s analyses regarding privilege versus work product and unilateral waiver by filing the section 2255 petition were in error.” Id. at *8 (citation omitted).

Of Note: Gonzalez joins United States v. Henke, 222 F.3d 633 (9th Cir. 2000) as a lead Ninth JDA decision. (Interestingly, Henke also arose out of the ND Cal). Mine Gonzalez heavily for its many JDA gems: these agreements can be oral, they can be evidenced by attorney conduct, they can be count-specific in the midst of other adverse defenses, and – most importantly – they cannot be unilaterally waived by a co-defendant asserting an I.A.C. claim.

That is a terrifically important holding: imagine a JDA that is only as good as long as all defendants remain happy and no one goes after their attorneys on a post-conviction habeas. That JDA would be worthless, making the defense of complex and multi-defendant cases impossible. Judge Hawkins, thankfully, well-understands the broader significance of the Gonzalez decision, and carefully explains why unilateral waiver of JDAs by IAC petitioners would make JDAs meaningless. Id. at *7-*8.

How to Use: As Judge Hawkins emphasizes, the defense can have an oral or an implicit JDA (and many times, it makes sense to do so). Nonetheless, sometimes the clarity of a written agreement can moot the government’s whining when the case later implodes. There are many flavors of written JDAs – from limited shared work-product agreements with minimal protections, to full “Henke” agreements with cross-duties of loyalty and confidentiality. Defense counsel interested in these various types of written JDAs can contact the ND Cal FPD for samples.               
                  
For Further Reading: JDAs are wonderfully complicated beasts that spawn ethical issues by the bushel. For a concise outline of these knotty ethical questions, see here.




Image of burning car from http://electricmini.blogspot.com/2011/06/electricity-producers-launch-free-study.html


Steven Kalar, Senior Litigator ND Cal FPD. Website at www.ndcalfpd.org



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