Sunday, August 04, 2019

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

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


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