A federal criminal defendant who wants to appeal should tell defense counsel immediately. And when a defendant clearly instructs an attorney to file a notice of appeal, the rule is straightforward:
File the notice of appeal.
That remains true even when the defendant pleaded guilty and signed a plea agreement containing an appeal waiver.
The Supreme Court made the rule clear in Garza v. Idaho, 586 U.S. 232 (2019). A defense attorney cannot refuse to file a requested notice of appeal simply because the lawyer believes an appeal waiver will prevent the defendant from succeeding.
The Federal Criminal Appeal Deadline Is Short
Under Federal Rule of Appellate Procedure 4(b)(1)(A), a defendant in a federal criminal case generally has only 14 days to file a notice of appeal.
The 14-day period generally runs from the later of the entry of the judgment or order being appealed or the government’s filing of a notice of appeal.
That leaves little time for indecision after sentencing.
A defendant who wants to appeal should communicate that decision to counsel immediately.
The Defendant Decides Whether to Appeal
The decision whether to take an appeal belongs to the defendant.
The attorney can advise the defendant about the advantages and disadvantages of an appeal. Counsel can explain an appeal waiver, identify potential appellate issues, and discuss the likelihood of success.
But when the defendant gives counsel a clear instruction to appeal, the lawyer cannot substitute his or her judgment for the client’s decision.
The Supreme Court has described filing a notice of appeal as a ministerial task. The notice preserves the defendant’s ability to pursue appellate review. The particular issues to be raised can ordinarily be evaluated afterward.
What If the Defendant Signed an Appeal Waiver?
Federal plea agreements frequently contain waivers limiting a defendant’s right to appeal a conviction or sentence.
An appeal waiver is important, but it does not necessarily eliminate every possible appellate claim.
The precise language of the waiver matters. Some issues may fall outside its scope. There may also be disputes concerning whether the waiver itself is valid and enforceable.
For that reason, the existence of an appeal waiver does not give defense counsel authority to disregard a defendant’s express instruction to file an appeal.
Garza v. Idaho Changed the Analysis
The Supreme Court resolved this issue in Garza v. Idaho.
Gilberto Garza entered guilty pleas under agreements containing appeal waivers. After sentencing, Garza told his attorney that he wanted to appeal.
His attorney did not file the notices.
The lawyer believed an appeal would be problematic because Garza had waived his appellate rights.
The appeal deadlines expired.
Garza then sought post-conviction relief, arguing that his attorney provided ineffective assistance by failing to file the requested appeals.
The Supreme Court agreed with Garza.
Failure to File the Requested Appeal Is Deficient Performance
The Supreme Court reaffirmed an important rule from Roe v. Flores-Ortega, 528 U.S. 470 (2000).
When an attorney disregards a defendant’s specific instruction to file a notice of appeal, counsel acts in a professionally unreasonable manner.
The lawyer’s failure cannot be justified as a strategic decision.
Once the defendant clearly indicates an intent to appeal, counsel must preserve the appeal.
Prejudice Is Presumed
Garza is particularly important because of what a defendant need not prove.
A defendant whose attorney disregards an express instruction to appeal does not have to first establish that the appeal would have succeeded.
The Supreme Court held that the presumption of prejudice recognized in Flores-Ortega applies even when the defendant signed an appeal waiver.
The loss of the appellate proceeding itself is the constitutional injury.
A lawyer, therefore, should not refuse to file the notice on the ground that the appellate arguments are weak or covered by a waiver.
An Appeal Waiver Does Not Necessarily Waive Everything
The Supreme Court also rejected the assumption that an appeal waiver necessarily ends all appellate rights.
Appeal waivers vary considerably.
A particular claim may fall outside the language of the waiver. The government may waive or forfeit its right to rely on the waiver. Questions may also exist concerning whether the waiver was knowing and voluntary or otherwise enforceable.
Filing the notice of appeal preserves the proceeding so that those questions can be addressed.
Filing the Notice Does Not Decide the Appellate Issues
A notice of appeal does not ordinarily require counsel to identify and argue every issue that might eventually be presented to the appellate court.
Its immediate purpose is to preserve the appeal.
After the appeal is filed, counsel can review the record, obtain transcripts, examine the plea agreement, research potential issues, and determine which arguments can properly be presented.
That distinction is important.
Whether to appeal is the defendant’s decision. Which arguments should be presented on appeal is ordinarily a matter for appellate counsel after reviewing the case.
What If the Lawyer Thinks the Appeal Has No Merit?
Counsel’s belief that an appeal lacks merit does not permit counsel to ignore the defendant’s instruction to file the notice.
There are established procedures for addressing an appeal that counsel ultimately concludes lacks a nonfrivolous basis.
But the lawyer cannot allow the appeal deadline to expire merely because counsel predicts that the appellate court will reject the case.
The first obligation is to preserve the requested appeal.
The Practical Rule for Federal Criminal Defendants
For defendants, the practical lesson is simple:
If you want to appeal, clearly tell your lawyer to file a notice of appeal immediately.
Do not assume that an appeal waiver means an appeal is impossible.
Do not wait for weeks after sentencing to decide.
And do not assume that some other motion filed in the district court has automatically protected your appellate rights.
The federal criminal appeal deadline is generally only 14 days.
Contact Federal Criminal Appeals Attorney Michael J. Petro
The period immediately following sentencing can determine whether a defendant preserves the opportunity for appellate review.
A federal criminal appeal may involve sentencing errors, evidentiary rulings, suppression issues, plea agreement questions or other errors that occurred in the district court.
Michael J. Petro represents defendants in federal criminal appeals challenging convictions and sentences.
Want to appeal a federal conviction or sentence? The deadline may be only 14 days. Call federal appeals attorney Michael J. Petro immediately to discuss your appeal.