Armando Nunez v. USA, 06-1014 (Round 2 in 7th Circuit).    Last year we held that by surrendering, as part of a plea bargain, his opportunity to wage a collateral attack on his conviction, Armando Nunez had waived any right to relief based on the theory that his lawyer should have filed a notice of appeal in violation of the plea agreement (which waived the right to appeal as well as the right to pursue collateral relief). The agreement preserved an opportunity to contest the voluntariness of the plea.

After concluding that the plea was voluntary, we enforced the waiver and held that Nunez is not entitled to collateral relief. 495 F.3d 544 (7th Cir. 2007).

 After Nunez filed a petition for a writ of certiorari, the Solicitor General told the Justices that the waiver did not necessarily foreclose all of the arguments that Nunez had tried to raise on collateral review. At the Solicitor General's request, the Court remanded for further consideration of that subject. 128 S. Ct. 2990 (2008).

The plea bargain between Nunez and the United States waives the right to appeal. It also waives collateral review of the sentence and the manner in which it was determined.  That reference to the "sentence" could mean just the length of imprisonment (leaving the conviction open to collateral challenge), but in a criminal case the sentence is the judgment, Berman v. United States, 302 U.S. 211, 212 (1937), so this waiver might well cover all issues. We gave the waiver the broader reading for several reasons.

Second, the waiver of collateral review contains a proviso—the reservation of a right to contest the voluntariness of the plea—that serves a function only if the waiver has the broader meaning.

Third, when accepting Nunez's plea the district judge was required by Fed. R. Crim. P. 11(b)(1)(N) to state on the record "the terms of any plea-agreement provision waiving" the right to appeal or collateral review. In obtaining Nunez's assent to these terms on the record, the judge stated that the waiver covers every issue other than the voluntariness of the plea. Asked whether he understood this, Nunez replied "yes."

Looking at this subject again on remand, we would be inclined to conclude a second time that the waiver covers the conviction—but its scope no longer matters.

Two caveats. First, our prior opinion considers, and rejects on the merits, Nunez's argument that the plea was involuntary.  Second, a litigant's confession of error on a question of law does not bind the court.  (Here, the USA).

But the Department of Justice does not propose to set Nunez free; it wants the conviction to stand, though after a hearing to explore the question whether Nunez asked his lawyer to appeal.

Whether such a hearing is necessary is a question of law, on which the prosecutor's view is not conclusive. We will reverse the judgment of the district court, and direct it to hold such a hearing, only if the district court erred by holding that a request to his lawyer would not entitle Nunez to relief.  We do not think that the judgment is in error.

In sum, Nunez, who has enjoyed the assistance of counsel on this collateral attack, has never identified a plausible argument that could have been raised on direct appeal. So even if Nunez asked his lawyer to file an appeal, counsel did not transgress the Constitution by honoring his client's considered written choice (the waiver) rather than his client's oral second thoughts.

Nunez's contention flunks both the conduct and the prejudice components of ineffective-assistance doctrine.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com.

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