USA v. Armando Nunez, 06-1014.  Charged with multiple cocaine offenses, Armando Nunez negotiated a plea bargain: the prosecutor dismissed all counts but one and recommended a sentence at the lowest point in the Guideline range. As part of the deal, Nunez agreed not to appeal or file a collateral attack unless the sentence exceeded the statutory maximum or the waiver clause itself should be deemed invalid. The sentence of 160 months’ imprisonment followed the prosecutor’s recommendation and is well under the statutory maximum. See 21 U.S.C. §841(b).

Nunez has never argued that the waiver is invalid. Nonetheless, he told his lawyer to appeal (or so he says; the assertion has been contested, but we shall assume that Nunez did ask). When the lawyer balked, he filed this collateral attack under 28 U.S.C. §2255 charging counsel with providing ineffective assistance.

Although Nunez never asked the district court for leave to withdraw the plea-and in open court assured the judge that the deal was satisfactory and his assent voluntary-he now maintains that the guilty plea was involuntary because he could not understand what his lawyer told him out of court. If the plea was involuntary, then the waiver falls because it is part of the whole package. See United States v. Wenger, 58 F.3d 280 (7th Cir. 1995).

But the lack of a motion to withdraw the plea means that Nunez must overcome that forfeiture by showing cause and prejudice. (On direct appeal the standard would have been plain error, see United States v. Vonn, 535 U.S. 55 (2002), but on collateral attack the forfeiture is complete and the petitioner must meet the higher standard of cause and prejudice. See United States v. Frady, 456 U.S. 152 (1982).)

Nunez would lose on any standard, however, as the district judge concluded.

Nunez contends that he speaks no English, and that, because during some consultations with his counsel an interpreter was not present (or was not used), he could not understand what counsel told him and therefore did not comprehend the plea bargain’s terms. That assertion is inconsistent with assurances given to the judge, under oath, when entering the plea. Nunez told the judge- through an interpreter-that he fully understood the plea and the bargain’s terms. The judge asked him detailed questions; his answers evinced knowledge. His counsel explained to the court how the plea had been negotiated and that Nunez often spoke in English and understood their exchanges when interpreters were not present (or were not employed). Nunez told the judge that this was correct.

Defendants cannot obtain relief by the expedient of contradicting statements freely made under oath, unless there is a compelling reason for the disparity. See, e.g., United States v. Peterson, 414 F.3d 825, 826–27 (7th Cir. 2005).  What is more, if, as the record demonstrates, Nunez fully understood the bargain’s terms by the time he stood before the judge, it doesn’t make any difference whether he understood all of what his lawyer had said earlier. The plea was voluntary.

Because the plea was voluntary, the waiver must be enforced. And that waiver knocks out Nunez’s argument that his lawyer failed to follow his direction to file an appeal. The waiver has only two exceptions: an illegally high sentence, and a defect in the waiver itself. A claim of post-sentencing ineffective assistance falls squarely within the waiver.

In saying this, we recognize that six courts of appeals have held that a waiver of appeal does not relieve counsel of the duty to file a notice of appeal on his client’s request. These decisions all rely on the holding of Roe v. Flores-Ortega, 528 U.S. 470 (2000), that a criminal defendant has a statutory right to appellate review, and that when counsel utterly frustrates that right by failing to appeal on his client’s request, counsel’s performance is automatically ineffective.

A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment. See United States v. Cronic, 466 U.S. 648 (1984). The same understanding applies when the lawyer does not show up for appeal.

There is much to be said for this position, because waivers of appeal are not airtight. As we have already observed, a waiver stands or falls with the plea bargain of which it is a part. A defendant who wants a lawyer to argue on appeal that the plea was involuntary has a right to that legal assistance.

A rule that a lawyer must file an appeal on demand, and let the court of appeals sort out whether the defendant is entitled to appellate review, avoids any need to make nice distinctions during the 10 days allowed for appeal (or on collateral review if the lawyer fails to file the notice).

Simplicity is a virtue, and a mechanical rule ("On request, file a notice of appeal") could be a good addition to the Federal Rules of Criminal Procedure whether or not the Constitution demands this outcome.

We confess to some doubt about the constitutional reasoning of the circuits that have located in the sixth amendment a rule that a lawyer is the client’s puppet. In Roe the Court remarked that a failure to file a notice of appeal "cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes." 528 U.S. at 477.

The sort of appeal that the Supreme Court considered in Roe is one where the defendant can gain but not lose. The sort of appeal that Nunez wanted to take was one by which he could lose but not gain. Protecting a client from a lay-person’s folly is an important part of a lawyer’s job. It will not do to reply, along the lines of Roe, that whether to appeal is a decision entrusted to the defendant personally, on which the lawyer may give advice but not act unilaterally.

But we need not decide whether these arguments are a sufficient response to the mandatory-appeal-notwithstanding-the-waiver-of-appeal approach that our colleagues in other circuits have derived from Roe. For there remains the question whether Nunez is entitled to relief based on a conclusion that his lawyer furnished ineffective assistance after the district judge pronounced sentence.

If the plea (and thus the waiver) is valid, an argument that counsel furnished ineffective assistance is among the foreclosed theories. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999), holds that a claim of ineffective assistance may be open under §2255, but that "the right to mount a collateral attack . . . survives only with respect to those discrete claims which relate directly to the negotiation of the waiver."

Nunez’s challenge to his lawyer’s handling of the appeal has nothing to do with the negotiation of the waiver. Thus Nunez’s waiver must be enforced and his collateral attack dismissed whether or not his lawyer should have filed an appeal on demand.

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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