Jan 27

Waivers of Collateral Attack and Appellate Rights Are “Analytically Distinct”

As a defense attorney, you’ve worked hard with the government to reach what you think is a fair plea deal for your client.  The Assistant United States Attorney demands, as part of the plea deal, that your client waive his or her appellate rights, including Sixth Amendment claims of ineffective assistance of counsel.  Of course your representation has been competent – the plea deal is among the best you’ve negotiated – and you recommend that he accept the plea deal.  But is there a conflict of interest in recommending to your client that he waive his ineffective assistance claims on appeal to secure a deal at the trial level?  Could that conflict of interest vitiate the plea deal?

Several recent ethics opinions have held that defense counsel do have a conflict of interest participating in a waiver of collateral appellate rights in a plea or sentencing agreement when the waiver does not expressly exclude Sixth Amendment claims of ineffective assistance of counsel, because the waiver serves to prospectively limit counsel’s liability.  See, e.g., American Bar Association Resolution 113E (Aug. 12-13, 2013); NACDL Ethics Advisory Committee, Formal Opinion 12-02 (Oct. 2012).

In a recent case before the United States Court of Appeals for the Third Circuit, United States v. Grimes, the appellant, Craig Grimes, raised a novel argument relating to this conflict of interest:  that the waiver of his direct appellate rights in his plea agreement was not knowing and voluntary because the waiver also contained a waiver of his right to collaterally challenge his guilty plea, conviction, or sentence that did not exempt ineffective assistance claims.  As will be discussed, The Third Circuit disagreed, concluding that his waiver of certain collateral rights did not nullify his appellate waiver.

In January 2012, Grimes, a former professor of engineering at the Pennsylvania State University and the owner of three (3) research companies, pled guilty to a three-count information charging him with wire fraud, false statements, and money laundering.  The charges related to Grimes’ fraudulent conduct involving federal science grants.  Slip. op. at 2-3.  Grimes’ plea agreement indicated that his advisory sentencing range under the U.S.S.G. would be 41 to 51 months and contained the following waiver of Grimes’ direct and collateral appellate rights:

[T]he defendant knowingly and voluntarily waives the right to appeal any conviction and sentence imposed by the Court … provided that the sentence is below or within the guideline range determined by the Court.  The Defendant also knowingly and voluntarily waives the Defendant’s right to challenge his guilty plea, conviction or sentence, or the manner in which the sentence was determined in any collateral proceeding, including, but not limited to a motion brought under Title 28, United States Code, Section 2255.

Id. at 3.  Grimes and his attorney signed acknowledgements that they had read the agreement and that the plea was voluntary.  Id.  During his plea colloquy, Grimes discussed the agreement with the judge; this included a lengthy interchange regarding the appellate waiver.  Id. at 4-6.

At his sentencing hearing a few months later, Grimes was sentenced to 41 months imprisonment – the bottom of the Guidelines range.  After announcing the sentence, the district court reminded Grimes that he had limited his right to appeal under the plea agreement and noted:  “These waivers are usually enforceable, but if you believe that the waiver you executed in this case is unenforceable, you are entitled to present that theory to the appellate court.”  Id. at 6.  Grimes’ appeal followed.

As noted, Grimes – who was hoping to argue on appeal that his sentence was unreasonable compared to the punishment others have received for similar conduct – tried to contend that his appellate waiver should be nullified.  He claimed that his counsel had a conflict of interest when advising him to waive his rights to a collateral appeal based on ineffective assistance, id. at 7, and then attempted to “bootstrap [the] challenge to his waiver of collateral rights onto his appellate waiver with the declaration that the two waivers are ‘intertwined’” – i.e., that the conflict of interest his attorney had as to the collateral appellate rights had affected her ability to properly advise Grimes on the direct appellate waiver.  Slip. op. at 8.  As a result, the entire appellate waiver was not a knowing and voluntary waiver.

The Court was unpersuaded.  Circuit Judge Hardiman noted that “waivers of appellate rights and collateral attack rights are analytically distinct.”  Id. at 9.  Ineffective assistance claims are rarely cognizable on direct appeal and – since there was no actual conflict of interest on the record in this matter – the Court would not be entertaining Grimes’ ineffective assistance claim on direct appeal, waiver or not.  Id.  The Court refused to find a knowing and voluntary appellate waiver per se invalid simply because it did not carve out claims of ineffective assistance concerning the attorney who counseled the plea.  Id.

What This Means for Defense Counsel

Though the Court’s finding as to the appellate waiver is both logical and appropriate, given recent ethical decisions, defense counsel should still carefully review the waiver language in any proposed plea or sentencing agreement and ensure that there is an express exclusion for any and all direct and/or collateral appellate claims based on ineffective assistance of counsel.  Should the government disagree with such an exclusion, counsel should ensure that the defendant is provided with independent counsel to advise he or she regarding the impact of waiving the claims of ineffective assistance of counsel.

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