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Martinez v. Montana

Supreme Court of the United States

fell below an objective standard of reasonableness," 466 U. S., at 687-688, 104 S. Ct. 2052, 80 L. Ed. 2d 674, and (2) that any such deficiency was "prejudicial to the defense," id., at 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

[5] "In certain Sixth Amendment contexts," however, "prejudice is presumed." Ibid. For example, no showing of prejudice is necessary "if the accused is denied counsel at a critical stage of his trial," United States v. Cronic, 466 U. S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d657 (1984), or left "entirely without the assistance of counsel on appeal," Penson v. Ohio, 488 U. S. 75, 88, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). Similarly, prejudice is presumed "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing."Cronic, 466 U. S., at 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657. And, most relevant here, prejudice is presumed "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken." Flores-Ortega, 528 U. S., at 484, 120 S. Ct. 1029, 145 L. Ed. 2d 985. We hold today that this final presumption applies even when the defendant has signed an appeal waiver.

B

...We begin with the term "appeal waivers." While the term is useful shorthand for clauses like those in Martinez's plea agreements, it can misleadingly suggest a monolithic end to all appellate rights...In fact, however, no appeal waiver serves as an absolute bar to all appellate claims.

[6] As courts widely agree, "[a] valid and enforceable appeal waiver . . . only precludes challenges that fall within its scope." United States v. Hardman, 778 F. 3d 896, 899 (CA11 2014); see also ibid., n. 2 (collecting cases from the 11 other Federal Courts of Appeals with criminal jurisdiction); State v. Patton, 287 Kan. 200, 228- 229, 195 P. 3d 753, 771 (2008). That an appeal waiver does not bar claims outside its scope follows from the fact that, "[a]lthough the analogy may not hold in all respects, plea bargains are essentially contracts." Puckett v. United States, 556 U. S. 129, 137, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009).

[7] As with any type of contract, the language of appeal waivers can vary widely, with some waiver clauses leaving many types of claims unwaived...Additionally, [*745] even a waived appellate claim can still go forward if the prosecution forfeits or waives the waiver. E.g., United States v. Story, 439 F. 3d 226, 231 (CA5 2006). Accordingly, a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or

In early 2015, petitioner Gilberto Martinez, Jr., signed two plea agreements, each arising from criminal charges brought by the State of Montana. Each agreement included a clause stating that Martinez "waive[d] his right to appeal." App. to Pet. for Cert. 44a, 49a. The Montana trial court accepted the agreements and sentenced Martinez to terms of prison in accordance with the agreements.

[*743] Shortly after sentencing, Martinez told his trial counsel that he wished to appeal. ...In the days that followed, he would later attest, Martinez "continuously reminded" his attorney of this directive "via phone calls and letters," Record 210, and Martinez's trial counselacknowledged in his own affidavit that Martinez had "told me he wanted to appeal the sentence(s) of the court," id., at 151...Martinez's trial counsel, however, did not file a notice of appeal. Instead, counsel "informed Mr. Martinez [***7] that an appeal was problematic because he waived his right to appeal." Ibid. The period of time for Martinez's appeal to be preserved came and went with no notice having been filed on Martinez's behalf. Roughly four months after sentencing, Martinez sought postconviction relief in Montana state court. As relevant here, Martinez alleged that his trial counsel rendered ineffective assistance by failing to file notices of appeal despite Martinez's requests. The Montana trial court denied relief, and both the Montana Court of Appeals and the Montana Supreme Court affirmed that decision. ... The Montana [**85] Supreme Court ruled that Martinez, given the appeal waivers, needed to show both deficient performance and resulting prejudice; it concluded that he could not...

II A

[3] The criminal [***8] defendants "the right . . . to have the Assistance of Counsel for [their] defence." The right to counsel includes "'the right to the effective assistance of counsel.'" [*744] Strickland v. Washington, 466 U. S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (quoting McMann v. Richardson, 397 U. S. 759, 771, n. 14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)). [4] Under Strickland, a defendant who claims ineffective assistance of counsel must prove (1) "that counsel's representation

Sixth

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frivolous quest.

C

Separately, all jurisdictions appear to treat at least some claims as unwaiveable. Most fundamentally, courts agree that defendants retain the right to challenge whether the waiver itself is valid and enforceablefor example, on the grounds that it was unknowing or involuntary...Consequently, while signing an appeal waiver means giving up some, [**87] many, or even most appellate claims, some claims nevertheless remain.

2

It is also important to consider what it meansand does not meanfor trial counsel to file a notice of appeal.

"Filing such a notice is a purely ministerial task that imposes no great burden on counsel." Flores-Ortega, 528 U. S., at 474, 120 S. Ct. 1029, 145 L. Ed. 2d 985. It typically takes place during a compressed window: 42 days in Montana, for example, and just 14 days in federal court. See Montana Rule App. Proc. 14(a) (2017); Fed. Rule App. Proc. 4(b)(1)(A). By the time this window has closed, the defendant likely will not yet have important documents from the trial court, such as transcripts of key proceedings, see, e.g., Montana Rules App. Proc. 19 and 25; Fed. Rule App. Proc. 10(b), and may well be in custody, making communication with counsel difficult, see Peguero v. United States, 526 U. S. 23, 26, 119 S. Ct. 961, 143 L. Ed. 2d 18 (1999). And because some defendants receive new counsel for their appeals, the lawyer responsible for deciding which appellate claims to raise [***11] may not yet even be involved in the case.

Filing requirements reflect that claims are, accordingly, likely to be ill defined or unknown at this stage. In the federal system, for example, a notice of appeal need only identify who is appealing; what "judgment, order, or part thereof" is being appealed; and "the court to which the appeal is taken." Fed. Rule App. Proc. 3(c)(1). Generally speaking, state requirements are similarly nonsubstantive...

[*746] A notice of appeal also fits within a broader division of labor between defendants and their attorneys. While "the accused has the ultimate authority" to decide whether to "take an appeal," the choice of what specific arguments to make within that appeal belongs to appellate counsel. Jones v. Barnes, 463 U. S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983); see also McCoy v. Louisiana, 584 U. S. ___, ___, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018) (slip op., at 6). In other words, filing a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within the defendant's prerogative.

With that context in mind, we turn to the precise legal issues here. As an initial matter, we note that Martinez's attorney rendered deficient performance by not filing the notice of appeal in light of Martinez's clear requests. As this Court explained in Flores-Ortega:

"We have long held that [9] a lawyer who disregards specific instructions [**88] from [***12] the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so 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, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (citations omitted); see also id., at 478, 120 S. Ct. 1029, 145 L. Ed. 2d 985.

Montana maintains that the risk of breaching the defendant's plea agreement renders counsel's choice to override the defendant's instructions a strategic one. See Strickland, 466 U. S., at 690-691, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . "). That is not so. While we do not address what constitutes a defendant's breach of an appeal waiver or any responsibility counsel may have to discuss the potential consequences of such a breach, it should be clear from the foregoing that [10] simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver's scope. And in any event, the bare [***13] decision whether to appeal is ultimately the defendant's, not counsel's, to make. ...See McCoy, 584 U. S., at ___, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (slip op., at 6); Barnes, 463 U. S., at 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987. Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant's instructions...

D

We now address the crux of this case: whether Flores- Ortega's presumption of prejudice applies despite an appeal [*747] waiver. The holding, principles, and facts of Flores-Ortega show why that presumption applies equally here.

With regard to prejudice, Flores-Ortega held that, [12] to succeed in an ineffective-assistance claim in this context,

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a defendant need make only one showing: "that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." 528 U. S., at 484, 120 S. Ct. 1029, 145 L. Ed. 2d 985. So long as a defendant can show that "counsel's constitutionallydeficient performance deprive[d him] of an appeal that he otherwise would have taken," courts are to "presum[e] prejudice with no further showing from the defendant of the merits of [**89] his underlying claims." Ibid. Because there is no dispute here that Martinez wished to appeal, see supra at ___, 203 L. Ed. 2d, at 84, a direct application of Flores-Ortega's language resolves this case. See 528 U. S., at 484, 120 S. Ct. 1029, 145 L. Ed. 2d 985.

Flores-Ortega's reasoning shows why an appeal waiver [***14] does not complicate this straightforward application. That case, like this one, involves a lawyer who forfeited an appellate proceeding by failing to file a notice of appeal. Id., at 473-475, 120 S. Ct. 1029, 145 L. Ed. 2d 985. As the Court explained, [13] given that past precedents call for a presumption of prejudice whenever "'the accused is denied counsel at a critical stage,'" it makes even greater sense to presume prejudice when counsel's deficiency forfeits an "appellate proceeding altogether." Id., at 483, 120 S. Ct. 1029, 145 L. Ed. 2d 985. After all, there is no disciplined way to "accord any 'presumption of reliability'. . . to judicial proceedings that never took place." Ibid. (quoting Smith v. Robbins, 528 U. S. 259, 286, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000)).

That rationale applies just as well here because, as discussed supra, at ___ - ___, 203 L. Ed. 2d, at 86-87, Martinez retained a right to appeal at least some issues despite the waivers he signed...In other words, Martinez had a right to a proceeding, and he was denied that proceeding altogether as a result of counsel's deficient performance.

That Martinez surrendered many claims by signing his appeal waivers does not change things. First, this Court has made clear that [14] when deficient counsel causes the loss of an entire proceeding, it will not bend the presumption-of-prejudice rule simply because a particular defendant seems to have had [***15] poor prospects. See, e.g., Jae Lee v. United States, 582 U. S. ___, ___, 137 S. Ct. 1958, 198 L. Ed. 2d 476 (2017) (slip op., at 9). We hew to that principle again here.

Second, while the defendant in Flores-Ortega did not sign an appeal waiver, he did plead guilty, andas the Court pointed out"a guilty plea reduces the scope of potentially appealable issues" on its own. See 528 U. S., at 480, 120 S. Ct. 1029, 145 L. Ed. 2d 985. In otherwords, with regard to the defendant's appellate

prospects, Flores-Ortega presented at most a difference of degree, not kind, and prescribed a presumption of prejudice regardless of how many appellate claims were foreclosed. See id., at 484, 120 S. Ct. 1029, 145 L. Ed. 2d 985. We do no different today.

Instead, we reaffirm that, [15] "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to anappeal," with no need for a "further showing" of his claims' merit, ibid., regardless of whether the defendant has signed an appeal waiver.

III

[*748] Flores-Ortega states, in one sentence, that the loss of the "entire [appellate] proceeding itself, which a defendant wanted at the time and to [**90] which he had a right, . . . demands a presumption of prejudice." Id., at 483, 120 S. Ct. 1029, 145 L. Ed. 2d 985. Montana and the U. S. Government, participating as an amicus[***16] on Montana's behalf, seize on this language, asserting that Martinez never "had a right" to his appeal and thus that any deficient performance by counsel could not have caused the loss of any such appeal. See Brief for Respondent 11, 23-26; Brief for United States as Amicus Curiae 7, 13, 21-22. These arguments miss the point. Martinez did retain a right to his appeal; he simply had fewer possible claims than some other appellants. Especially because so much is unknown at the notice-of-appeal stage, see supra, at ___ - ___, 203 L. Ed. 2d, at 87, it is wholly speculative to say that counsel's deficiency forfeits no proceeding to which a defendant like Martinez has a right...

The Government also takes its causation argument one step further. Arguing that, in the appeal-waiver context, "a generalized request that an attorney file an appeal . . . is not enough to show that appellate merits review would have followed," Brief for United States as Amicus Curiae 22, the Government proposes a rule that would require a defendant to showon a "case-specific" basis, id., at 23either (1) "that he in fact requested, or at least expressed interest in, an appeal on a non-waived issue," id., at 21-22, or alternatively (2) "'that there were nonfrivolous grounds [***17] for appeal' despite the waiver," id., at 22 (quoting Flores-Ortega, 528 U. S., at 485, 120 S. Ct. 1029, 145 L. Ed. 2d 985). We decline this suggestion, because it cannot be squared with our precedent and would likely prove both unfair and inefficient in practice.

[16] This Court has already rejected attempts to condition Page 3 of 4

the restoration of a defendant's appellate rights forfeited by ineffective counsel on proof that the defendant's appeal had merit. In Flores-Ortega, the Court explained that prejudice should be presumed "with no further showing from the defendant of the merits of hisunderlying claims." Id., at 484, 120 S. Ct. 1029, 145 L. Ed. 2d 985; see also id., at 486, 120 S. Ct. 1029, 145 L. Ed. 2d 985. In Rodriquez v. United States, 395 U. S. 327, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1969), similarly, the Court rejected a rule that required a defendant whose appeal had been forfeited by counsel "to specify the points he would raise were his right to appeal reinstated." Id., at 330, 89 S. Ct. 1715, 23 L. Ed. 2d 340. So too here.

Moreover, [17] while it is the defendant's prerogative whether to appeal, it is not the defendant's role to decide what arguments to press. See Barnes, 463 U. S., at 751, 754, 103 S. Ct. 3308, 77 L. Ed. 2d 987. That makes it especially improper to impose that role upon the defendant simply because his opportunity to appeal was relinquished by deficient counsel. "Those whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because [***18] their rights were violated at some earlier stage in the [**91] proceedings." Rodriquez, 395 U. S., at 330, 89 S. Ct. 1715, 23 L. Ed. 2d 340. We accordingly decline to place a pleading barrier between a defendant and an opportunity to appeal that he never should have lost.

[*749] Meanwhile, the Government's assumption that unwaived claims can reliably be distinguished from waived claims through case-by-case postconviction review is dubious. There is no right to counsel in postconviction proceedings, see Pennsylvania v. Finley, 481 U. S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987), and most applicants proceed pro se...That means that the Government effectively puts its faith in asking "an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal," Flores-Ortega, 528 U. S., at 486, 120 S. Ct. 1029, 145 L. Ed. 2d 985. We have already explained why this would be "unfair" and ill advised. See ibid.; see alsoRodriquez, 395 U. S., at 330, 89 S. Ct. 1715, 23 L. Ed. 2d 340. Compounding the trouble, defendants would be asked to make these showings in the face of the heightened standards and related hurdles that attend many postconviction proceedings. See, e.g., 28 U. S. C. 2254, 2255; see also Brief for Montana Association of Criminal Defense Lawyers et al. as Amici Curiae 22-25.

unworkable. [***19] For one, it would be difficult and time consuming for a postconviction court to determine perhaps years laterwhat appellate claims a defendant was contemplating at the time of conviction... Moreover, because most postconviction petitioners will be pro se, courts would regularly have to parse both (1) what claims a pro se defendant seeks to raise and (2) whether each plausibly invoked claim is subject to the defendant's appeal waiver (which can be complex, see supra, at ___ - ___, 203 L. Ed. 2d, at 86-87), all without the assistance of counseled briefing. We are not persuaded that this would be a more efficient or trustworthy process than the one we reaffirm today.

The more administrable and workable rule, rather, is the one compelled by our precedent: [18] When counsel's deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal. That is the rule already in use in 8 of the 10 Federal Circuits to have considered the question, see supra, at ___, 203 L. Ed. 2d, at 86, and n. 3, and neither Montana nor its amici have pointed us to any evidence that it has proved unmanageable there...That rule does no more than restore the status quo [**92] that existed before counsel's deficient performance forfeited the [***20] appeal, and it allows an appellate court to consider the appeal as that court otherwise would have doneon direct review, and assisted by counsel's briefing.

IV

We hold today that [19] the presumption of prejudice recognized in Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver. This ruling follows squarely from Flores-Ortega and from the fact that even the broadest appeal [*750] waiver does not deprive a defendant of all appellate claims. Accordingly where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant's express instructions, prejudice is presumed "with no further showing from the defendant of the merits of his underlying claims." See Flores-Ortega, 528 U. S., at 484, 120 S. Ct. 1029, 145 L. Ed. 2d 985.

The judgment of the Supreme Court of Montana is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

The Government's proposal is also

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