Nunez, Armando v. United States ( 2007 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 06-1014
    ARMANDO NUNEZ,
    Petitioner-Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ____________
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 04 C 3385—Harry D. Leinenweber, Judge.
    ____________
    SUBMITTED JULY 19, 2006—DECIDED JULY 31, 2007
    ____________
    Before EASTERBROOK, Chief Judge, and BAUER AND
    COFFEY, Circuit Judges.
    EASTERBROOK, Chief Judge. 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 recom-
    mendation 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
    2                                             No. 06-1014
    (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 assis-
    tance.
    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.
    No. 06-1014                                                  3
    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); United States v. Stewart, 
    198 F.3d 984
     (7th Cir.
    1999); United States v. Messino, 
    55 F.3d 1241
    , 1248 (7th
    Cir. 1995); United States v. Ellison, 
    835 F.2d 687
    , 692–93
    (7th Cir. 1987). Nunez offers no reason at all; his appellate
    briefs simply ignore what he told the judge in open court.
    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.
    See United States v. Campusano, 
    442 F.3d 770
    , 772–77 (2d
    Cir. 2006); United States v. Poindexter, 
    2007 U.S. App. LEXIS 15360
     (4th Cir. June 28, 2007); United States v.
    Tapp, 
    2007 U.S. App. LEXIS 15343
     (5th Cir. June 28, 2007);
    United States v. Sandoval-Lopez, 
    409 F.3d 1193
    , 1195–99
    (9th Cir. 2004); United States v. Garrett, 
    402 F.3d 1262
    ,
    1265–67 (10th Cir. 2005); Gomez-Diaz v. United States,
    
    433 F.3d 788
    , 791–94 (11th Cir. 2005). 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
    4                                               No. 06-1014
    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. Moreover, waivers of
    appeal have different scope. Some—for example, the
    waiver in Poindexter—concern only the sentence; an ap-
    peal that calls the conviction itself into question is not
    foreclosed by such a waiver. Had the district judge imposed
    a sentence higher than the statutory maximum, Nunez too
    could have appealed.
    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
    No. 06-1014                                                5
    wishes.” 
    528 U.S. at 477
    . Usually that’s true, for an appeal
    can help but not harm the defendant. But filing cannot
    be called “ministerial” when the defendant has waived
    any entitlement to appeal, not only in the plea agree-
    ment but also in open court. See Fed. R. Crim. P.
    11(b)(1)(N). There is no constitutional entitlement to
    revoke a waiver; to the contrary, waivers must be enforced
    even if the defendant changes his mind. A defendant who
    waits past the time for appeal (10 days in federal court) to
    ask his lawyer to proceed cannot expect that this will be
    done as a “purely ministerial” task, for after 10 days there
    is no longer a right to appeal; likewise there is no longer a
    right to appeal following a waiver.
    Far from having a ministerial duty to follow his client’s
    (latest) wishes, a lawyer has a duty to the judiciary to
    avoid frivolous litigation—and an appeal in the teeth of a
    valid waiver is frivolous. A lawyer also has a duty to his
    client to avoid taking steps that will cost the client the
    benefit of the plea bargain. (That’s another reason why
    filing a notice of appeal, if the client has surrendered that
    right in exchange for something he values more, such as
    a shorter sentence, can’t be called a “ministerial duty.”) A
    lawyer might have a responsibility to file an appeal if the
    client indicated a desire to withdraw the plea, for that
    amounts to a declaration by the defendant of willingness
    to give up the plea’s benefits, and withdrawal would
    abrogate the waiver too; but Nunez (who had not moved to
    withdraw the plea) does not contend that he told his
    lawyer that he had any desire to achieve that goal by an
    appeal.
    Ordinarily a lawyer cannot make an independent
    decision about whether an appeal would be frivolous but
    must follow the procedure outlined in Anders v. California,
    
    386 U.S. 738
     (1967), and proceed as an advocate until the
    judiciary agrees with counsel’s belief that more litigation
    would be frivolous. As we explained in United States v.
    6                                               No. 06-1014
    Eskridge, 
    445 F.3d 930
    , 932 (7th Cir. 2006), however, the
    Anders procedure is required only when there is a right to
    appeal (and thus a right to have counsel act as an advocate
    on appeal). Nunez gave up his right to appeal, and with
    it the foundation for the Anders approach.
    With the waiver in force, counsel’s duty to protect his
    client’s interests militates against filing an appeal. United
    States v. Whitlow, 
    287 F.3d 638
     (7th Cir. 2002), and United
    States v. Hare, 
    269 F.3d 859
     (7th Cir. 2001), hold that,
    when a defendant violates a plea agreement by appealing
    despite a promise not to do so, the prosecutor may with-
    draw concessions made as part of the bargain. The prose-
    cutor made substantial concessions to Nunez. An appeal
    could have put them in jeopardy, allowing the prosecutor
    to reinstate the two dismissed charges or ask the district
    court to increase the sentence on the existing conviction. If
    it did nothing else, an appeal would have demonstrated
    that Nunez had not accepted responsibility and would
    have entitled the judge to rescind the discount under
    U.S.S.G. §3E1.1. A defendant has more reason to protest
    if a lawyer files an appeal that jeopardizes the benefit of
    the bargain than to protest if the lawyer does nothing—for
    “nothing” is at least harmless.
    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 person-
    ally, on which the lawyer may give advice but not act
    unilaterally. Nunez had made a personal decision—a
    decision not to appeal. That’s what the waiver was all
    about. As we’ve stressed, a defendant has no right to
    countermand such a formal choice, and a lawyer faced with
    No. 06-1014                                                7
    inconsistent instructions by his client does not have a
    “ministerial” duty to follow one rather than the other. The
    lawyer’s duty is to do what’s best for the client, which
    usually means preserving the benefit of the plea bargain.
    But we need not decide whether these arguments are a
    sufficient response to the mandatory-appeal-notwith-
    standing-the-waiver-of-appeal approach that our col-
    leagues 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. Recall that the waiver Nunez negotiated for-
    swears not only a direct appeal but also any opportunity to
    wage a collateral attack. Ineffective assistance before the
    plea’s acceptance might spoil the plea’s validity and thus
    undermine the waiver. But ineffective assistance after
    the plea (indeed, after the sentence’s imposition) cannot
    retroactively make the plea invalid. Waivers of appeal
    block constitutional as well as statutory arguments. See
    United States v. Behrman, 
    235 F.3d 1049
     (7th Cir. 2000).
    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 negotia-
    tion of the waiver.” See also United States v. Joiner, 
    183 F.3d 635
    , 644–45 (7th Cir. 1999). 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
    8                                        No. 06-1014
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—7-31-07