Garza v. Idaho

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GARZA v. IDAHO
CERTIORARI TO THE SUPREME COURT OF IDAHO
No. 17–1026. Argued October 30, 2018—Decided February 27, 2019
Petitioner Gilberto Garza, Jr., signed two plea agreements, each arising
from state criminal charges and each containing a clause stating that
Garza waived his right to appeal. Shortly after sentencing, Garza
told his trial counsel that he wished to appeal. Instead of filing a no-
tice of appeal, counsel informed Garza that an appeal would be “prob-
lematic” given Garza’s appeal waiver. After the time period for Gar-
za to preserve an appeal lapsed, he sought state postconviction relief,
alleging that his trial counsel had rendered ineffective assistance by
failing to file a notice of appeal despite his repeated requests. The
Idaho trial court denied relief, and the Idaho Court of Appeals af-
firmed. Also affirming, the Idaho Supreme Court held that Garza
could not show the requisite deficient performance by counsel and re-
sulting prejudice. In doing so, the court concluded that the presump-
tion of prejudice recognized in Roe v. Flores-Ortega, 528 U. S. 470,
when trial counsel fails to file an appeal as instructed does not apply
when the defendant has agreed to an appeal waiver.
Held: Flores-Ortega’s presumption of prejudice applies regardless of
whether a defendant has signed an appeal waiver. Pp. 3–14.
(a) Under Strickland v. Washington, 466 U. S. 668, a defendant
who claims ineffective assistance of counsel must prove (1) “that
counsel’s representation fell below an objective standard of reasona-
bleness,” id., at 687–688, and (2) that any such deficiency was “preju-
dicial to the defense,” id., at 692. However, “prejudice is presumed”
in “certain Sixth Amendment contexts,” ibid., such as “when counsel’s
constitutionally deficient performance deprives a defendant of an ap-
peal that he otherwise would have taken,” Flores-Ortega, 528 U. S.,
at 484. Pp. 3–4.
(b) This case hinges on two procedural devices: appeal waivers and
notices of appeal. No appeal waiver serves as an absolute bar to all
2 GARZA v. IDAHO
Syllabus
appellate claims. Because a plea agreement is essentially a contract,
it does not bar claims outside its scope. And, like any contract, the
language of appeal waivers can vary widely, leaving many types of
claims unwaived. A waived appellate claim may also proceed if the
prosecution forfeits or waives the waiver or if the Government
breaches the agreement. Separately, some claims are treated as un-
waiveable. Most fundamentally, courts agree that defendants retain
the right to challenge whether the waiver itself was knowing and
voluntary.
The filing of a notice of appeal is “a purely ministerial task that
imposes no great burden on counsel.” Flores-Ortega, 528 U. S., at
474. Filing requirements reflect that appellate claims are likely to be
ill defined or unknown at the filing stage. And within the division of
labor between defendants and their attorneys, the “ultimate authori-
ty” to decide whether to “take an appeal” belongs to the accused.
Jones v. Barnes, 463 U. S. 745, 751. Pp. 4–7.
(c) Garza’s attorney rendered deficient performance by not filing a
notice of appeal in light of Garza’s clear requests. Given the possibil-
ity that a defendant will end up raising claims beyond an appeal
waiver’s scope, simply filing a notice of appeal does not necessarily
breach a plea agreement. Thus, counsel’s choice to override Garza’s
instructions was not a strategic one. In any event, the bare decision
whether to appeal is ultimately the defendant’s to make. Pp. 7–8.
(d) Because there is no dispute that Garza wished to appeal, a di-
rect application of Flores-Ortega’s language resolves this case. Flo-
res-Ortega reasoned that because a presumption of prejudice applies
whenever “ ‘the accused is denied counsel at a critical stage,’ ” it
makes greater sense to presume prejudice when counsel’s deficiency
forfeits an “appellate proceeding altogether.” 528 U. S., at 483. Be-
cause Garza retained a right to appeal at least some issues despite
his waivers, he had a right to a proceeding and was denied that pro-
ceeding altogether as a result of counsel’s deficient performance.
That he surrendered many claims by signing appeal waivers does not
change things. First, the presumption of prejudice does not bend be-
cause a particular defendant seems to have had poor prospects. See,
e.g., Jae Lee v. United States, 582 U. S. ___, ___. Second, while the
defendant in Flores-Ortega did not sign an appeal waiver, he did
plead guilty, which “reduces the scope of potentially appealable is-
sues” on its own. 528 U. S., at 480. Pp. 8–10.
(e) Contrary to the argument by Idaho and the U. S. Government,
as amicus, that Garza 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, Garza did retain a right to his appeal; he simply
had fewer possible claims than some other appellants. The Govern-
Cite as: 586 U. S. ____ (2019) 3
Syllabus
ment also proposes a rule that would require a defendant to show—
on a case-by-case basis—that he would have presented claims that
would have been considered by the appellate court on the merits.
This Court, however, has already rejected attempts to condition the
restoration of a defendant’s appellate rights forfeited by ineffective
counsel on proof that the defendant’s appeal had merit. See, e.g., Ro-
driquez v. United States, 395 U. S. 327, 330. Moreover, it is not the
defendant’s role to decide what arguments to press, making it espe-
cially improper to impose that role upon the defendant simply be-
cause his opportunity to appeal was relinquished by deficient coun-
sel. And because there is no right to counsel in postconviction
proceedings and, thus, most applicants proceed pro se, the Govern-
ment’s proposal would be unfair, ill advised, and unworkable.
Pp. 10–14.
162 Idaho 791, 405 P. 3d 576, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, KAGAN, and KAVANAUGH, JJ., joined.
THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined, and
in which ALITO, J., joined as to Parts I and II.
Cite as: 586 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1026
_________________
GILBERTO GARZA, JR., PETITIONER v. IDAHO
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF IDAHO
[February 27, 2019]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
In Roe v. Flores-Ortega, 528 U. S. 470 (2000), this Court
held that when an attorney’s deficient performance costs a
defendant an appeal that the defendant would have oth-
erwise pursued, prejudice to the defendant should be
presumed “with no further showing from the defendant of
the merits of his underlying claims.” Id., at 484. This
case asks whether that rule applies even when the de-
fendant has, in the course of pleading guilty, signed what
is often called an “appeal waiver”—that is, an agreement
forgoing certain, but not all, possible appellate claims. We
hold that the presumption of prejudice recognized in Flores-
Ortega applies regardless of whether the defendant has
signed an appeal waiver.
I
In early 2015, petitioner Gilberto Garza, Jr., signed two
plea agreements, each arising from criminal charges
brought by the State of Idaho. Each agreement included a
clause stating that Garza “waive[d] his right to appeal.”
App. to Pet. for Cert. 44a, 49a. The Idaho trial court
accepted the agreements and sentenced Garza to terms of
prison in accordance with the agreements.
Shortly after sentencing, Garza told his trial counsel
2 GARZA v. IDAHO
Opinion of the Court
that he wished to appeal.1 In the days that followed, he
would later attest, Garza “continuously reminded” his
attorney of this directive “via phone calls and letters,”
Record 210, and Garza’s trial counsel acknowledged in his
own affidavit that Garza had “told me he wanted to appeal
the sentence(s) of the court,” id., at 151.2 Garza’s trial
counsel, however, did not file a notice of appeal. Instead,
counsel “informed Mr. Garza that an appeal was problem-
atic because he waived his right to appeal.” Ibid. The
period of time for Garza’s appeal to be preserved came and
went with no notice having been filed on Garza’s behalf.
Roughly four months after sentencing, Garza sought
postconviction relief in Idaho state court. As relevant
here, Garza alleged that his trial counsel rendered ineffec-
tive assistance by failing to file notices of appeal despite
Garza’s requests. The Idaho trial court denied relief, and
both the Idaho Court of Appeals and the Idaho Supreme
Court affirmed that decision. See 162 Idaho 791, 793, 405
P. 3d 576, 578 (2017). The Idaho Supreme Court ruled
that Garza, given the appeal waivers, needed to show both
deficient performance and resulting prejudice; it concluded
that he could not. See id., at 798, 405 P. 3d, at 583.
In ruling that Garza needed to show prejudice, the
Idaho Supreme Court acknowledged that it was aligning
itself with the minority position among courts. For exam-
——————
1 The record suggests that Garza may have been confused as to
whether he had waived his appellate rights in the first place. See
Record 97 (answering “No” on a court advisory form asking whether
Garza had “waived [his] right to appeal [his] judgment of conviction
and sentence as part of [his] plea agreement”); see also id., at 118, 121,
132 (showing that Garza’s sentencing judge and judgments of convic-
tion provided, despite the appeal waiver, generalized notice of a “right
to appeal”). Because our ruling does not turn on these facts, we do not
address them further.
2 Garza’s affidavit states that he wished to argue, at least in part,
that he “was persuaded to plead guilty by [the] prosecuting attorney
and [his] counsel which was not voluntarily [sic].” Id., at 210.
Cite as: 586 U. S. ____ (2019) 3
Opinion of the Court
ple, 8 of the 10 Federal Courts of Appeals to have consid-
ered the question have applied Flores-Ortega’s presump-
tion of prejudice even when a defendant has signed an
appeal waiver.3 162 Idaho, at 795, 405 P. 3d, at 580.
We granted certiorari to resolve the split of authority.
585 U. S. ___ (2018). We now reverse.
II
A
The Sixth Amendment guarantees criminal 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.’ ” Strickland v. Washing-
ton, 466 U. S. 668, 686 (1984) (quoting McMann v. Rich-
ardson, 397 U. S. 759, 771, n. 14 (1970)). Under Strick-
land, a defendant who claims ineffective assistance of
counsel must prove (1) “that counsel’s representation fell
below an objective standard of reasonableness,” 466 U. S.,
at 687–688, and (2) that any such deficiency was “prejudi-
cial to the defense,” id., at 692.
“In certain Sixth Amendment contexts,” however, “prej-
udice 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
——————
3 Compare Campbell v. United States, 686 F. 3d 353, 359 (CA6 2012);
Watson v. United States, 493 F. 3d 960, 964 (CA8 2007); United States
v. Poindexter, 492 F. 3d 263, 273 (CA4 2007); United States v. Tapp,
491 F. 3d 263, 266 (CA5 2007); Campusano v. United States, 442 F. 3d
770, 775 (CA2 2006); Gomez-Diaz v. United States, 433 F. 3d 788, 791–
794 (CA11 2005); United States v. Sandoval-Lopez, 409 F. 3d 1193,
1195–1199 (CA9 2005); United States v. Garrett, 402 F. 3d 1262, 1266–
1267 (CA10 2005), with Nunez v. United States, 546 F. 3d 450, 455
(CA7 2008); United States v. Mabry, 536 F. 3d 231, 241 (CA3 2008). At
least two state courts have declined to apply Flores-Ortega in the face of
appeal waivers. See Buettner v. State, 382 Mont. 410, 363 P. 3d 1147(2015) (Table); Stewart v. United States, 37 A. 3d 870, 877 (D. C. 2012);
see also Kargus v. State, 284 Kan. 908, 922, 928, 169 P. 3d 307, 316,
320 (2007).
4 GARZA v. IDAHO
Opinion of the Court
U. S. 648, 659 (1984), or left “entirely without the assis-
tance of counsel on appeal,” Penson v. Ohio, 488 U. S. 75,
88 (1988). Similarly, prejudice is presumed “if counsel
entirely fails to subject the prosecution’s case to meaning-
ful adversarial testing.” Cronic, 466 U. S., at 659. And,
most relevant here, prejudice is presumed “when counsel’s
constitutionally deficient performance deprives a defend-
ant of an appeal that he otherwise would have taken.”
Flores-Ortega, 528 U. S., at 484. We hold today that this
final presumption applies even when the defendant has
signed an appeal waiver.
B
It is helpful, in analyzing Garza’s case, to first address
two procedural devices on which the case hinges: appeal
waivers and notices of appeal.
1
We begin with the term “appeal waivers.” While the
term is useful shorthand for clauses like those in Garza’s
plea agreements, it can misleadingly suggest a monolithic
end to all appellate rights.4 In fact, however, no appeal
waiver serves as an absolute bar to all appellate claims.
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
——————
4 While this Court has never recognized a “constitutional right to an
appeal,” it has “held that if an appeal is open to those who can pay for
it, an appeal must be provided for an indigent.” Jones v. Barnes, 463
U. S. 745, 751 (1983); see also Douglas v. California, 372 U. S. 353(1963); Griffin v. Illinois, 351 U. S. 12, 18 (1956) (plurality opinion).
Today, criminal defendants in nearly all States have a right to appeal
either by statute or by court rule. See generally Robertson, The Right
To Appeal, 91 N. C. L. Rev. 1219, 1222, and n. 8 (2013). Criminal
defendants in federal court have appellate rights under 18 U. S. C.
§3742(a) and 28 U. S. C. §1291.
Cite as: 586 U. S. ____ (2019) 5
Opinion of the Court
11 other Federal Courts of Appeals with criminal jurisdic-
tion); 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 (2009).
As with any type of contract, the language of appeal
waivers can vary widely, with some waiver clauses leaving
many types of claims unwaived.5 Additionally, even a
waived appellate claim can still go forward if the prosecu-
tion forfeits or waives the waiver. E.g., United States v.
Story, 439 F. 3d 226, 231 (CA5 2006). Accordingly, a de-
fendant who has signed an appeal waiver does not, in
directing counsel to file a notice of appeal, necessarily
undertake a quixotic or frivolous quest.
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 enforceable—for example, on the
grounds that it was unknowing or involuntary.6 Conse-
——————
5 See generally Brief for Idaho Association of Criminal Defense Law-
yers et al. as Amici Curiae 6–10 (collecting examples of appeal waivers
that allowed challenges to the defendant’s sentence or conviction or
allowed claims based on prosecutorial misconduct or changes in law).
6 See, e.g., United States v. Brown, 892 F. 3d 385, 394 (CADC 2018)
(“Like all other courts of appeals, our circuit holds that a defendant
‘may waive his right to appeal his sentence as long as his decision is
knowing, intelligent, and voluntary’ ”); Spann v. State, 704 N. W. 2d
486, 491 (Minn. 2005) (“Jurisdictions allowing a defendant to waive his
or her right to appeal a conviction require that the waiver be made
‘intelligently, voluntarily, and with an understanding of the conse-
quences’ ”). Lower courts have also applied exceptions for other kinds of
claims, including “claims that a sentence is based on race discrimina-
tion, exceeds the statutory maximum authorized, or is the product of
ineffective assistance of counsel.” King & O’Neill, Appeal Waivers and
the Future of Sentencing Policy, 55 Duke L. J. 209, 224 (2005) (collect-
ing federal cases); see also, e.g., United States v. Puentes-Hurtado, 794
6 GARZA v. IDAHO
Opinion of the Court
quently, while signing an appeal waiver means giving up
some, many, or even most appellate claims, some claims
nevertheless remain.
2
It is also important to consider what it means—and does
not mean—for 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. It typically takes place during a compressed
window: 42 days in Idaho, for example, and just 14 days in
federal court. See Idaho 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., Idaho 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 (1999). And because
some defendants receive new counsel for their appeals, the
lawyer responsible for deciding which appellate claims to
raise 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
——————
F. 3d 1278, 1284 (CA11 2015) (“[A]ppellate review is also permitted
when a defendant claims that the government breached the very plea
agreement which purports to bar him from appealing or collaterally
attacking his conviction and sentence”); State v. Dye, 291 Neb. 989, 999,
870 N. W. 2d 628, 634 (2015) (holding that appeal waivers are subject
to a “miscarriage of justice” exception). We make no statement today
on what particular exceptions may be required.
Cite as: 586 U. S. ____ (2019) 7
Opinion of the Court
nonsubstantive.7
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 (1983); see also McCoy
v. Louisiana, 584 U. S. ___, ___ (2018) (slip op., at 6). In
other words, filing a notice of appeal is, generally speak-
ing, a simple, nonsubstantive act that is within the de-
fendant’s prerogative.
C
With that context in mind, we turn to the precise legal
issues here. As an initial matter, we note that Garza’s
attorney rendered deficient performance by not filing the
notice of appeal in light of Garza’s clear requests. As this
Court explained in Flores-Ortega:
“We have long held that a lawyer who disregards
specific instructions from the defendant to file a notice
of appeal acts in a manner that is professionally un-
reasonable. This is so because a defendant who in-
structs 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 deci-
sion; 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 (citations omit-
ted); see also id., at 478.
——————
7 E.g., Miss. Rule Crim. Proc. 29.1(b) (2017); Ohio Rule App. Proc.
3(D) (Lexis 2017). While Idaho requires a notice of appeal to “contain
substantially . . . [a] preliminary statement of the issues on appeal
which the appellant then intends to assert in the appeal,” the Rule in
question also makes clear that “any such list of issues on appeal shall
not prevent the appellant from asserting other issues on appeal.” Idaho
Rule App. Proc. 17(f ).
8 GARZA v. IDAHO
Opinion of the Court
Idaho maintains that the risk of breaching the defend-
ant’s plea agreement renders counsel’s choice to override
the defendant’s instructions a strategic one. See Strick-
land, 466 U. S., at 690–691 (“[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 responsibil-
ity counsel may have to discuss the potential consequences
of such a breach, it should be clear from the foregoing that
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 decision whether to appeal is ulti-
mately the defendant’s, not counsel’s, to make.8 See
McCoy, 584 U. S., at ___ (slip op., at 6); Barnes, 463 U. S.,
at 751. Where, as here, a defendant has expressly re-
quested an appeal, counsel performs deficiently by disre-
garding the defendant’s instructions.9
D
We now address the crux of this case: whether Flores-
Ortega’s presumption of prejudice applies despite an ap-
peal waiver. The holding, principles, and facts of Flores-
——————
8 That does not mean, of course, that appellate counsel must then
make unsupportable arguments. After an appeal has been preserved
and counsel has reviewed the case, counsel may always, in keeping
with longstanding precedent, “advise the court and request permission
to withdraw,” while filing “a brief referring to anything in the record
that might arguably support the appeal.” Anders v. California, 386
U. S. 738, 744 (1967). The existence of this procedure reinforces that a
defendant’s appellate rights should not hinge “on appointed counsel’s
bare assertion that he or she is of the opinion that there is no merit to
the appeal.” Penson v. Ohio, 488 U. S. 75, 80 (1988).
9 We leave undisturbed today Flores-Ortega’s separate discussion of
how to approach situations in which a defendant’s wishes are less clear.
See 528 U. S., at 478–481.
Cite as: 586 U. S. ____ (2019) 9
Opinion of the Court
Ortega show why that presumption applies equally here.
With regard to prejudice, Flores-Ortega held that, to
succeed in an ineffective-assistance claim in this context, 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.
So long as a defendant can show that “counsel’s constitu-
tionally deficient performance deprive[d him] of an appeal
that he otherwise would have taken,” courts are to “pre-
sum[e] prejudice with no further showing from the de-
fendant of the merits of his underlying claims.” Ibid.Because there is no dispute here that Garza wished to
appeal, see supra, at 2, a direct application of Flores-
Ortega’s language resolves this case. See 528 U. S., at
484.
Flores-Ortega’s reasoning shows why an appeal waiver
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. As the Court explained, 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 alto-
gether.” Id., at 483. 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 (2000)).
That rationale applies just as well here because, as
discussed supra, at 4–6, Garza retained a right to appeal
at least some issues despite the waivers he signed.10 In
other words, Garza had a right to a proceeding, and he
——————
10 Or the State might not have invoked the waiver at all. E.g., United
States v. Archie, 771 F. 3d 217, 223, n. 2 (CA4 2014); State v. Rendon,
2012 WL 9492805, *1, n. 1 (Idaho Ct. App., May 11, 2012).
10 GARZA v. IDAHO
Opinion of the Court
was denied that proceeding altogether as a result of coun-
sel’s deficient performance.
That Garza surrendered many claims by signing his
appeal waivers does not change things. First, this Court
has made clear that 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 poor prospects. See, e.g., Jae Lee v.
United States, 582 U. S. ___, ___ (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, and—as the
Court pointed out—“a guilty plea reduces the scope of
potentially appealable issues” on its own. See 528 U. S.,
at 480. In other words, with regard to the defendant’s
appellate prospects, Flores-Ortega presented at most a
difference of degree, not kind, and prescribed a presump-
tion of prejudice regardless of how many appellate claims
were foreclosed. See id., at 484. We do no different today.
Instead, we reaffirm that, “when counsel’s constitution-
ally 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 an appeal,” with no need for a “fur-
ther showing” of his claims’ merit, ibid., regardless of
whether the defendant has signed an appeal waiver.
III
Flores-Ortega states, in one sentence, that the loss of the
“entire [appellate] proceeding itself, which a defendant
wanted at the time and to which he had a right, . . . de-
mands a presumption of prejudice.” Id., at 483. Idaho and
the U. S. Government, participating as an amicus on
Idaho’s behalf, seize on this language, asserting that
Garza never “had a right” to his appeal and thus that any
deficient performance by counsel could not have caused
Cite as: 586 U. S. ____ (2019) 11
Opinion of the Court
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. Garza 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 6–
7, it is wholly speculative to say that counsel’s deficiency
forfeits no proceeding to which a defendant like Garza has
a right.11
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 show—on a “case-specific” basis, id., at 23—
either (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 for appeal’ despite the waiver,” id., at 22 (quoting
Flores-Ortega, 528 U. S., at 485). We decline this sugges-
tion, because it cannot be squared with our precedent and
would likely prove both unfair and inefficient in practice.
This Court has already rejected attempts to condition
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 his underlying claims.”
——————
11 The possibility that an appellate court confronted with a waived
claim (and a motion to enforce the waiver) would technically “dismiss
the appeal without reaching the merits,” see Brief for United States as
Amicus Curiae 17; see also Brief for Respondent 26, does not alter this
conclusion. Whatever the label, the defendant loses the opportunity to
raise any appellate claims at all—including those that would, or at
least could, be heard on the merits.
12 GARZA v. IDAHO
Opinion of the Court
Id., at 484; see also id., at 486. In Rodriquez v. United
States, 395 U. S. 327 (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. So too
here.
Moreover, 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.
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 their
rights were violated at some earlier stage in the proceed-
ings.” Rodriquez, 395 U. S., at 330. We accordingly de-
cline to place a pleading barrier between a defendant and
an opportunity to appeal that he never should have lost.
Meanwhile, the Government’s assumption that un-
waived claims can reliably be distinguished from waived
claims through case-by-case postconviction review is dubi-
ous. There is no right to counsel in postconviction pro-
ceedings, see Pennsylvania v. Finley, 481 U. S. 551, 555
(1987), and most applicants proceed pro se.12 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. We have already ex-
——————
12 For example, researchers have found that over 90% of noncapital
federal habeas petitioners proceed without counsel. See N. King et al.,
Final Technical Report: Habeas Litigation in U. S. District Courts 23
(2007).
Cite as: 586 U. S. ____ (2019) 13
Opinion of the Court
plained why this would be “unfair” and ill advised. See
ibid.; see also Rodriquez, 395 U. S., at 330. 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 proceed-
ings. See, e.g., 28 U. S. C. §§2254, 2255; see also Brief for
Idaho Association of Criminal Defense Lawyers et al. as
Amici Curiae 22–25.
The Government’s proposal is also unworkable. For one,
it would be difficult and time consuming for a postconvic-
tion court to determine—perhaps years later—what appel-
late claims a defendant was contemplating at the time of
conviction.13 Moreover, because most postconviction peti-
tioners 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 4–6), 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: When counsel’s defi-
cient 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 3, and n. 3, and neither Idaho nor its amici
have pointed us to any evidence that it has proved un-
manageable there.14 That rule does no more than restore
——————
13 To the extent relief would turn on what precisely a defendant said
to counsel regarding specific claims, moreover, Garza rightly points out
the serious risk of “causing indigent defendants to forfeit their rights
simply because they did not know what words to use.” Reply Brief 17.
14 It is, of course, inevitable that some defendants under this rule will
seek to raise issues that are within the scope of their appeal waivers.
14 GARZA v. IDAHO
Opinion of the Court
the status quo that existed before counsel’s deficient per-
formance forfeited the appeal, and it allows an appellate
court to consider the appeal as that court otherwise would
have done—on direct review, and assisted by counsel’s
briefing.
IV
We hold today that the presumption of prejudice recog-
nized in Flores-Ortega applies regardless of whether a
defendant has signed an appeal waiver. This ruling fol-
lows squarely from Flores-Ortega and from the fact that
even the broadest appeal waiver does not deprive a de-
fendant 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 instruc-
tions, 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.
The judgment of the Supreme Court of Idaho is there-
fore reversed, and the case is remanded for further pro-
ceedings not inconsistent with this opinion.
It is so ordered.
——————
We are confident that courts can continue to deal efficiently with such
cases via summary dispositions and the procedures outlined in Anders.
See 386 U. S., at 744; n. 9, supra.
Cite as: 586 U. S. ____ (2019) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1026
_________________
GILBERTO GARZA, JR., PETITIONER v. IDAHO
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF IDAHO
[February 27, 2019]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
and with whom JUSTICE ALITO joins as to Parts I and II,
dissenting.
Petitioner Gilberto Garza avoided a potential life sen-
tence by negotiating with the State of Idaho for reduced
charges and a 10-year sentence. In exchange, Garza
waived several constitutional and statutory rights, includ-
ing “his right to appeal.” App. to Pet. for Cert. 44a, 49a.
Despite this express waiver, Garza asked his attorney to
challenge on appeal the very sentence for which he had
bargained. Garza’s counsel quite reasonably declined to
file an appeal for that purpose, recognizing that his client
had waived this right and that filing an appeal would
potentially jeopardize his plea bargain. Yet, the majority
finds Garza’s counsel constitutionally ineffective, holding
that an attorney’s performance is per se deficient and
per se prejudicial any time the attorney declines a criminal
defendant’s request to appeal an issue that the defendant
has waived. In effect, this results in a “defendant-always-
wins” rule that has no basis in Roe v. Flores-Ortega, 528
U. S. 470 (2000), or our other ineffective-assistance prece-
dents, and certainly no basis in the original meaning of
the Sixth Amendment. I respectfully dissent.
I
In 2015, in accordance with two plea agreements, Garza
2 GARZA v. IDAHO
THOMAS, J., dissenting
entered an Alford1 plea to aggravated assault and pleaded
guilty to possession with intent to deliver methampheta-
mine. Under the terms of the plea agreements, Idaho
agreed not to (1) file additional burglary and grand theft
charges; (2) refer Garza for federal prosecution on a charge
of unlawful possession of ammunition by a felon, see 18
U. S. C. §922(g)(1); or (3) seek a “Persistent violator”
sentencing enhancement that would expose Garza to a
potential life sentence, see Idaho Code Ann. §19–2514
(2017). In exchange, Garza agreed to “ ‘waiv[e] his right to
appeal’ ” and his right to file a motion for correction or
reduction of his sentence.2 Ante, at 2. And both parties
agreed to specific sentences totaling 10 years of imprison-
ment, which would be binding on the District Court if it
accepted the plea agreements. See Idaho Crim. Rules
11(f )(1)(C) and (f )(3) (2017) (allowing parties to agree to
a binding sentence). Thus, the judge could impose no
sentence other than the 10 years for which Garza had
——————
1 See North Carolina v. Alford, 400 U. S. 25, 37–38 (1970) (permitting
courts to accept guilty pleas where defendants admit that there is a
factual basis for the plea, but do not admit actual guilt).
2 The majority questions the validity of Garza’s appellate waivers by
suggesting that “Garza may have been confused as to whether he had
waived his appellate rights in the first place.” Ante, at 2, n. 1. I read
the record differently. It is true that, in the guilty form related to his
possession charge, Garza checked “no” as to whether he was waiving
his appeal rights. But, in the guilty form related to his aggravated-
assault charge, he checked “yes” to waiving his appeal rights. And at
the plea hearing for that offense, he acknowledged under oath that he
understood all the questions, had received enough time with the guilty
form, and answered each question honestly. He also acknowledged at
the sentencing hearing for both offenses that he would be “go[ing] away
for ten years,” as negotiated for in the signed plea agreements that
included the appeal waivers. Record 131. Finally, the trial court in
postconviction proceedings concluded that Garza had never contended
“at any stage of these post-conviction cases” that “he did not appreciate
or understand the appeal waivers when he entered his pleas.” Id.,
at 185.
Cite as: 586 U. S. ____ (2019) 3
THOMAS, J., dissenting
bargained.3
The trial court accepted the plea agreements and, as
required, sentenced Garza to 10 years’ imprisonment.
However, the court noted that if the cases had been “con-
sidered individually,” a “harsher sentence” might have
been warranted due to Garza’s “history of violent crime”
and the “gratuitous aggression” displayed by Garza in the
aggravated-assault case. Record 336.
Four months later, Garza filed the petitions for postcon-
viction relief at issue here. Among other things, he
claimed that his pleas were not voluntary and that his
counsel had been constitutionally ineffective for failing to
file an appeal despite repeated requests that he do so. For
relief, Garza requested that his sentences “run concur-
rent.” Id., at 207. The trial court appointed counsel to
pursue Garza’s collateral challenges. It subsequently
dismissed Garza’s claim that his plea was involuntary
for “lack of supporting evidence,” but it allowed the
ineffective-assistance claim to proceed. App. to Pet for
Cert. 3a, 29a.
In response to Garza’s ineffective-assistance claim,
Idaho submitted an affidavit from Garza’s trial counsel,
which stated, “Garza indicated to me that he knew he
agreed not to appeal his sentence(s) but he told me that he
wanted to appeal the sentence(s)” anyway. Record 151.
The trial counsel explained that he did not honor that
request because “Garza received the sentence(s) he bar-
gained for in his [Idaho Criminal Rule] 11(f )(1)(c) Agree-
ment,” and he told Garza “that an appeal was problematic
because he waived his right to appeal in his Rule 11
agreements.” Ibid. Garza, through his newly appointed
——————
3 See id., at 96, 108 (“I understand that my plea agreement is a bind-
ing plea agreement. This means that if the district court does not
impose the specific sentence as recommended by both parties, I will be
allowed to withdraw my plea of guilty pursuant to Rule 11(d)(4) of the
Idaho Criminal Rules and proceed to a jury trial”); see also id., at 128.
4 GARZA v. IDAHO
THOMAS, J., dissenting
collateral counsel, admitted that the appeal waiver “was
by the book,” that he “received exactly what he bargained
for in exchange for his plea,” and that there was “no ambi-
guity” as to the appropriate sentence. Id., at 161–162,
276–277. Garza also conceded that, if forced to identify an
issue he would raise on appeal, “[t]he only issue that could
be identified is sentencing review.” Id., at 176, 371.
The trial court granted summary judgment to Idaho. It
explained that Garza needed to identify “non-frivolous
grounds for contending on appeal either that (i) the appeal
waiver is invalid or unenforceable, or (ii) the issues he
wants to pursue on appeal are outside the waiver’s scope.”
App. to Pet. for Cert. 38a. The Idaho Court of Appeals and
the Idaho Supreme Court affirmed. Notably, the Idaho
Supreme Court declined to presume negligent perfor-
mance because state law imposes a duty on counsel not to
file frivolous litigation and to avoid taking actions that
will jeopardize the benefit his client gained from the plea
bargain. The Idaho Supreme Court also found Flores-
Ortega inapplicable, reasoning that once a defendant
waives his appellate rights, he no longer has a right to an
appellate proceeding at all.
II
As with most ineffective-assistance claims, a defendant
seeking to show that counsel was constitutionally ineffec-
tive for failing to file an appeal must show deficient per-
formance and prejudice. Strickland v. Washington, 466
U. S. 668, 687 (1984). Relying on Flores-Ortega, the ma-
jority finds that Garza has satisfied both prongs. In so
holding, it adopts a rule whereby a criminal defendant’s
invocation of the words “I want to appeal” can undo all
sworn attestations to the contrary and resurrect waived
statutory rights.
This rule is neither compelled by precedent nor con-
sistent with the use of appeal waivers in plea bargaining.
Cite as: 586 U. S. ____ (2019) 5
THOMAS, J., dissenting
In my view, a defendant who has executed an appeal
waiver cannot show prejudice arising from his counsel’s
decision not to appeal unless he (1) identifies claims he
would have pursued that were outside the appeal waiver;
(2) shows that the plea was involuntary or unknowing; or
(3) establishes that the government breached the plea
agreement. Garza has not made any such showing, so he
cannot establish prejudice. Furthermore, because Garza’s
counsel acted reasonably, Garza also cannot establish
deficient performance. I would therefore affirm.
A
The majority relies on Flores-Ortega to create its new
rule, but if anything, that decision undermines the majori-
ty’s per se approach. In Flores-Ortega, the defendant
pleaded guilty to second-degree murder without waiving
any of his appellate rights. 528 U. S., at 473–474. On
federal collateral review, the defendant alleged that his
counsel was ineffective for failing to file a notice of appeal
after she promised to do so. Id., at 474. The record con-
tained conflicting evidence as to whether the defendant
had communicated his desire to appeal, and the District
Court concluded that he failed to carry his burden. Id., at
475. The Ninth Circuit reversed, reasoning that “a habeas
petitioner need only show that his counsel’s failure to file
a notice of appeal was without the petitioner’s consent.”
Id., at 475–476.
This Court reversed. We first concluded that the Ninth
Circuit’s rule “effectively impose[d] an obligation on coun-
sel in all cases either (1) to file a notice of appeal, or (2) to
discuss the possibility of an appeal with the defendant,
ascertain his wishes, and act accordingly.” Id., at 478. We
rejected “this per se rule as inconsistent with Strickland’s
holding that ‘the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances.’ ” Ibid. (quoting 466 U. S., at 688). We also
6 GARZA v. IDAHO
THOMAS, J., dissenting
faulted the Ninth Circuit for “fail[ing] to engage in the
circumstance-specific reasonableness inquiry required by
Strickland.” 528 U. S., at 478. We concluded that this
failure “alone mandates vacatur and remand.” Ibid.
We further explained that counsel’s failure to consult
with the client about an appeal constitutes deficient per-
formance only when counsel should have consulted. Id., at
479. The Court was clear: “We cannot say, as a constitu-
tional matter, that in every case counsel’s failure to con-
sult with the defendant about an appeal is necessarily
unreasonable.” Ibid. In determining whether counsel has
a duty to consult, we stated that “a highly relevant factor
in this inquiry will be whether the conviction follows a
trial or guilty plea, both because a guilty plea reduces the
scope of potentially appealable issues and because such a
plea may indicate that the defendant seeks an end to
judicial proceedings.” Id., at 480. Finally, “[e]ven in cases
when the defendant pleads guilty, the court must consider
such factors as whether the defendant received the sen-
tence bargained for as part of the plea and whether the
plea expressly reserved or waived some or all appeal
rights.” Ibid. We rejected the argument that choosing not
to consult was outside the scope of valid, strategic deci-
sionmaking, as “we have consistently declined to impose
mechanical rules on counsel.” Id., at 481. In sum, we
“reject[ed] a bright-line rule that counsel must always
consult with the defendant regarding an appeal” and
instructed courts to evaluate whether the decision to
consult was “reasonable” under the circumstances. Id., at
480–481.
We also rejected the Ninth Circuit’s “per se prejudice
rule” because it “ignore[d] the critical requirement that
counsel’s deficient performance must actually cause the
forfeiture of the defendant’s appeal.” Id., at 484. We held
that, “to show prejudice in these circumstances, a defend-
ant must demonstrate that there is a reasonable probabil-
Cite as: 586 U. S. ____ (2019) 7
THOMAS, J., dissenting
ity that, but for counsel’s deficient failure to consult with
him about an appeal, he would have timely appealed.”
Ibid. After the defendant makes that showing, we held
that he was entitled to a presumption of prejudice because
he was denied counsel during the entire appellate proceed-
ing, rendering it presumptively unreliable. Id., at 483–
485.
The Court purports to follow Flores-Ortega, but glosses
over the important factual and legal differences between
that case and this one. The most obvious difference is also
the most crucial: There was no appellate waiver in Flores-
Ortega. The proximate cause of the defendant’s failure to
appeal in that case was his counsel’s failure to file one.
Not so here. Garza knowingly waived his appeal rights
and never expressed a desire to withdraw his plea. It was
thus Garza’s agreement to waive his appeal rights, not his
attorney’s actions, that caused the forfeiture of his appeal.
Thus, Flores-Ortega is inapposite.
B
Because Flores-Ortega does not control cases involving
defendants who voluntarily waive their appeal rights, this
case should be resolved based on a straightforward appli-
cation of Strickland. Under that framework, Garza has
failed to demonstrate either (1) that his counsel was defi-
cient or (2) that he was prejudiced in any way by that
alleged deficiency.
1
As to deficiency, “[n]o particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the
variety of circumstances faced by defense counsel.” Strick-
land, 466 U. S., at 688–689. Accordingly, “[ j]udicial scru-
tiny of counsel’s performance must be highly deferential”
and focus on “the reasonableness of counsel’s challenged
conduct on the facts of the particular case.” Id., at 689–
8 GARZA v. IDAHO
THOMAS, J., dissenting
690.
Counsel’s choice not to appeal Garza’s sentence—the
only issue Garza asked his counsel to challenge—was not
only not deficient, it was the only professionally reasona-
ble course of action for counsel under the circumstances.
That is because filing an appeal would have been worse
than pointless even judging by Garza’s own express de-
sires; it would have created serious risks for Garza while
having no chance at all of achieving Garza’s stated goals
for an appeal. Garza had pleaded guilty under Rule 11,
expressly waived his right to appeal his sentence, and
stated that his desire in appealing was to have his consec-
utive sentences “r[u]n concurrent.” Record 207. But that
kind of appeal challenges the defining feature of a Rule 11
plea: the agreed-upon sentence from which the trial court
has no discretion to deviate. Here, that sentence includes
the consecutive sentences that Garza agreed to, then
sought to challenge. Had Garza’s counsel reflexively filed
an appeal and triggered resentencing, Garza might have
faced life in prison, especially in light of the trial court’s
concern that the agreed-upon sentence (from which it
could not deviate under Rule 11) might have been too
lenient. And Garza’s admissions at the plea hearings and
his written plea form could have been (and thus likely
would have been) used against him if he had proceeded to
trial on any additional charges filed by the State after
breaching the plea agreements. See id., at 104 (“[S]hould
the court reinstate a plea of not guilty on his behalf, the
State will use Defendant’s testimony during his entry of
plea of guilty and his written plea form, during the State’s
case at trial”); id., at 92 (same).
Under these circumstances, it is eminently reasonable
for an attorney to “respec[t] his client’s formal waiver of
appeal” and uphold his duty “to avoid taking steps that
will cost the client the benefit of the plea bargain.” Nunez
v. United States, 546 F. 3d 450, 453, 455 (CA7 2008)
Cite as: 586 U. S. ____ (2019) 9
THOMAS, J., dissenting
(Easterbrook, C. J.). And because filing an appeal places
the defendant’s plea agreement in jeopardy, an attorney’s
decision not to file in the face of an appellate waiver does
not amount to the failure to perform “a purely ministerial
task” that “cannot be considered a strategic decision.”
Flores-Ortega, 528 U. S., at 477. Even where state law or
a plea agreement preserves limited appeal rights, an
attorney does not fail to “show up for appeal” by declining
to challenge a waived issue. Nunez, supra, at 454.
The deficiency analysis in this case would likely be
different if Garza had informed his counsel that he desired
to breach the plea agreements and file an appeal—despite
the waiver and in full awareness of the associated risks—
for the sake of an identified goal that had any hope of
being advanced by the filing of an appeal. But the record
shows that Garza simply sought a more lenient sentence.
Since that goal could not be advanced by an appeal in this
case, counsel had no duty to file one. The Constitution
does not compel attorneys to take irrational means to their
client’s stated ends when doing so only courts disaster.
Garza ultimately faults his plea-stage attorney for
failing to put his plea agreements in jeopardy. But I have
no doubt that if a similarly situated attorney breached a
plea agreement by appealing a waived issue and subjected
his client to an increased prison term, that defendant
would argue that his counsel was ineffective for filing the
appeal. What Garza wants—and what the majority gives
him—is a per se deficiency rule ensuring that criminal
defendants can always blame their plea-stage counsel on
collateral review, even where they did not ask counsel to
appeal nonwaived claims or breach the plea agreement for
the sake of some further (achievable) goal. Declining to
file an appeal under these circumstances is reasonable,
not deficient.
10 GARZA v. IDAHO
THOMAS, J., dissenting
2
As for prejudice, Garza cannot benefit from a presumed-
prejudice finding since he cannot establish that his coun-
sel caused the forfeiture of his appeal, as Flores-Ortega
requires. Garza knowingly and voluntarily bargained
away his right to appeal in exchange for a lower sentence.
If any prejudice resulted from that decision, it cannot be
attributed to his counsel.
It does not matter that certain appellate issues—
specifically, (1) the voluntariness of the plea agreement
and (2) a breach of the agreement by the State—are not
waivable. Garza did not ask his counsel to appeal those
issues. In fact, Garza has not identified any nonwaived
issue that he would have brought on direct appeal; he
simply identified “sentencing review” as his primary objec-
tive. Moreover, declining to file an appeal raising these
nonwaivable claims is unlikely to be prejudicial; this Court
has repeatedly stated that collateral review is a better
avenue to address involuntariness and ineffective-
assistance claims, as these claims often require extra-
record materials and present conflicts with counsel. See
generally Massaro v. United States, 538 U. S. 500 (2003).
The Court’s decision in McCoy v. Louisiana, 584 U. S.
___ (2018), does not change the analysis. McCoy acknowl-
edges that some decisions are “reserved for the client,”
including the decision whether to “forgo an appeal.” Id., at
___ (slip op., at 6). But Garza exercised his right to decide
whether to appeal. He chose not to when he entered the
plea agreements. Like many constitutional and statutory
rights, the right to appeal can be waived by the defendant,
and once that choice is finally made, the defendant is
bound by the decision and cannot fault his attorney for the
self-inflicted prejudicial effects that he suffers. For in-
stance, a defendant cannot waive his right against self-
incrimination by testifying at his trial, and then claim
that his attorney prejudiced him by not moving to strike
Cite as: 586 U. S. ____ (2019) 11
THOMAS, J., dissenting
his damaging testimony from the record. Nor can a de-
fendant waive his right to a jury trial, and then later claim
prejudice when his attorney declines to seek a mistrial on
the ground that the judge found him guilty. In the same
way, Garza was not prejudiced by his attorney’s refusal to
file an appeal challenging his sentence, a right that he had
expressly waived. The lack of prejudice is especially pro-
nounced in this case, as Garza’s instruction to appeal did
not acknowledge that he wanted to challenge or rescind
the plea agreements.
C
There is no persuasive reason to depart from an ordi-
nary Strickland analysis in cases involving an attorney’s
decision to honor his client’s agreement to waive his ap-
peal rights. Garza contends that it is unfair to require
pro se defendants to identify the issues they would have
raised on appeal. But pro se defendants always bear the
burden of showing ineffective assistance of counsel; I see
no reason why this kind of ineffective-assistance claim
should be any different. Regardless, Garza’s fairness
argument rings hollow because Garza has been represented
by counsel at every stage of this collateral litigation and
has yet to articulate a single nonfrivolous, nonwaived
issue that he would have raised on appeal. His inability to
identify any issues that he preserved simply underscores
the fact that he waived them all.
The Court’s rule may be easy to “administ[er],” ante, at
13, but it undermines the finality of criminal judgments—
a primary purpose of plea agreements—and disadvantages
the public by allowing defendants to relitigate issues that
they waived in exchange for substantial benefits. The
Court’s rule also burdens the appellate courts that must
address the new, meritless appeals authorized by today’s
decision. And, ironically, the Court’s rule may prejudice
the defendants it is designed to help, as prosecutors may
12 GARZA v. IDAHO
THOMAS, J., dissenting
understandably be less willing to offer generous plea
agreements when courts refuse to afford the government
the benefit of its bargain—fewer resources spent defending
appeals.
Finally, because Garza’s requested relief is categorically
barred by the plea agreements, the majority offers Garza
an appeal he is certain to lose. And should Garza accept
the majority’s invitation, he could give up much more. If
Garza appeals his sentence and thereby breaches his plea
agreements, Idaho will be free to file additional charges
against him, argue for a “Persistent violator” sentencing
enhancement that could land him in prison for life, and
refer him for federal prosecution. It simply defies logic to
describe counsel’s attempt to avoid those consequences as
deficient or prejudicial.
III
In addition to breaking from this Court’s precedent,
today’s decision moves the Court another step further
from the original meaning of the Sixth Amendment. The
Sixth Amendment provides that, “[i]n all criminal prosecu-
tions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” That provision “as
originally understood and ratified meant only that a de-
fendant had a right to employ counsel, or to use volun-
teered services of counsel.” Padilla v. Kentucky, 559 U. S.
356, 389 (2010) (Scalia, J., dissenting). Yet, the Court has
read the Constitution to require not only a right to counsel
at taxpayers’ expense, but a right to effective counsel. The
result is that convicted criminals can relitigate their trial
and appellate claims through collateral challenges
couched as ineffective-assistance-of-counsel claims. Be-
cause little available evidence suggests that this reading is
correct as an original matter, the Court should tread
carefully before extending our precedents in this area.
Cite as: 586 U. S. ____ (2019) 13
THOMAS, J., dissenting
A
The Sixth Amendment right to the assistance of counsel
grew out of the Founders’ reaction to the English common-
law rule that denied counsel for treason and felony offenses
with respect to issues of fact, while allowing counsel for
misdemeanors. See 4 W. Blackstone, Commentaries on
the Laws of England 349–350 (1769); 1 J. Stephen, A
History of the Criminal Law of England 341 (1883); Powell
v. Alabama, 287 U. S. 45, 60 (1932) (“Originally, in Eng-
land, a person charged with treason or felony was denied
the aid of counsel, except in respect of legal questions
which the accused himself might suggest”). It was not
until 1696 that England created a narrow exception to this
rule for individuals accused of treason or misprision of
treason—by statute, Parliament provided both that the
accused may retain counsel and that the court must ap-
point counsel if requested. 7 & 8 Will. 3, ch.3, §1. Only in
1836 did England permit all criminally accused to appear
and defend with counsel, and even then it did not require
court-appointed counsel at government expense. 6 & 7
Will. 4, ch. 114, §1. It would be another 67 years—112
years after the ratification of the Sixth Amendment,
and 35 years after the ratification of the Fourteenth
Amendment—before England provided court-appointed
counsel for all felonies. Poor Prisoners’ Defence Act, 1903,
3 Edw. 7, ch. 38, §1.
The traditional common-law rule that there was no
right to assistance of counsel for felony offenses received
widespread criticism. As Blackstone noted, this rule
“seems to be not at all of a piece with the rest of the hu-
mane treatment of prisoners by the English law.” 4
Blackstone, Commentaries on the Laws of England, at
349; see ibid. (“[U]pon what face of reason can that assis-
tance be denied to save the life of a man, which yet is
allowed him in prosecutions for every petty trespass”).
The founding generation apparently shared this senti-
14 GARZA v. IDAHO
THOMAS, J., dissenting
ment, as most States adopted some kind of statutory or
constitutional provision providing the accused the right to
retain counsel. W. Beaney, The Right to Counsel in Amer-
ican Courts 14–22 (1955). In fact, at least 12 of the 13
States at the ratification of the Constitution had rejected
the English common-law rule, providing for the right to
counsel in at least some circumstances. See Powell, 287
U. S., at 64–65; id., at 61–64 (surveying the States’ right-
to-counsel provisions); see also Betts v. Brady, 316 U. S.
455, 465–467 (1942) (discussing early state constitutional
provisions), overruled by Gideon v. Wainwright, 372 U. S.
335 (1963). Read against this backdrop, the Sixth
Amendment appears to have been understood at the time
of ratification as a rejection of the English common-law
rule that prohibited counsel, not as a guarantee of
government-funded counsel.
This understanding—that the Sixth Amendment did not
require appointed counsel for defendants—persisted in the
Court’s jurisprudence for nearly 150 years. See United
States v. Van Duzee, 140 U. S. 169, 173 (1891) (“There is,
however, no general obligation on the part of the govern-
ment [to] retain counsel for defendants or prisoners”); Bute
v. Illinois, 333 U. S. 640, 661, n. 17 (1948) (“It is probably
safe to say that from its adoption in 1791 until 1938, the
right conferred on the accused by the Sixth Amendment
. . . was not regarded as imposing on the trial judge in a
Federal court the duty to appoint counsel for an indigent
defendant”). Nor evidently was there any suggestion that
defendants could mount a constitutional attack based on
their counsel’s failure to render effective assistance.4
——————
4 A defendant could bring a state-law tort action against his attorney.
As one commentator explained:
“An attorney is bound to exercise such skill, care and diligence in any
matter entrusted to him, as members of the legal profession commonly
possess and exercise in such matters. . . . He will be liable if his client’s
interests suffer on account of his failure to understand and apply those
Cite as: 586 U. S. ____ (2019) 15
THOMAS, J., dissenting
The Court began shifting direction in 1932, when it
suggested that a right to appointed counsel might exist in
at least some capital cases, albeit as a right guaranteed by
the Due Process Clause. Powell, supra, at 71. Soon there-
after, the Court held that the Sixth Amendment secures a
right to court-appointed counsel in all federal criminal
cases. Johnson v. Zerbst, 304 U. S. 458, 462–463 (1938).
And in 1963, the Court applied this categorical rule to the
States through the Fourteenth Amendment, stating “that
in our adversary system of criminal justice, any person
haled into court, who is too poor to hire a lawyer, cannot
be assured a fair trial unless counsel is provided for him.”
Gideon, supra, at 344. Neither of these opinions attempted
to square the expansive rights they recognized with the
original meaning of the “right . . . to have the Assistance of
Counsel.” Amdt. 6.
B
After the Court announced a constitutional right to
appointed counsel rooted in the Sixth Amendment, it went
on to fashion a constitutional new-trial remedy for cases in
which counsel performed poorly. The Courts of Appeals
had initially adopted a “farce and mockery” standard that
they rooted in the Due Process Clause. This standard
permitted a defendant to make out an ineffective-
assistance claim only “where the circumstances surround-
ing the trial shocked the conscience of the court and made
the proceedings a farce and a mockery of justice.” Diggs v.
——————
rules and principles of law that are well established and clearly defined
in the elementary books, or which have been declared in adjudged cases
that have been duly reported and published a sufficient length of time
to have become known to those who exercise reasonable diligence in
keeping pace with the literature of the profession.” T. Cooley, Law of
Torts *779 (footnotes omitted).
Thus, reasonable choices not clearly foreclosed by law or precedent
would apparently permit an attorney to successfully defend against the
suit.
16 GARZA v. IDAHO
THOMAS, J., dissenting
Welch, 148 F. 2d 667, 670 (CADC 1945); see Bottiglio v.
United States, 431 F. 2d 930, 931 (CA1 1970) (per curiam);
Williams v. Beto, 354 F. 2d 698, 704 (CA5 1965); Frand v.
United States, 301 F. 2d 102, 103 (CA10 1962); O’Malley v.
United States, 285 F. 2d 733, 734 (CA6 1961); Snead v.
Smyth, 273 F. 2d 838, 842 (CA4 1959); Cofield v. United
States, 263 F. 2d 686, 689 (CA9), vacated on other
grounds, 360 U. S. 472 (1959); Johnston v. United States,
254 F. 2d 239, 240 (CA8 1958); United States ex rel. Feeley
v. Ragen, 166 F. 2d 976, 980–981 (CA7 1948); United
States v. Wight, 176 F. 2d 376, 379 (CA2 1949).
Beginning in 1970, the Courts of Appeals moved from
the “farce and mockery” standard to a “reasonable compe-
tence” standard. See Trapnell v. United States, 725 F. 2d
149, 151–152 (CA2 1983) (collecting cases). That same
year, this Court similarly held that defendants are “enti-
tled to the effective assistance of competent counsel,”
defined as receipt of legal advice that is “within the range
of competence demanded of attorneys in criminal cases.”
McMann v. Richardson, 397 U. S. 759, 771 (1970).
Then, in Strickland, the Court crafted the current
standard for evaluating claims of ineffective assistance of
counsel. Without discussing the original meaning of the
Sixth Amendment, the Court stated that “[t]he Sixth
Amendment recognizes the right to the assistance of coun-
sel because it envisions counsel’s playing a role that is
critical to the ability of the adversarial system to produce
just results.” 466 U. S., at 685. The Court thus held that,
to succeed on an ineffective-assistance claim, the defend-
ant must show (1) “that counsel’s representation fell below
an objective standard of reasonableness” and (2) “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Id., at 688, 694. The Court applies
this standard in most situations, but, as it does today, it
has also created an increasing number of per se rules in
Cite as: 586 U. S. ____ (2019) 17
THOMAS, J., dissenting
lieu of applying Strickland’s fact-specific inquiry, thereby
departing even further from the original meaning of the
Sixth Amendment.
There are a few problems with these precedents that
should cause us to pause before extending them. First, the
ineffective-assistance standard apparently originated not
in the Sixth Amendment, but in our Due Process Clause
jurisprudence. See McMann, supra, at 771, n. 14. Second,
“[t]he Constitution, by its terms, does not mandate any
particular remedy for violations of its own provisions.”
United States v. Gonzalez-Lopez, 548 U. S. 140, 157 (2006)
(ALITO, J., dissenting); cf. Collins v. Virginia, 584 U. S.
___, ___–___ (2018) (THOMAS, J., concurring) (slip op., at
2–5) (explaining that the exclusionary rule is not required
by the Fourth Amendment). Strickland does not explain
how the Constitution requires a new trial for violations of
any right to counsel.
Third, our precedents seek to use the Sixth Amendment
right to counsel to achieve an end it is not designed to
guarantee. The right to counsel is not an assurance of
an error-free trial or even a reliable result. It ensures
fairness in a single respect: permitting the accused to
employ the services of an attorney. The structural protec-
tions provided in the Sixth Amendment certainly seek to
promote reliable criminal proceedings, but there is no
substantive right to a particular level of reliability. In
assuming otherwise, our ever-growing right-to-counsel
precedents directly conflict with the government’s legiti-
mate interest in the finality of criminal judgments. I
would proceed with far more caution than the Court has
traditionally demonstrated in this area.
C
The Court should hesitate before further extending our
precedents and imposing additional costs on the taxpayers
18 GARZA v. IDAHO
THOMAS, J., dissenting
and the Judiciary.5 History proves that the States and the
Federal Government are capable of making the policy
determinations necessary to assign public resources for
appointed counsel. The Court has acknowledged as much.
Betts, 316 U. S., at 471 (declining to extend the right to
counsel to the States because “the matter has generally
been deemed one of legislative policy”). Before the Court
decided Gideon, the Court noted that “most of the States
have by legislation authorized or even required the courts
to assign counsel for the defense of indigent and unrepre-
sented prisoners. As to capital cases, all the States so
provide. Thirty-four States so provide for felonies and 28
for misdemeanors.” Bute, 333 U. S., at 663 (internal quo-
tation marks omitted). It is beyond our constitutionally
prescribed role to make these policy choices ourselves.
Even if we adhere to this line of precedents, our dubious
authority in this area should give us pause before we
extend these precedents further.
——————
5 In 2018, the Federal Government’s budget for defense counsel had
grown to more than $1 billion. See Consolidated Appropriations Act,
2018, Pub. L. 115–141, Div. E, Tit. III, 132 Stat. 348. And the collateral
challenges produced by the Court’s right-to-counsel jurisprudence
consume much of the federal courts’ resources. Cf. Statistical
Tables for the Federal Judiciary—June 2018, Table B–7 (for 12-month
period ending June 30, 2018, roughly 24% of appeals filed in the courts
of appeals—8,914 of 37,487—were categorized as “Habeas Corpus” or
“Motions to Vacate Sentence”) https://www.uscourts.gov/statistics-
reports/statistical-tables-federal-judiciary-june-2018 (as last visited
Feb. 25, 2019); id., Table C–2 (22,478 of 281,202 cases filed in federal
district court, or roughly 8%).