Garza v. Idaho , 203 L. Ed. 2d 77 ( 2019 )


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  • (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-
    ington, D. C. 20543, of any typographical or other formal errors, in order
    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%).
    

Document Info

Docket Number: 17-1026

Citation Numbers: 139 S. Ct. 738, 203 L. Ed. 2d 77, 2019 U.S. LEXIS 1596

Judges: Sonia Sotomayor

Filed Date: 2/27/2019

Precedential Status: Precedential

Modified Date: 1/13/2023

Authorities (43)

United States v. Garrett , 402 F.3d 1262 ( 2005 )

Bernard Herman Frand v. United States , 301 F.2d 102 ( 1962 )

Francisco Gomez-Diaz v. United States , 433 F.3d 788 ( 2005 )

Jose Campusano v. United States , 442 F.3d 770 ( 2006 )

United States v. Wight , 176 F.2d 376 ( 1949 )

United States v. Mabry , 536 F.3d 231 ( 2008 )

Nunez v. United States , 546 F.3d 450 ( 2008 )

Nelson Gene Johnston v. United States , 254 F.2d 239 ( 1958 )

United States v. Tapp , 491 F.3d 263 ( 2007 )

John Lewis Snead v. W. Frank Smyth, Jr., Superintendent of ... , 273 F.2d 838 ( 1959 )

Charles Robert O'Malley v. United States , 285 F.2d 733 ( 1961 )

United States v. Story , 439 F.3d 226 ( 2006 )

United States v. Poindexter , 492 F.3d 263 ( 2007 )

United States Ex Rel. Feeley v. Ragen , 166 F.2d 976 ( 1948 )

Kargus v. State , 284 Kan. 908 ( 2007 )

United States v. Van Duzee , 11 S. Ct. 758 ( 1891 )

Diggs v. Welch , 148 F.2d 667 ( 1945 )

United States v. Jose Maria Sandoval-Lopez , 409 F.3d 1193 ( 2005 )

United States v. Detroit Timber & Lumber Co. , 26 S. Ct. 282 ( 1906 )

State v. Patton , 287 Kan. 200 ( 2008 )

View All Authorities »

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