An integral, increasingly non-negotiable component of any federal plea agreement requires that the defendant waive his right to appeal or collaterally attack his conviction or sentence. Federal appellate courts favor such waivers, as it saves the government and judiciary time and money. Every appeals court in this country has approved their use. In fact, the Fifth Circuit as recently as January 7, 2014 in United States v. Keele held that such waivers include Eighth Amendment challenges to any sentence imposed. A standard appeal waiver reads something like this:
“Defendant hereby waives any right to raise and/or appeal any and all motions, defenses, probable cause determinations, and objections which defendant has asserted or could assert to this prosecution and to the court’s entry of judgment against defendant and imposition of sentence upon defendant consistent with this agreement. Defendant further waives any right to appeal this Court’s imposition of sentence upon him under Title 18, United States Code, Section 3742 (sentence appeals).”
Two years ago the U.S. Supreme Court in Lafler v. Cooper observed that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” Prosecutors and defense attorneys are the ones who now decide who will go to prison, not juries. Thus, plea bargaining has become the most “critical stage” in a criminal proceeding.
In a March 12, 2014 opinion rendered by the Second Circuit Court of Appeals in Tellado v. United States, the court reinforced the importance of researching and understanding the impact and reach of a plea agreement.
Shawn Tellado, along with a number of other defendants, was indicted in October 2006 in connection with a drug conspiracy to possess and distribute Schedule II controlled substances. He thereafter entered into a plea agreement with the Government in which he admitted “(1) that a conspiracy existed, (2) that he knowingly and willingly participated in it, and (3) that the amount of cocaine subject of the conspiracy was 500 grams or more.” The “plea agreement” contained a section titled “Waiver of Right to Appeal or Collaterally Attack Sentence.”
In addition to these factual admissions and waivers, Tellado “consented” to be designated a career criminal under USSG § 4B1.1, effective November 1, 2006. Tellado‘s career criminal status under § 4B1.1 were two prior convictions for drug distribution obtained in 2003 under Connecticut’s narcotics statutes. These two state drug convictions were obtained through Alford pleas. They would later enhance his offense level under the Sentencing Guidelines from 26 to 34.
In May 2007, Tellado formally entered his guilty plea. The sentencing judge addressed the issues contained in the plea agreement. Tellado informed the court under oath that he had “carefully” read the agreement, discussed all its terms and agreements with his attorney, and understood its full impact. Tellado’s attorney also informed the judge that he was “satisfied” that “his client understood the agreement as a whole.” The judge then accepted the plea and four months later sentenced Tellado to 188 months’ imprisonment. At the sentencing hearing the judge informed Tellado that the plea agreement notwithstanding, he had a right to appeal any ineffective assistance of counsel claim. The sentencing judgment became final on September 24, 2007—slightly less than a year before the Second Circuit handed down the Lavon Savage decision.
In September 2008 the Second Circuit in United States v. Savage held that a conviction for violating Connecticut’s narcotics statutes based on an Alford plea, in which the defendant didn’t necessarily plea guilty to the elements of the offense, but rather entered a “no contest” plea, could not be counted as a “controlled substance offense” within the meaning of the U.S. Sentencing Guidelines.
In the wake of the Savage decision, Tellado filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
The district court found the motion was time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 because it had been filed outside ADEPA’s one-year period of limitations. The district court found that no new “fact” had been discovered that would extend the starting period of the one-year limitation, nor was “equitable tolling” available to Tellado because he had not “demonstrated actual innocence.” Finally, the court effectively said these legal issues were moot because Tellado had “knowingly and voluntarily waived his right to appeal or attack collaterally any sentence that did not exceed 188 months’ imprisonment.”
The district court subsequently denied a motion by Tellado to amend the § 2255 motion to include a claim based on ineffective assistance of counsel. The court said the ineffectiveness claim “would be futile as it was based on the same arguments that formed the grounds for the original § 2255 motion and there was no assertion that his trial counsel was ineffective due to any erroneous advice given by counsel.”
The Second Circuit effectively rendered the ineffective assistance claim moot on appeal because it found Tellado had waived his right to collaterally attack his sentence.
The appeals court said the district court complied with Fed.R.Crim.P. 11(b)(1) by following up on the Government’s recitation of the terms and conditions of a plea agreement by asking Tellado if he understood this information, even though the court exclusively focused its questioning on the appeal waiver, not the collateral attack waiver. The appeals court skirted this issue by saying, “Our review of the record satisfies us, however, that the district court’s inquiry of Tellado regarding the Government’s explicit description of the full scope of the waiver was adequate to ensure that Tellado was aware of his rights and what he was waiving.”
In its closing observations, the Second Circuit addressed Tellado’s ineffective assistance of counsel claim which was based on defense counsel’s failure to anticipate the Savage decision which was issued after Tellado’s enhanced sentence became final.
The appeals court said that even assuming arguendo that ADEPA’s one-year limitation did not “foreclose Tellado’s claim for ineffective assistance of counsel,” the claim would fail because of the court’s 2013 decision in McCoy v.
United States held that “trial counsel’s failure to object to the second offender enhancement does not constitute constitutionally deficient performance.” The appeals court said that the McCoy decision was “on all four with this one (Tellado).” McCoy, like Tellado, had his sentence enhanced based on prior narcotics convictions under Connecticut law, and had argued ineffective assistance because his attorney had not anticipated the Savage decision. The McCoy court rejected this argument, saying “an attorney is not required to forecast changes in the law in order to provide effective assistance.”
Finding that Tellado’s attorney’s performance was reasonable under “prevailing professional norms,” the Second Circuit concluded: “Tellado pled guilty in May 2007 and was sentenced in September 2007. The Savage decision was published in September of 2008, nearly a year and a half after he had entered his plea and a year after he was sentenced. Though the bedrock elements of the argument that would comprise the disposition in Savage were available to Tellado’s counsel at the time of sentencing, counsel acted reasonably in relying on the law as it then stood … ‘Considering the circumstances faced at the time of the relevant conduct,’ we agree with the district court that Tellado has not met the heavy burden of demonstrating that his counsel’s performance was objectively deficient …”
Whether Tellado’s counsel was aware that Savage had been orally argued before the Second Circuit in January 2008 is unknown. But he was certainly aware that Tellado’s prior state convictions were based on Alford pleas, and therefore we feel that this fact, standing alone, was ample reason to object to his sentence being enhanced under the § 4B1.1 provisions.
In 2006, the Ninth Circuit Court of Appeals, in United States v. Nguyen, held that a “conviction resulting from a nolo contendere plea under these circumstances is not by itself sufficient evidence to prove a defendant committed the underlying crime.” More to the point, the Third Circuit drew a more expansive conclusion in 2004 with its decision in United States v. Poellnitz in which it held that an Alford plea is an insufficient basis for a determination defendant had committed a state crime.
The lesson from Tellado’s unfortunate tale is that defense attorneys, especially in the federal plea agreement process, must be vigilant against legal pitfalls when it comes to advising a client to waive his appeal/collateral attack rights. At the end of the day, counsel’s advice to waive appeal and/or collateral attack rights should be given only after all the legal and factual issues of a case have been thoroughly vetted and explained to the client.