Attacking the Guilty Plea: Waivers and Breaches of Plea Agreements

Over 67% of plea agreements in 2015 had waivers, most of which were simply boilerplate language found in almost every plea agreement drafted by the government. They`re so common that defendants often accept them as a necessary evil when pleading guilty, and rarely do defense lawyers challenge or negotiate plea waivers.

Waiver in a Plea Agreement is an Affirmative Defense

Any waiver in your plea agreement barring a challenge to your guilty plea is an “affirmative defense” that the government must invoke. If you`re raising your guilty plea challenge in a habeas corpus petition, note that these are civil cases and Federal Rule of Civil Procedure 8(c)(1) requires the government to raise any affirmative defenses or they`re forfeited. While the court itself may not invoke an affirmative defense, it can (and usually does) ask the government whether it wants to raise the defense, such as any waivers in the agreement that would bar the challenge.

Waivers Will be Enforced, Absent any Exceptions

When interpreting waivers in plea agreements the courts refer to contract law, since plea agreements are considered “contracts,” the Supreme Court held in Santobello v. New York, 404 U.S. 257 (1971). And because a contract is construed strictly against the drafter, in this case the government, the language is crucial. So if your plea agreement says you waived your “right to appeal,” courts have held that this doesn`t also include post-conviction challenges like habeas corpus. See Hunter v. United States, 160 F.3d 1109 (6th Cir. 1998).

Breaching a Plea Agreement Voids a Waiver

If the government breaches your plea agreement, any waiver you had in it barring a challenge goes out the window. In Santobello, the Court found that the government`s breach of a plea agreement allowed a defendant to seek a remedy despite the waiver, such as “specific performance of the contract” (agreement). This is where the court enforces the conditions in the agreement as a remedy, if that`s what the injured party (defendant) asks for, or it could allow withdrawal of the plea.

While there`s no constitutional right to a plea agreement, the Santobello Court held that the breach of a plea agreement is a due process violation — a constitutional violation. This gives anyone who has accepted a plea agreement constitutional protections that the agreement will be followed by the government. This is important because habeas cases are all about constitutional violations.

Now, if you breach the plea agreement, the government has the right to withdraw the agreement or to request specific performance, the same right you would have if the government breached the agreement. If the plea agreement is withdrawn by the government, you start all over as if you`d never pled guilty. See Ricketts v. Adamson, 483 U.S. 1 (1987). But a successful withdrawal of your guilty plea is not a breach of your plea agreement, the courts say.

Here are some exceptions that would allow the court to ignore a waiver in your plea agreement.

Exception: Waiver not Knowing and Voluntary

As with anything dealing with a plea agreement, the waivers in it must be knowing and voluntary. In United States v. Chua, 349 F. Supp. 3d 214 (E.D.N.Y. 2018), Judge Jack Weinstein rejected the government`s “blanket” waiver in a plea agreement and amended the waiver to spell out exactly what the defendant was waiving.

What would make a waiver not knowing and voluntary? Several things, but a few have generally been accepted as negating a waiver. Just as ineffective assistance of counsel (IAC) can invalidate a guilty plea, so too can it invalidate a waiver in a plea agreement.

An egregious act by the government can also invalidate a waiver. Judge Weinstein, in Chua, concluded that when the government withholds evidence that`s favorable to the defense, any waiver barring an attack on the guilty plea cannot be enforced. “This right is retained as part of the voluntary and knowing exception,” he said.

In Frederick v. Warden, 308 F.3d 192 (2d Cir. 2002), the court held that lack of notice of the charges would also render a guilty plea now knowing and voluntary. A defendant must have “real notice of the true nature of the charge” for the waiver to be valid, the court said.

Exception: A Change in the Law

When the law changes and invalidates a conviction, some courts have held that a waiver does not bar a challenge based on that new law. This includes major court decisions, such as retroactive Supreme Court cases, and new laws enacted by lawmakers.

The court in United States v. Cornette, 932 F.3d 204 (4th Cir. 2019), held that because of a change in the law the waiver could not be enforced. But the same federal court of appeals also held that not all changes in law trump a plea waiver:

A plea agreement, like any contract, allocates risk. And the probability of a favorable change in law occurring after a plea is one of the normal risks that accompanies a guilty plea. United States v. Archie, 771 F.3d 217 (4th Cir. 2014).

But this “risk” goes both ways. In a case where the government tried to reinstate charges it dropped as part of a plea agreement when a defendant successfully challenged his conviction due to a retroactive chance in the law, the court refused, citing Archie`s allocation of risk with a plea agreement. Diri v. United States, 2019 U.S. Dist. LEXIS 175043 (W.D.N.C. 2019).

Exception: Impermissible Factors

Every court has recognized that race may not play a factor in a conviction or sentence, despite any waivers. See United States v. Marin, 961 F.2d 493 (4th Cir. 1992). Other “constitutionally impermissible factors” have been recognized by the Supreme Court as well. Menna v. New York, 423 U.S. 61 (1975) (guilty plea did not bar double jeopardy challenge), Blackledge v. Perry, 417 U.S. 21 (1974) (guilty plea did not bar prosecutorial vindictiveness challenge).

Exception: Miscarriage of Justice

A waiver may not bar a challenge to a “miscarriage of justice.” In United States v. Viera, 674 F.3d 1214 (10th Cir. 2012), the court established four situations that would amount to a miscarriage of justice to invalidate a waiver.

(1) When the district court relied on impermissible factors, (2) IAC in negotiating the plea agreement containing the waiver, (3) An illegal sentence or conviction, or
(4) “Where the waiver is otherwise unlawful.”

Unsurprisingly, actual innocence is a miscarriage of justice to avoid a waiver. McCann v. Mangialardi, 357 F.3d 782 (7th Cir. 2003).

In conclusion, plea agreements almost always contain waivers. But these waivers are not always obstacles to challenging a guilty plea, and there are exceptions. Understanding your waiver and knowing what type of challenge would avoid that waiver will lead to a better outcome in attacking your guilty plea.


Attacking the Guilty Plea: The Art of Withdrawing a Guilty Plea

The art of withdrawing a guilty plea comes down to which phase of the criminal proceeding you`re in when the motion to withdraw is filed. Each phase requires meeting a different standard in order to withdraw a guilty plea. These phases are:

(1) Prior to it being accepted by the court,
(2) After acceptance but before sentencing, and
(3) Any point after sentencing.

The rule for everything relating to a guilty plea, from entering one to withdrawing one, is found in Federal Rule of Criminal Procedure 11.

Research Alert: Withdrawal of a guilty plea was previously governed by Criminal Rule 32(e), but this was moved to Rule 11 in 2002. Your research prior to 2002 will likely cite Rule 32(e) instead of Rule 11, so check the dates of the cases you`re relying on. This is true even for current cases that still erroneously rely on cases prior to 2002. Even judges don`t always get it right. State prisoners will often find that state laws and rules closely track federal rules and laws when it comes to handling guilty pleas.

Phase 1: Before a Guilty Plea is Accepted

The easiest phase to withdraw a guilty plea is before it is accepted by the court. Under Rule 11(d)(1), a guilty plea may be withdrawn before a court accepts it “for any reason of no reason.” Courts have consistently ruled that you have a “right” to withdraw your guilty plea at this point, and “the court lacks authority to deny” your withdrawal. See United States v. Feliz, 2019 U.S. Dist. LEXIS 207814 (D.N.J. 2019).

Research Alert: Caselaw prior to the amendments to Rule 11 in 2002 will say there`s not absolute right to withdraw a guilty plea before it`s accepted. That used to be true under the old rule, but the amendments expressly changed that to fix a split among the circuits on the issue.

When is a guilty plea actually “accepted” by a court? There aren`t any magic words the court must use to mark a guilty plea as accepted. What matters, courts say, is the context of the language used by the court in accepting the plea. Even where a court provisionally or conditionally accepts a guilty plea, it is usually considered “accepted” under Rule 11.

Courts will often conditionally accept a guilty plea pending review of the presentence report (PSR) or the plea agreement. As long as the court follows Rule 11 in accepting a guilty plea, it`s considered “accepted,” the Supreme Court said in United States v. Hyde, 520 U.S. 670 (1997).

A guilty plea, however, does not live or die with the plea agreement, and a plea agreement can be rejected by the court while the guilty plea stands. In Hyde, the Supreme Court recognized that a plea agreement usually isn`t even accepted by a court until sentencing, long after the guilty plea has been accepted.

But there are exceptions. Under Rule 11(c)(5), if the court rejects a plea agreement where the defendant has pleaded guilty and the government has agreed to dismiss charges, to not bring further charges, or to a certain sentence or sentencing range, the court must “give the defendant an opportunity to withdraw the plea.” In this scenario, you have an “unrestricted right” to withdraw your plea as if it had never been accepted.

This is important because nearly all plea agreements have some kind of “charge bargaining,” where the government agrees to drop charges or not bring new charges if the defendant pleads guilty. After all, the whole reason the government piles on so many charges is to coerce a guilty plea, even though it knows it can get the same sentence with just the remaining charges agreed to in the plea agreement. This means a guilty plea after the court rejects a plea agreement will usually fall under Rule 11(c)(5), allowing withdrawal without any reason at all. Most people miss this point.

Another example of when you have the right to withdraw your guilty plea would be when a magistrate judge makes a recommendation to the district judge to accept our plea. In that case, your plea isn`t accepted until the district judge “adopts” the magistrate`s recommendation. Until them you can withdraw for any reason. United States v. Davila-Ruiz, 790 F.3d 249 (1st Cir. 2015).

Phase 2: After Acceptance and Prior to Sentencing

To withdraw your guilty plea after it`s accepted but before sentencing, then you must show a “fair and just reason,” according to Rule 11(d)(2)(B). Since this isn`t defined in the rule itself, we must turn to the courts to find out what this means.

In United States v. Carr, 740 F.3d 339 (5th Cir. 1984), the federal court of appeals in that case established seven factors (called the Carr factors) a court considers in finding whether a fair and just reason exists to withdraw a guilty plea after it`s been accepted by a court.

(1) A claim of innocence,
(2) Any prejudice to the prosecution,
(3) The delay in moving to withdraw the plea,
(4) Any “judicial inconvenience”,
(5) Lack of “close assistance of counsel”,
(6) The knowing and voluntary nature of the plea, and
(7) Any waste of judicial resources.

Any one or several of these can be a fair and just reason to withdraw your plea. Most courts have opted for their own factors, but Carr is the most common case cited for this purpose. And the finding of a fair and just reason is at the district court`s discretion, meaning meeting a factor doesn`t equal an automatic right to withdraw your plea.

That last point is important because it`s the way a withdrawal motion is argued that matters. Notice that constitutional issues, like the knowing and voluntary nature of the plea and the assistance of counsel, only come into play as factors, unless they`re argued as independent grounds for withdrawal. In other words, while these are common constitutional arguments attacking a guilty plea, they are only factors for the “fair and just reasons” analysis.

See the difference? Take the “close assistance of counsel” in factor # 5. It`s not the same as the familiar “ineffective assistance of counsel” (IAC) standard commonly raised in post-conviction motions. In United States v. McKnight, 570 F.3d 641 (5th Cir. 2009), the court discussed the distinction between these closely-related points.

So how do they differ? By their application. Close assistance of counsel guides a court`s discretion in allowing or disallowing withdrawal of a guilty plea, while IAC is used to invalidate a guilty plea because it would then be unconstitutional. Arguing IAC, then, implicates the validity of your plea and is an independent ground for withdrawal, while arguing a lack of close assistance of counsel supports only withdrawing your plea. The art of withdrawing your guilty plea is critical.

Phase 3: Withdrawal After Sentencing

Withdrawing your guilty plea after sentencing leaves you stuck with just two options under Rule 11(e): Direct appeal or collateral attack (i.e., a post-conviction relief motion). If you still have the ability to file a direct appeal, that`s your best option because the standard of review is better. Assuming it`s been a while since you were sentenced, your only option would be to file a post-conviction motion attacking your guilty plea.

This limited opportunity to withdraw your plea is explained by the Advisory Committee on Rule 11: “It is not possible for a defendant to withdraw a plea after sentence is imposed.” Notice the key word there: withdraw. It means you can`t withdraw your guilty plea, but you can still attack it under direct appeal or post-conviction remedies. After sentencing, it`s too late to withdraw your guilty plea but you can still challenge it as invalid.

When is a sentence imposed for purposes of Rule 11(e)? When it`s orally pronounced in court. It`s not the written judgment that counts but what`s actually said in court. That`s true for any question about a sentence: What`s said in court is what the sentence actually is, not what`s written afterward on paper. See United States v. Villano, 816 F.3d 1448 (10th Cir. 1987).

In conclusion, because how you go about withdrawing your guilty plea depends on which phase of the criminal proceeding you`re in when you do so, it cannot be stressed enough that you understand what`s expected of your motion to withdraw. Arguing the wrong way at the wrong time will surely lead to a denial.


Attacking the Guilty Plea: Establishing Prejudice in the Guilty Plea Context

Establishing “prejudice” to undo a guilty plea because of the ineffective assistance of counsel (IAC) varies depending on which stage of the criminal case you`re in when you challenge your guilty plea. There are three main categories of IAC in the guilty plea context:

  1. Bad advice to plead guilt;
  2. Bad advice to reject a plea offer; and
  3. The failure of counsel to communicate a plea offer or option to plead guilty.

Under each category the IAC standard under Strickland v. Washington, 466 U.S. 668 (1984), applies, but how you establish prejudice under that standard varies by category.

Category 1: Bad Advice to Plead Guilty

By far, most claims attacking the guilty plea will fall under the first category, where counsel`s bad advice induced the guilty plea. Showing prejudice for this category was announced by the Supreme Court in Hill v. Lockhart, 474 U.S. 52 (1985):

The defendant must show that there is a reasonable probability that, but for counsel`s errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill was the first Supreme Court case to apply Strickland in the guilty plea context (Strickland involved IAC during trial). The Court found that the defendant in Hill hadn`t shown a reasonable probability of a different outcome because he never alleged he would have gone to trial had he received correct advice from counsel about his parole eligibility date before pleading guilty.

Whether you need to show that you would have won at trial to show prejudice under Hill is another matter and the federal courts couldn`t agree on this. In Lee v. United States, 137 S. Ct. 1958 (2017), the High Court acknowledged that in some cases throwing a “Hail Mary” by going to trial might seem more rational than pleading guilty with a guaranteed losing outcome, like being the defendant being deported as in the Lee case.

The Third Circuit, in Velazquez v. Sup`t Fayette SCI, 937 F.3d 151 (3d Cir. 2019), called Lee an “expansion” of the Hill standard for showing prejudice in challenging a guilty plea:

The Hill inquiry did not involve examining the petitioner`s likelihood of success had he insisted on trial, but merely whether he would have gone to trial at all.

The lesson is that chances of success at trial matter little if it`s the only rational option available to a defendant. Success at trial is just one of several factors considered in determining whether someone would have not pled guilty but instead would have insisted on going to trial — the prejudice standard under Hill.

What about other options, instead of going to trial? What if you could have negotiated a better plea deal or pled guilty without the plea deal you did take to preserve your rights, such as the right to appeal? Courts have accepted other alternatives in order to establish prejudice under Hill. See, e.g., United States v. Swaby, 855 F.3d 233 (4th Cir. 2013) (“but for his counsel`s erroneous advice, he could have negotiated a different plea agreement”).

Besides counsel`s bad advice, the government`s misconduct could also provide grounds to establish prejudice under Hill. In Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006), the court affirmed the grant of post-conviction relief undoing a guilty plea because the government`s prosecutors withheld “stunning” evidence that would have been favorable to the defense. “Absent this misconduct, there was a reasonable probability that the petitioner would not have pleaded guilty but, rather, would have rejected the proffered plea agreement and opted for trial,” the court said.

Category 2: Bad Advice to Reject a Plea Offer

What if your lawyer told you to reject a favorable plea offer because you had a solid defense and could win at trial, only to find out he was dead wrong? That was the case before the Supreme Court in Lafler v. Cooper, 566 U.S. 156 (2012).

The Court explained that a few things were required to show prejudice under this category of IAC in the guilty plea context:

  • You must show a “reasonable probability” that you and the prosecutor would have reached an agreement;
  • The court would have accepted that agreement; and
  • That your conviction or sentence would have been less severe under the plea deal than what you received after losing by going to trial.

That`s a lot to show but not impossible. When you request your case file from your old lawyer, make sure you ask for any emails and notes between your lawyer and the prosecutor that were part of the plea negotiations. Note that an offer by email is considered a “formal” plea offer. United States v. Strother, 509 Fed. Appx. 571 (8th Cir. 2013).

Next, research your state`s laws and rules on the court accepting a guilty plea and use it as a guide to meet the second prong. That would be Federal Rule of Criminal Procedure 11 for federal prisoners, and most states use a rule similar to Rule 11.

Finally, contrast the huge sentence you got for going to trial with the little sentence you would have received had you pled guilty under the plea offer.

Category 3: The Failure of Counsel to Communicate a Plea Offer or Option to Plead Guilty

What if your lawyer failed to even tell you about a good plea offer and you ended up taking a worse offer or pled guilty without an agreement, and got a longer sentence? In Missouri v. Frye, 566 U.S. 134 (2012), the Supreme Court addressed this issue.

In that case, the state had argued that because the defendant had no constitutional right to a plea offer from the prosecutor there was no constitutional violation when his lawyer neglected to tell him about the offer. The Court strongly disagreed, explaining that guilty pleas are “so central” to the criminal justice system that the Sixth Amendment right to counsel necessarily extends to the “plea bargaining process.”

Counsel has a “duty” to communicate all plea offers, even if he believes they are worthless, the Court said in Frye. After all, the decision to plead guilty is not up to counsel, but up to the defendant. That`s been settled law for decades.

The way to show prejudice for this third category in challenging a guilty plea is the same as that above, under Lafler, noted above. Both cases were decided the same day by the Supreme Court and Frye actually adopted Lafler`s prejudice standard.

In the case where counsel fails to advise a defendant that he has the option to plead without a plea agreement, or what`s called an “open plea,” courts have applied the prejudice standard announced in Frye. In Miller v. United States, 2015 U.S. Dist. LEXIS 1936 (M.D. Fla. 2015), the court cited Frye and concluded that in order to show prejudice, “the petitioner must show a reasonable probability that he would have actually taken advantage of that option” to plead openly.

In conclusion, figuring out which category your IAC claim challenging your guilty plea falls under will focus your claim on the proper prejudice standard established by the Supreme Court for that category of claims. That`s the first step in crafting a successful challenge to your guilty plea.


Rejection of Plea Deal to Defendants in Ahmaud Arbery`s Death Exposes Power Struggle Between Federal Prosecutors and Judges

Rejection of Plea Deal to Defendants in Ahmaud Arbery`s Death Exposes Power Struggle Between Federal Prosecutors and Judges

The federal judge`s rejection of a plea deal by prosecutors in the case of Ahmaud Arbery`s death exposes a giant problem with plea bargaining in the federal courts: Prosecutors have tremendous power, while the judges have limited options.

From what charges to bring to what evidence the grand jury gets to see to what charges get dropped, federal prosecutors are given a tremendous amount of power when it comes to federal criminal cases. Perhaps the Supreme Court said it best:

There is no doubt that the breadth of discretion that our country`s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).

So who keeps federal prosecutors in check when it comes to plea bargaining in federal criminal cases? If you think it`s the federal courts, the rejection of the government`s plea offer to the defendants in the federal hate-crime trial in the Arbery case shows just how limited a federal court`s power is over the prosecutor. The only option the judge had was to either accept or reject the plea agreement. The judge couldn`t decide the sentence or whether the sentence would have run consecutively to the sentence in the state case.

If you say it`s the grand jury that prevents a prosecutor`s abuse of power by deciding which charges have merit, consider what Chief Judge Sol Wachtler of the New York Court of Appeals (the state`s highest court) said about grand juries:

A grand jury would indict a ham sandwich if that`s what [a prosecutor] wanted.

An en banc (full court) of the U.S. Court of Appeals for the Ninth Circuit called a grand jury “no more than a rubber stamp for the prosecutor.” United States v. Navarro-Vargas, 408 F.3d 1184, 1195, n.14 (9th Cir. 2004), see also United States v. Laurent, 861 F. Supp. 2d 71 (E.D.N.Y. 2011) (grand jury is a “machine of government expansion and caprice” subject to abuse of power).

What`s left to keep federal prosecutors in line? Not much.

Under Federal Rule of Criminal Procedure 11(c), titled “plea agreement procedures,” a federal prosecutor has the authority to negotiate a plea agreement with a defendant. This deal can stipulate that the government will not bring or dismiss certain charges, or that it will “agree that a specific sentence or sentencing range is the appropriate disposition of the case.” In addition, the parties can agree to lots of other terms, just like in a contract. In fact, federal courts view plea agreements as contracts and apply contract law to them.

Arguably, the most powerful aspect of federal plea bargaining is the federal prosecutor`s ability to dictate the sentence a federal judge must impose. This can be by way of the charges it brings, many of which carry mandatory-minimum sentences, or by way of a “binding” plea agreement with a specific sentence like the one the judge rejected in this case.

In effect, the government offered and the defendants accepted a disposition to the case that completely cut out the federal judge. If Judge Godbey Wood had accepted the plea agreement, she would`ve been required to impose a 30-year sentence that apparently would have trumped Georgia`s life sentence in some respects.

Most federal judges don`t have a problem with such a resolution to a case, especially one that avoids a trial. But the judge here wanted more control, and the only way she could get it was to reject the plea agreement. She wasn`t allowed to modify the agreement or even give her two cents on how it could be fixed. Rule 11 doesn`t allow that.

Rule 11(c)(5) provides the authority for a court to reject a plea agreement. But the court must also allow the defendant to withdraw a guilty plea and give a warning that the case could be decided “less favorably” than hoped if the guilty plea isn`t withdrawn.

Sixty years ago, before plea bargaining became widely accepted, the Supreme Court held that a criminal defendant doesn`t have the right to have his guilty plea accepted. Lynch v. Overholser, 369 U.S. 705, 719 (1962). Doesn`t that sound crazy? A guy wants to stand before the court and admit that he committed a crime, but the court doesn`t have to let him. Why?

Power. By giving a defendant the absolute right to plead guilty, it usurps the government`s power to control a criminal case. Sure it gives the court some power to decide how a case is disposed, but it really gives the prosecutor an extraordinary amount of power. What if a defendant wanted to strategically plead guilty to the charges filed before the government dug up more evidence that could affect the sentence or support more charges? That`s a big loss of power by the government.

Perhaps Judge Godbey Wood was moved by Ahmaud`s family, urging her to reject the agreement because they want the defendants to do their time in a Georgia State prison, where the conditions are much worse. It`s no secret the southern states have perfected the prison for punishment mentality (instead of the more widely accepted prison as punishment mentality). They pride themselves on being inhumane toward prisoners.

This raises the question for another day: Does “justice” require giving a victim`s family the revenge they demand?

For now, it`s important to note that the judge in this case had only a few options, while federal prosecutors held all the cards. This power-struggle between prosecutors and the courts occurs every day, with the judge often sitting in the middle as a useless pawn.


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