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.
Dale Chappell is the author of hundreds of published articles on federal criminal law topics and several books, including Attacking the Guilty Plea: An Insider`s Guide.
Note: This information was adapted from my column published in the November 2020 issue of Criminal Legal News Magazine.