In a rare move, a federal court of appeals acknowledged that a defendant under “unusual stress” during a sentencing hearing can render the court’s advice insufficient to cure his defense attorney’s bad advice about filing an appeal.

Edward Abreu pled guilty pursuant to a plea agreement to conspiracy to distribute at least 500 grams but less than 5 kilograms of cocaine. Under the terms of that agreement, Abreu agreed not to appeal or collaterally attack any sentence between 97 and 121 months’ imprisonment but reserved the right to assert on appeal and on collateral review claims of ineffective assistance of counsel. After determining that Abreu read the plea agreement and understood it, the district court accepted his plea and imposed a sentence of 120 months’ imprisonment. At sentencing, the district court stated:

Mr. Abreu, I need to advise you of your right to appeal. If you’re unable to pay the cost of an appeal, you may apply for leave to appeal in forma pauperis. Any notice of appeal must be filed within 14 days of the judgment of conviction.

When Mr. Abreu filed a motion to vacate his criminal judgment under 28 U.S.C. § 2255 for his lawyer’s false advice that he could not appeal because of the appeal waiver, and therefore he lost his right to appeal, the district court said that the court itself properly advised him at the plea hearing of his right to appeal, so Mr. Abreu knew that he had the right to appeal even if his lawyer told him he did not. The court denied his motion.

On appeal, Mr. Abreu was granted a certificate of appealability (COA) by the U.S. Court of Appeals for the Second Circuit on the following issue: “Whether Appellant’s attorneys provided ineffective assistance by advising him that he could not file a direct appeal due to his plea agreement.”

Counsel has a “duty” to properly advise a client about an appeal in a criminal case. Counsel can provide ineffective assistance of counsel (IAC) in three ways when it comes to advice about an appeal: (1) when the defendant requests an appeal and counsel fails to file one; (2) when the defendant does not ask to file an appeal and counsel fails to consult about filing one; and (3) when counsel wrongly advises the defendant he does not have the right to file an appeal.

Even when a plea agreement contains an appeal waiver, a defendant still has the right to file an appeal, the Supreme Court has said, because a waiver in a plea agreement is an affirmative defense that the government can waive or forfeit, allowing the appeal to move forward. So, advising a defendant that an appeal waiver divests him of his right to appeal is not entirely true. Garza v. Idaho, 139 S. Ct. 738 (2019).

An IAC claim in a § 2255 motion that counsel provided bad advice (or no advice) about an appeal can be defeated, however, if the government shows by clear and convincing evidence the defendant had independent knowledge of the right to appeal.

One of the most common ways the government shows clear and convincing evidence that a defendant knew of his right to appeal is by pointing to the record of the plea hearing where the judge advised of the right to appeal. Under Federal Rule of Criminal Procedure 32(j), a district court must advise the defendant of his right to appeal after sentencing.

But this cure is only effective, of course, if the court properly provided notice of the right to appeal. A mere recitation of the right to appeal is not enough, the court said in this case:

If a district court’s routine recitation of the right to appeal, delivered when a defendant is under unusual stress, sufficiently confers “independent knowledge” regardless of the lawyer’s conduct, then Rule 32(j) effectively becomes a shield for any post-sentencing attorney errors. 

The court concluded that a hearing should have been held on Mr. Abreu’s motion and vacated the denial of the § 2255 motion, remanding for a hearing.

Two things stand out to me in this case. First, the court turned the tables and said the government had to show clear and convincing evidence that the defendant had independent knowledge of his right to appeal. Too often, courts will put the burden on the § 2255 movant to prove that he was not advised of the right to appeal.

Second, the court recognized that the “unusual stress” a defendant is under in court during a criminal case could affect his understanding of what’s being said to him by the court. This is rarely acknowledged by the courts.

I think this is a nice change from the usual course in postconviction cases where the government points to the record and the court rubber stamps the denial of relief. In my 15 years of postconviction work and countless IAC claims, I’ve seen the plea hearing used against movants seeking relief in nearly every case.

But often the defendant is told what to do by his lawyer and simply says “yes” to every question asked, even if he doesn’t understand what was said. Sometimes lawyers tell defendants to just say yes to avoid any issues.

The Supreme Court has said that the guilty plea hearing is a “formidable barrier” to relief in any postconviction proceedings. Blackledge v. Allison, 431 U.S. 63, 97 S. Ct. 1621 (1977). But the high court didn’t stop there. If you keep reading, you’ll see that Mr. Allison actually won his postconviction case. Most people don’t know this because courts tend to only cite the “formidable barrier” quote and then deny relief by pointing to the statements made at the plea hearing.