Page:Gilberto Garza, Jr. v. Idaho.pdf/2

2 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 unwaiveable. 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 authority” 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 possibility 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 direct application of Flores-Ortega’s language resolves this case. Flores-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. Because Garza retained a right to appeal at least some issues despite his waivers, he had a right to a proceeding and was denied that proceeding 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 because 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 issues” 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