Page:Gilberto Garza, Jr. v. Idaho.pdf/26

Rh (Easterbrook, C. J.). And because filing an appeal places the defendant’s plea agreement in jeopardy, an attorney’s decision not to file in the face of an appellate waiver does not amount to the failure to perform “a purely ministerial task” that “cannot be considered a strategic decision.” Flores-Ortega, 528 U. S., at 477. Even where state law or a plea agreement preserves limited appeal rights, an attorney does not fail to “show up for appeal” by declining to challenge a waived issue. Nunez, supra, at 454.

The deficiency analysis in this case would likely be different if Garza had informed his counsel that he desired to breach the plea agreements and file an appeal–despite the waiver and in full awareness of the associated risks–for the sake of an identified goal that had any hope of being advanced by the filing of an appeal. But the record shows that Garza simply sought a more lenient sentence. Since that goal could not be advanced by an appeal in this case, counsel had no duty to file one. The Constitution does not compel attorneys to take irrational means to their client’s stated ends when doing so only courts disaster.

Garza ultimately faults his plea-stage attorney for failing to put his plea agreements in jeopardy. But I have no doubt that if a similarly situated attorney breached a plea agreement by appealing a waived issue and subjected his client to an increased prison term, that defendant would argue that his counsel was ineffective for filing the appeal. What Garza wants–and what the majority gives him–is a per se deficiency rule ensuring that criminal defendants can always blame their plea-stage counsel on collateral review, even where they did not ask counsel to appeal nonwaived claims or breach the plea agreement for the sake of some further (achievable) goal. Declining to file an appeal under these circumstances is reasonable, not deficient.