The Justice Department’s New Policy on Waiving Claims of
Ineffective Counsel;
What it Means for Carolina Courts
Authored by Mark Moore
Recognizing that the “right to effective assistance of counsel is a core value” of our justice
system, Deputy Attorney General James Cole issued a memo to federal prosecutors instructing
them that they should no longer enter into plea agreements requiring that defendants waive
their right to assert claims on ineffective assistance of counsel on direct appeal or in habeas
proceedings. This new policy, issued on October 14, 2014, will bring uniformity to the plea
bargaining process engaged in federal courts across the county-- as at least 35 of the nations’ 94
United States Attorney’s Offices required most defendants who pled guilty to execute these
waivers.
All defendants have a constitutional right to effective assistance of counsel—and
defendants charged in the federal system need competent counsel who is
experienced and knowledgeable about federal criminal law and procedure.
Defendants who are charged in federal court face difficult decisions, partly because:
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the crimes charged are often complex in nature,
charges are frequently brought after lengthy investigations, and
defendants are often joined for trial with other alleged co-conspirators.
ALL DEFENSE LAWYERS ARE NOT CREATED EQUAL
Many federal defendants who are charged in multi-defendant cases are given the option of
cooperating against their co-defendants in the hopes of earning a lesser sentence. Federal
sentencing rules are very complicated, as federal judges are required to consider complicated
advisory Sentencing Guidelines which are amended each year and are also required a host of
factors set forth in before passing sentence. While most lawyers who routinely practice in
federal criminal courts are experienced practitioners, some are not—and occasionally lawyers
make serious errors which prejudice their clients.
While defendants who are convicted at trial have the right to appeal their convictions, all federal
defendants have the statutory right to appeal their sentences. In addition, federal defendants who
can demonstrate that their conviction or sentence is constitutionally defective also have the right
to bring post-conviction and post-appeal challenges to their sentence (generally within a year
after their conviction and sentence has been upheld on appeal or is otherwise final) pursuant to
28 U.S.C § 2255.
However, approximately 20 years ago, a number of United States’ Attorney’s Office began
requiring defendants who pled guilty to waive their rights to appeal and to waive their rights to
challenge their rights post-sentencing in a habeas corpus or collateral proceedings brought under
§2255. Given the fact that over 97% of the defendants charged in federal court, these waivers
became the rule rather than the exception in a number of federal courts—although some district
judges refused to accept these waivers or required the prosecutor to demonstrate that a defendant
was receiving some substantial benefit in exchange for the waiver.
APPEAL WAIVERS—THE FOURTH CIRCUIT PERSPECTIVE
Defendants have sought to challenge these appeal and §, 2255 waivers in court with very limited
success. Like other courts, the Fourth Circuit Court of Appeals (which hears appeals from federal
courts in South Carolina, North Carolina, Virginia, West Virginia and Maryland) has held that
waivers of appellate and habeas rights are generally enforceable so long as the federal judge
who conducts the plea hearing specifically reviews the waiver provision with the defendant to
make sure that the defendant understands the valuable rights he or she is giving up when entering
into such a plea agreement—in other words, ensuring that the waiver is both knowing and
voluntary. See United States v. Lemaster, 403 F. 3d 216 (4th Cir. 2005). However, the Fourth
Circuit has also acknowledged that a defendant waiver of appellate rights does not cover
situations which the defendant could not have reasonably contemplated when he executed
the plea agreement—and so it follows that a defendant who receives ineffective assistance
of counsel prior to and when entering into a plea agreement did not knowingly waive his
right to appeal or reasonably contemplate that he was agreeing to waive his right to
challenge the defective advice he received. In United States v. Poindexter, 492 F. 3d 263 (4th
Cir. 2007), the Fourth Circuit suggested as much, holding that a defendant who signs an appeal
waiver but then chooses to appeal has the right to effective assistance of counsel in pursuing that
appeal and in challenging the scope and legitimacy of the appeal waiver.
After Poindexteter was decided, a number of district judges in the Fourth Circuit refused to
accept appeal waivers if those waivers did not contain an exception for ineffective assistance of
counsel claims. Some United States Attorney’s Offices (such as the United States Attorney’s
Office for the District of South Carolina) changed the waiver provisions of their plea
agreements, allowing defendants to pursue claims of ineffective assistance of counsel and
prosecutorial misconduct. However, because a number of federal appellate courts held that
defendants could waive their right to pursue ineffective assistance claims, a number of federal
prosecutors around the county continued to require cooperating defendants to completely waive
their appellate and habeas rights.
ZEALOUS REPRESENTATION IS KEY
The American Bar Association and other organizations lobbied the Justice Department to address
this problem—and Deputy Attorney General Cole’s October 14, 2014 memorandum appears to
properly recognize that a defendant who is prejudiced by his lawyer’s defective performance
should always be allowed to obtain redress in the federal courts. Defendants should insist that
their lawyers always explain their rights and the ins and outs of any proffered plea agreement,
and our federal courts should continue to insist that both retained and appointed counsel
represent defendants zealously within the bounds of prevailing court, constitutional and ethical
rules. Federal defendants who have the financial ability to retain counsel should carefully
choose a lawyer who has substantial experience and demonstrated competence in federal
court—as choosing a lawyer is often one of the most important decisions a defendant (or
putative defendant) will make.
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Mark Moore steps in when business leaders are subjects of an investigation. However, he can
also provide proactive guidance and counsel that keep clients out of the investigative cross-hairs
from the start. Moore was a prosecutor in South Carolina for more than twenty-five years,
serving an Assistant Solicitor in Charleston before joining the United States Attorney’s Office in
Columbia in 1989. As a federal prosecutor, Mark handled thousands of cases, tried more than
sixty cases to jury verdict and prosecuted cases in every federal courthouse in this state.