Legal Case Summary

Next case, the squarning is United States versus Craig A Grimes. This is Goldberger. This is that crank. Good morning and may it please the court. My name is Peter Goldberger. It's my privilege this morning to represent the appellant Craig Grimes. It was the defendant below. If you were to do this permission, I would like to reserve two minutes. Great. Thank you. The plea agreement, in this case, contains no enforceable waiver of the right to appeal. A waiver clause that fails to exempt the question of ineffective assistance of the very lawyer who negotiated that agreement and is then representing the defendant at the time of the plea. Places that lawyer by its design in the impossible conflict of interest situation that I describe in the brief. She is put in a position necessarily of having the obligation to advise her client whether to accept a plea on certain terms. Which include the question of whether to waive any question of effective assistance of that very lawyer, preexisting or potentially future at the sentencing hearing

. The defendant is clearly entitled under Supreme Court precedent to the effective assistance of counsel under the sixth amendment in connection with the plea phase of a case. Effective assistance of counsel under Supreme Court precedent by definition means conflict free counsel. Conflict free counsel means not just actual conflict doesn't require showing that there was, in fact, ineffective assistance occurring or to occur in the case. But the clear potential for conflict of interest conflict in here is in that situation. And therefore in here is in that condition of the agreement. Where's the adverse effect here? Where's the problem? How is this client deprived in this case with a waiver of this sort? Where is not looking to withdraw the plea? Yes, adverse effect in the context of ineffective assistance due to conflict means only that the lawyer takes action in the case that is subject to the conflict. It doesn't mean the client is demonstrably harmed. It's not prejudice in the usual strictness. You're asking for a per se rule. It's a per se rule under the circumstances that exist in this case. Now, my concern is if we consider what you just said is sort of a hermetically sealed logical position, it raises some particularly challenging questions. I think in light of what's going on with Lafler and Fry and the new era in which we're entering here in light of those decisions. I don't disagree. But how do you tie that argument to the appellate waiver? Are you arguing the next case, I guess, the sort of what I'm, or perhaps this case in its next iteration? Well, I'm not quite sure what you mean

. I'm always trying to think about the next case. Well, I'll try to be more explicit. I'm not asking. As I read your brief, your making an argument is I understand it that a lawyer cannot effectively advise a criminal defendant about a waiver of that own lawyer's ineffectiveness. There's just an inherent conflict there. But I'm not understanding how that inherent conflict which may well pollute or vitiate the efficacy of the post collateral attack waiver, how in any way that vitiates or pollutes the appellate waiver. Yes. Because the waiver is contained in a single agreement that the lawyer must advise about. So the lawyer is advising on whether to accept the whole waiver, which is a single paragraph, two-part waiver, to accept this or not. It affects the validity of that waiver because it contains the collateral attack waiver. But of course, it also contains an appellate waiver vis-a-vis claims of ineffective assistance which are cognizable on direct appeal of which there are some not a great many don't always recognize them. But we do recognize them. I think I have a string side almost a page long in my brief of cases where this court has recognized such claims going back 30 years and two as recently as last year. So those claims are also the lawyer is tying her hands, the client's hands, vis-a-vis cognizable claims on appeal which may exist but which the lawyer cannot advise the client about

. And so I'm not saying there's nothing that can be done. I leave open the possibility of whether a claim of this waiver of this kind could be entered into knowingly and intelligently if the judge were to conduct a proper colloquy and ascertain the claim. That the defendant had a full understanding and reason and had made an knowing intelligent waiver that included full knowledge. And I do suggest that there would have to be at least an opportunity if not a provision of independent advice. So you have to be on another lawyer brought in which does happen in conflict waiver situations all the time where defendant wants a certain lawyer to represent him or her trial. Judge proceeds a conflict perhaps the government suggests the possibility of a conflict. The judge will often appoint the federal public defender or someone from the CJA list to conduct a private interview with the client for 45 minutes an hour to make sure the client fully understands what's entailed and going ahead with the lawyer that they've chosen in terms of what they may be giving up in the future. I've seen that happen. I've been in that lawyer and been the subject of that both. So there are many become a regular practice every time. So what should be ever meant with what would insist upon a waiver of this kind what should become a regular practice as a carve out. It's very simple. The solution is very simple. The government should not seek and in fact many of the ethics have been in say a prosecutor should not seek but as a matter of law the government should not seek and no defense lawyer should agree to

. A waiver that contain that does not contain an exception of this kind of a court could. How can it go ahead? Does the Eastern district no longer in system that that's right. I think confronted with a number of appeals from me and from other lawyers pointing this out and objecting. The Eastern District of Pennsylvania now exempts these claims and is this happening in other districts that you. I haven't heard that it is but I wouldn't be surprised if it spreads. I think the Eastern District is influential in other US attorney's offices. I think eight states ethical bodies have come out against the practice of insisting on the waiver to as I understand it. That's true but the ethics opinions are mostly about whether it's ethical for the defense lawyer to to counsel it and advise to it. Only I think two or three of them say and it is on ethical for the prosecutor to negotiate for it. But why? The government resists being despite section 530 be resisting subject to state. Well let's suppose for purposes of argument it's a good practice not to ask for it that doesn't really help us with the constitutional question. If a defendant can can waive an actual conflict think of a rico case for a mob or something. I mean you know I'm your lawyer. Those cases are not a mobster

. If those sorts of waivers have been upheld then they seem to be more onerous on the defendant than this sort of waiver. Not without judicial inquiry and often the provision of independent advice. Why isn't the portion of the case that talks about when this court would decline to enforce if it's voluntary, et cetera, you know all the factors right. Unless there's a miscarriage of justice. Why doesn't that provision provide the requisite protection to the defendant? Well I was about to suggest to to the targets question earlier part of the target discussion and it responds to your question as well. That the court could declare that the inclusion of such waivers without at least without a thoroughgoing colloquial and a clear knowing intelligent waiver is a miscarriage of justice. Now but my question is a little bit different is why isn't it protected through that inquiry if the court evaluating the enforceability of a waiver among its duties is to make sure that it was plain from the language and that it was knowing involuntary unless there's a miscarriage of justice. Why isn't why isn't that inquiry sufficient upon review that is whether or not this counseled plea in fact resulted in a miscarriage of justice rather than a blanket. Yes. It would be a miscarriage of justice to have such a way. But if you understand the distinction I'm drawing. Well I think I do. I will find out. Okay

. But my first answer is the one you just rushed off which is it is a miscarriage of justice to put the defendant in a position where he or she does not have the conflict free effective assistance of counsel in the negotiation of the plea that isn't a scarative justice to be denied six amendment rights at a critical stage of the proceedings. I think what you're asking also is that there should be some colorable showing that there was ineffective assistance. Well the fact that we if there's a challenge to the enforceability of a waiver one of the things that court needs to examine is we will enforce unless there would be a miscarriage of justice. And so if you have a scenario like your clients that has this will call the unitary waiver for both both avenues of challenge. Yes. That in fact there is an avenue for protection that is if something a misoccurred not just the possibility that someone who negotiates that a waiver may get a benefit by protecting a later. Or challenged whether they were effective or not. Isn't there still protection in the law for the scenario you're most concerned about which is this client interest get. Soverted in some protection but not the same protection and so it's not a constitutionally sufficient protection because the standard and this is what's wrong with the fifth circuit opinion that I criticize in the in the reply brief. And so the challenge is the standard to show that something went wrong through the lens of ineffective assistance is a higher and more owner is standard than simply showing that there was error directly. So the defendant may be waving there are plenty of people who enter into waivers to the agreements with waivers of appeal who are getting almost nothing out of it. And other than losing their chance to raise error or plain error in a sentencing appeal that this court was often receptive to. So what do you think that your client here? How was your client affected here though by this by this alleged conflict you're presuming there was a conflict that's your position. Whether this is there is a conflict

. I understand your position. The question I have is tell me how your client was affected here. What would have been different? I'm not saying that attorney Miller had some other kind of conflict of interest. No, no, I'm talking about the only one that you ascribed to him. How would it be different for your client here? How was he deprived? How what happened that he wouldn't get to get is the only thing that he wouldn't have because of this waiver and opportunity to challenge the disparity argument? Is that the only consequence? He may have lost the opportunity to make a winning disparity argument, although I suggest that he hasn't. But he could have lost that opportunity. But he didn't hear we have someone who advocated. Well, let's play out the hypothetical a little. Let's assume that Ms. Miller. Let's assume for a minute that she was concerned about her own reputation. Let's assume that she did something wrong and working up the case. Again, I know that. I know Ms

. Miller and that would be odd, but you never know. You never know. Let's assume she did. And let's also assume that she encouraged her client to sign this agreement with the IAC waiver because she was concerned about her own reputation. If we, in this case, uphold the appellate waiver as we have done in so many other cases, doesn't then this result in a habeas petition on behalf of your client in which the facts as I just stated in my hypothetical are all alleged. There's discovery Ms. Miller swears under L. Thia, you know, I had I was overwhelmed that I I did these things. Your client wins on then perhaps, you know, the ineffective assistance waiver is deemed to be invalid due to an actual conflict of interest of counsel that it was prejudicial to your client. In case begins a new. Well, that's not the way conflicts of interest are raised, litigated and enforced. Conflicts of interest doesn't depend on the lawyer subjectively saying I felt I was in a conflict or I didn't feel I was in a conflict or it wasn't bothering me. I could put that aside, but I think with judges asking you is simply that assume you had someone who was a confessor, right? Who confessed to the conflict if there were one. I mean, we see that all the time in in in capital cases, it's not that unusual for a lawyer to come forward and say I was ineffective

. So I guess my question is, aren't you, are you in the game, so to speak, on a habeas petition? Why. Why should, let me ask it another way, take the IAC waiver out of this plea agreement. Do you have a case for not enforcing the appellate waiver? We didn't raise one. I mean, that's actually that's not so. We would also we might have been here and I'm not sure whether we would or wouldn't we could have been here simply saying the error is so egregious and the impact is so large of the failure to consider the disparity argument at sentencing when it was presented so well by Ms. Miller. That there was a miscarriage of justice in that failure to consider the disparity argument and the imposition of a national record sentence in a case of this guy. But how do you get over the appellate waiver? I mean, is there I can't see the, oh, I'm sorry. No, no, no, take out the IAC waiver. If we take out the IAC waiver, this is this is yet another one of these cases. We see on a weekly basis where defendant appeals government files motion for summary firm clients, correct me. I mean, if you want to talk sort of hypothetically about the record, I do appeals full time. So people come to me with these cases and they say, I want to appeal and I say, you realize you waved your right to appeal in this thing you signed here. I did

. Okay. Then we talk about that. I mean, that is actually the typical conversation with the client. And then we talk about it. And more often than not, we say we can't help you. Right. We take a review fee. We don't take an appellate fee and it's over. But sometimes I say there is a colorable argument. And I might have said that here to meet the third circuit standard of miscarriage of justice and a merit argument on the failure to consider the disparity. And we might have said that here with a mystery that not Dr. Grimes, you know, didn't understand his rights. He didn't know. No, not that. When it waved his appeal. The miscarriage of justice exception only doesn't require any of that. The bottom of the guidelines sentence was a miscarriage of justice. Yes. Yes. When when the government could not come up with more than one case with all its resources on a national survey using Department of Justice resources came up with one case in the whole country ever where somebody got a five years. A comparable sense five years and that person's case was seven times larger than Dr. Grimes. But all the others are probation to one year. Okay, but getting getting back to this case instead of hypotheticals. That's not the way the case came to us. You haven't cited anything to indicate that muslim or could have reshift on something or that her. Performance with substandard visa V her mitigation arguments. That's correct

. When it waved his appeal. The miscarriage of justice exception only doesn't require any of that. The bottom of the guidelines sentence was a miscarriage of justice. Yes. Yes. When when the government could not come up with more than one case with all its resources on a national survey using Department of Justice resources came up with one case in the whole country ever where somebody got a five years. A comparable sense five years and that person's case was seven times larger than Dr. Grimes. But all the others are probation to one year. Okay, but getting getting back to this case instead of hypotheticals. That's not the way the case came to us. You haven't cited anything to indicate that muslim or could have reshift on something or that her. Performance with substandard visa V her mitigation arguments. That's correct. We are not alleging that kind of ineffective assistance and I don't have a see a base of it from what I know now. And I want to make clear that when I said he won, meaning he had Grimes Grimes had counsel who advocated in paper and orally. Yes. Beautifully on his back. Yes, one of the best letters and Pittsburgh. So I wanted to make clear when I said he won. That's what I meant. So that's right. So then let me let me come back if I could to what to me is so difficult about this case is what support you have for the notion that that what appears to be a garden variety. A pellet waiver case within guidelines sentence, etc. Is somehow radically and I mean that in the literal sense of the word radically it's radically altered by the mere existence of an IAC waiver. Is there any case support for that this this and you use the word intertwine. They're so intertwined that it requires a different result than the typical case. I think that that conclusion follows inexorably from the Supreme Court's decisions and this court's decisions on the entitlement to effective assistance of counsel at the police stage

. We are not alleging that kind of ineffective assistance and I don't have a see a base of it from what I know now. And I want to make clear that when I said he won, meaning he had Grimes Grimes had counsel who advocated in paper and orally. Yes. Beautifully on his back. Yes, one of the best letters and Pittsburgh. So I wanted to make clear when I said he won. That's what I meant. So that's right. So then let me let me come back if I could to what to me is so difficult about this case is what support you have for the notion that that what appears to be a garden variety. A pellet waiver case within guidelines sentence, etc. Is somehow radically and I mean that in the literal sense of the word radically it's radically altered by the mere existence of an IAC waiver. Is there any case support for that this this and you use the word intertwine. They're so intertwined that it requires a different result than the typical case. I think that that conclusion follows inexorably from the Supreme Court's decisions and this court's decisions on the entitlement to effective assistance of counsel at the police stage. The definition of effective assistance as presupposing a conflict recounsel. And the fact that others other lawyers other judges have not previously recognized that is not an argument against it is perfectly clear to me based on the argument that we're making that this is a serious mistake that has been made for several years that should be fixed. And yes, it is systemic. It is easily solved. The government can get appeal waivers where it's in its interest. But it what it has to exclude the at least the question of effective or ineffective assistance of the lawyer who negotiated the agreement and represented a defendant at the time of the play. I would like to see broader that that's the minimum requirement and I hypothetically leave open the possibility that there is a there is there would be such a thing as a colloquial that could. Would allow for such a way of it to be included but I don't see the public interest in it for either side. It's wrong. It's a miscarriage of justice. Supervisory power or a construction of the miscarriage of justice exception should lead the court to prohibit this provision. Prespectively in Mr. Grimes case it should result in consideration of his issue on the merits. Well, here you are and we're but thank you Mr

. The definition of effective assistance as presupposing a conflict recounsel. And the fact that others other lawyers other judges have not previously recognized that is not an argument against it is perfectly clear to me based on the argument that we're making that this is a serious mistake that has been made for several years that should be fixed. And yes, it is systemic. It is easily solved. The government can get appeal waivers where it's in its interest. But it what it has to exclude the at least the question of effective or ineffective assistance of the lawyer who negotiated the agreement and represented a defendant at the time of the play. I would like to see broader that that's the minimum requirement and I hypothetically leave open the possibility that there is a there is there would be such a thing as a colloquial that could. Would allow for such a way of it to be included but I don't see the public interest in it for either side. It's wrong. It's a miscarriage of justice. Supervisory power or a construction of the miscarriage of justice exception should lead the court to prohibit this provision. Prespectively in Mr. Grimes case it should result in consideration of his issue on the merits. Well, here you are and we're but thank you Mr. Goldberger. Mr. Siruti. Good morning. Please the court. Steve sorority on behalf of the United States. The United States position at this point primary position is right in line with the questioning that you were giving Mr. Goldberger a moment ago, Judge Harderman. And he is fighting a battle too soon. This is most appropriately an issue that should be brought up in a future 2255 as opposed to here on direct appeal because that is where we are. We are on direct appeal and the waiver provision that Mr. Grimes has the most problem with is of course the collateral appeal. Now this court has said that when looking at either a direct appeal or a collateral appeal or collateral motion collateral proceeding and a waiver of both of those two separate rights that there has to be an inquiry into whether the waiver was knowing and voluntary. So even where this to go back to the district court and Mr

. Goldberger. Mr. Siruti. Good morning. Please the court. Steve sorority on behalf of the United States. The United States position at this point primary position is right in line with the questioning that you were giving Mr. Goldberger a moment ago, Judge Harderman. And he is fighting a battle too soon. This is most appropriately an issue that should be brought up in a future 2255 as opposed to here on direct appeal because that is where we are. We are on direct appeal and the waiver provision that Mr. Grimes has the most problem with is of course the collateral appeal. Now this court has said that when looking at either a direct appeal or a collateral appeal or collateral motion collateral proceeding and a waiver of both of those two separate rights that there has to be an inquiry into whether the waiver was knowing and voluntary. So even where this to go back to the district court and Mr. Grimes files a 2255 the district court is going to have to look at in the United States is not going to have a problem with the district district court looking at whether any alleged conflict of interest with advising about the waiver of collateral. The federal collateral waiver goes to that knowing and voluntary nature of the waiver is the burden on the defendant greater though and that circumstances. Well, I think the burden is going to be the same. You're in both cases both on the direct appeal and in the 2255 you're going to have to show that it was not knowing and voluntary for some reason. And in order to I think the burden is actually more difficult for Mr. Grimes now to show that a waiver provision the collateral waiver provision somehow attain that in yours to that and in the United States of course doesn't concede that there is somehow bleeds over into a separate waiver provision the waiver of direct appeal at rights. As point what's your answer to that question about I asked Mr. Goldberg is there any authority for this notion that the two waivers are intertwined or co dependent do you have any authority going your way on that issue. Well, I don't know of any direct authority that says these two things are explicitly separate that being said in maybery this court looked at a middle district plea agreement which had both the direct appeal at waiver and the collateral waiver contained in the same paragraph and judge Rendell and her opinions certainly proceeded and used wording which would indicate that that the court and in maybery looked at those two provisions as being too separate provisions and no different than you would find two separate provisions. And the other one is the one that the legal provisions and a contract which is of course what a what a plea agreement is you could take out either one of these waivers either the direct appeal waiver or the collateral waiver contained in this plea agreement and the remaining waiver would be unaffected the language would be complete in and of itself they are each independent the mere fact that they are located within the same paragraph doesn't make them the other argument that that Mr. Grimes raises of course is the fact that there is the potential for ineffective assistance of council claims being raised on direct appeal those are extremely rare one wasn't raised in this case but if you say then that that is going to give rise to the same conflict of interest then not only do you have to have a carve out for the ineffective or a collateral waiver you're going to have to have the same carve out for any appellate waiver and it's also going to call into question the whole plea whether it contains any waivers or not as this court and other circuits have made clear the entry of a plea waves any non jurisdictional issues that might have arisen prior to that so if you have a suppression hearing and there's ineffective assistance of council during the suppression hearing but ultimately the client and the defendant goes into a knowing and voluntary plea even if there's no appellate waiver even if there's no collateral waiver they have just waved the right to pursue the right. So I think that's the only way to do ineffective assistance of council claim is that true after laughter and fry. Well I mean it sounded like you're making a tallard argument or a maybe Supreme Court maybe that the guilty plea vitiates any effectiveness to precede it but I think isn't that isn't that all under question now in light of laughter and I believe so because those will go towards the advice and given the actual plea and my my argument is if the plea itself is found to be just fine then maybe potentially in effect of assistance that council isn't aware of and the defendant isn't aware of maybe waved. I'm not trying to understand that last point you make when you say if the plea room it's fine what do you mean by that? Well if the plea if it's knowing and voluntary yes if the plea agreement is knowing and voluntary but if it's knowing and voluntary but the lawyer botched it not the plea itself not the negotiations on the plea I'm talking about my example would be for example as I said a suppression hearing if there has been a proceeding prior to the plea negotiations where there has been some of ineffective assistance contained to that proceeding then but then the advice on the plea agreement is absolutely fine and knowing and voluntary

. Grimes files a 2255 the district court is going to have to look at in the United States is not going to have a problem with the district district court looking at whether any alleged conflict of interest with advising about the waiver of collateral. The federal collateral waiver goes to that knowing and voluntary nature of the waiver is the burden on the defendant greater though and that circumstances. Well, I think the burden is going to be the same. You're in both cases both on the direct appeal and in the 2255 you're going to have to show that it was not knowing and voluntary for some reason. And in order to I think the burden is actually more difficult for Mr. Grimes now to show that a waiver provision the collateral waiver provision somehow attain that in yours to that and in the United States of course doesn't concede that there is somehow bleeds over into a separate waiver provision the waiver of direct appeal at rights. As point what's your answer to that question about I asked Mr. Goldberg is there any authority for this notion that the two waivers are intertwined or co dependent do you have any authority going your way on that issue. Well, I don't know of any direct authority that says these two things are explicitly separate that being said in maybery this court looked at a middle district plea agreement which had both the direct appeal at waiver and the collateral waiver contained in the same paragraph and judge Rendell and her opinions certainly proceeded and used wording which would indicate that that the court and in maybery looked at those two provisions as being too separate provisions and no different than you would find two separate provisions. And the other one is the one that the legal provisions and a contract which is of course what a what a plea agreement is you could take out either one of these waivers either the direct appeal waiver or the collateral waiver contained in this plea agreement and the remaining waiver would be unaffected the language would be complete in and of itself they are each independent the mere fact that they are located within the same paragraph doesn't make them the other argument that that Mr. Grimes raises of course is the fact that there is the potential for ineffective assistance of council claims being raised on direct appeal those are extremely rare one wasn't raised in this case but if you say then that that is going to give rise to the same conflict of interest then not only do you have to have a carve out for the ineffective or a collateral waiver you're going to have to have the same carve out for any appellate waiver and it's also going to call into question the whole plea whether it contains any waivers or not as this court and other circuits have made clear the entry of a plea waves any non jurisdictional issues that might have arisen prior to that so if you have a suppression hearing and there's ineffective assistance of council during the suppression hearing but ultimately the client and the defendant goes into a knowing and voluntary plea even if there's no appellate waiver even if there's no collateral waiver they have just waved the right to pursue the right. So I think that's the only way to do ineffective assistance of council claim is that true after laughter and fry. Well I mean it sounded like you're making a tallard argument or a maybe Supreme Court maybe that the guilty plea vitiates any effectiveness to precede it but I think isn't that isn't that all under question now in light of laughter and I believe so because those will go towards the advice and given the actual plea and my my argument is if the plea itself is found to be just fine then maybe potentially in effect of assistance that council isn't aware of and the defendant isn't aware of maybe waved. I'm not trying to understand that last point you make when you say if the plea room it's fine what do you mean by that? Well if the plea if it's knowing and voluntary yes if the plea agreement is knowing and voluntary but if it's knowing and voluntary but the lawyer botched it not the plea itself not the negotiations on the plea I'm talking about my example would be for example as I said a suppression hearing if there has been a proceeding prior to the plea negotiations where there has been some of ineffective assistance contained to that proceeding then but then the advice on the plea agreement is absolutely fine and knowing and voluntary. So it would be your position then that this conflict that's being described would exist every time one starts to negotiate a plea because your advisor client to plead is tantamount to telling also you're not going to be able to challenge my effectiveness prior to for my conduct before you actually enters. Right if you take the theory that that grind is putting forward here that anything that could touch upon ineffective assistance in any way gives rise to this no matter how remote and it's a very remote likelihood in a direct appeal sense it's actually much less remote when you're just talking about plea in general. And when there is an avenue through 2255 to come back to the district court and let the district court have a hearing on the knowing and voluntary nature address the conflict of interest which this court in Marena has said like any other claim belongs most appropriately in a 2255 proceeding then the court can develop a record can determine if there was an adverse effect or a lapse in representation that resulted from this conflict or alleged conflict. So from your point of view on direct appeal the record here would not support the existence of a conflict. No I because the United States believes the direct appeal waiver is completely separate from the collateral waiver any issues that may be raised and again the United States doesn't concede that they are any issues raised by the wording of the collateral waiver in this case don't bleed over to affect the direct appeal and the so therefore the direct appeal should be enforced. And a Mr. Grimes wants to continue to pursue the conflict of interest claim you can do so in a 2255 and the district court will look at it and maybe we'll end up back here talking about this again in a year or so. So you're asking us don't weigh in on the call out the force ability to collateral attack component because we're not in collateral tackland exactly. If there are no more for no further questions on that or the disparity issue the United States would simply ask to have this court enforce the direct appeal waiver. Yeah Mr. Goldberg raises some interesting questions about ethics roles state ethics roles and you do treat them in your brief but tell us again what your position is on. Well the position is that first of all to the extent that you have state ethics opinions that are equating ineffective assistance of council with the malpractice which is discussed in those ethics rules we think that that's an error we think that is that's not accurate because you cannot simply use those two interchangeably Pennsylvania certainly does not use them interchangeably well ineffective assistance of council maybe evidence in favor of malpractice it is not determinative and you can proceed. So we have to do a malpractice action against a criminal attorney even if there is no ineffective assistance of council claims so we have two separate issues that unfortunately have been conflated by a number of state ethics boards. Also and this is similar to the ineffective assistance of council waiver problem that you run into with please in general if you take the interpretation that Mr

. So it would be your position then that this conflict that's being described would exist every time one starts to negotiate a plea because your advisor client to plead is tantamount to telling also you're not going to be able to challenge my effectiveness prior to for my conduct before you actually enters. Right if you take the theory that that grind is putting forward here that anything that could touch upon ineffective assistance in any way gives rise to this no matter how remote and it's a very remote likelihood in a direct appeal sense it's actually much less remote when you're just talking about plea in general. And when there is an avenue through 2255 to come back to the district court and let the district court have a hearing on the knowing and voluntary nature address the conflict of interest which this court in Marena has said like any other claim belongs most appropriately in a 2255 proceeding then the court can develop a record can determine if there was an adverse effect or a lapse in representation that resulted from this conflict or alleged conflict. So from your point of view on direct appeal the record here would not support the existence of a conflict. No I because the United States believes the direct appeal waiver is completely separate from the collateral waiver any issues that may be raised and again the United States doesn't concede that they are any issues raised by the wording of the collateral waiver in this case don't bleed over to affect the direct appeal and the so therefore the direct appeal should be enforced. And a Mr. Grimes wants to continue to pursue the conflict of interest claim you can do so in a 2255 and the district court will look at it and maybe we'll end up back here talking about this again in a year or so. So you're asking us don't weigh in on the call out the force ability to collateral attack component because we're not in collateral tackland exactly. If there are no more for no further questions on that or the disparity issue the United States would simply ask to have this court enforce the direct appeal waiver. Yeah Mr. Goldberg raises some interesting questions about ethics roles state ethics roles and you do treat them in your brief but tell us again what your position is on. Well the position is that first of all to the extent that you have state ethics opinions that are equating ineffective assistance of council with the malpractice which is discussed in those ethics rules we think that that's an error we think that is that's not accurate because you cannot simply use those two interchangeably Pennsylvania certainly does not use them interchangeably well ineffective assistance of council maybe evidence in favor of malpractice it is not determinative and you can proceed. So we have to do a malpractice action against a criminal attorney even if there is no ineffective assistance of council claims so we have two separate issues that unfortunately have been conflated by a number of state ethics boards. Also and this is similar to the ineffective assistance of council waiver problem that you run into with please in general if you take the interpretation that Mr. Grimes urges and we talked about you run into the same problem if you begin to equate ineffective assistance of council with malpractice. In virtually every state that talks about the way in which you are able to prove malpractice against a criminal defense attorney one of the things that is required is that there be some sort of innocence or that they would have otherwise been found innocent had it not been for the ineffective assistance. Well the moment that you plead guilty you are almost completely if not completely destroying any opportunity that you have to assert wait wait no I was innocent innocent and I was wrongly convicted therefore again leaving out waiver provisions if you take the interpretation of the ethics rules the way that those states who have found there to be a conflict what would have it then you have a problem with please in general once again because you are giving up an attorney is advised. He is a her client to give up the right to pursue a malpractice action the moment he begins discussing whether it's appropriate to plead guilty to the crimes that they are charged with. So from your point of view regardless of whether the effective assistance accounts of claims in the waiver it doesn't matter for malpractice claim in Pennsylvania because once the plea is intact and there's an adjudication of guilt the ability to bring a malpractice claim disappears. Effectively yes. Thank you. Again the United States would ask the court to dismiss this appeal based on the existence of the direct appeal waiver or in the alternative find that there was no error on the disparity issue. Thank you very much. Thank you Mr. Seruti. Rebuttal Mr. Goldberg. Of course we've never said that the ethics opinions are interchangeable within an effective assistance claim we laid it out quite clearly in the brief why but they are relevant that's why we didn't say that the Supreme Court says that you refer to practice norms ethical and standards of practice in determining what is effective and effective assistance they are not determinative but they're highly relevant

. Grimes urges and we talked about you run into the same problem if you begin to equate ineffective assistance of council with malpractice. In virtually every state that talks about the way in which you are able to prove malpractice against a criminal defense attorney one of the things that is required is that there be some sort of innocence or that they would have otherwise been found innocent had it not been for the ineffective assistance. Well the moment that you plead guilty you are almost completely if not completely destroying any opportunity that you have to assert wait wait no I was innocent innocent and I was wrongly convicted therefore again leaving out waiver provisions if you take the interpretation of the ethics rules the way that those states who have found there to be a conflict what would have it then you have a problem with please in general once again because you are giving up an attorney is advised. He is a her client to give up the right to pursue a malpractice action the moment he begins discussing whether it's appropriate to plead guilty to the crimes that they are charged with. So from your point of view regardless of whether the effective assistance accounts of claims in the waiver it doesn't matter for malpractice claim in Pennsylvania because once the plea is intact and there's an adjudication of guilt the ability to bring a malpractice claim disappears. Effectively yes. Thank you. Again the United States would ask the court to dismiss this appeal based on the existence of the direct appeal waiver or in the alternative find that there was no error on the disparity issue. Thank you very much. Thank you Mr. Seruti. Rebuttal Mr. Goldberg. Of course we've never said that the ethics opinions are interchangeable within an effective assistance claim we laid it out quite clearly in the brief why but they are relevant that's why we didn't say that the Supreme Court says that you refer to practice norms ethical and standards of practice in determining what is effective and effective assistance they are not determinative but they're highly relevant. Second with your second malpractice in Pennsylvania just what's it is it is an element of a defendant successful claim I'm sorry to say that the defendant have been a have innocence established in a direct or collateral proceeding. So the fact that a person is pleaded guilty does not mean that they could never bring a malpractice action but they would have to have brought a successful PCR state post conviction or 20 to 55 which resulted in an adjudication that would later be described as a finding of innocence. I think that's not fair to defendants but that's still on Pennsylvania. The more more central to the to the argument that we're making the existence of the collateral attack waiver is the principal source of the conflict but the conflict exists at the present time the conflict exists because the waiver is there when the lawyer advises the plea. So it is not possible to postpone the consideration of the issue that I'm raising to adjudication on collateral attack because the argument is that the insipient potential conflict of interest exists because of the possibility of ineffective assistance being a claim on direct appeal and the fact that in effective assistance. The principle issue raised on collateral attack and that collateral attack is being discussed now at the time of entry of the plea. I'm not sure I'm not sure I appreciate that argument maybe you could help me with it because as I understand the conflict that you're positing it's a conflict visa V the IAC waiver it's them it's not some sort of general conflict like I'm representing your code of Fenner I agree with that. Okay that's right but then why is that a valiant if it's again how do you how do you make that connection between what we will assume for sake of argument is an invalid IAC waiver with the typically enforced a pellet because it's the package of whether to accept that broad a clause in the plea agreement that is presently under consideration by the lawyer and about which the client needs effective and un conflicted advice before entering the guilty play. I'm not so sure by the way that I agree with with my colleague on the other side that he'll decree waves prior ineffectiveness of the lawyer who counseled the plea I don't I don't believe I saw in his brief a case in which such a claim. I thought he clarified it to say that it was ineffective on some prior proceeding but he was he was positing no ineffectiveness vis-a-vis the plea negotiations. Yes. I'm not so sure that that's true that that that seems to be a person brought the collateral attack claimed that the lawyer was in effect that after at the suppression motion. I would have won my suppression motion I never would plea to guilty correct and I was represented at the suppression motion by the same income who represented me and who then advised me to plea guilty rather than to negotiate a conditional plea that will allow me to appeal the aronious suppression hearing. Okay

. Second with your second malpractice in Pennsylvania just what's it is it is an element of a defendant successful claim I'm sorry to say that the defendant have been a have innocence established in a direct or collateral proceeding. So the fact that a person is pleaded guilty does not mean that they could never bring a malpractice action but they would have to have brought a successful PCR state post conviction or 20 to 55 which resulted in an adjudication that would later be described as a finding of innocence. I think that's not fair to defendants but that's still on Pennsylvania. The more more central to the to the argument that we're making the existence of the collateral attack waiver is the principal source of the conflict but the conflict exists at the present time the conflict exists because the waiver is there when the lawyer advises the plea. So it is not possible to postpone the consideration of the issue that I'm raising to adjudication on collateral attack because the argument is that the insipient potential conflict of interest exists because of the possibility of ineffective assistance being a claim on direct appeal and the fact that in effective assistance. The principle issue raised on collateral attack and that collateral attack is being discussed now at the time of entry of the plea. I'm not sure I'm not sure I appreciate that argument maybe you could help me with it because as I understand the conflict that you're positing it's a conflict visa V the IAC waiver it's them it's not some sort of general conflict like I'm representing your code of Fenner I agree with that. Okay that's right but then why is that a valiant if it's again how do you how do you make that connection between what we will assume for sake of argument is an invalid IAC waiver with the typically enforced a pellet because it's the package of whether to accept that broad a clause in the plea agreement that is presently under consideration by the lawyer and about which the client needs effective and un conflicted advice before entering the guilty play. I'm not so sure by the way that I agree with with my colleague on the other side that he'll decree waves prior ineffectiveness of the lawyer who counseled the plea I don't I don't believe I saw in his brief a case in which such a claim. I thought he clarified it to say that it was ineffective on some prior proceeding but he was he was positing no ineffectiveness vis-a-vis the plea negotiations. Yes. I'm not so sure that that's true that that that seems to be a person brought the collateral attack claimed that the lawyer was in effect that after at the suppression motion. I would have won my suppression motion I never would plea to guilty correct and I was represented at the suppression motion by the same income who represented me and who then advised me to plea guilty rather than to negotiate a conditional plea that will allow me to appeal the aronious suppression hearing. Okay. Thank you very much. Thank you Mr. Goldberg or the court. Thanks. Council for both sides for the truly expert argument and briefing will take the matter under advisement. Thank you.

Next case, the squarning is United States versus Craig A Grimes. This is Goldberger. This is that crank. Good morning and may it please the court. My name is Peter Goldberger. It's my privilege this morning to represent the appellant Craig Grimes. It was the defendant below. If you were to do this permission, I would like to reserve two minutes. Great. Thank you. The plea agreement, in this case, contains no enforceable waiver of the right to appeal. A waiver clause that fails to exempt the question of ineffective assistance of the very lawyer who negotiated that agreement and is then representing the defendant at the time of the plea. Places that lawyer by its design in the impossible conflict of interest situation that I describe in the brief. She is put in a position necessarily of having the obligation to advise her client whether to accept a plea on certain terms. Which include the question of whether to waive any question of effective assistance of that very lawyer, preexisting or potentially future at the sentencing hearing. The defendant is clearly entitled under Supreme Court precedent to the effective assistance of counsel under the sixth amendment in connection with the plea phase of a case. Effective assistance of counsel under Supreme Court precedent by definition means conflict free counsel. Conflict free counsel means not just actual conflict doesn't require showing that there was, in fact, ineffective assistance occurring or to occur in the case. But the clear potential for conflict of interest conflict in here is in that situation. And therefore in here is in that condition of the agreement. Where's the adverse effect here? Where's the problem? How is this client deprived in this case with a waiver of this sort? Where is not looking to withdraw the plea? Yes, adverse effect in the context of ineffective assistance due to conflict means only that the lawyer takes action in the case that is subject to the conflict. It doesn't mean the client is demonstrably harmed. It's not prejudice in the usual strictness. You're asking for a per se rule. It's a per se rule under the circumstances that exist in this case. Now, my concern is if we consider what you just said is sort of a hermetically sealed logical position, it raises some particularly challenging questions. I think in light of what's going on with Lafler and Fry and the new era in which we're entering here in light of those decisions. I don't disagree. But how do you tie that argument to the appellate waiver? Are you arguing the next case, I guess, the sort of what I'm, or perhaps this case in its next iteration? Well, I'm not quite sure what you mean. I'm always trying to think about the next case. Well, I'll try to be more explicit. I'm not asking. As I read your brief, your making an argument is I understand it that a lawyer cannot effectively advise a criminal defendant about a waiver of that own lawyer's ineffectiveness. There's just an inherent conflict there. But I'm not understanding how that inherent conflict which may well pollute or vitiate the efficacy of the post collateral attack waiver, how in any way that vitiates or pollutes the appellate waiver. Yes. Because the waiver is contained in a single agreement that the lawyer must advise about. So the lawyer is advising on whether to accept the whole waiver, which is a single paragraph, two-part waiver, to accept this or not. It affects the validity of that waiver because it contains the collateral attack waiver. But of course, it also contains an appellate waiver vis-a-vis claims of ineffective assistance which are cognizable on direct appeal of which there are some not a great many don't always recognize them. But we do recognize them. I think I have a string side almost a page long in my brief of cases where this court has recognized such claims going back 30 years and two as recently as last year. So those claims are also the lawyer is tying her hands, the client's hands, vis-a-vis cognizable claims on appeal which may exist but which the lawyer cannot advise the client about. And so I'm not saying there's nothing that can be done. I leave open the possibility of whether a claim of this waiver of this kind could be entered into knowingly and intelligently if the judge were to conduct a proper colloquy and ascertain the claim. That the defendant had a full understanding and reason and had made an knowing intelligent waiver that included full knowledge. And I do suggest that there would have to be at least an opportunity if not a provision of independent advice. So you have to be on another lawyer brought in which does happen in conflict waiver situations all the time where defendant wants a certain lawyer to represent him or her trial. Judge proceeds a conflict perhaps the government suggests the possibility of a conflict. The judge will often appoint the federal public defender or someone from the CJA list to conduct a private interview with the client for 45 minutes an hour to make sure the client fully understands what's entailed and going ahead with the lawyer that they've chosen in terms of what they may be giving up in the future. I've seen that happen. I've been in that lawyer and been the subject of that both. So there are many become a regular practice every time. So what should be ever meant with what would insist upon a waiver of this kind what should become a regular practice as a carve out. It's very simple. The solution is very simple. The government should not seek and in fact many of the ethics have been in say a prosecutor should not seek but as a matter of law the government should not seek and no defense lawyer should agree to. A waiver that contain that does not contain an exception of this kind of a court could. How can it go ahead? Does the Eastern district no longer in system that that's right. I think confronted with a number of appeals from me and from other lawyers pointing this out and objecting. The Eastern District of Pennsylvania now exempts these claims and is this happening in other districts that you. I haven't heard that it is but I wouldn't be surprised if it spreads. I think the Eastern District is influential in other US attorney's offices. I think eight states ethical bodies have come out against the practice of insisting on the waiver to as I understand it. That's true but the ethics opinions are mostly about whether it's ethical for the defense lawyer to to counsel it and advise to it. Only I think two or three of them say and it is on ethical for the prosecutor to negotiate for it. But why? The government resists being despite section 530 be resisting subject to state. Well let's suppose for purposes of argument it's a good practice not to ask for it that doesn't really help us with the constitutional question. If a defendant can can waive an actual conflict think of a rico case for a mob or something. I mean you know I'm your lawyer. Those cases are not a mobster. If those sorts of waivers have been upheld then they seem to be more onerous on the defendant than this sort of waiver. Not without judicial inquiry and often the provision of independent advice. Why isn't the portion of the case that talks about when this court would decline to enforce if it's voluntary, et cetera, you know all the factors right. Unless there's a miscarriage of justice. Why doesn't that provision provide the requisite protection to the defendant? Well I was about to suggest to to the targets question earlier part of the target discussion and it responds to your question as well. That the court could declare that the inclusion of such waivers without at least without a thoroughgoing colloquial and a clear knowing intelligent waiver is a miscarriage of justice. Now but my question is a little bit different is why isn't it protected through that inquiry if the court evaluating the enforceability of a waiver among its duties is to make sure that it was plain from the language and that it was knowing involuntary unless there's a miscarriage of justice. Why isn't why isn't that inquiry sufficient upon review that is whether or not this counseled plea in fact resulted in a miscarriage of justice rather than a blanket. Yes. It would be a miscarriage of justice to have such a way. But if you understand the distinction I'm drawing. Well I think I do. I will find out. Okay. But my first answer is the one you just rushed off which is it is a miscarriage of justice to put the defendant in a position where he or she does not have the conflict free effective assistance of counsel in the negotiation of the plea that isn't a scarative justice to be denied six amendment rights at a critical stage of the proceedings. I think what you're asking also is that there should be some colorable showing that there was ineffective assistance. Well the fact that we if there's a challenge to the enforceability of a waiver one of the things that court needs to examine is we will enforce unless there would be a miscarriage of justice. And so if you have a scenario like your clients that has this will call the unitary waiver for both both avenues of challenge. Yes. That in fact there is an avenue for protection that is if something a misoccurred not just the possibility that someone who negotiates that a waiver may get a benefit by protecting a later. Or challenged whether they were effective or not. Isn't there still protection in the law for the scenario you're most concerned about which is this client interest get. Soverted in some protection but not the same protection and so it's not a constitutionally sufficient protection because the standard and this is what's wrong with the fifth circuit opinion that I criticize in the in the reply brief. And so the challenge is the standard to show that something went wrong through the lens of ineffective assistance is a higher and more owner is standard than simply showing that there was error directly. So the defendant may be waving there are plenty of people who enter into waivers to the agreements with waivers of appeal who are getting almost nothing out of it. And other than losing their chance to raise error or plain error in a sentencing appeal that this court was often receptive to. So what do you think that your client here? How was your client affected here though by this by this alleged conflict you're presuming there was a conflict that's your position. Whether this is there is a conflict. I understand your position. The question I have is tell me how your client was affected here. What would have been different? I'm not saying that attorney Miller had some other kind of conflict of interest. No, no, I'm talking about the only one that you ascribed to him. How would it be different for your client here? How was he deprived? How what happened that he wouldn't get to get is the only thing that he wouldn't have because of this waiver and opportunity to challenge the disparity argument? Is that the only consequence? He may have lost the opportunity to make a winning disparity argument, although I suggest that he hasn't. But he could have lost that opportunity. But he didn't hear we have someone who advocated. Well, let's play out the hypothetical a little. Let's assume that Ms. Miller. Let's assume for a minute that she was concerned about her own reputation. Let's assume that she did something wrong and working up the case. Again, I know that. I know Ms. Miller and that would be odd, but you never know. You never know. Let's assume she did. And let's also assume that she encouraged her client to sign this agreement with the IAC waiver because she was concerned about her own reputation. If we, in this case, uphold the appellate waiver as we have done in so many other cases, doesn't then this result in a habeas petition on behalf of your client in which the facts as I just stated in my hypothetical are all alleged. There's discovery Ms. Miller swears under L. Thia, you know, I had I was overwhelmed that I I did these things. Your client wins on then perhaps, you know, the ineffective assistance waiver is deemed to be invalid due to an actual conflict of interest of counsel that it was prejudicial to your client. In case begins a new. Well, that's not the way conflicts of interest are raised, litigated and enforced. Conflicts of interest doesn't depend on the lawyer subjectively saying I felt I was in a conflict or I didn't feel I was in a conflict or it wasn't bothering me. I could put that aside, but I think with judges asking you is simply that assume you had someone who was a confessor, right? Who confessed to the conflict if there were one. I mean, we see that all the time in in in capital cases, it's not that unusual for a lawyer to come forward and say I was ineffective. So I guess my question is, aren't you, are you in the game, so to speak, on a habeas petition? Why. Why should, let me ask it another way, take the IAC waiver out of this plea agreement. Do you have a case for not enforcing the appellate waiver? We didn't raise one. I mean, that's actually that's not so. We would also we might have been here and I'm not sure whether we would or wouldn't we could have been here simply saying the error is so egregious and the impact is so large of the failure to consider the disparity argument at sentencing when it was presented so well by Ms. Miller. That there was a miscarriage of justice in that failure to consider the disparity argument and the imposition of a national record sentence in a case of this guy. But how do you get over the appellate waiver? I mean, is there I can't see the, oh, I'm sorry. No, no, no, take out the IAC waiver. If we take out the IAC waiver, this is this is yet another one of these cases. We see on a weekly basis where defendant appeals government files motion for summary firm clients, correct me. I mean, if you want to talk sort of hypothetically about the record, I do appeals full time. So people come to me with these cases and they say, I want to appeal and I say, you realize you waved your right to appeal in this thing you signed here. I did. Okay. Then we talk about that. I mean, that is actually the typical conversation with the client. And then we talk about it. And more often than not, we say we can't help you. Right. We take a review fee. We don't take an appellate fee and it's over. But sometimes I say there is a colorable argument. And I might have said that here to meet the third circuit standard of miscarriage of justice and a merit argument on the failure to consider the disparity. And we might have said that here with a mystery that not Dr. Grimes, you know, didn't understand his rights. He didn't know. No, not that. When it waved his appeal. The miscarriage of justice exception only doesn't require any of that. The bottom of the guidelines sentence was a miscarriage of justice. Yes. Yes. When when the government could not come up with more than one case with all its resources on a national survey using Department of Justice resources came up with one case in the whole country ever where somebody got a five years. A comparable sense five years and that person's case was seven times larger than Dr. Grimes. But all the others are probation to one year. Okay, but getting getting back to this case instead of hypotheticals. That's not the way the case came to us. You haven't cited anything to indicate that muslim or could have reshift on something or that her. Performance with substandard visa V her mitigation arguments. That's correct. We are not alleging that kind of ineffective assistance and I don't have a see a base of it from what I know now. And I want to make clear that when I said he won, meaning he had Grimes Grimes had counsel who advocated in paper and orally. Yes. Beautifully on his back. Yes, one of the best letters and Pittsburgh. So I wanted to make clear when I said he won. That's what I meant. So that's right. So then let me let me come back if I could to what to me is so difficult about this case is what support you have for the notion that that what appears to be a garden variety. A pellet waiver case within guidelines sentence, etc. Is somehow radically and I mean that in the literal sense of the word radically it's radically altered by the mere existence of an IAC waiver. Is there any case support for that this this and you use the word intertwine. They're so intertwined that it requires a different result than the typical case. I think that that conclusion follows inexorably from the Supreme Court's decisions and this court's decisions on the entitlement to effective assistance of counsel at the police stage. The definition of effective assistance as presupposing a conflict recounsel. And the fact that others other lawyers other judges have not previously recognized that is not an argument against it is perfectly clear to me based on the argument that we're making that this is a serious mistake that has been made for several years that should be fixed. And yes, it is systemic. It is easily solved. The government can get appeal waivers where it's in its interest. But it what it has to exclude the at least the question of effective or ineffective assistance of the lawyer who negotiated the agreement and represented a defendant at the time of the play. I would like to see broader that that's the minimum requirement and I hypothetically leave open the possibility that there is a there is there would be such a thing as a colloquial that could. Would allow for such a way of it to be included but I don't see the public interest in it for either side. It's wrong. It's a miscarriage of justice. Supervisory power or a construction of the miscarriage of justice exception should lead the court to prohibit this provision. Prespectively in Mr. Grimes case it should result in consideration of his issue on the merits. Well, here you are and we're but thank you Mr. Goldberger. Mr. Siruti. Good morning. Please the court. Steve sorority on behalf of the United States. The United States position at this point primary position is right in line with the questioning that you were giving Mr. Goldberger a moment ago, Judge Harderman. And he is fighting a battle too soon. This is most appropriately an issue that should be brought up in a future 2255 as opposed to here on direct appeal because that is where we are. We are on direct appeal and the waiver provision that Mr. Grimes has the most problem with is of course the collateral appeal. Now this court has said that when looking at either a direct appeal or a collateral appeal or collateral motion collateral proceeding and a waiver of both of those two separate rights that there has to be an inquiry into whether the waiver was knowing and voluntary. So even where this to go back to the district court and Mr. Grimes files a 2255 the district court is going to have to look at in the United States is not going to have a problem with the district district court looking at whether any alleged conflict of interest with advising about the waiver of collateral. The federal collateral waiver goes to that knowing and voluntary nature of the waiver is the burden on the defendant greater though and that circumstances. Well, I think the burden is going to be the same. You're in both cases both on the direct appeal and in the 2255 you're going to have to show that it was not knowing and voluntary for some reason. And in order to I think the burden is actually more difficult for Mr. Grimes now to show that a waiver provision the collateral waiver provision somehow attain that in yours to that and in the United States of course doesn't concede that there is somehow bleeds over into a separate waiver provision the waiver of direct appeal at rights. As point what's your answer to that question about I asked Mr. Goldberg is there any authority for this notion that the two waivers are intertwined or co dependent do you have any authority going your way on that issue. Well, I don't know of any direct authority that says these two things are explicitly separate that being said in maybery this court looked at a middle district plea agreement which had both the direct appeal at waiver and the collateral waiver contained in the same paragraph and judge Rendell and her opinions certainly proceeded and used wording which would indicate that that the court and in maybery looked at those two provisions as being too separate provisions and no different than you would find two separate provisions. And the other one is the one that the legal provisions and a contract which is of course what a what a plea agreement is you could take out either one of these waivers either the direct appeal waiver or the collateral waiver contained in this plea agreement and the remaining waiver would be unaffected the language would be complete in and of itself they are each independent the mere fact that they are located within the same paragraph doesn't make them the other argument that that Mr. Grimes raises of course is the fact that there is the potential for ineffective assistance of council claims being raised on direct appeal those are extremely rare one wasn't raised in this case but if you say then that that is going to give rise to the same conflict of interest then not only do you have to have a carve out for the ineffective or a collateral waiver you're going to have to have the same carve out for any appellate waiver and it's also going to call into question the whole plea whether it contains any waivers or not as this court and other circuits have made clear the entry of a plea waves any non jurisdictional issues that might have arisen prior to that so if you have a suppression hearing and there's ineffective assistance of council during the suppression hearing but ultimately the client and the defendant goes into a knowing and voluntary plea even if there's no appellate waiver even if there's no collateral waiver they have just waved the right to pursue the right. So I think that's the only way to do ineffective assistance of council claim is that true after laughter and fry. Well I mean it sounded like you're making a tallard argument or a maybe Supreme Court maybe that the guilty plea vitiates any effectiveness to precede it but I think isn't that isn't that all under question now in light of laughter and I believe so because those will go towards the advice and given the actual plea and my my argument is if the plea itself is found to be just fine then maybe potentially in effect of assistance that council isn't aware of and the defendant isn't aware of maybe waved. I'm not trying to understand that last point you make when you say if the plea room it's fine what do you mean by that? Well if the plea if it's knowing and voluntary yes if the plea agreement is knowing and voluntary but if it's knowing and voluntary but the lawyer botched it not the plea itself not the negotiations on the plea I'm talking about my example would be for example as I said a suppression hearing if there has been a proceeding prior to the plea negotiations where there has been some of ineffective assistance contained to that proceeding then but then the advice on the plea agreement is absolutely fine and knowing and voluntary. So it would be your position then that this conflict that's being described would exist every time one starts to negotiate a plea because your advisor client to plead is tantamount to telling also you're not going to be able to challenge my effectiveness prior to for my conduct before you actually enters. Right if you take the theory that that grind is putting forward here that anything that could touch upon ineffective assistance in any way gives rise to this no matter how remote and it's a very remote likelihood in a direct appeal sense it's actually much less remote when you're just talking about plea in general. And when there is an avenue through 2255 to come back to the district court and let the district court have a hearing on the knowing and voluntary nature address the conflict of interest which this court in Marena has said like any other claim belongs most appropriately in a 2255 proceeding then the court can develop a record can determine if there was an adverse effect or a lapse in representation that resulted from this conflict or alleged conflict. So from your point of view on direct appeal the record here would not support the existence of a conflict. No I because the United States believes the direct appeal waiver is completely separate from the collateral waiver any issues that may be raised and again the United States doesn't concede that they are any issues raised by the wording of the collateral waiver in this case don't bleed over to affect the direct appeal and the so therefore the direct appeal should be enforced. And a Mr. Grimes wants to continue to pursue the conflict of interest claim you can do so in a 2255 and the district court will look at it and maybe we'll end up back here talking about this again in a year or so. So you're asking us don't weigh in on the call out the force ability to collateral attack component because we're not in collateral tackland exactly. If there are no more for no further questions on that or the disparity issue the United States would simply ask to have this court enforce the direct appeal waiver. Yeah Mr. Goldberg raises some interesting questions about ethics roles state ethics roles and you do treat them in your brief but tell us again what your position is on. Well the position is that first of all to the extent that you have state ethics opinions that are equating ineffective assistance of council with the malpractice which is discussed in those ethics rules we think that that's an error we think that is that's not accurate because you cannot simply use those two interchangeably Pennsylvania certainly does not use them interchangeably well ineffective assistance of council maybe evidence in favor of malpractice it is not determinative and you can proceed. So we have to do a malpractice action against a criminal attorney even if there is no ineffective assistance of council claims so we have two separate issues that unfortunately have been conflated by a number of state ethics boards. Also and this is similar to the ineffective assistance of council waiver problem that you run into with please in general if you take the interpretation that Mr. Grimes urges and we talked about you run into the same problem if you begin to equate ineffective assistance of council with malpractice. In virtually every state that talks about the way in which you are able to prove malpractice against a criminal defense attorney one of the things that is required is that there be some sort of innocence or that they would have otherwise been found innocent had it not been for the ineffective assistance. Well the moment that you plead guilty you are almost completely if not completely destroying any opportunity that you have to assert wait wait no I was innocent innocent and I was wrongly convicted therefore again leaving out waiver provisions if you take the interpretation of the ethics rules the way that those states who have found there to be a conflict what would have it then you have a problem with please in general once again because you are giving up an attorney is advised. He is a her client to give up the right to pursue a malpractice action the moment he begins discussing whether it's appropriate to plead guilty to the crimes that they are charged with. So from your point of view regardless of whether the effective assistance accounts of claims in the waiver it doesn't matter for malpractice claim in Pennsylvania because once the plea is intact and there's an adjudication of guilt the ability to bring a malpractice claim disappears. Effectively yes. Thank you. Again the United States would ask the court to dismiss this appeal based on the existence of the direct appeal waiver or in the alternative find that there was no error on the disparity issue. Thank you very much. Thank you Mr. Seruti. Rebuttal Mr. Goldberg. Of course we've never said that the ethics opinions are interchangeable within an effective assistance claim we laid it out quite clearly in the brief why but they are relevant that's why we didn't say that the Supreme Court says that you refer to practice norms ethical and standards of practice in determining what is effective and effective assistance they are not determinative but they're highly relevant. Second with your second malpractice in Pennsylvania just what's it is it is an element of a defendant successful claim I'm sorry to say that the defendant have been a have innocence established in a direct or collateral proceeding. So the fact that a person is pleaded guilty does not mean that they could never bring a malpractice action but they would have to have brought a successful PCR state post conviction or 20 to 55 which resulted in an adjudication that would later be described as a finding of innocence. I think that's not fair to defendants but that's still on Pennsylvania. The more more central to the to the argument that we're making the existence of the collateral attack waiver is the principal source of the conflict but the conflict exists at the present time the conflict exists because the waiver is there when the lawyer advises the plea. So it is not possible to postpone the consideration of the issue that I'm raising to adjudication on collateral attack because the argument is that the insipient potential conflict of interest exists because of the possibility of ineffective assistance being a claim on direct appeal and the fact that in effective assistance. The principle issue raised on collateral attack and that collateral attack is being discussed now at the time of entry of the plea. I'm not sure I'm not sure I appreciate that argument maybe you could help me with it because as I understand the conflict that you're positing it's a conflict visa V the IAC waiver it's them it's not some sort of general conflict like I'm representing your code of Fenner I agree with that. Okay that's right but then why is that a valiant if it's again how do you how do you make that connection between what we will assume for sake of argument is an invalid IAC waiver with the typically enforced a pellet because it's the package of whether to accept that broad a clause in the plea agreement that is presently under consideration by the lawyer and about which the client needs effective and un conflicted advice before entering the guilty play. I'm not so sure by the way that I agree with with my colleague on the other side that he'll decree waves prior ineffectiveness of the lawyer who counseled the plea I don't I don't believe I saw in his brief a case in which such a claim. I thought he clarified it to say that it was ineffective on some prior proceeding but he was he was positing no ineffectiveness vis-a-vis the plea negotiations. Yes. I'm not so sure that that's true that that that seems to be a person brought the collateral attack claimed that the lawyer was in effect that after at the suppression motion. I would have won my suppression motion I never would plea to guilty correct and I was represented at the suppression motion by the same income who represented me and who then advised me to plea guilty rather than to negotiate a conditional plea that will allow me to appeal the aronious suppression hearing. Okay. Thank you very much. Thank you Mr. Goldberg or the court. Thanks. Council for both sides for the truly expert argument and briefing will take the matter under advisement. Thank you