next case this morning this united states versus craig  good morning and may please the court my name is peter goldberg or it's my privilege this morning to represent the appellant craig crimes with the defendant below if you read the words permission i would like to reserve two minutes re plea agreement in this case it contains no in forcible way her 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 that the defendant at the time of the plea places that lawyer by its design in the impossible conflict of interest situation that i describ she is put in a position necessarily of having the obligation to advise her client whether to accept a plea on certain t 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 and i'm in connection with the police phase of a case effective assistance of counsel under  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 conflict in hears in that situation and therefore in hears in that condition 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 if we consider what you just said it is sort of a hermetically sealed logical position it raises some particularly challenging questions i think in light of what's going on with laugh learn fry in a era in which we're we're entering here in light of those decision i don't disagree but how how do you tie that argument to the appellate waiver are you arguing the next case i guess a sort of   you're making an argument as i understand it that a lawyer cannot be cannot effectively advise a criminal defendant about a waiver of that own lawyers in effect in this there's just an inherent conflict there correct but i'm not understanding how that inherent conflict which may well pollute or vitiate the efficacy of the the 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 ves of the 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 recognise them i think i have a strong side almost a page long in my brief of cases where this court has recognized such claims going back thirty years and two as recently as last year so those claims are done i leave open the possibility of whether a claim of this a waiver of this kind could be entered into knowingly and intelligently if the judge were to conduct a proper colloquy and ascertain that the defendant had a full understanding and and reason i have made in knowing intelligent waiver that included full knowledge and i and i do suggest that that there would have to be at least an opportunity if not  provision of independent advice there have to be an 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 a trial judge perceives a conflict perhaps the government suggests the possibility of a conflict the judge will often appoint the federal public defender or someone from the c j list to conduct a private interview with the client for forty five minutes an hour to make sure the client fully understands what's entailed in going ahead with the lawyer that they've chosen in terms of what they may be giving up in the future but seeing that happen i've been in that lawyer and been the subject of that both so there were many doesn't become a regular p really help us with the constitutional question what if a defendant can can waive an actual cause of you know think of a rico case for mafia or something i mean you know i refer i am your lawyer you know all those cases  mobster you know i mean because if those sorts of waivers have been upheld then they seem to be more onerous on the defendant than the sort of waiver no not without judicial inquiry and often the provision of independent of justice why doesn't that provision provide the requisite protection to the defendant well i was about to suggest a judge tartans question earlier part of the tardis question in response to your question as well that the court could protected through that inquiry if the court evaluating you were civility of a waiver among its duties is to make sure that it was plain from the language and that it was knowing involuntary unless it was in this character justice wasn't wasn't that inquiry sufficient upon review that is whether or not this counsel 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 that you understand the distinction i'm drawing well i think i to find out ok but my first answer is the one you just brushed off which is it is a miscarriage of justice to put a 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 is a miscarriage of justice to be denied sixth amendment rights at a critical stage of the 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 are we if there is a challenge the enforceability of a waiver one of the things the 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 negative then it by protecting a later challenge whether they were effective or not isn't there still protection in the law for where the scenario you're most concerned about which is this client interested subverted in there is 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 reply brief is the standard to show that something went wrong through the lens  assistance is a higher and more onerous answered than simply showing that there was aired or rectally so the defendant may be waiving there are plenty of people who enter into waivers plea agreements with waivers of appeal who are get was concerned about her own reputation let's assume that she did something wrong in working up the case again i know that i know ms miller and that would be odd but you never know why you never know  case uphold the appellate waiver as we have done in so many other cases doesn't then this result in a hay vs petition on behalf of your client in which the facts as i just stated them i didn't raise one i mean well 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 but 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 the case of this guy but how do you get over r appeals government filed a motion for summary for clients correct me i mean if you want to talk sort of hypothetical off the record i do appeals full time so people come to get with these cases and they say i want to appeal and i say you realize you waive your right to appeal in this thing you sign here i did ok and we talk about that i mean that is actually the typical conversation with the client and we talk about it more often than not we say we can't help you very we so make 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 the merits argument on 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 or somebody's got a that's not the way the case came to us you you haven't cited anything to indicate that ms miller could have or should have done something that's right or that her performance was substandard visa v her mitigation arguments about that's correct we are not alleging that kind of ineffect meant so that's right so then let me let me come back if i could of what to me is difficult about this case is what support you have for the notion that that would appears to be a garden variety appellate waiver case within guidelines that cetera 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 from the supreme court's decisions and this court's decisions on the entitlement to end of two effective assistance of counsel at the police age the definition of effect of assistance as presupposing a conflict free counsel and the fact that others other lawyers other judges have not previously recognized that is not an argument against it it is perfectly clear to me based on the argument that we're making that this is a 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 miscarriages of justice exception should lead this court to prohibit this pr he is fighting a battle too soon this is most appropriately an issue that should be brought up any future twenty two fifty five 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 and now this court has said that when looking at either as 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 when where this to go back to the district court mr grimes files a twenty to fifty five the district court is going to have to look at in the united states is not going to have a problem with the disc district court looking at whether any alleged conflict of interest with advising about the waiver of i think the burden is going to be the same year in both cases both on the direct appeal and the twenty to fifty five you're going to have to show that it was not knowing and voluntary for some reason 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 the united states force doesn't concede that there is somehow believes over into a separate waiver provision the waiver of direct authority going your way on that issue well i i don't know of any direct authority that says these two things are explicitly separate that being said in mayberry this court looked at a middle district plea agreement which had the direct appellate waiver and the collateral waiver contained in the same paragraph and judge randell in her opinion certainly proceeded in use wording which would indicate that that the court in mayberry looked at those two provisions as being two separate for provisions and no different then you would find two separate provisions in a contract which is of course a lot of what a plea agreement is you could take out either one of these waivers either direct appeal waiver or the collateral waiver contained in this plea agreement and the remaining waiver would be unaffected the language would be complete and of itself they are each independent the mere fact that they are located within the same paragraph doesn't make them unitary doesn't make them intertwined doesn't make them inseparable but if you say then that that is going to give rise to the same conflict of interest and not only do you have to have a carve out for the if ineffective or 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 in other circuits of made clear the entry of a plea waves and a non jurisdictional issues that might have arisen prior to that so if you have a suppression hearing and there is ineffective assistance of counsel during the suppression hearing but ultimately the client and the defendant want goes into a knowing involuntary plea even if there's no appellate waiver even if there's no collateral where they have just waived the isn't that isn't that all under question now in light of laughter i don't 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 theory that i'm just 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 and in a direct appeal sense it's actually much less remote when you're talking about playing in general and when there is an avenue through twenty two fifty five to come back to the district court and let the district court have a hearing on the knowing involuntary nature addressed the conflict of interest which this court  has said like any other claim belongs most appropriately in a twenty to fifty five proceeding then the court can develop a record and 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 records here would not support the existence of a conflict no i mean 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 of the so therefore the direct appeal should be enforced and mr grimes wants to continue to pursue the conflict of interest claim and you can do so on a twenty to fifty five in the assistance of counsel with the malpractise 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 while ineffective assistance of counsel may be evidence in favor of malpractise it is not determinative and you can pursue a malpractise action against a criminal attorney even if there is no ineffective assistance of counsel claim so we  separate issues that unfortunately have been conflated by a number of state ethics boards also and this is similar to the ineffective assistance of counsel of waiver problem that you run into with you know please in general if you take the interpretation that mr grimes urges that we talked about you run into the same problem if you begin to equate ineffective assistance of counsel with malpractise in virtually every state that talks about the the way in which you are able to prove malpracti 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 and innocent and i was wrongly convicted therefore again leaving out labor provisions if you take the interpretation of the ethics rules the way that those states who have found there to be a conflict would have it then you have a problem with pleas in general once again because you are giving up an attorney is advise ing his or her client to give up the right to pursue a malpractise action the again the united states would ask this 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  goldman of course you never said that the ethics opinions are interchangeable with infective so since you claim we laid it laid out quite clearly in the brief why but they are relevant and that's why we didn't play them out is that the supreme court says that you refer to practice norms ethical and standards of practice in determining what is the effect of an ineffective assistance they're not determinative but they're highly relevan or collateral proceeding so the fact that a person is pleaded guilty does not mean that they could never bring a malpractise action but they would have to have brought a successful p c r our state post conviction or twenty two fifty five which resulted in an adjudication that would later be described as a finding of innocence i think that's not fair to defend it's but that's still on pennsylvania the more more central 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  when the lawyer advises the police so it is not possible to postpone the consideration of the issue that i'm raising to education on collateral attack because the argument is that the incipient potential conflict of interest exists because of the possibility of an effective systems being a claim on direct appeal and the that ok that's right but then why is that a veiling if it's here and how do you how do you make that connection between what we will assume for sake of argument is an invalid i see waiver with the typically enforced because it's the package of whether to accept that broad clause in the plea agreement that is presently under consideration by the lawyer and about which the client needs effect of an on conflicted advice before entering the guilty i'm not so sure by the way that i agree with but my colleagues on the other side that if you'll typically 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 thanks counsel for both sides for the truly expert argument in briefing we will take the matter und