In the

United States Court of Appeals

For the Seventh Circuit

No. 06-1014

ARMANDO NUNEZ,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

On Remand from the Supreme Court of the United States.

SUBMITTED AUGUST 15, 2008—DECIDED OCTOBER 6, 2008

Before EASTERBROOK, Chief Judge, and BAUER and

COFFEY, Circuit Judges.

EASTERBROOK, Chief Judge. Last year we held that by

surrendering, as part of a plea bargain, his opportunity

to wage a collateral attack on his conviction, Armando

Nunez had waived any right to relief based on the theory

that his lawyer should have filed a notice of appeal in

violation of the plea agreement (which waived the right to

appeal as well as the right to pursue collateral relief). The

agreement preserved an opportunity to contest the volun-
2 No. 06-1014

tariness of the plea. After concluding that the plea was

voluntary, we enforced the waiver and held that Nunez

is not entitled to collateral relief. 495 F.3d 544 (7th Cir.

2007).

I

After Nunez filed a petition for a writ of certiorari, the

Solicitor General told the Justices that the waiver did not

necessarily foreclose all of the arguments that Nunez had

tried to raise on collateral review. At the Solicitor General’s

request, the Court remanded for further consideration of

that subject. 128 S. Ct. 2990 (2008). The Chief Justice, Justice

Scalia, and Justice Thomas dissented from that order,

which they deemed improvident because the Solicitor

General had not confessed error on this court’s judgment

but had just expressed reservations about part of the

opinion’s exposition.

In papers filed on remand, however, the United States

Attorney has made the confession of error that the Solicitor

General did not. The United States Attorney asserts that

the waiver in the plea bargain does not cover the sort of

argument that Nunez seeks to present and adds that a

defendant has a constitutional right to have a lawyer file

a notice of appeal on his behalf even after formally

waiving that right. We accept the first part of the United

States Attorney’s current position but not the second.

The plea bargain between Nunez and the United States

waives the right to appeal. It also waives collateral review

of the sentence and the manner in which it was deter-
No. 06-1014 3

mined. That reference to the “sentence” could mean just

the length of imprisonment (leaving the conviction open

to collateral challenge), but in a criminal case the sentence is the judgment, Berman v. United States, 302 U.S. 211,

212 (1937), so this waiver might well cover all issues. We

gave the waiver the broader reading for several reasons.

First, it would be anomalous to plead guilty and waive

appeal, yet reserve by indirection a right to test the conviction later. Collateral review is not a means to undo an

express waiver of an issue—that much was established

even before Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992),

overruled Fay v. Noia, 372 U.S. 391 (1963)—and both the

guilty plea and the waiver of appeal expressly surrender

any right to upset the conviction. See, e.g., United States v.

Broce, 488 U.S. 563 (1989). Having twice waived any

objection to the conviction, it was not necessary for Nunez

to waive it a third time when dealing with collateral

review. Second, the waiver of collateral review contains a

proviso—the reservation of a right to contest the voluntariness of the plea—that serves a function only if the waiver

has the broader meaning. Third, when accepting Nunez’s

plea the district judge was required by Fed. R. Crim. P.

11(b)(1)(N) to state on the record “the terms of any pleaagreement provision waiving” the right to appeal or

collateral review. In obtaining Nunez’s assent to these

terms on the record, the judge stated that the waiver

covers every issue other than the voluntariness of the

plea. Asked whether he understood this, Nunez replied

“yes.”

Looking at this subject again on remand, we would be

inclined to conclude a second time that the waiver covers
4 No. 06-1014

the conviction—but its scope no longer matters. For the

United States, as the waiver’s beneficiary, may freely

give up its protection. And it has done so. The United

States has urged us to reach the merits of Nunez’s collateral attack. The Supreme Court’s remand order directs us

to consider “the position asserted by the Solicitor General

in his brief for the United States filed May 12, 2008.” As we

have explained, the position taken in this court on

remand differs from that of the Solicitor General; the

United States Attorney has confessed error, as the

Solicitor General did not. But we do not think that the

Court’s language prevents the United States from

formally surrendering the benefit of the waiver. Now that

it has done so, we turn to the substantive issues.

Two caveats. First, our prior opinion considers, and

rejects on the merits, Nunez’s argument that the plea

was involuntary. 495 F.3d at 546. That subject is not within

the scope of the remand. Second, a litigant’s confession of

error on a question of law does not bind the court. See

Young v. United States, 315 U.S. 257, 258–59 (1942) (“The

considered judgment of the law enforcement officers

that reversible error has been committed is entitled to

great weight, but our judicial obligations compel us to

examine independently the errors confessed.”); Ren v.

Gonzales, 440 F.3d 446 (7th Cir. 2006). Any litigant is

entitled to give up a contractual benefit; that’s why we

have accepted the prosecutor’s current position on the

scope of Nunez’s waiver. And the United States could

dismiss the charges against Nunez. See Rinaldi v. United

States, 434 U.S. 22 (1977); In re United States, 345 F.3d 450

(7th Cir. 2003). But the Department of Justice does not
No. 06-1014 5

propose to set Nunez free; it wants the conviction to

stand, though after a hearing to explore the question

whether Nunez asked his lawyer to appeal. Whether such

a hearing is necessary is a question of law, on which the

prosecutor’s view is not conclusive. We will reverse the

judgment of the district court, and direct it to hold such a

hearing, only if the district court erred by holding that a

request to his lawyer would not entitle Nunez to relief.

We do not think that the judgment is in error. Instead of

sending readers to our first opinion, we will repeat much

of what was said there. Recapitulation is better than

leaving our reasoning scattered across volumes of the

Federal Reporter.

II

Charged with multiple cocaine offenses, Armando

Nunez negotiated a plea bargain: the prosecutor dismissed

all counts but one and recommended a sentence at the

lowest point in the Guideline range. As part of the deal,

Nunez agreed not to appeal unless the sentence

exceeded the statutory maximum or the waiver clause

itself should be deemed invalid. The sentence of 135

months is well under the maximum. (Nunez admitted

distributing more than five kilograms of cocaine, so the

judge could have sentenced him to life in prison. See

21 U.S.C. §841(b)(1)(A). Nunez’s actual sentence was

close to the statutory floor of 120 months.) Nonetheless,

Nunez told his lawyer to appeal (or so he says; the assertion has been contested, but we shall assume that Nunez
6 No. 06-1014

did ask). When the lawyer balked, he filed this collateral

attack under 28 U.S.C. §2255.

Because the plea was voluntary, the waiver of appeal

must be enforced. See United States v. Wenger, 58 F.3d 280

(7th Cir. 1995). And that waiver knocks out Nunez’s

argument that his lawyer failed to follow his direction to

file an appeal.

To establish ineffective assistance of counsel, a prisoner

must show not only that the lawyer’s work as a whole

was objectively deficient but also that prejudice ensued.

See Wright v. Van Patten, 128 S. Ct. 743 (2008); Bell v. Cone,

535 U.S. 685 (2002); Strickland v. Washington, 466 U.S. 668

(1984). A lawyer who respects his client’s formal waiver

of appeal does not render objectively deficient service,

and the waiver (coupled with the plea itself) shows that

Nunez did not suffer prejudice even if his lawyer should

have filed a notice of appeal. Had an appeal been filed, it

would have been dismissed in short order.

In saying this, we recognize that seven courts of appeals

have held that a waiver of appeal does not relieve counsel

of the duty to file a notice of appeal on a client’s request.

See Campusano v. United States, 442 F.3d 770, 772–77 (2d Cir.

2006); United States v. Poindexter, 492 F.3d 263 (4th Cir.

2007); United States v. Tapp, 491 F.3d 263 (5th Cir. 2007);

Watson v. United States, 493 F.3d 960 (8th Cir. 2007); United

States v. Sandoval-Lopez, 409 F.3d 1193, 1195–99 (9th Cir.

2005); United States v. Garrett, 402 F.3d 1262, 1265–67 (10th

Cir. 2005); Gomez-Diaz v. United States, 433 F.3d 788, 791–94

(11th Cir. 2005). But see United States v. Mabry, 536 F.3d 231,

239–42 (3d Cir. 2008) (disapproving that conclusion,
No. 06-1014 7

though ultimately holding, as our initial decision did, that

a waiver of collateral review blocked relief whether or not

counsel was obliged to file a direct appeal).

These decisions (other than Mabry) rely on Roe v. FloresOrtega, 528 U.S. 470 (2000), which observes that a criminal

defendant has a statutory right to appellate review and

holds that, when counsel frustrates that right by failing to

appeal on his client’s request, counsel’s performance is

automatically ineffective. A lawyer who does not show

up for trial might as well be a moose, and giving the

defendant a moose does not satisfy the sixth amendment.

See United States v. Cronic, 466 U.S. 648 (1984). The same

understanding applies when the lawyer does not show

up for appeal, these courts hold, despite a defendant’s

voluntary waiver of the opportunity to appeal.

There may well be practical benefits to the other circuits’ extension of Roe, because waivers of appeal are

not airtight. As we held in Wenger, a waiver stands or

falls with the plea bargain of which it is a part. See also

United States v. Sura, 511 F.3d 654 (7th Cir. 2007) (violation

of Rule 11(b)(1)(N) can vitiate a guilty plea that includes

a waiver of appeal). A defendant who wants a lawyer

to argue on appeal that the plea was involuntary has a

right to legal assistance. Moreover, waivers of appeal

have different scopes. Some—for example, the waiver

in Poindexter—concern only the sentence; an appeal that

calls the conviction itself into question is not foreclosed

by such a waiver. Had the district judge imposed a sentence higher than the statutory maximum, Nunez too

could have appealed and would have been entitled to

assistance of counsel to make that argument.
8 No. 06-1014

A requirement that a lawyer file an appeal on demand,

and let the court of appeals sort out whether the

defendant is entitled to appellate review, avoids any need

to make nice distinctions during the 10 days allowed for

appeal. Simplicity is a virtue, and a mechanical rule (“On

request, file a notice of appeal”) could be a good addition

to the Federal Rules of Criminal Procedure. Cf. Fed. R.

Crim. P. 32(j)(2) (clerk of court must file a notice of appeal

on a defendant’s request). But the Constitution does not

include all provisions that might be useful components

of the federal rules.

Decisions such as Van Patten and Cone tell us that Roe is

a modest exception to Strickland’s approach. Unless the

lawyer simply doesn’t show up, it is essential to establish

deficient performance and prejudice. Roe concludes that

failure to appeal is a form of not showing up for duty.

But Roe’s rationale presumes that the defendant has

contested the charges; when a defendant not only pleads

guilty but also waives the right to appeal, it is hard to

classify the absence of appeal as the lawyer taking a

vacation.

In Roe the Court remarked that a failure to file a notice

of appeal “cannot be considered a strategic decision;

filing a notice of appeal is a purely ministerial task, and

the failure to file reflects inattention to the defendant’s

wishes.” 528 U.S. at 477. Filing an appeal is not “ministerial” when the defendant has waived that entitlement.

Waivers are enforced even if a defendant changes his

mind. A defendant who waits past the time for appeal

(10 days in federal court) before asking his lawyer to
No. 06-1014 9

proceed cannot expect that this will be done as a “purely

ministerial” task, for after 10 days there is no longer a

right to appeal; likewise there is no longer a right to

appeal following a waiver. Filing an appeal after a

waiver is no more a “ministerial duty” than preparing

for trial would be a lawyer’s ministerial duty after the

defendant pleads guilty.

Instead of being obliged to follow his client’s (latest)

wishes, however unreasonable they may be, a lawyer

has a duty to the judiciary to avoid frivolous litigation—and an appeal in the teeth of a valid waiver is

frivolous. A lawyer also has a duty to his client to avoid

taking steps that will cost the client the benefit of the plea

bargain. See United States v. Knox, 287 F.3d 667 (7th Cir.

2002). A lawyer might have a responsibility to file an

appeal if the client indicated a desire to withdraw the

plea, for that amounts to a declaration by the defendant

of willingness to give up the plea’s benefits, and withdrawal would abrogate the waiver too; but Nunez (who

had not asked the district judge to set aside the plea) does

not contend that he told his lawyer that he had any

desire to achieve that goal by an appeal.

Ordinarily a lawyer cannot make an independent

decision about whether an appeal would be frivolous but

must follow the procedure outlined in Anders v. California,

386 U.S. 738 (1967), and proceed as an advocate until

the judiciary agrees with counsel’s belief that more litigation would be frivolous. As we explained in United States

v. Eskridge, 445 F.3d 930, 932 (7th Cir. 2006), however, the

Anders procedure is required only when there is a right
10 No. 06-1014

to appeal (and thus a right to have counsel act as an

advocate on appeal). Nunez gave up his right to appeal,

and with it the foundation for the Anders approach.

With the waiver in force, counsel’s duty to protect his

client’s interests militates against filing an appeal. United

States v. Whitlow, 287 F.3d 638 (7th Cir. 2002), and United

States v. Hare, 269 F.3d 859 (7th Cir. 2001), hold that, when

a defendant appeals despite agreeing not to do so, the

prosecutor may withdraw concessions made as part of

the bargain. The prosecutor made substantial concessions

to Nunez. An appeal would have put them in jeopardy,

allowing the prosecutor to reinstate the two dismissed

charges or ask the district court to increase the sentence

on the existing conviction. If it did nothing else, an

appeal would have demonstrated that Nunez had not

accepted responsibility and would have entitled the

judge to rescind the discount under U.S.S.G. §3E1.1. A

defendant has more reason to protest if a lawyer files

an appeal that jeopardizes the benefit of the bargain than

to protest if the lawyer does nothing—for “nothing” is

at least harmless.

The sort of appeal that the Supreme Court considered in

Roe is one where the defendant can gain but not lose. The

sort of appeal that Nunez wanted to take was one by

which he could lose but not gain. Protecting a client from

harm is a vital part of a lawyer’s job. It will not do to

reply that the decision to appeal is entrusted to the defendant personally, and that counsel must do the client’s

bidding. Nunez had made a personal decision—a decision

not to appeal. That’s what the waiver was about. As we’ve
No. 06-1014 11

stressed, a defendant has no right to countermand such

a formal choice, and a lawyer faced with inconsistent

instructions by his client does not have a “ministerial” duty

to follow one rather than the other. When deciding

which of the contradictory directions to implement, a

lawyer should do what’s best for the client, which usually

means preserving the benefit of the plea bargain. That

this approach also honors the lawyer’s duty to avoid

frivolous litigation is an extra benefit.

What arguments could Nunez’s lawyer have advanced,

had an appeal been taken? There are only two. One

would have been that the sentence exceeded the statutory

maximum. Such an argument was excluded from the

waiver but would be untenable; Nunez’s admission that he

had distributed more than five kilograms of cocaine

exposed him to a maximum of life imprisonment. The

other is that the plea itself was involuntary. If so, the

conviction would be set aside. As we’ve now mentioned

several times, however, Nunez made exactly that argument on collateral attack, and we addressed and rejected

it on the merits in the first appeal. There is therefore

nothing to be gained from a remand. Suppose the district

court were to hold a hearing, conclude that Nunez had

asked his lawyer to appeal, and reenter the judgment so

that Nunez could appeal (with counsel) as if on direct

appeal. Neither of the two arguments counsel could

raise would get anywhere. There is no point in a constitutional rule that would yield an exercise in futility.

One important caveat bears attention. Our analysis

supposes that the defendant really has waived his entitle-
12 No. 06-1014

ment to direct appeal. When a waiver is ambiguous,

counsel would do well to file an appeal and let the court

sort things out. If it turns out that the waiver does not

cover an issue that defendant told counsel he wanted to

present on direct appeal, then counsel’s failure to file a

notice of appeal is within the scope of Roe and will lead

to collateral relief without regard to prejudice. Our conclusion that Strickland applies is limited to situations in

which the waiver actually governs the proposed appeal.

Once a defendant has waived his right to appeal not only

in writing but also in open court under Rule 11(b)(1)(N),

the sixth amendment does not require counsel to

disregard the waiver. The regimen of Strickland applies:

the defendant must show both objectively deficient performance and prejudice. Unless a non-frivolous issue

could be raised on appeal, counsel should protect the

client’s interest in retaining the benefit of the plea bargain.

To the extent that other circuits disable counsel from

making such a professional judgment, we disagree with

them. This opinion has been circulated before release to

all active judges under Circuit Rule 40(e). No judge

favored a hearing en banc; Circuit Judge Flaum did not

participate in the consideration or decision of this case.

Nunez, who has enjoyed the assistance of counsel on

this collateral attack, has never identified a plausible

argument that could have been raised on direct appeal. So

even if Nunez asked his lawyer to file an appeal, counsel

did not transgress the Constitution by honoring his client’s

considered written choice (the waiver) rather than his

client’s oral second thoughts. Nunez’s contention flunks
No. 06-1014 13

both the conduct and the prejudice components of

ineffective-assistance doctrine.

AFFIRMED

10-6-08