The CCA recently held that a defendant couldn't voluntarily waive his right to file a postconviction writ, at least for issues that weren't apparent at the time of the waiver (e.g. ineffective assistance of counsel). But, at least one federal court of appeals disagrees. Read the case at this link. The case has a cert petition pending before SCOTUS.
What do you think?
Mr. Bradley, Aren't they really two different issues? The federal opinion is on whether counsel was ineffective for failing to file an appeal requested by defendant, while the CCA case is on the validity of waiver as it goes to counsel's ineffetive assistance leading up to the plea. I think the opinions can be reconciled. The CCA seems to give us the best guidance on how to draft admonishments and waivers that are enforcable, as wells as the limits thereon. Wouldn't it be silly to expect a defendant's waiver of something he could not or should not reasonably have known about to be "knowinglY" made?
Depends on what we mean by knowingly. Using a very strict standard, there is no way most defendants could completely "know" what issues that could have been raised even on direct appeal. Yet, we quickly approve such waivers all the time. That's because we trust that the defendant's lawyer has given the defendant some notion of what can happen during an appeal.
I'm not particularly bothered by the CCA standard, although I suspect it will get full of exceptions as the years go by.
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