                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 06-1014

A RMANDO N UNEZ,
                                            Petitioner-Appellant,
                               v.

U NITED S TATES OF A MERICA,
                                           Respondent-Appellee.


      On Remand from the Supreme Court of the United States.



   S UBMITTED A UGUST 15, 2008—D ECIDED O CTOBER 6, 2008




  Before E ASTERBROOK, Chief Judge, and B AUER and
C OFFEY, Circuit Judges.
  E ASTERBROOK, 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 sen-
tence 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 con-
viction 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 voluntari-
ness 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 plea-
agreement 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 collat-
eral 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 asser-
tion 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. Flores-
Ortega, 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 cir-
cuits’ 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 sen-
tence 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 “ministe-
rial” 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 litiga-
tion—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 with-
drawal 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 litiga-
tion 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 defen-
dant 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 argu-
ment 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 con-
stitutional 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 con-
clusion 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 per-
formance 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.
                                       A FFIRMED




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