Published on: Tuesday, October 30, 2018

Today the United States Supreme Court heard oral argument in Garza v. Idaho, No. 17-1026, which asks whether the ‘presumption of prejudice’ recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000) (holding that a presumption of prejudice arises when the actions of counsel deprive a defendant of an appeal to which he had a right), applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.  If there is not a presumption of prejudice, Garza would likely need to show that he was actually prejudiced by his trial counsel’s failure to file the notice of appeal by indicating what issues he would have raised had he appealed.

A transcript of the oral argument is available on the Supreme Court’s website, along with briefing on the merits, and the lower court’s opinion, Garza v. Idaho, 405 P.3d 576 (Idaho 2017), is exhibit 1a in the appendix.  

The Training Division provides program materials addressing non-capital habeas issues on