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9th Circuit: Guilty plea convictions vacated for constructive denial of right to counsel

United States v. Velazquez, — F.3d — (9th Cir. May 1, 2017): District court constructively denied defendant’s right to counsel by failing to inquire into breakdown of attorney-client relationship

How bad was the relationship between drug-trafficking defendant Guadalupe Velazquez and her counsel? Not merely She-tried-to-fire-him bad. Beyond She-claimed-that-he-failed-to-convey-the-plea-deal-to-her bad. We’re talking She-surreptitiously-recorded-a-meeting-with-him-to-show-how-bad-the-relationship-was bad. That’s bad.

Ms. Velazquez expressed her concerns about this bad relationship in a pro se request for new counsel. The district court denied the request in a summary six-minute hearing. She tried to explain her concerns to the magistrate judge at her arraignment. The magistrate judge responded by explaining in detail why she should accept the plea agreement — which she was quite reluctant to do, because it required her to say that she was well pleased with her counsel’s performance. So finally she threw up her hands and signed the plea deal, which contained an appeal waiver. Along the way she also filed another motion for new counsel — but the district court, noting that in the plea deal she stated that she was well pleased with her counsel’s performance, denied it. The court accepted the plea agreement and sentenced Ms. Velazquez to 121 months in custody.

The Ninth Circuit vacated Ms. Velazquez’s convictions. The court first held that the appeal waiver did not bar the appeal, because the constructive denial of Ms. Velazquez’s right to counsel rendered the waiver unenforceable. The court then found that all of the elements of a constructive denial were present. The district court’s summary rulings did not constitute an “adequate inquiry” into the breakdown of the attorney-client relationship. The record evinced “serious breakdowns in communication and trust” between Ms. Velazquez and her attorney. Ms. Velazquez made multiple timely requests for new counsel. And yes, she did eventually sign a plea deal attesting that she was well pleased with her counsel’s performance — but this was only after the district court summarily denied her request for new counsel and the magistrate judge spent over an hour cajoling her into accepting the plea agreement, when what they should have been doing was inquiring into how very bad the attorney-client relationship was.

The Ninth Circuit accordingly vacated Ms. Velazquez’s convictions and remanded the case for further proceedings. In a brief concurrence, Judge Kozinski noted that the judges below “acted with what they believed to be Velazquez’s best interest at heart,” and urged the government to exercise “generosity and compassion” if she is permitted to withdraw from the plea agreement on remand.

(Congratulations to Michael J. Bresnehan, of Tempe, Arizona.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)