Opinion of the Court
11 other Federal Courts of Appeals with criminal jurisdiction); State v. Patton, 287 Kan. 200, 228–229, 195 P. 3d 753, 771 (2008). That an appeal waiver does not bar claims outside its scope follows from the fact that, “[a]lthough the analogy may not hold in all respects, plea bargains are essentially contracts.” Puckett v. United States, 556 U. S. 129, 137 (2009).
As with any type of contract, the language of appeal waivers can vary widely, with some waiver clauses leaving many types of claims unwaived.[1] Additionally, even a waived appellate claim can still go forward if the prosecution forfeits or waives the waiver. E. g., United States v. Story, 439 F. 3d 226, 231 (CA5 2006). Accordingly, a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.
Separately, all jurisdictions appear to treat at least some claims as unwaiveable. Most fundamentally, courts agree that defendants retain the right to challenge whether the waiver itself is valid and enforceable–for example, on the grounds that it was unknowing or involuntary.[2] Conse-
- ↑ See generally Brief for Idaho Association of Criminal Defense Lawyers et al. as Amici Curiae 6–10 (collecting examples of appeal waivers that allowed challenges to the defendant’s sentence or conviction or allowed claims based on prosecutorial misconduct or changes in law).
- ↑ See, e. g., United States v. Brown, 892 F. 3d 385, 394 (CADC 2018) (“Like all other courts of appeals, our circuit holds that a defendant ‘may waive his right to appeal his sentence as long as his decision is knowing, intelligent, and voluntary’ ”); Spann v. State, 704 N. W. 2d 486, 491 (Minn. 2005) (“Jurisdictions allowing a defendant to waive his or her right to appeal a conviction require that the waiver be made ‘intelligently, voluntarily, and with an understanding of the consequences’ ”). Lower courts have also applied exceptions for other kinds of claims, including “claims that a sentence is based on race discrimination, exceeds the statutory maximum authorized, or is the product of ineffective assistance of counsel.” King & O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 224 (2005) (collecting federal cases); see also, e. g., United States v. Puentes-Hurtado, 794
