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Waivers of Appellate Rights and Collateral Attack Are Distinct

By Gabriella Khorasanee, JD | Last updated on

While it's questionable why any defendant would waive the rights that make them the envy of defendants round the world, it happens. Negotiating and bargaining doesn't just happen in boardrooms, but courtrooms as well, where defendants bargain away their rights for plea deals and shorter sentences.

But is anything really final? This week, the Third Circuit had occasion to address whether a defendant's waiver of some post-conviction rights had the effect of nullifying an appellate waiver. The court held that it did not.

Factual Background

Craig A. Grimes was a professor, who played the grant system for his own benefit. As a result of his fraudulent scheme, he received grants that he was ineligible for, did not conduct research he said that he would conduct, and spent the grant money for his own personal benefit. The Government charged him with wire fraud, false statements, and money laundering, in violation of federal laws.

The Waiver

In his plea agreement, Grimes waived his direct and collateral appeal rights, with the exception of appealing a sentence that was in above the guideline range of 41 to 51 months in prison. During his plea colloquy, the Magistrate Judge confirmed that Grimes understood the terms of the waiver, and knowingly and voluntarily agreed to the waiver. The Magistrate Judge accepted Grimes' plea and waiver, and recommended the district court do so as well, which it did.

Appellate Rights v. Collateral Attack Rights

You had to see this coming -- Grimes appealed, urging the Third Circuit to find his waiver appellate rights invalid, and asked the court to hear the merits of his appeal. His argument essentially was: the appellate waiver was invalid because it also contained a waiver of his collateral attack rights that did not exempt ineffective assistance of counsel claims -- which creates a direct conflict of interest with his trial counsel to avoid such claims. The Third Circuit didn't buy it.

The court noted the distinction between appellate rights and collateral attack rights, and was not convinced by Grimes' attempt to "bootstrap" the claims. The court found that his waiver was knowing and voluntary, and did not constitute a miscarriage of justice.


While the Third Circuit did not address the issue of whether appellate waivers, that don't have exceptions for ineffective assistance of counsel claims, are invalid per se, they limited their decision "to decline to do so on these facts." The court noted that it may have occasion in the future to decide the issue -- it's just waiting for the right fact pattern.

Bad facts make bad precedent.

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