Criminal Appeals fro ...

Criminal Appeals from the Federal Public Defender’s Perspective | Matthew Wright

February 3, 2022 | by D. Todd Smith

The right to criminal defense counsel is a cornerstone of our justice system. This is particularly true in federal courts, where the stakes in criminal trials are very high. One of the ways we meet this constitutional guarantee is through the federal public defender system, which provides trial, appellate, and post-conviction services to criminal defendants in federal courts. In this episode, Todd Smith and Jody Sanders talk with Matthew Wright, an Assistant Federal Public Defender for the Northern District of Texas. Matthew shares his experiences and insights as counsel in criminal appeals and discusses how his office provides services to defendants at all stages of the federal criminal justice system.

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Criminal Appeals from the Federal Public Defender’s Perspective | Matthew Wright

Our guest in this episode continues delving into the Criminal Law side of the appellate docket. It’s Matthew Wright, an Assistant Federal Public Defender in the Northern District of Texas. Matthew, thanks so much for joining us.

Thank you both for having me.

Matthew, tell us a little bit about yourself, maybe your background, so our audience can know a little bit about you.

I grew up in East Texas, as far East as you can go, in Texarkana, which is a city in two different states. I went to UT undergrad and the University of Arkansas for law school. I have a strong representation in both of those states. I grew up on the Texas side and was firmly committed to that until law school, but I was baptized by a future governor of Arkansas. I feel as close to a Native Arkansan as you can be without being one. After law school, I clerked for Judge Kenneth Hoyt in Houston as a US District Judge for a year. I went to Sidley Austin in DC for about a year. I had been there two summers with them before. After that, I joined the Federal Public Defender’s Office in Amarillo, Texas, of all places.

I assume most of your audience is familiar with the size and scope of Texas, but Amarillo is about as far away from Texarkana as you can be, and yet it’s still not even the distance. My dad lives in Corpus Christi now. It’s even further there. It’s very different. It snows here. It’s very unlike the rest of Texas, it’s very windy and Midwestern. They have pictures of Olympic wrestlers on the high school walls that my kids go to. The only wrestling that I knew was Hulk Hogan growing up. It’s a very different climate.

They ask you not where you went to school here but where your grandpa went to school because there are a lot of longtime panhandle families, but we have grown to love the place. I have been here since 2008, minus one year that we were in Dallas. I have been with the Federal Public Defender since 2008, minus one year when I was in private practice, but they were not the same year. When I rejoined our office, it was in the Dallas office then I moved back to Amarillo.

How did you go from Sidley in DC to the Federal Public Defender in Amarillo? That’s quite a transition.

It is. A lot of people would say error, which is something I’ve grown to fairly often. The direct way was I had clerked for Judge Hoyt and got to love the Federal criminal practice. At the time, I was pressuring the defender in Houston who’s named Margie Meyers. I love Margie, but she says, “You don’t speak Spanish. Take a hike.” I was like, “No, you should hire me.” I went back to Sidley and the firm there has a strong pro bono practice. One of the things that they did that I liked was we would help moot federal public defender attorneys and CJA attorneys. That’s CJA or people who are in private practice to take appointed cases in federal court who had arguments at the Supreme Court.

I would volunteer for every one of those on a criminal law issue because I was interested in it. In 2007, my former colleague, Jerry Beard, was mooting a case called Cuellar v. United States. I met a lot of my current colleagues then. “I’m from Texas. I’d love to get back to Texas but I don’t speak Spanish.” I’m in the Northern District of Texas. “We don’t speak Spanish either.” The appellate section has a little bit of a benefit in that regard. A position opened up here in Amarillo. They told me, “It’s a different place in Amarillo but come there for a year or two, then we’ll move you to the big city.” That was many years ago. I’m still waiting.

Are you with the appellate section in the Public Defender’s Office out there?

Yes. The Northern District of Texas is the big city where we have staffed offices in Dallas, Fort Worth, Lubbock and Amarillo. There are magistrate judge courthouses in Abilene, San Angelo and Wichita Falls, but we don’t have offices there. Our appellate section takes cases from all of the divisions. My cases could come from anywhere, but sometimes you need a person here either to go into court to help. At the time I came to the Amarillo office, there was only one other attorney here. Some of it was running over and helping with a bail hearing every now and again and not nearly as often as they told me it would be when they convinced me to move from DC.

In our office, the big division is between what they call the traditional unit and the capital habeas unit. They do good work but they’re still newfangled to me, and all of the law students want to work on death penalty cases. We have this joking rivalry with them over talent. We won’t talk about the capital habeas unit. Within the traditional unit, we’re further divided into appeals and trials. The trial, meaning district court proceedings. Appeals, we primarily handle direct appeals from federal convictions and sentences.

We also handle all of the non-capital, post-conviction matters that very occasionally involve a state prisoner who’s filed a Federal Habeas action, but only if they get an evidentiary hearing. It also involves federal prisoners filing post-conviction actions. We did not do much of that at all until 2016 and since 2016, it feels like all that I do is Federal post-conviction actions, but that’s the division of our office and what my role is here.

The Federal Public Defender’s Office is a nationwide program, but you geographically are divided similar to the US Attorneys’ offices? Is that somewhat accurate?

It is. We are a part of the judicial branch. We’re not part of the executive. We do not have the hierarchy that the Department of Justice does. Each of the US attorneys is appointed by the President, confirmed by the Senate but ultimately answers to the Attorney General. Whereas, the Federal Public Defender Offices, we can’t even agree on when it’s time for a coffee break. My boss is Jason Hawkins. He’s appointed by the 5th Circuit. He answers to them and there’s a branch of the administrative office of the US Courts that oversees everything, but we are an independent organization for our district. We’re Federal employees but the structure is the same in that my office is specific to this Federal district.

Being where we are in Texas and sitting within the 5th Circuit, all of your appeals are going to the 5th Circuit. That seems self-evident but it’s probably worth confirming.

That’s correct. Any appeal from a Federal District Court in Texas would go first to the 5th Circuit and if it goes beyond that, it would be to the US Supreme Court. There are almost no occasions for us to show up in another circuit. I have, on one occasion that I can think of, appeared in the Western District of Texas for what they called an ancillary proceeding to one of our cases. It’s incredibly governmental and bureaucratic for us to do that. For the most part, it is the courts of the Northern District of Texas, the 5th Circuit or the Supreme Court for me.

You’re being distributed out in the High Plains. It doesn’t make much difference to your practice because when you’re appealing to the same court that’s your counterpart in the Dallas office would be. It’s a matter of where your office is and where you live.

That’s true. It could be anywhere. You could do it remotely. Even not from our district, if you were so inclined. There are some rules about that, I think. In general, physical location is where you are if you need to run into district court. My cases, as I say, can come from any of the divisions because on a direct appeal, your record is more or less fixed before you get involved in the case. It’s a set of documents that could be from anywhere, but that’s right. The physical location is mostly which district court I would be more likely to run over into or who can come to knock on your door versus who has to call or email for help.

You’ve given us some sense too of the size of the district by virtue of the fact that we’re talking about Dallas and Amarillo, and the same Senates being both within the Northern District. Geographically, is that the biggest district in the state?

person signing paperwork
Criminal Appeals: When a case is resolved by a plea agreement or a guilty plea, it will have a sentence that’s either recommended or agreed upon by the parties. At the time the guilt or innocence is established, so is the sentence.

I’ll have to get somebody to fact-check me that on who has more square footage and who has a longer drive. We have incredibly long drives to some of the outlying locations. There is a divisional venue in criminal cases in a way that is mostly eliminated for civil purposes. Our jury panel, for instance, will be drawn from the Amarillo division. I do think our division within the district is bigger than any of the others but if you look at the map of the Federal Judicial Districts of Texas, it looks incredibly gerrymandered. It’s hard to understand. For instance, there are points in my district, the Northern District that are south of points in the Southern District and points that are east of the Eastern District.

You think Abilene and San Angelo are in my district, but Midland and Odessa are in the Western District and that doesn’t make any sense. Beaumont is in the Eastern District, whereas Houston is in the Southern District. I have tried and one day will publish an article on the reason the Federal judicial districts got their shapes. It’s a historical accident, I think. I’m not very attentive to that project because I do have a very busy caseload, but it’s very weird.

If you look at the map, you have to know by heart which major cities are in which districts. Even then, some cities like Plano are in two federal judicial districts. We tried an appeal one time to say, “You didn’t prove venue because they only said it was in Plano.” All Plano is probably in the Eastern District. Arlington has a piece of it that’s in the Eastern District because the federal districts are defined by county in Texas. You have to know what county things took place before in before you know whether you were in the right district or not.

It’s one of those little nuances you don’t necessarily think about as a civil attorney in Texas. This is probably a basic question, but how does your office get its cases?

We are organized under the Criminal Justice Act, which is a Federal statute. We represent people who are indigent. We like to say we are the best representation that money can’t buy. At least, we hope to provide that. If someone is prosecuted for a federal criminal case, typically by the United States Attorney’s Office for the Northern District of Texas, occasionally by one of the main justice components. When they’re arrested or when they get a target letter from the grand jury, they fill out a financial affidavit and if they are deemed eligible for appointed counsel, then someone will be appointed.

We are the default for appointments in this district. For various reasons, whether because there are multiple defendants or because we have a conflict or because they’re tired of us and they convinced the court that we should be fired and they should get another lawyer, the court will then go to the CJA panel. The panels are all organized according to the divisional office. The Dallas and Fort Worth have a very formal panel where there’s a waiting list. Almost an apprenticeship situation is supposed to be set up, and people clamoring to get cases and get on the panel there.

Whereas, out here in Amarillo for a long time, we were knocking on people’s doors. We need people to help. The previous district judge here believed that it was part of being a federal attorney that you took these appointed cases. Every member of the bar, which is a noble if quaint notion. What it meant was, if you were a member of the Federal Bar here who did insurance defense or anything like that, you would get a call from the magistrate judge about once every 3 or 4 years and say, “Jody, your number is up again.” Your first call hand would be to me. The person conflicted out of representing your clients saying, “What do I do?” We have moved over the last few years into something more like a panel system that the other division has. People at least volunteer for the work or they’re voluntold, depending on what office they’re in.

If you’re in a case with multiple defendants, your office can only represent one in any particular case. What about appeals? Do those typically come from your office or do you get some from outside too?

We do have what we call cold record appeals, which are from outside of the office. Under the Criminal Justice Act, whether you’re appointed from the panel or the federal public defender, the statutory default is that you are on the case all the way through the US Supreme Court. As a matter of Black letter law, that’s what you should expect. Having said that, most of the attorneys on our panels in the cities prefer District Court Representation. That’s why they’re involved in it. As the practice gets more specialized, you find attorneys who don’t want to appeal. On the other hand, there are also people who want to be on the panel but want to do only appeals.

For instance, if someone didn’t live in our district. They can get on some of the panels and could take appeals. As you pointed out, you could do your job from anywhere as long as you have internet access and a quiet place to work. It makes sense, in my view, to have a separation there. In some cases, we do. I would say the bulk of our appeals are the cases that we had in district court. There are cases where the original attorney in the trial court has to get off of the case or chooses to get off the case and the court lets them. There is no conflict and so we are appointed. We get cases that way.

In post-conviction cases, there will almost always be a conflict between all of the earlier attorneys and the post-conviction attorney because one of the primary claims you would raise is ineffective assistance of trial counsel or appellate counsel. I am more than willing to raise that claim against myself but I guess the courts don’t think that’s very common. Our post-conviction cases would be, in general, someone that we had not represented in any way prior.

Is there a right to counsel in post-conviction?

There is not. In the vast majority of cases, even a motion requesting the appointment of counsel, at least in our district, they’re denied. The two exceptions to that are, if there is going to be an evidentiary hearing, I think they have to appoint counsel for that or at least you would have to get special permission to do an evidentiary hearing as a pro se litigant.

Whenever an evidentiary hearing is ordered, that was where we would historically get appointed on post-conviction cases. Typically, not only is the record set in stone there but all the claims have already been litigated. You get one tiny little piece of the case appointed, but the Criminal Justice Act allows for the appointment of counsel for post-conviction cases. I mentioned that I had done a lot of these cases since 2015, 2016. There was a lightning bolt watershed decision from the Supreme Court in 2015 called Johnson v. United States.

It declared a part of the Armed Career Criminal Act unconstitutional. There was a decision the following year called Welch v. United States that declared the new rule in Johnson was retroactive, and because Johnson was such a special rule, a once-in-a-career rule from the Supreme Court, all of the normal limitations of the post-conviction review were out the window. Normally, you only have one year after your direct appeal is finished to file what’s called the 2255.

There’s an exception for that where there’s a new rule. Like Johnson, you have one year from that. We had one year from Johnson to file all of those claims. It was hundreds of cases and we were trying as best we could to figure out who might be eligible. Obviously, no one had coded these cases for what might happen if the Supreme Court strikes down a part of this law later. I don’t have the exact number, but we were appointed initially on at least 173 Johnson post-conviction cases. There were circuit splits over how far Johnson would go. This applies to the Armed Career Criminal Act, but does it apply to Section 16? Does it apply to 924(c)?

There were two other decisions from the Supreme Court that said, “Yes, Johnson does apply to that.” One of those was Sessions v. Dimaya, which is an immigration case but we defend a lot of immigration crimes. There was also a case called Davis v. United States, which I know very well because that was our office’s case. My colleague Brandon Beck argued that at the US Supreme Court. There was a statute called 924(c). Also, the same rule applies under 924(c). There is Davis at 2255. It feels hilarious and foolish now, in hindsight.

There was a point in 2016 where I said to my bosses, “Bosses, I have some experience doing civil litigation from private practice and I’ve worked for a judge. We’re waiting on a couple of decisions about Texas prior convictions. All these cases will be resolved either all the same way. They’ll all win or they’ll all lose. Why don’t you let me formally enter my appearance in all these cases? You take all of my direct appeals and weeks from now, we’ll have these resolved and I can go back to normal.” As I say, that was in 2016. It turned out to be bonkers and insane. Part of that is because we are tenacious as defenders and you say, “We need an answer to this question.” The 5th Circuit will say, “Here’s your answer. No.” We’ll say, “No. We wanted a yes.”

Other cases came out of that, honestly, every week. We have to call our supervisor like, “What is the Johnson law like? Are we ready to go back to normal yet?” I’m like, “I’m sure it will be next week. Next meeting, we’ll have them done.” No. I’ll probably have about 30 or 40 cases at varying stages of stay. They are still alive. They haven’t been lost yet. Every one of them should win. I keep telling the judges, “If you would let us win, you can make it go away.” Unfortunately, the government also has a right to appeal which they’re willing to exercise in certain circumstances. That assurance too has turned out to be false. Even when they let us win, it’s not necessarily that the case is over.

That’s crazy that so much of that has changed in such a short time. It probably doesn’t feel like a short time to you anymore now, several years down the road.

It changed the course of your career, it seems like. That’s quite an investment of time to spend working on that stuff. For the CJA panels, I wanted to ask a follow-up about that. I understand that they are private attorneys and they get on the list, whether it’s the voluntold or they’re volunteering. I take it you see that with these being panels, you might tend to see the same lawyers over and over again on the panels. Is that right?

It depends on the division. The panels in Dallas and Fort Worth are very large. Even so, I think there’s an understanding of the magistrate judges who are typically doing the appointment of who wants more cases. You can’t turn down cases over and over again and stay on the panel, but there are some people, the elder statesman and women of the panel, who aren’t wanting the cases except when they’re needed. There are some who you see less often but yes.

I was curious about whether that might be for someone who’s starting up their own practice in criminal defense if they wanted to focus on federal defense practice. It seems like a good way to supplement their practice or start their practice.

Part of our mission is to help educate and train the CJA panel. We take calls from them. I have to do timesheets at the end of every month. They’re much simpler than I had to do in private practice. Still, I find it to be a chore, pain and something I’m horrible at. If my bosses are reading this, they’ll say, “He doesn’t ever do his timesheet on time anyway,” but we have an entry on our timesheet for the not case-related panel. It’s for helping someone through a difficult case or doing bigger training. Every year, our Dallas office puts on a big CLE that is typically at no cost for people who are on the panel. That’s a two-day annual seminar to try to have a day before that for the people like you mentioned who maybe have experience doing state criminal work but are interested in federal work to try to bring them up to speed.

man studying something on the computer in a conference room
Criminal Appeals: A competent federal criminal defense attorney calculates the sentencing guidelines in the case and then negotiates a plea to the extent it’s possible to either limit someone’s exposure or put them in the best possible position.

As we were standing up a panel of people in Amarillo, we did the same thing. We did a series of six CLE sessions to try to get people ready for it. Having said that, I would not want my first criminal case to be a federal CJA appointment unless I had someone I could shadow to walk me through it. There are some eccentricities to federal practice and specific pitfalls. In some ways, it’s very similar to what I would say is a criminal practice in state court. In other ways, it’s very different. Some of those ways that federal practice is different are more suited to somebody who’s maybe done civil litigation practice because of research and contested hearings that you might not get if you were new in state court practice.

One of the things you had mentioned to me when we were exchanging ideas was that every criminal case in federal court has contested sentencing. Even if they plead guilty, there are still appellate issues that arise from that.

I have never practiced in Texas State Court as a criminal defense attorney but I have a lot of friends who do. I have to read a lot of Texas criminal appellate decisions as part of my practice, so almost every one of those cases. When a case is resolved by a plea agreement or a guilty plea, it will have a sentence that’s either recommended or agreed upon by the parties. At the time that the guilt or innocence is established, which is by plea statistically, so is the sentence. That’s the agreement. Maybe this isn’t fair because again, I haven’t ever done it. My impression is those numbers are a market-based drawn from a thin air system. What’s the going rate for a third DWI?

A federal court is not like that. If someone is convicted either by bench trial or jury trial or by a guilty plea, which again, statistically is much more common, there is a separate and contested sentencing hearing. There are multiple lines of statutory law, guidelines in federal court, judicial constitutional law that govern what happens at sentencing. Each of those things could hypothetically give rise to an appeal of the sentence. Every federal criminal case could potentially give rise to an appeal. That’s one of those things I mentioned. It’s very different than someone who’s not done this would experience.

Frequently or infrequently, are there jury trials in the Northern District? Is it something that happens very often or not really?

They are not common nationwide in both federal and state courts. The numbers run 95% and above cases that are resolved by plea or agreement of the parties. Not everyone who’s charged is convicted but a lot of times, prosecutors will dismiss a case. I’m not counting that into but people who are convicted are upwards of 95% and above everywhere. The federal system has some extreme penalties that are available for very commonly prosecuted crimes. It is only the good graces of the prosecutor that keep you from being exposed to those. In federal court, there are a lot of incentives to resolve the plea rather than trial.

That’s not to say that we don’t try cases, we do. I have, personally, participated as the second chair in two jury trials in the time that I’ve been here in Amarillo. I regret both of those. It’s not my favorite thing. I’m not one of those people who says, “I live for trial,” and that feeling of being so alive and every one of your senses is tingling. All that is true. I hate that. It’s terrible.

I would much rather have a month with a cold record to read through things and call up your trial attorney colleague and say, “I can’t believe you didn’t raise this so-and-so argument.” When you’re there, you’re thinking of none of those things. We have had jury trials in Amarillo that I was not involved in as the second chair. Some of the panel attorneys have had jury trials, too, but it’s extremely uncommon to see a jury trial. If we’re talking about the run-of-the-mill, the vast majority of cases that we would handle are going to be resolved with dismissal or a guilty plea.

There’s a guilty plea entered but we’re still talking about the court then being responsible for assigning punishment. That’s where the sentencing guidelines come into play. Is that part of the negotiation though? We’re going to plea to X crime because the defendant would know and the public defender and the prosecutor would all know what the range of punishment would be essentially for that crime? That seems like there may be more data points than that because you’ve got to consider recidivism and things like that, if I’m understanding any of this correctly.

I’m happy to talk to you until you’re blue in the face or until I’m blue in the face because I can keep going. I can talk to you about federal sentencing law but with broad outlines. Most of the crimes that Congress has created have incredibly large punishment ranges. The default punishment for possession of a controlled substance with intent to deliver, as one of the more commonly prosecuted crimes in federal court, is between 0 and 20 years in prison.

Based on the quantities that the person is found to have distributed, the statutory ranges can go up to 5 years to 40 years or 10 years to life. You can imagine that your attorney comes to you and says, “You’re facing a punishment range of ten years to life.” The impression was that there were regional differences, judge by judge differences, a lot of unfairness and some well-meaning people came up with this federal sentencing guideline system, which I jokingly refer to as like a suffering computer.

The two inputs that you put into the computer are what you did this time and what you’ve been convicted of before. That’s the recidivism versus what you did now and plot it on a chart. It spits out a certain amount of suffering that you have to do to bring you even with the house, so to speak. At the back of the federal sentencing guidelines manual, there is a graph basically. The horizontal axis is the criminal history category. There are all of these mathematical rules about calculating which of these categories you will fall into.

I have compared it to the old-fashioned scale at the doctor’s office. There’s a 50-pound chunker moving over and the nurse is always grabbing that. I’m like, “No, ma’am. You need to work on that one’s column a little more.” She’s like, “No.” That’s how it is. You do all this complicated math. That’s the tiny slider. As you move the chunker up, that moves you to the column that you’re in on this chart. There’s offense levels that go from 0 to 43 and that is based on the current crime, generally, what you did here. That goes up and matches it up in the chart. You come up with a range of 96 to 113 months. That’s what we’ll say in the box and that’s a little more specific than ten years to life.

As you point out, if you had pleaded guilty to ten years to life, that’s 120 months. Your guideline range then becomes the statutory minimum. In that sense, one of the things that a competent federal criminal defense attorney is doing is trying to calculate what the sentencing guidelines will be in the case and then negotiating a plea to the extent it’s possible to either limit someone’s exposure or to put them in the best possible position as far as the guidelines. In 2005, the US Supreme Court said, “Yes, this federal sentencing guidelines system is all well and good but it’s unconstitutional because the jury doesn’t have an adequate role in making the determinations.”

They should have struck down the sentencing guidelines system and thrown it out but the guidelines turned out to be lucky. One of the creators of the guidelines happened to be sitting on the US Supreme Court. He happened to persuade one of the justices who was on the substantive majority to change sides on the remedial opinion. The Supreme Court has rendered this guideline system advisory. You have this entirely complex and non-intuitive system of suffering math that you do for the machine. It will spit out this very specific range of punishment. The judge has to do that correctly but then the judge can say, “I’m going to throw that out and give you something else based on this other statutory fact.”

It is a discretionary system but there is a mandatory computation under the sentencing guidelines. By the way I described this, you can imagine how occasionally an appellate issue or two might pop up in doing this. I do often think of myself not just as a federal criminal lawyer or an appellate lawyer. I’m a sentencing lawyer. It’s not that I don’t do issues that were related to convictions. I do, but the vast majority of my work has been on federal sentencing issues.

Not only that but partly because of my role in this Johnson litigation, ill considered though it might be, partly because of the consequences that are attached to having certain prior convictions and various versions of three-strikes laws federally, I’m a prior conviction sentencing lawyer. The vast majority of my work is arguing over whether or not, for instance, a Texas burglary crime counts as a strike if you will. A violent felony, a crime of violence or something like that. These rules turn out to be exceedingly complex. The Byzantine monks who argued over how many angels could dance on the head of a pin would never think of designing a system as complicated as deciding whether or not Texas burglary is a violent felony for purposes of the Armed Career Criminal Act.

That will affect whether or not it is also a crime of violence for purposes of a related guideline provision that is similar but not the same. You see, the consequences are extremely high. It’s extremely unintuitive. That’s most of what I do. It has to do with analysis. Not of the convictions or the crimes that someone did now that they’re on trial for or that they pleaded guilty to, although that certainly comes into it. A lot of it has to do with how do we characterize or classify the previous crime, which is treated not as something that moves the chunker up on the guideline axis for criminal history.

stamp with the word "appeal" on it
Criminal Appeals: The only thing you would get an evidentiary hearing on was whether or not the defendant had told her attorney to file a notice of appeal or not because she didn’t.

Normally, once you do that, it doesn’t matter what your prior conviction was as long as how many points are assigned to it and move it up. You then have these special rules that apply that will come in and knock it way high. I mentioned the Armed Career Criminal Act. That’s what the Johnson case is about. The federal crime of felon in possession of a firearm ordinarily carries a punishment range of 0 to 10 years. Now, that seems a very large range to me.

It’s very difficult to make an intelligent decision whether or not you want to risk somewhere between probation and ten years in prison at the time you’re deciding whether to go to trial or not. If the Armed Career Criminal Act applies, the mandatory minimum punishment is fifteen years and the maximum is life. The distinction is huge. I know the judges get very frustrated and they consider arcane distinctions between burglaries that can be committed against a houseboat versus burglaries that could only be committed against a speed boat or fishing boat but not a houseboat. Those distinctions can make a huge difference in the lives of my clients. This is how we get into this lifestyle.

It’s interesting to hear you talk about that because those of us on the civil side, our exposure to criminal law comes from the criminal procedure in law school and the bar, which is focused on all the big criminal law greatest hits from the Supreme Court but you don’t see this side of it even though that’s primarily all you’ve done for the last few years and on top of that.

I don’t mean to undersell those classic criminal procedure issues. My colleague Brandon Beck, who argued the Davis case at the Supreme Court, also has an en banc case pending now on a 4th Amendment issue. It’s interesting. It was an unexpected permutation of those issues. We have those all the time and that comes into play during plea negotiations. Pretrial motions typically have to be filed before a plea is negotiated. You have to guess where things are going in those areas too, but it so happens that because of the eccentric way that federal sentencing is built, the Rube Goldberg machine that it is and because these are areas where you can get appellate relief because they’re purely questions of law, it so happens that the incentive structure has made this my job.

I may be more confused now than before we started because you think about plea deals as you’re gaining certainty. That’s the benefit. There are a lot of moving parts to the federal system, from what you said.

Remember before, I was trying to encourage people to join their local CJA panel. We want you on the panel. We will help you walk through it, but also you could be advising someone that they’re looking at probation and they plead guilty. They’re looking at ten years now and you say, “You told me probation.” The probation officer is saying, “You’re lucky you took the plead to the ten-year cap because otherwise, it would be twenty.”

Unfortunately, you could not learn on the job because you have to know what’s going to happen at sentencing and potentially on appeal at the time you are advising somebody whether or not they want to file this pretrial motion, which is going to make the prosecutor mad and potentially file these other enhancements against you. I agree with you. It’s very frustrating not to know that. Now there are cases, certain kinds of crimes where the guidelines are extremely high. In our district, the guidelines are still very influential.

What we have under the post-Booker advisory guideline regime is a return to the olden days of geographic distinctions in terms of how severely are the judge by judge distinctions. We’ve gone back to that. It’s more work for the rest of us, you might say. In our district, the judges do tend to hold pretty close to the guidelines as a starting point. If the guidelines are a million years and you were debating with the prosecutor, whether the prosecutor will agree to a charge that carries a five-year maximum versus a ten-year maximum. There is some certainty in that case. You’re going to get five years or you’re going to get ten years.

You can ask for less, but realistically we can say you’re going to get that. In the same way, a mandatory minimum, of which there are plenty in federal sentencing practice, you can be pretty sure you’re going to get the minimum absent a few escape patches from that. You’re going to be stuck with that. I did mention that every federal sentencing could give rise to an appeal. Since you mentioned certainty, I’ll get on my soapbox here. The 5th Circuit law and every other circuit allow a defendant to waive her right to appeal the sentence that hasn’t happened yet.

The errors that you don’t even know are going to happen, you can waive your right to appeal. Now, if you were going to ask me how that makes sense from a knowing, intelligent and voluntary, it doesn’t but I’m telling you that’s the rules. You have to know the rules. This plays into it too. You have to have an assessment of what the likely sentencing issues are and whether or not they might be of the sort that could give rise to relief on appeal.

In which case, you then have to advise your client, “They’re offering this deal. You’re charged with two counts. The conduct necessary to prove one count will establish the other one. They’re going to allow you to plead to one but you’re going to have to give up your right to appeal the errors that the judge hasn’t made yet.” An unfortunate and frustrating conversation to have, but this is why they hire appellate lawyers to try to figure some of this out and we have these conversations. It’s only every defendant who’s prosecuted in federal court where this comes up.

I see why the CJA lawyers are burning up the phone lines. If I were on a panel, I sure would be because I would want all the advice and expertise I could tap into something like that. Are there any CJA lawyers that get to work on post-conviction matters or is that strictly your office?

No, there are. Again, it’s district by district but if that was something that someone wanted to do, they could tell the magistrate judge that. For the most part, people on the panel hate those cases. In the pre-Johnson days where my only work was on evidentiary hearings, I hated to get one of those too, to be honest. I love the clients. They all turned out to be great and wonderful people. I’m glad that I met them. They should have won even where we lost, but I hated the cases because the only thing you would get an evidentiary hearing on was whether or not the defendant had told her attorney to file a notice of appeal or not because she didn’t file a notice of appeal. If she said she sent a final notice of appeal and she didn’t, that’s ineffective assistance and what you get is an out-of-time appeal.

Sometimes, being an appellate lawyer, I know that all you’re going to get out of this is what’s called an Anders brief, which is where the appellate attorney says, “I’ve done my best. I can’t find anything to even plausibly raise.” It’s like, “You’ve seen the junk I’m willing to file over my signature. I can’t even find anything.” Even I can’t find it but I submit it to you, Court. If you are able to identify an issue, I dare you to find something I haven’t thought about. Send it back to me and I’ll brief it.

Otherwise, that’s an Anders briefing, Anders v. California motion to withdraw. I’m having to ruin somebody’s day, probably somebody I talked into joining the panel years ago. Now, I get to come in. It’s like, “Are you sure she didn’t tell you to file that appeal?” It’s like, “All you’re going to get out of that is a losing appeal, especially if there’s an appeal waiver.” Now imagine that as occasionally happens, there’s some devastating legal error in the proceedings like the very rare get-out-of-jail-free card or something that they forgot to play. It was right there in your hand.

That’s a little bit of exaggeration but it could happen. Here’s a substantive error that my client is entitled to relief on. I have to try to find a way to sneak that error into these proceedings so that this isn’t a pyrrhic victory and getting an Anders brief to file. I hated those cases. If anybody out there reading would like to be appointed to only post-conviction evidentiary hearing matters, you call me because I will be sure that my cases are all referred to you. I will find a conflict of interest and I will get that case.

I want to follow up on something else you said, which was you see post-conviction challenges based on ineffective assistance in the trial court. You specifically said the appellate as well. I guess people get to be unhappy with their appellate lawyer. They feel like they should have gotten some relief. Their appellate lawyer did a bad job. How does that work? What are the prospects for the appellant to get any relief in that circumstance?

It’s going to depend a lot on the legal issues that are involved. There’s a lot of circuit-level law that says we don’t have to be clairvoyant in the sense of you don’t have to anticipate changes in the law but you do have to research the issues. I have raised ineffective assistance of appellate counsel claims before. You talk about cannibalism. This is like, “Don’t ask me if I ever did this.” For each client, we take each client individually and do the best we can. Say there’s like a decent appellate claim in there and the person hasn’t researched at all, hasn’t looked into that at all or has pursued a strategy instead that is not going anywhere.

Imagine you have a claim that you could raise. There are a few claims that will survive in the appellate waiver plea agreement. Maybe that claim was there but the attorney didn’t know about it, didn’t look for it or didn’t think about it but instead raised something that plainly was covered by the waiver. That might be an example of where they give rise to it. A lot of times, ineffective assistance of appellate counsel has to do with things that are against both of them. If it’s the same person, you messed up not raising it and you messed up not raising it again on plain error. You can raise some claims on appeal that you didn’t raise in district court or if it’s two different people.

What I’d like to say is, “Todd, it’s Jody who messed up. We’re going after Jody. We’re going after him hard. Nobody’s going to say the name of Jody Sanders after this case is over but I’ve got to put you in it too.” Normally, I talked to the people because they have to give me their files. That’s only been the law in Texas for 50 years. There has been 100 Supreme Court of Texas cases about it and attorney general opinions. Somehow, the state practitioners don’t know that. It’s always a fight to get the file. That’s when I talk to the people usually and it’s like, “You said this and you said that.”

I’ll tell you another thing. I had a situation that has come up twice. Maybe more than twice. I can think of two immediately where I’m working on these Johnson Armed Career Criminal Act case enhancements. I have recognized that my office failed to notice a problem in the Armed Career Criminal Act sentence independent of the Johnson error.

We have a lot of fights in the Johnson litigation where, “Is this a Johnson claim or is it under something else and whatever?” As I said, I could talk your ear off about that but I’m talking about like, “This is like strikes one and two were fighting about,” but it turns out to strike three wasn’t a strike at all. Nobody would’ve thought. If somebody had realized, it would be bad. On one occasion, I had to do that where it was me because this was like a new case. I caught it at the cert petition stage. It was not pressed or passed upon in the Court of Appeals.

It was like, in re mea culpa, was the cert petition. In that case, the US Attorney’s Office very graciously, I thought, agreed not to raise procedural default. It allowed us to raise 2255 so that we were able to stay on the case and I was able to fix it. Thank goodness we could. Our guy ended up without the Armed Career Criminal Act sentence. They were good people over there.

scale with a person's hand in the middle, green block on one side and red on the other
Criminal Appeals: There’s a conflict within this circuit’s precedent that you need to resolve, or this is going to create a problem. There are certain areas that don’t necessarily benefit one side or the other.

The other one was our office but it was from a long time ago. It was one of my bosses. Talking about an awkward phone call to file some common-law writ. You can see how somebody would miss it but it was there. That’s the thing that keeps you up at night. You’re terrified of missing something. It drives you to go deep in all of these cases. Spend a lot of time chasing down rabbit trails, as we say in East Texas, that end up not leading anywhere, but you don’t want to do that if you can help it.

We, on the civil side, the present company excepted, mistakes are made like that use of the passive voice, by the way. When that happens, typically, it’s mostly money at issue. It’s not somebody’s freedom. It’s the difference between a 10-year or a 20-year sentence in a federal penitentiary. I can see how that would keep someone in your position up at night because if you are talking about the difference between years in somebody’s life, that’s a very significant issue. Especially no more experienced than I am in criminal law matters wouldn’t want to touch.

Although you’ve made the sentencing guidelines sound so simple, I don’t see where there’s room for error there. I can’t imagine.

It’s a matter of rolling a dice. With experience, I’d like to think that we learn to spot things more than that. With experience, you get a sense for when you need to ask for help. I think that’s the most important thing. I would have used this against me in a post-conviction proceeding if I was on the appeal. I’m not solid on the dumb rules about when your post-arrest, pre-custody silence and whether or not you invoke it all this Fifth Amendment junk. I will call somebody and say, “This is a decision tree to decide whether or not this is a claim.” We’re going to raise it if we’re filing the motion anyway but is this a foreclosed claim? Is it a good claim?

You have to have a sense of where you’re soft on your knowledge and who would know about it. It’s not like everybody calls me. I say I get into these prior conviction enhancements. People will call me about those. I will call about some of these other issues. Now, if you have time, if your docket allows, you can do the research from scratch. That’s a lot of what we do is trying to find something that we could raise and trying to figure it out, but the busier you are or if you’re someone who doesn’t do this specific area of law all the time, you’ve got to know when to reach out for help.

One of the unique things about the criminal law side of things is you get to see more en banc of the 5th Circuit than civil practitioners could ever imagine.

I think that’s true. The 5th Circuit’s internal rules or practitioner’s guide says that a petition for rehearing en banc is the most abused prerogative. By those criteria alone, some people might call me in a long-term abusive relationship with the 5th Circuit. I have had the pleasure of appearing twice for an oral argument in front of the en banc court. One of those was a win. One of those was a loss, but they later took the win away in a written en banc opinion that was not accompanied by argument. I’ve had a couple of those as well. I’ll also point out that I have a rehearing en banc petition pending at the 5th Circuit. I was deeply involved in an amicus brief on somebody else’s en banc case, to say nothing of my colleague’s arguing as well.

In our circuit, there is what the circuit calls the rule of orderliness. If anyone has practiced primarily in front of the 5th Circuit, they will be familiar with that phrase. Basically, what it means is stare decisis on steroids. The court has said it repeatedly. Even if we disagree with a prior published panel decision, we are bound by it. You can occasionally find a situation where there’s an older panel decision that sets the law that may be a newer panel overlooked or didn’t see.

More common is a situation where there is a panel decision that distinguishes the previous decision in a way that maybe doesn’t work or what do you do when another case comes along and the distinction doesn’t apply. In all of those areas, it’s a matter of maintaining uniformity of the court’s precedent. I tend to think of the en banc process the way a lot of attorneys think about cert practices. It’s not only error correction. It’s about trying to maintain a uniform precedent to govern these three states and these scores or hundreds of appeals that they decide on these issues that tend to recur over and over again.

Also, Supreme Court practice is something that you probably do far more than the average appellate practitioner.

I think that’s right. Every year, the Supreme Court takes one or more cases about substantive criminal law. In addition to the constitutional procedure issues that you mentioned, it would be common to state court practice. All of our statutes are also federal. There are two ways that we can get a case in front of the Supreme Court. You have these prior conviction issues I mentioned before, which are complicated. The courts are continually getting tangled up in trying to sort through some of these difficult issues. My office, as I say, we had the Cuellar case, which I was not in the office but that is how it roped me into this business in 2007. That was not our first Supreme Court argument and it wasn’t our last.

I have participated as the second chair in two merits cases at the Supreme Court. One of those is a case called Setser v. United States that only an appellate lawyer could love. That is whether a federal district court judge has the authority to order the sentence that she is imposing to run consecutively or concurrently with a state court sentence that is not yet imposed. I think when we let you go, Dallas County is going to go forward with those burglary charges. I don’t know what’s going to happen but if you get a sentence, I either want that time to count against my sentence or I don’t want it to count against my sentence.

The Supreme Court, incorrectly in my view, ruled that the answer is yes that the judge does have that authority. We lost that case, Setser v. United States. Some years later, I helped my good friend and colleague Brandon, along with another incredible team, argue in Davis v. United States that the residual clause definition of the crime of violence in 18 USC 924(c) was unconstitutionally vague for the same reason that the earlier residual clauses in Section 16(b) and in the Armed Career Criminal Act were unconstitutionally vague and the Supreme Court agreed with us. They said, “Yes.”

I’m one and one up there. I will also say that I have jokingly called myself the Susan Lucci of cert practice in federal criminal practice because I have been the relist watch more times than I could count. I used to keep a count, but it made me too bitter. I’ve been almost the one so many times, so much so that now I’m quite sure that one of the criteria for cert-worthiness is not me as counsel of record.

Always the amicus but never the petitioner.

That is one of the things that attracted me to this practice in the beginning, and that’s one of the things that’s unique about the federal public defender as compared to the Department of Justice. Because while the appellate US Attorneys are consulted on Supreme Court cases, the Office of the Solicitor General is going to come in and take over. There’s a criminal appellate section in Main Justice, great attorneys. One of my best friends works there, but they are going to be working at it at the cert stage.

They will let a sap-headed redneck from East Texas write a cert petition and it will get at least on the relist watch, if not a merits grant. That’s one of the cool things about my job. That’s one of the things that keeps you going when you’re otherwise disappointed in it. You lose bad enough in my business and maybe you get yourself a merits grant.

This has all been enlightening. We are near the end of the time that we had scheduled to be together. But as we always do, we’d love to have you offer a tip or a war story to cap off our discussion.

There are so many war stories. I’ll tell you one that has very little to do with appellate practice or at least outside of the big firm context, but I think you’ll both appreciate it. I was a doe-eyed summer associate at a very large international law firm. I was working on government investigations, a white-collar case, a big document review intensive project. The senior associate who was working on the doc interview needed one of us on the team. One of the four associates to come talk to him about something.

American flag
Criminal Appeals: In the public defender’s office, each client is different. That’s another thing that’s different from the Department of Justice. They’re always in the United States, whereas every one of our clients is different.

He says, “Are any of you available to come to my office right now and talk about something that’s come up? Some urgent document review-related matter.” I quickly hit reply all so that the other people would know that they didn’t need to come. I responded, “Ya.” I walked. They didn’t see past the other white shoes to his office. He’s on the same floor but you get around and walk in there. I sit down and instead of giving me the document review assignment, he says, “What in the blankety-blank is wrong with you? This is not funny. I know you think it’s funny. It’s not funny.” I was like, “What are you talking about?”

I still think it was a software problem but what in fact I had responded “Ya” to was one of those emails, firm-wide emails at the global law firm that you only get at a global law firm. Some very important partner asking for a referral to something extremely specific. “Does anyone know? Can you recommend someone in Antwerp who has dealt with the intersection of European property rights law with Missouri’s probate law? In the context of an international trade commission petition to remand back to The Hague.” Eleven thousand lawyers worldwide got that email and immediately got my response, “Ya,” spelled the Arkansas way.

I’m like fleeing at this point. You can imagine, this was in the Blackberry days where I still get the Phantom Blackberry buzz. Your waist is going crazy. It’s constantly buzzing with some hefty percentage of 11,000 lawyers worldwide replying. This is not typically the way that we would use the firm email system. I’m desperately hitting the unsend. I don’t know what Outlook does now for unsend but at least back then, all unsend did was send everybody a message that said, “Matthew Wright is trying to unsend the last message.” Then there are 22,000 emails that I’ve burdened the global email system with. Shortly later, I joined the Federal Public Defender’s Office for the Northern District.

The timing was purely coincidental.

I love defendants and harm avoidance. That’s my war story.

That’s a good one. Matthew, thanks for spending the time with this. We appreciate your time and enjoyed visiting with you.

Thank you so much for having me.

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About Matthew Wright

Matthew Wright

UT undergrad (B.A. Linguistics, Dec. 2002); University of Arkansas (J.D., 2006); Law Clerk to U.S. District Judge Kenneth Hoyt (S.D. Texas, 2006-2007); Associate at Sidley Austin in Washington D.C. (2007-2008); Research and Writing Specialist at FPD N.D. Texas (Amarillo) (2008-2013); Associate, Mullin Hoard & Brown (Amarillo) (2013-2014); Assistant Federal Public Defender at FPD N.D. Texas (Dallas, then Amarillo) 2014-present. Two quills (second chair, both times). 1st Place #twitterbrief2019.

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