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Ninth Circuit:
Guilty Plea Erased Right to Appeal Defect in Waiver of Right to Grand Jury Indictment
Opinion Says Any Defect Was Nonjurisdictional, Overruling Contrary 1984 Precedent
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held Friday that a defendant who unconditionally pled guilty to attempted felony reentry into the U.S. by a previously removed noncitizen waived the right to raise in an appeal the question of whether his earlier waiver of the right to a grand jury indictment was valid, as any defect in the validity was nonjurisdictional.
Senior Circuit Judge Susan P. Graber wrote the opinion which dismisses, in part, the appeal and affirms as reasonable the sentence of three years and four months Nonjurisdictional imprisonment imposed by District Court Judge Robert Steven Huie of the Southern District of California. Circuit Judge Danielle J. Forrest and Senior District Judge James V. Selna of the Central District of California, sitting by designation, joined in the opinion.
The opinion overrules the 1984 Ninth Circuit case of United States v. Travis which held that a defendant’s waiver of an indictment following a guilty plea was appealable as any claimed defect was jurisdictional in nature.
Waiver of Appeal
Genaro Medina-Luna, a citizen of Mexico, challenged the waiver and sentence, which followed his September 2022 attempt to enter the U.S. through the Otay Mesa port of entry in California, while hiding inside the trunk of a vehicle. Medina-Luna had been ordered removed from the U.S. on five prior occasions.
At an initial hearing, he waived his right to have the felony charge, reentry in violation of 8 U.S.C. §1326, presented to a grand jury for indictment. A few months later, Medina-Luna entered an open, unconditional plea with no plea agreement.
Graber noted that before deciding any substantive challenge by Medina-Luna, the panel must first determine whether he waived appeal of the issue.
The jurist pointed out that a guilty plea such as the one Medina-Lopez entered—without a plea agreement and without any preservation of identified issues for appeal in writing—constitutes a waiver of the right to appeal any nonjurisdictional prior rulings and cures all previous constitutional defects.
Graber framed the issue before the court by saying:
“The specific question presented here is whether the failure to secure a valid waiver of indictment is a nonjurisidictional defect.”
Supreme Court Decision
Turning to the 2002 U.S. Supreme Court case of United States v. Cotton, Graber answered the question in the affirmative.
Then-Chief Justice William Rehnquist (now deceased) authored that opinion which overrules a Fourth Circuit decision holding that a district court had been without jurisdiction to impose a sentence for an offense not actually charged in the indictment.
Rehnquist reasoned that, unlike defects in subject matter jurisdiction, the right to indictment by a grand jury may be waived and defects in indictments are nonjurisdictional as they do not deprive a court of jurisdiction.
Graber explained that the Ninth Circuit is not alone in finding that a guilty plea may waive the right to indictment, remarking:
“[W]e join the Fifth Circuit in relying on Cotton to hold that an error in procuring a knowing and voluntary waiver of indictment is ‘nonjurisdictional’….Defendant’s unconditional guilty plea, therefore, waived his right to appeal any defect in the antecedent waiver of indictment.”
Travis Overruled
The Travis court considered a challenge to a defendant’s waiver of the right to grand jury indictment following the defendant’s guilty plea to unarmed bank robbery. Circuit Judge J. Blaine Anderson (now deceased) wrote the opinion, declaring that “[a] plea of guilty will not bar appellate review of a conviction where the claimed defect is jurisdictional.”
Finding the defendant’s challenge that “he did not waive prosecution by indictment, thereby depriving the district court of jurisdiction to sentence him” to be a jurisdictional challenge, consideration of the appeal proceeded.
Reasoning that the holding in Travis was in direct opposition to the subsequent holding in Cotton, Graber declared:
“[W]e overrule Travis to the extent that it characterizes any defect in the waiver of indictment as jurisdictional.”
Miller Case Confusion
Graber “pause[d] to observe that…confusion has arisen” over whether the 2003 U.S. Supreme Court case of Miller v. Gammie—which clarified that a three-judge appellate panel may recognize a decision as having been overruled if it is clearly irreconcilable with later precedent by the Supreme Court—has itself been overruled.
Graber commented that “[t]he confusion arises from a red flag placed on Miller by Westlaw, due to Westlaw’s misreading” of another decision as having held that Miller was overruled. The jurist clarified that “Miller remains good law in all respects.”
The case is United States v. Medina-Luna, 23-705.
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