Criminal Procedure — Appellate waivers

By: WISCONSIN LAW JOURNAL STAFF//May 3, 2012//

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A defendant’s waiver of his appellate rights applies to a motion to withdraw a plea.

“In Toth, the Sixth Circuit echoed the conclusion reached by every circuit that has considered this question: the majority of circuits agree that appealing a denial of a motion to withdraw a plea ‘is an attempt to contest a conviction on appeal.’ Id. at 378 (quoting United States v. Elliott, 264 F.3d 1171, 1174 (10th Cir. 2001)) (internal quotation marks omitted). In addition to the Sixth Circuit, the Second, Third, Fourth, Eighth, Ninth, and Tenth Circuits have each held that when a defendant waives his right to appeal in a plea, he also waives his right to appeal a denial of his motion to withdraw that plea.

“We agree with our sister circuits that a defendant challenges his conviction when he challenges the district court’s denial of his motion to withdraw a plea.”

Dismissed.

11-2412 U.S. v. Alcala

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Flaum, J.

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