January 02, 2018 Practice Points

Challenging the Statute of Conviction When Your Client Pleads Guilty

The Supreme Court's opinion in Class v. United States will provide guidance in an area of law with a three-way circuit split.

By Sheena Foye and James R. Wyrsch – January 2, 2018

On October 4, 2017, the U.S. Supreme Court heard oral arguments in Class v. United States, No. 16-424, cert granted, Feb. 21, 2017. In Class, the Court will address whether or not a guilty plea inherently waives a defendant’s right to challenge the constitutionality of the statute of conviction. The Supreme Court will be deciding whether its decisions in Blackledge v. Peny, 417 U.S. 21 (1974) and Menna v. New York, 423 U.S. 61 (1975), where the Court held that claims of double jeopardy and vindictive prosecution were not inherently waived by pleading guilty, should be extended to include a defendant to challenge the constitutionality of the statute of conviction following a guilty plea.

The petitioner has taken the position that rights that go to the very power of whether or not the government could bring a prosecution against a defendant are not waived nor foreclosed by the act of pleading guilty. The petitioner argues that the right not to be prosecuted and convicted pursuant to an unconstitutional statute falls into the Blackledge and Menna category of rights and is neither waived nor foreclosed automatically by a plea of guilty. The petitioner asserts that the constitutionality of the statute of conviction goes to the government’s very power to prosecute or convict a defendant and, therefore, the reasoning in Blackledge and Menna would require that this challenge is not inherently waived by entering a plea of guilty. The petitioner is supported by amicus briefs from the Innocence Project, the National Association of Criminal Defense Lawyers, and the American Civil Liberties Union, and Albert W. Alschuler, professor of criminal law at the University of Chicago.

The Court’s opinion will provide guidance in an area of law with a three-way circuit split. The D.C., First, and Tenth Circuits have strictly limited Blackledge and Menna that only the specific constitutional claims at issue in Blackledge and Menna—double jeopardy and vindictive prosecution—can survive a plea; no other claims can survive, including even a facial challenge to the statute. In contrast, the Third, Fifth, Sixth, Ninth, and Eleventh Circuits, have held that a guilty plea does not inherently waive a defendant’s right to challenge his or her statute of conviction both facially or as-applied. Situated in the middle are the Fourth, Seventh, and Eighth Circuits. These circuits hold that a facial constitutional challenge to the statute of conviction can survive a defendant’s guilty plea but an as-applied challenge to a statute is waived following a guilty plea.

Until the Court resolves this issue, practitioners in all jurisdictions should preserve a client’s challenge to the constitutionality of the conviction statute.


Sheena Foye and James R. Wyrsch are with Wyrsch Hobbs Mirakian P.C. in Kansas City, Missouri.

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