Does Tollett v. Henderson preclude a defendant from collaterally attacking a conviction based on pre-plea prosecutorial misconduct?

QUESTIONS PRESENTED For untold years, federal prosecutors in Kansas secretly and systematically collected, retained, and exploited confidential attorney-client communications, in violation of numerous defendants’ Sixth Amendment rights to attorney-client confidentiality. When this unprecedented pattern of misconduct came to light, more than 100 prisoners, including Matthew Spaeth, sought to collaterally attack their convictions and sentences to remedy the surreptitious prosecutorial misconduct. Because Mr. Spaeth pleaded guilty, however, the Tenth Circuit held that Tollett v. Henderson, 411 U.S. 258 (1973), precluded him from collaterally attacking his conviction based on pre-plea prosecutorial misconduct. The Tenth Circuit considered both parties “bound by this rule of law” even though Mr. Spaeth conditioned his plea on the right to collaterally attack the conviction via “any subsequent claims with regards to ... prosecutorial misconduct.” The Tenth Circuit alternatively interpreted this conditional language to permit a collateral attack based only on post-plea prosecutorial misconduct. The Tenth Circuit further held that Tollett precluded Mr. Spaeth’s collateral attack to his sentence based on pre-plea prosecutorial misconduct. The Tenth Circuit’s novel decision is an unprecedented, unwarranted, and erroneous extension of Tollett that conflicts with this Court’s precedent on plea bargaining. i The questions presented are: I. Does Tollett v. Henderson, 411 U.S. 258 (1973), preclude the government and a defendant from conditioning a guilty plea on the defendant’s right to collaterally attack the conviction on grounds other than ineffective assistance of counsel that renders the plea invalid? II. If not, when a defendant conditions a guilty plea on the right to collaterally attack the conviction via “any subsequent claims with regards to ... prosecutorial misconduct,” does this language only authorize collateral attacks based on post-plea prosecutorial misconduct? III. When a defendant pleads guilty, does Tollett preclude the defendant from collaterally attacking the sentence because of surreptitious prosecutorial misconduct into confidential attorney-client communications that predated the guilty plea?! 1 This question is also pending in Danille Morris v. United States, Supreme Court. No.__-__ (filed Dec. 8, 2023). ii