Whether an appellate court's sua sponte reliance on an unargued theory violates the party presentation principle and due process rights of a criminal defendant

is whether an appellate court’s violation of the party presentation principle may also amount to a deprivation of the right to due process on appeal. 6. This case is an ideal vehicle for the Court to address either or both of these questions. On appeal, Graham argued that it was unreasonable “under prevailing professional norms,” Strickland, 466 U.S. at 688, for his prior attorney to advise him to stipulate to a sentencing enhancement based on the unsupported and unchallenged assumption that his prior state-law purse snatching conviction qualifies as a “serious violent felony” predicate under 18 U.S.C. § 3559(c)(2)(F)(i). Moreover, Graham argued that the appeal waiver set forth in his plea agreement did not preclude him from raising a Strickland claim relating to this sentencing issue on direct appeal. The government did not acknowledge or present a response in opposition to Graham’s arguments regarding the scope of his appeal waiver.! As such, Graham presented supplemental letter briefing and oral arguments relating to the “principle of party presentation.” United States v. Sineneng-Smith, 590 U.S. 371, 375-76 (2020). Among other things, Graham argued that a rejection of his appeal “would .. . require resort to non-presented counter-arguments that [he] did not have an adequate opportunity to contest.” C.A. Dkt. 41, at 2. 7. The Second Circuit ultimately issued a “summary order” that: (1) did not acknowledge the party presentation principle; and (2) rejected Graham’s arguments relating to the scope of his appeal waiver on the grounds that he "has not argued, much less shown, that the appeal waiver itself was the result of ineffectiveness of counsel.” SO.5. In a timely petition for panel rehearing or rehearing en banc, Graham argued that this aspect of the summary order “relies on an argument that the government did not present and has broadly renounced as a matter of policy,”2 in violation of Sineneng-Smith. C.A. Dkt. 58, at 2-3. See id. at 121 The Department of Justice “no longer ask[s] criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel.” U.S. Department of Justice, Attorney General Holder Announces New Policy to Enhance Justice Department’s Commitment to Support Defendants’ Right to Counsel (Oct 14, 2014). 2 See supra, n.1. 14. Furthermore, Graham emphasized that the Second Circuit’s sua sponte argument on the government’s behalf “conflicts with the well-reasoned decisions of other circuits who do not permit criminal defense lawyers to advise their clients to waive their right to bring claims of ineffective assistance of counsel.” Jd. at 3. For example, in In re Sealed Case, 901 F.3d 397, 403 (2018), the D.C. Circuit held that, “construing a generic appeal waiver to extend to claims would be inconsistent” with the notion that such waivers must be knowing, intelligent, and voluntary. See id. at 404 (“We recognize that other courts of appeals have determined otherwise.”). See also United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (“[A] defendant’s agreement to waive appellate review of his sentence is implicitly conditioned on the assumption that the proceedings following entry of the plea will be conducted in accordance with constitutional limitations.”) (quoting United States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994)). Graham’s petition for rehearing was denied on July 1, 2025. 8. Pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, the undersigned was appointed to represent Graham as substitute appellate counsel. Soon after the Second Circuit issued the attached order denying rehearing, I spoke with Graham and began working on a petition for certiorari. However, because of the press of work in other cases, and because I am effectively a solo practitioner with respect to the appellate matters I am assigned as a member of the CJA panels for the First and Second Circuits, I will require additional time to conduct adequate research and prepare