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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 15-12045 ________________________
D.C. Docket Nos. 6:13-cv-01439-ACC-GJK; 6:10-cr-00161-ACC-GJK-1
MICHAEL FRANK BURGESS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(November 6, 2017)
Before ROSENBAUM and JULIE CARNES, Circuit Judges, and SCHLESINGER, * District Judge.
ROSENBAUM, Circuit Judge:
* Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation. Case: 15-12045 Date Filed: 11/06/2017 Page: 2 of 30
Efficiency can be a virtue, particularly for a court. But sometimes we can
have too much of even a good thing.1 That’s what happened here. In this case,
Petitioner-Appellant Michael Frank Burgess filed a 28 U.S.C. § 2255 motion
challenging his conviction and sentence. Although the government opposed
Burgess’s motion on the merits, the district court instead, and of its own volition,
invoked a collateral-action waiver in Burgess’s plea agreement with the
government to dismiss one of Burgess’s claims. Today we hold that a court may
not do that.
I.
Petitioner-Appellant Michael Frank Burgess pled guilty to conspiracy to
commit wire fraud, in violation of 18 U.S.C. § 371, and money laundering, in
violation of 18 U.S.C. § 1957. In his plea agreement, among other things, Burgess
waived his right to appeal—which included his right to collaterally challenge his
conviction and sentence—except in four limited circumstances, none of which
applies to the collateral action that is the subject of this appeal.2 During his
1 See William Shakespeare, As You Like It act 4, sc. 1 (“[C]an one desire too much of a good thing?”). 2 In particular, the appeal waiver states, The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant’s sentence or to challenge it collaterally on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant’s applicable guidelines range as 2 Case: 15-12045 Date Filed: 11/06/2017 Page: 3 of 30
change-of-plea hearing, Burgess testified under oath that he fully understood this
waiver of his right to file a collateral action:
THE COURT: . . . [U]nder this plea agreement you’re giving up your right to claim ineffective assistance of your own counsel in regard to representing you with respect to this matter. Do you understand?
BURGESS: Yes, I do.
The district court accepted Burgess’s guilty plea and ultimately sentenced Burgess
to 180 months’ imprisonment.
Burgess filed a direct appeal, but his counsel filed a motion to withdraw
under Anders v. California, 386 U.S. 738 (1967), asserting that no arguable
appellate issues of merit existed. We agreed, granted his counsel’s motion, and
affirmed Burgess’s conviction and sentence.
Burgess then filed a pro se motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. He listed eight grounds for relief. Among them
was Claim 5, the subject of this appeal. In Claim 5, Burgess contended that his
counsel was ineffective because he failed to file timely objections to the Pre-
determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a). (Emphasis in original omitted; emphasis added). 3 Case: 15-12045 Date Filed: 11/06/2017 Page: 4 of 30
Sentence Investigation Report (“PSR”) and to object to aspects of it at sentencing.
He also alleged that counsel should have presented mitigating evidence at the
sentencing hearing to refute the number of victims and the loss amount, two factors
that resulted in the addition of enhancements that increased Burgess’s guideline
range.
The district court ordered the government to “file a response indicating why
the relief sought in the motion should not be granted.” Also in this order, the court
instructed the government to, among other things,
(1) State whether Petitioner has used any other available federal remedies including any prior post- conviction motions and, if so, whether an evidentiary hearing was accorded to the movant in any federal court;
...
(3) Summarize the results of any direct appellate relief sought by Petitioner to include citation references and copies of appellant and appellee briefs from every appellate proceeding.[]
(4) Provide a detailed explanation of whether the motion was or was not filed within the one-year limitation period as set forth in 28 U.S.C. § 2255 (Supp. 1996).
(Emphasis omitted). And specifically with respect to the government’s response to
Requirement (3), the district court directed the government to “indicate whether
each claim was raised on direct appeal.” If the petitioner did not raise a claim on
direct appeal, the district court instructed the government to “indicate whether it 4 Case: 15-12045 Date Filed: 11/06/2017 Page: 5 of 30
waives the defense concerning the failure to raise the claim on direct appeal.”
(Citations omitted). Similarly, if the petitioner did raise a claim on direct appeal,
the court required the government to “indicate whether it waives the defense
concerning the relitigation of claims that were previously raised and disposed of on
direct appeal.” (Citation omitted).
In its response, the government invoked no affirmative defenses, despite the
district court’s specific inquiry about several in particular. Indeed, the government
expressly denied the applicability of the defenses of procedural default and
procedural bar. And it likewise did not assert the defense of timeliness, though the
government indicated that it was investigating whether Burgess timely filed his
motion and said it “may request permission to amend its response if [it discovers]
that the motion was not timely filed.” Instead of relying on any affirmative
defenses, the government argued that on the merits of Burgess’s motion, he was
not entitled to relief under § 2255.
After considering the government’s response and Burgess’s reply, the
district court denied Burgess’s § 2255 motion. In reaching this conclusion, the
court determined that seven of Burgess’s claims lacked merit. But it dismissed
Claim 5 based solely on the collateral-action waiver in Burgess’s plea agreement
and did not consider the merits of the claim. The court did not give the parties
notice that it was considering dismissing Claim 5 based on the collateral-action
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waiver, and it did not ask the government whether the government wished to
invoke the waiver.
Burgess sought a certificate of appealability, and a judge of this Court
granted it as to the following issue:
Whether the district court erred by denying Mr. Burgess’s claim of ineffective assistance, which was based on trial counsel’s failure to object to the loss calculations used to determine Mr. Burgess’s guideline range at sentencing [Claim 5], by sua sponte applying his sentence-appeal waiver?
II.
Whether the district court has the authority, on its own initiative, to invoke a
collateral-action waiver from the § 2255 movant’s plea agreement and dismiss the
movant’s § 2255 motion on that basis 3 raises a question of law. See Day v.
McDonough, 547 U.S. 198 (2006) (deciding whether, as a matter of law, a district
court has the authority to sua sponte deny a state prisoner’s 18 U.S.C. § 2254
petition as untimely). We conduct de novo review of questions of law. Pope v.
Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1261 (11th Cir. 2014) (citation omitted).
If a district court does have that authority, we review for abuse of discretion
the district court’s decision to exercise it. Cf. Day, 547 U.S. at 199, 200 (reviewing
3 This case does not involve the issue of whether a defendant can knowingly waive in a plea agreement the right to collaterally raise an ineffective-assistance issue involving a future act or failure to act on the part of counsel, that had not occurred at the time of the plea. See Gomez- Diaz v. United States, 433 F.3d 788, 793 (11th Cir. 2005). 6 Case: 15-12045 Date Filed: 11/06/2017 Page: 7 of 30
for abuse of discretion the district court’s sua sponte application of the
Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) statute of
limitations to dismiss a state prisoner’s § 2254 motion).
III.
We begin by considering whether a district court has the authority in
resolving a § 2255 motion to raise in the first instance a plea agreement’s
collateral-action waiver. Two competing lines of legal reasoning—the rules
applying to civil cases, on the one hand, and those applying to certain aspects of
collateral-review cases (the “Day line of cases”), on the other—seem to point to
different answers to our question. We examine both lines of reasoning.
A. The Rules Applying to Civil Cases
We have previously concluded that a § 2255 motion’s “nature [is that of] a
civil matter.” Brown v. United States, 748 F.3d 1045, 1065 (11th Cir. 2014).4 The
Federal Rules of Civil Procedure “govern the procedure in all civil actions and
proceedings in the United States district courts,” Fed. R. Civ. P. 1, “to the extent
4 As we explained in Brown, To summarize, the overwhelming history of § 2255 indicates that motions filed under that section could be considered civil in nature. Although there is limited support for the proposition that § 2255 is a criminal matter, or at least not purely civil in nature, the stray remarks in the Advisory Committee Note [to Rule 1 of the Rules Governing Section 2255 Cases] and a Senate Report on a bill that was incorporated into the bill that became § 2255 are not sufficient to alter the nature of § 2255 proceedings. 748 F.3d at 1065. 7 Case: 15-12045 Date Filed: 11/06/2017 Page: 8 of 30
that the practice in [§ 2255] proceedings . . . is not specified in a federal statute . . .
or the Rules Governing Section 2255 Cases [(“§ 2255 Rules” or “§ 2255 R.”)],”
Fed. R. Civ. P. 81(a)(4)(A). Similarly, § 2255 Rule 12 expressly authorizes
application of the Federal Rules of Civil Procedure to a § 2255 proceeding “to the
extent that they are not inconsistent with any statutory provisions or [the § 2255
Rules].” 5
So we turn to the § 2255 Rules to ascertain whether they answer our
question about whether the district court may, on its own initiative, invoke the
collateral-action waiver from a plea agreement to dismiss a case. Rule 5(b), §
2255 R., sets forth the requirements for any response the government might file to
a § 2255 motion. It requires the government to “address the allegations in the
motion” and to “state whether the moving party has used any other federal
remedies, including any prior post-conviction motions under these rules or any
previous rules, and whether the moving party received an evidentiary hearing.”
§ 2255 R. 5(b). The § 2255 Rules say nothing further about the government’s
response to a § 2255 motion or about the district court’s role in raising affirmative
defenses.
5 Rule 12 similarly provides for the Federal Rules of Criminal Procedure to be applied to a § 2255 proceeding “to the extent that they are not inconsistent with any statutory provisions or [the § 2255 Rules].” § 2255 R. 12. 8 Case: 15-12045 Date Filed: 11/06/2017 Page: 9 of 30
We therefore look to the Federal Rules of Civil Procedure to see whether
they fill the gap. Rule 8(c) governs the pleading of affirmative defenses such as a
collateral-action waiver. It requires a party to “affirmatively state any avoidance or
affirmative defense, including . . . waiver.” Fed. R. Civ. P. 8(c). If a party fails in
its answer or amended answer to assert an affirmative defense identified in Rule
8(c), the party forfeits the defense. Fed. R. Civ. P. 12(b), 15(a); see also Day, 547
U.S. at 207-08 (citing Fed. R. Civ. P. 8(c), 12(b), 15(a)); Jackson v. Seaboard
Coast Line R. Co., 678 F.2d 992, 1012 (11th Cir. 1982). And we have recognized
that “courts generally lack the ability to raise an affirmative defense sua sponte.”
Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010) (citation,
quotation marks, and alteration omitted). That’s because “the principle of party
presentation [is] basic to our adversary system,” Wood v. Milyard, 566 U.S. 463,
___, 132 S. Ct. 1826, 1833 (2012), and the court’s invocation of a party’s
affirmative defense generally conflicts with that ideal.
We see nothing rendering the requirements of Rules 8(c), 12(b), and 15(a),
“inconsistent with any statutory provisions or [the § 2255 Rules].” While the Civil
Rules impose requirements on the government’s answer beyond those set forth in
the § 2255 Rules, nothing about the additional requirements is at odds with the
§ 2255 Rules. Applying the Civil Rules, the government’s response to a § 2255
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motion must expressly invoke a collateral-action waiver. Otherwise, the
government may be deemed to have forfeited that defense.
As a result, if the line of legal reasoning governing civil cases applies here,
then the government may have forfeited its collateral-action-waiver defense by
failing to include it in its response to Burgess’s § 2255 motion. Relying on this
reasoning, Burgess asserts that the district court erred in raising the collateral-
action waiver on its own initiative and then dismissing Claim 5 on that basis.
B. The Day Line of Cases
But then there’s the Day line of cases to consider. Despite the fact that we
have described § 2255 motions as civil in nature, collateral-review cases such as
those involving § 2255 motions have their own peculiarities that render them
different in some ways from pure civil proceedings. The Supreme Court delved
into these differences and their procedural consequences in Day.
Day involved a habeas petition filed in federal court under 18 U.S.C. § 2254.
547 U.S. at 201. AEDPA imposes a one-year limitation period for the filing of a
federal habeas petition under § 2254, id. (citing 28 U.S.C. § 2244(d)(1)(A)), and
Rule 5(b), Rules Governing § 2254 Cases (“§ 2254 Rules” or “§ 2254 R.”),
requires the state in responding to a § 2254 petition to, among other things, “state
whether any claim in the petition is barred by . . . a statute of limitations.”
Heeding this requirement, the state filed its answer to Day’s petition and expressly
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agreed that his petition was timely because it had been “filed after 352 days of
untolled time.” Day, 547 U.S. at 201.
In fact, however, the state had made a mathematical error, and Day had filed
his petition after 388 days—beyond the 365-day statutory period. Id. at 201-02.
The magistrate judge noticed the error and gave Day an opportunity to show cause
why the petition should not be dismissed as untimely. Id. at 202. When the
magistrate judge found Day’s response inadequate, the magistrate judge
recommended dismissal of Day’s petition. Id. The district court adopted the
magistrate judge’s recommendation and dismissed the case. Id.
On review, the Supreme Court considered “whether a federal court lacks
authority, on its own initiative, to dismiss a habeas petition as untimely, once the
State has answered the petition without contesting its timeliness.” Id. The Court
concluded that under the circumstances in Day’s case, “the federal court had
discretion to correct the State’s error and, accordingly, to dismiss the petition as
untimely under AEDPA’s one-year limitation.” Yet the Court was careful to note
that a district court would abuse its discretion if it “overr[o]de a State’s deliberate
waiver of a limitations defense.” Id.
The Supreme Court rested its ruling on primarily two interrelated rationales.
First, the Court stated a preference for treating defenses identified in the same
§ 2254 Rule similarly. In this respect, it observed that although § 2254 Rule 5(b)
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requires the state in its answer to a habeas petition to “state whether any claim in
the petition is barred by a failure to exhaust state remedies, a procedural bar, non-
retroactivity, or a statute of limitations,” § 2254 R. 5(b), the Supreme Court has
held that federal courts may consider the defenses of exhaustion and
nonretroactivity, even if the state has failed to raise those defenses. Day, 547 U.S.
at 206. And it continued, noting that the United States Circuit Courts “have
unanimously held that, in appropriate circumstances, courts, on their own
initiative, may raise a petitioner’s procedural default . . . .” Id. Since courts may
on their own raise all other defenses set forth in Rule 5(b), § 2254 Rules, the Court
reasoned, it makes sense to treat the only remaining defense in that rule—
timeliness—the same way.
Second, and more significantly, the Court opined that like the doctrines of
exhaustion, procedural bar, and nonretroactivity, AEDPA’s statute of limitations is
predicated on “values beyond the concerns of the parties.” Day, 547 U.S. at 205
(citation and quotation marks omitted). Specifically, the Court explained, “The
AEDPA statute of limitation promotes judicial efficiency and conservation of
judicial resources, safeguards the accuracy of state court judgments by requiring
resolution of constitutional questions while the record is fresh, and lends finality to
state court judgments within a reasonable time.” Id.
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Because waiver is a threshold defense like timeliness, exhaustion, procedural
bar, and nonretroactivity, the Day line of cases may apply to the affirmative
defense of a collateral-action waiver. If so, the district court had the authority to
raise the waiver itself once the government failed to do so in its response to
Burgess’s § 2255 motion.
Nevertheless, in Day, the Supreme Court concluded that a court’s ability to
revive a forfeited defense identified in § 2254 Rule 5(b) is not without limits. Id.
at 202, 210-11. First, if a court contemplates exercising its authority to invoke a
forfeited § 2254 Rule 5(b) defense, that court must first give the parties “fair notice
and an opportunity to present their positions” concerning whether the court should
apply the defense. Day, 547 U.S. at 210.
Second, a court may not “override a State’s deliberate waiver” of § 2254
Rule 5(b) defenses. Wood v. Milyard, 566 U.S. 463, ___, 132 S. Ct. 1826, 1833-34
(2012) (quoting Day, 547 U.S. at 202); see also id. at 1833 n.5 (clarifying that Day
“made clear . . . that a federal court has the authority to resurrect only forfeited
defenses,” not waived ones). Otherwise, the court would violate “the principle of
party presentation basic to our adversary system.” Id. at 1833 (citation omitted).
Third, a court may not rely on a forfeited § 2254 Rule 5(b) defense where
the state has “strategically withheld the defense,” as opposed to having
inadvertently overlooked it. Day, 547 U.S. at 211 (quotation marks omitted). And
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finally, in deciding whether to exercise its authority to apply a forfeited § 2254
Rule 5(b) defense, the court must ensure that “the petitioner is not significantly
prejudiced by the delayed focus on the [forfeited defense], and determine whether
the interests of justice would be better served by addressing the merits or by
dismissing the petition [on the forfeited defense].” Id. at 210 (citation and
quotation marks omitted).
So even if the Day line of cases applies and the district court had the
authority to raise the collateral-action waiver on its own initiative, the district court
still had to comply with the constraints on its authority before it could dismiss the
motion on that basis. In particular, the court first had to give the parties fair notice
and a chance to present their positions on the collateral-action-waiver defense, and
it had to consider the parties’ respective positions. It also had to determine
whether any delay in the application of the collateral-action waiver significantly
prejudiced Burgess and “whether the interests of justice would be better served by
addressing the merits.” Id. at 210 (citation and quotation marks omitted).
C. Which line of reasoning applies to the appeal-waiver defense?
We conclude that the rules pertaining to civil cases, not the Day line of
reasoning, governs whether a district court has the authority to sua sponte invoke a
collateral-action waiver to dismiss a § 2255 motion. We reach this conclusion for
three reasons.
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First, the reasoning underlying the Day line of cases does not translate
neatly to the context of the appeal-waiver defense. Beginning with the second and
significantly more important basis for Day’s conclusion—that AEDPA’s statute of
limitations accounts for “values beyond the concern of the parties”—we cannot say
that a collateral-action waiver implicates such values in the same way or to the
same extent that the defenses of timeliness, exhaustion, procedural bar, and
nonretroactivity do.
Unlike a collateral-action waiver, which only certain criminal defendants opt
to enter into, all prisoners are bound by the statute of limitations and the doctrines
of exhaustion, procedural bar, and nonretroactivity. And that is so because
Congress and the Judiciary6 have determined that the universally applicable rules
that the statute of limitations and these doctrines impose represent a proper
balancing of society’s interests in finality, conservation of judicial resources, and
comity (in the case of §2254 petitions), on the one side, and the individual’s
interest in having his habeas claim heard and society’s interest in ensuring that a
prisoner has been convicted and sentenced within the bounds of the law, on the
other.
6 Congress enacted AEDPA’s statute of limitations, and the Judiciary created the doctrines of exhaustion, procedural bar, and nonretroactivity. See Day, 547 U.S. at 214 (Scalia, J., dissenting); 18 U.S.C. § 2244(d). 15 Case: 15-12045 Date Filed: 11/06/2017 Page: 16 of 30
But Congress could not enact legislation, and the Judiciary could not create a
judicial rule, requiring all criminal defendants to waive all collateral actions,
because that would likely violate the Constitution’s restrictions on suspending the
right to petition for habeas corpus. U.S. Const. art. I, § 9, cl. 2. Indeed, our
Constitution’s Suspension Clause reflects the determination that the proper
balancing of society’s interests in finality, conservation of judicial resources, and
comity, against the individual and society’s interest in ensuring that a prisoner has
been convicted and sentenced within the bounds of the law, see, e.g., Welch v.
United States, __ U.S. __, 136 S. Ct. 1257, 1266 (2016) (discussing in the context
of retroactivity doctrine societal interests in convictions and sentences that are
“authorized by substantive law”), requires the availability of collateral review in at
least some instances. So unlike with the four defenses enumerated in § 2254, a
district court’s invocation of a collateral-action waiver from a privately negotiated
plea agreement does not reflect an institutionally determined judgment that
concerns of finality and judicial economy generally outweigh the interests of
ensuring that a defendant has been convicted and sentenced within the bounds of
the law.
As for the Day Court’s other basis for its conclusion—that defenses listed in
the same habeas rule should be treated in the same way—the application in that
case was clear: the statute-of-limitations defense expressly appears in § 2254 Rule
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5(b) alongside the defenses of non-exhaustion, procedural bar, and
nonretroactivity. Here, however, the appeal-waiver defense is mentioned neither
expressly nor implicitly in § 2255 Rule 5(b). That rule does require the
government to provide information about a movant’s use of any other federal
remedies and evidentiary hearings—information that could allow a district court to
discern the existence of a threshold defense such as a procedural or statutory bar.
But § 2255 Rule 5(b) does not purport to put a collateral-appeal-waiver defense on
the same footing as, for example, the defenses of statutory and procedural bars.
That fact takes us outside the territory of Day and likewise removes a reason to
treat a collateral-action-waiver defense the same way as a statutory or procedural
bar.
Second, the usual rule in our party-presentation system requires the parties to
invoke their own claims and defenses. As the Supreme Court has explained, “[W]e
rely on the parties to frame the issues for decision and assign to courts the role of
neutral arbiter of matters the parties present.” Greenlaw v. United States, 554 U.S.
237, 243 (2008). If a court engages in what may be perceived as the bidding of
one party by raising claims or defenses on its behalf, the court may cease to appear
as a neutral arbiter, and that could be damaging to our system of justice. Abiding
by the Federal Rules of Civil Procedure’s rules for raising affirmative defenses
avoids that problem.
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Third, the neutral-arbiter concern is particularly apt when the court invokes
an affirmative defense on behalf of the government, where the only source of the
defense stems from the plea agreement. Federal Rule of Criminal Procedure
11(c)(1) prohibits courts from participating in plea-negotiation discussions.
Among other reasons for this rule, courts have explained that it “protects the
integrity of the judicial process.” United States v. Casallas, 59 F.3d 1173, 1178
(11th Cir. 1995), abrogated on other grounds by United States v. Davila, __ U.S.
__, 133 S. Ct. 2139 (2013) (quoting United States v. Bruce, 976 F.2d 552, 557-58
(9th Cir. 1992), abrogated on other grounds by Davila, 113 S. Ct. 2139) (quotation
marks omitted). Insulating judges from plea-negotiations would hardly protect the
judicial process’s integrity if courts could later, of their own volition, invoke the
government’s benefits conferred by the agreement arising from those very
negotiations. 7
7 We do not suggest that a district court’s mere mentioning on its own initiative of a plea agreement’s collateral-action waiver requires a harmless-error review, as would a district court’s participation in plea discussions. See Davila, 133 S. Ct. at 2139. The two situations are materially different. When a judge involves herself in plea discussions, a plea agreement may or may not result, and the judge’s involvement can seem coercive to a defendant. But after the government and the defendant enter into a plea agreement, a court’s reliance on its contents cannot affect whether a plea is entered into in the first place. Rather, we discuss Rule 11(c)(1), Fed. R. Crim. P., for the sole purpose of showing that the court’s neutrality is of particular concern when it comes to matters surrounding a plea agreement. 18 Case: 15-12045 Date Filed: 11/06/2017 Page: 19 of 30
For these reasons, we conclude that the rules applying to civil cases govern
here.8
IV.
Nevertheless, under the Federal Rules of Civil Procedure, a district court
may entertain a motion to amend the pleadings if the government’s initial response
to a movant’s § 2255 motion failed to invoke an available affirmative defense. See
Day, 547 U.S. at 216-17 & 217 n.2 (Scalia, J., dissenting); see also Fed. R. Civ. P.
15(a). As Justice Scalia observed, “Requiring the [government] to take the
affirmative step of amending its own pleading at least observes the formalities of
our adversary system, which is a nontrivial value i[n] itself.” Day, 547 U.S. at 217
n.2 (Scalia, J., dissenting) (citation omitted). And once a party seeks to amend its
pleadings, the Federal Rules of Civil Procedure instruct district courts to “freely
give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2).
8 Our concurring colleague opines that “an appeal/collateral challenge waiver by a prisoner is, at least at present, the only affirmative defense to a § 2255 motion that will be deemed forfeitable by a breach of Rule 8(c).” Conc. at 6. She may or may not be correct. But no other affirmative defenses are currently before us. So opining on whether they may be forfeitable under Rule 8(c) would require an impermissible advisory opinion. See Flast v. Cohen, 392 U.S. 83, 96-97 (1968) (the rule against advisory opinions “recognizes that such suits often are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests.”) (citation and internal quotation marks omitted). For that reason, beyond recognizing the application of the Day line of cases to the affirmative defenses specifically addressed in those cases, we do not opine on whether, in the context of collateral claims, any other affirmative defenses are subject to Rule 8(c)’s forfeiture provision. 19 Case: 15-12045 Date Filed: 11/06/2017 Page: 20 of 30
Amendment of pleadings, of course, can slow the judicial process and moot
proceedings that have preceded the amendments. In an effort to streamline the
proceedings and manage their dockets, district courts may make limited inquiry
into litigants’ possible claims and defenses, without violating the party-
presentation principle that animates our judicial system. Indeed, the Supreme
Court has “long recognized that a district court possesses inherent powers that are
governed not by rule or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and expeditious disposition of
cases.” Dietz v. Bouldin, __ U.S. __, 136 S. Ct. 1885, 1891 (2016) (citation and
internal quotation marks omitted). So while a district court may not invoke a
collateral-action waiver in a plea agreement, in a case where such a waiver exists,
the court may ask the government to state whether it intends to rely on the waiver.
Of course, if the government decides to do so, the district court must provide the
movant with an opportunity to respond and be heard on the issue.
V.
For the reasons discussed above, we vacate the district court’s order denying
Burgess’s § 2255 motion to the extent that it dismissed Claim 5. We remand for
further proceedings consistent with this opinion.
VACATED AND REMANDED.
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JULIE CARNES, Circuit Judge, concurring:
As explained in the majority opinion, this appeal presents a novel question
whose answer is not immediately obvious. To recap, a magistrate judge directed
the Government to respond to Burgess’s § 2255 motion by indicating why the
motion should not be granted and by addressing, among other things, the
timeliness of the motion and whether Burgess had previously pursued other federal
remedies. The question whether Burgess had waived his right to file a § 2255
motion was not something that the court specifically directed the Government to
answer. The Government responded, offering multiple reasons why Burgess
should not succeed on his motion, but never mentioning that, as part of a plea
agreement, Burgess had waived his right to challenge collaterally the effectiveness
of his attorney at the sentencing hearing. Thereafter, with the case now before the
district court judge following the Government’s response, the district judge sua
sponte denied that part of the motion alleging ineffective counsel at sentencing, but
not on the merits as argued by the Government. Instead the court relied on the
appeal/collateral-attack waiver that Burgess had agreed to as part of his plea
agreement, which waiver prevented Burgess from raising this challenge in a § 2255
motion. And it was on this basis that the district court denied this particular claim.
As the Government had already filed its response and had never mentioned
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this collateral-attack waiver in that response, the first question presented by this
appeal is whether the district court should have given Burgess an opportunity to
respond before it dismissed his § 2255 motion based on that waiver. I agree with
the majority opinion’s conclusion that pursuant to Day v. McDonough, 547 U.S.
198 (2006), the district court should have given Burgess that chance. And were
that all we had to decide, it would be simple enough to remand the case to the
district court to allow Burgess to respond, after which the district court would be
free to again deny the claim based on the waiver ground.
But Burgess seeks a broader victory than just getting the chance to respond.
Rather, he argues that once the Government had filed a response in which it failed
to mention its “affirmative defense” of waiver, then the district court was no longer
free to rely on that defense sua sponte and the defense was kaput. Accordingly,
Burgess contends that the district court on remand will be required to determine
this particular claim on its merits. And that is the outcome reached by the majority
opinion.
Although I concur with this result on these particular facts, in doing so I
acknowledge that it is a close question. In part, I write separately to emphasize the
narrowness of today’s holding. But mostly I write to emphasize that there is
nothing wrong with a judge, in screening the § 2255 case before her, to identify the
prisoner’s waiver of a right to file a collateral challenge as a potential defense, and
22 Case: 15-12045 Date Filed: 11/06/2017 Page: 23 of 30
to then allow the parties to respond. Moreover, even when the court has failed to
identify this waiver during the initial review period and when the Government has
also failed to mention the waiver in its subsequent response, the latter is still free to
later request an amendment of its response to permit the district court to consider
the defense.
As to the limited impact of our decision, although today’s holding rests on
the use of a civil procedure rule to determine the outcome in a § 2255 case, I do not
foresee, as a general matter, the federal rules of civil procedure assuming an
outsized role in a protocol that operates on very different rules. 1 Why then did a
civil procedure rule control here? As the majority opinion acknowledges, there are
special rules to govern § 2255 proceedings, and nothing in those rules requires the
Government to assert its affirmative defenses in its response to the prisoner’s
1 As to the very different protocol that governs a § 2255 proceeding versus a civil case, when a traditional civil case is filed, the plaintiff is subject to different pleading requirements than the Rules Governing § 2255 Proceedings require for its movants. (Compare Fed. R. Civ. P. 8(a) with § 2255 Rule 2(b).) In a civil case, discovery is mandatory and the required disclosures are set out in great detail, whereas in a § 2255 proceeding, discovery can be conducted only by leave of the court and within the parameters it allows. (Compare Fed. R. Civ. P. 26 with § 2255 Rule 6). Further, as discussed infra, in § 2255 litigation, the district court is required by rule to take the lead in initially reviewing the case to determine whether there is any potential merit; in traditional civil litigation, the defendant typically shoulders that burden. Indeed, because some of the federal civil rules are a poor fit for the procedures set out in the special rules that govern § 2255 proceedings, efforts to shoehorn them into the latter can be problematic. See. e.g., McBride v. Sharpe, 25 F.3d 962 at 967, 970 (11th Cir. 1994) (en banc), in which the court held that the 10-day notice requirement found in the summary judgment provision of Fed. R. Civ. P. 56(c) is inconsistent with the summary disposition protocol established by the Rules Governing § 2254 Cases, Rule 8(a), when the parties do not raise issues requiring a factual inquiry outside the record and the court does not rely on materials outside that record.
23 Case: 15-12045 Date Filed: 11/06/2017 Page: 24 of 30
motion. Indeed, § 2255 Rule 5 provides that the Government is not even required
to respond to the motion unless a judge requires it to do so, and when a response is
required, the rule requires only that the answer “address the allegations in the
motion,” “state whether the moving party has used any other federal remedies,”
and “whether the moving party received an evidentiary hearing.” Rules Governing
§ 2255 Rule 5. The federal civil procedure rules factor in only because of § 2255
Rule 12, which provides that “The Federal Rules of Civil Procedure and the
Federal Rules of Criminal Procedure, to the extent that they are not inconsistent
with any statutory provisions or these rules, may be applied to a proceeding under
these rules.” Thus, but for Fed. R. Civ. P. 8(c), which requires an affirmative
defense such as waiver to be asserted in any response to a pleading, Burgess would
lack any support for an argument that the Government had forfeited its ability to
rely on Burgess’s waiver of the right to challenge collaterally his sentence. Yet,
because Rule 8 (c)’s requirement that a defendant assert an affirmative defense is
not inconsistent with the § 2255 Rules’ silence on that point, in theory it should it
apply.
But “theory” is the operative word because, as Day sets out, even a violation
of Fed. R. Civ. P. 8(c) can be insufficient to assure victory for a prisoner seeking to
collaterally attack his conviction or sentence in federal court. As the majority
opinion explains, the Supreme Court held in Day that even when a state authority
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has failed to assert in its response certain affirmative defenses—specifically,
exhaustion of remedies, procedural default, non-retroactivity of new decision, and
statute of limitations—available against a § 2254 claim, 2 Fed. R. Civ. P. 8(c) does
not operate to render these defenses forfeited by the respondent. Instead, the
reviewing district court may still, within certain parameters, assert the affirmative
defense on behalf of the State and rely on it in denying the petition. See Day, 547
U.S. at 205, 208–09. Thus, as to all of the above affirmative defenses, even a Rule
8(c) violation by a state or federal respondent will not, by itself, insulate the
prisoner from dismissal based on those defenses. But, as also noted by the
majority opinion, the Supreme Court indicated that it was only because the nature
of these particular defenses were predicated on “values beyond the concerns of the
parties” that the Court recognized an exemption from what would normally be
Rule 8(c)’s prohibition of a district court’s sua sponte reliance on a defense that the
respondent had omitted from its response.
The novel question before us in this case is whether a post-response, sua
sponte judicial enforcement of a plea agreement provision waiving a right to
collaterally attack a sentence serves to protect the same sort of institutional values
as does a court’s enforcement of the affirmative defenses of timeliness, exhaustion
2 28 U.S.C. § 2254 permits a state prisoner to collaterally challenge a state conviction in federal court. 28 U.S.C. § 2255 governs the collateral challenge to a federal conviction.
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of remedies, procedural default, and non-retroactivity. If it does, then, just as with
those other affirmative defenses, Fed. R. Civ. P. 8(c) would not stand in the way
of a district court sua sponte relying on the defense, even though the Government
failed to assert it in its response. On this point, I agree with the majority that it is
mostly the concern of the parties, not the court, that such a plea agreement
provision be enforced, and it therefore makes sense to expect the party who would
benefit from enforcement to mention that concern either in pursuing or opposing
relief. And I therefore concur that a sua sponte, post-response dismissal based on a
collateral-attack waiver does not enjoy the protection from application of Rule 8(c)
that Day extends to other affirmative defenses. I also observe, however that taking
Day together with our ruling in this case, it appears that an appeal/collateral
challenge waiver by a prisoner is, at least at present, the only affirmative defense to
a § 2255 motion that will be deemed forfeitable by a breach of Rule 8(c). That
only one affirmative defense associated with a § 2255 motion appears to be
categorically precluded by a federal civil procedure rule that purportedly deems as
forfeited any affirmative defense not raised in a respondent’s response illustrates
the narrowness of our ruling.
Moreover, I do not read our opinion today as in any way constraining the
ability of a district court to sua sponte raise the issue of the plea waiver when it is
setting out the issues in the case that it wishes the parties to address and develop.
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One of the most important distinctions between the federal civil procedure rules
and the rules governing § 2255 litigation lies in the very different role that the
district court occupies in each proceeding. In a civil case, the defendant typically
takes the lead in seeking dismissal of the case or a narrowing of the issue. See,
e.g., Fed. R. Civ. P. 12(b), 12(c), 12(e), 12(f). With a § 2255 motion, however, the
special rules vest in the district court the duty and responsibility to initially assess
the case to determine whether there is sufficient merit to permit it to move forward.
Specifically, § 2255 Rule 4 (Preliminary Review) requires that the clerk forward a
§ 2255 motion to the judge who tried the underlying criminal trial. Section 2255
Rule 4(a) (Initial consideration by judge) requires the judge to promptly examine
the motion and “[i]f it plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not entitled to relief, the
judge must dismiss the motion . . . .” § 2255 Rule 4(b) (emphasis added). If the
court does not dismiss the motion, it must then direct the Government to respond
or to take other action directed by the court. Id. In short, § 2255 litigation can go
nowhere until the district court first reviews the prisoner’s motion and determines
that it can proceed: a process that is quite at odds with the way in which traditional
civil litigation operates. 3
3 Under the Federal Rules of Civil Procedure, upon service of the complaint, the defendant is required either to file an answer (Rule 12(a)(1)(A)), a motion to dismiss (Rule 12(b)), or a motion for a more definite statement (Rule 12(f)). Obviously, the defendant in civil litigation is 27 Case: 15-12045 Date Filed: 11/06/2017 Page: 28 of 30
And because it is the district court’s responsibility to initially assess and then
direct and manage the § 2255 litigation, I do not read our opinion as in any way
gagging the court as it goes about that endeavor. Further, even when the district
court, via its initial review, does not identify an appeal waiver as a matter for the
Government to address in its response—and the Government then fails to raise that
defense—our opinion today not mean that the Government cannot subsequently
file a motion pursuant to Fed. R. Civ. P. 15(a) to amend its response to add that
defense. 4 To that point, although affirming the district court’s action in Day,5 the
Supreme Court noted that instead of sua sponte issuing to the petitioner a show
cause order to explain why the petition was not untimely, the district court could
have informed the State of the timeliness issue and entertained any subsequent
motion by the State to amend its answer. Day, 547 U.S. at 209. As the Court
noted, “Recognizing that an amendment to the State’s answer might have obviated
this controversy, we see no dispositive difference between that route, and the one
not permitted to wait until the district court assesses the merits of the complaint before launching its opening salvo.
4 This avenue is not open to the Government in this case, though, because after it responded, the Government never filed a motion to amend to assert the waiver defense. In short, on remand, the district court will be required to decide Burgess’s collateral attack on his sentence on the merits. 5 In Day, the state respondent had erroneously indicated in its response that the § 2254 petition was timely, based on an erroneous mathematical calculation that was obvious to the magistrate judge who had been newly assigned to the case. Taking notice of this error, the magistrate judge sua sponte directed the § 2254 petitioner to show cause why the petition should not be dismissed as untimely. 28 Case: 15-12045 Date Filed: 11/06/2017 Page: 29 of 30
taken here.” Id. (footnote omitted). Indeed, notwithstanding the dissent’s
disagreement that the district court was empowered to issue a sua sponte ruling
based on an affirmative defense not raised by the Government in its response, the
majority opinion in Day noted the Court’s unanimity on the above point. Id. at 209
n.9. The dissent confirmed its agreement that a post-response motion to amend by
the State, after being informed by the Court of the timeliness issue, would handle
its concerns and would be appropriate:
I agree with the Court that today’s decision will have little impact on the outcome of district court proceedings. In particular, I agree that “if a district judge does detect a clear computation error, no Rule, statute, or constitutional provision commands the judge to suppress that knowledge,” ante, at [210]. Rather, a judge may call the timeliness issue to the State’s attention and invite a motion to amend the pleadings under Civil Rule 15(a), under which “leave shall be freely given when justice to requires.” In fact, in providing for leave whenever “justice so requires,” Rule 15(a), the Civil Rules fully accommodate the comity and finality interests that the Court thinks require a departure from the Civil Rules . . . Requiring the State to take the affirmative step of amending its own pleading at least observes the formalities of our adversary system, which is a nontrivial value in itself . . . .
Day, 547 U.S. at 216 n.2 (Scalia, J., dissenting) (emphasis added).
In summary, the following is how I read the majority opinion and the basis
on which I concur. During its preliminary review and before any response is filed
by the Government, a district court may raise sua sponte a collateral-attack waiver
and direct the parties to respond. Day, 547 U.S. at 210. If the district court has
failed to instruct the Government to address the collateral-attack waiver, it is the 29 Case: 15-12045 Date Filed: 11/06/2017 Page: 30 of 30
Government’s responsibility to assert this particular affirmative defense in its
response. If, however, it fails to do so initially, the Government may nonetheless
later file a motion pursuant to Fed. R. Civ. P. 15(a) to amend its response to add
this waiver defense. In deciding whether it will allow the Government to belatedly
raise this affirmative defense, the district court will apply the standards
traditionally used to decide such a motion.
With these points of emphasis, I concur in the majority opinion.