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Eleventh Circuit Holds Court May Not Dismiss 2255 Motion by Invoking Collateral Attack Waiver Sua Sponte

by Dale Chappell

A U.S. district court cannot, “of its own volition,” invoke a collateral attack waiver in a plea agreement to dismiss a § 2255 motion, the U.S. Court of Appeals for the Eleventh Circuit held on November 6, 2017.

“Efficiency can be a virtue, particularly for a court. But sometimes we can have too much of even a good thing. That’s what happened here,” Judge Rosenbaum began the Court’s opinion. The “efficiency” referred to was when District Court Judge Conway dismissed Michael Burgess’ § 2255 motion on her own initiative because of a waiver in his plea agreement stating, in effect, he would not pursue a motion under 28 U.S.C. § 2255, which is the federal statute governing challenges to a prisoner’s conviction or sentence. In his plea agreement, he expressly waived his right to appeal, which included his right to collaterally challenge his conviction and sentence.

The court accepted the plea agreement and sentenced him to 180 months in prison. He subsequently filed a direct appeal, but his lawyer filed a motion to withdraw under Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious appellate issues. The Eleventh Circuit granted the motion and affirmed Burgess’ conviction and sentence.

He then filed a pro se § 2255 motion raising eight grounds for relief, including an ineffective assistance of counsel claim. The government did not assert any affirmative defenses, including the waiver. Instead, the government argued that on the merits he was not entitled to relief under § 2255. The court dismissed seven of his claims as lacking merit, but it dismissed the ineffective assistance of counsel claim based exclusively on the collateral-action waiver in his plea agreement. In doing so, the court did not provide notice to the parties that it was contemplating the invocation of the waiver, and it did not ask the government whether it wanted to do so.

Burgess appealed, and the Eleventh Circuit granted a COA on the issue of whether a court may “sua sponte” invoke a collateral-action waiver contained in a plea agreement to dismiss a § 2255 motion. Since this raised a question of law, the Court conducted a de novo review.

The Court recognized there are “two competing lines of legal reasoning” regarding collateral attack waivers: The Federal Rules of Civil Procedure (“FRCP”) (because a § 2255 motion is a civil matter), and U.S. Supreme Court case law. Under the civil rules, a party must “affirmatively state any avoidance or affirmative defense” in its response. This includes any waivers. “If a party fails in its answer or amended answer to assert an affirmative defense ... the party forfeits the defense” under Rule 8(c). “Courts generally lack the ability to raise an affirmative defense sua sponte” under the civil rules, the Eleventh Circuit has previously held.

But § 2255-land is never that straightforward. The U.S. Supreme Court has acknowledged that “collateral-review cases such as those involving § 2255 motions have their own peculiarities that render them different in some ways from pure civil proceedings.”

Giving the government the benefit of public policy regarding “finality” and “efficiency,” the Supreme Court has held that a court may invoke an affirmative defense, as long as the court gives the parties “an opportunity to present their positions.” But if the government “deliberately waives” the affirmative defense, the court cannot then raise it. Day v. McDonough, 547 U.S. 198 (2006).

The Eleventh Circuit, though, wasn’t convinced the Supreme Court’s reasoning should also apply to collateral attack waivers. While affirmative defenses such as timeliness, exhaustion, procedural bar, and nonretroactivity have their place under public policy concerns and apply to all prisoners (that is, predicated on “values beyond the concerns of the parties” to a particular case), collateral attack waivers are specific only to certain prisoners who “opt” in by agreeing to waive that right in their plea agreement, the Supreme Court had explained. Collateral attack waivers are not dictated by public policy concerns.

Furthermore, the general “rule in our party-presentation system requires the parties to invoke their own claims and defenses.” Courts must be neutral arbiters, but if courts engage in what may be viewed as the bidding of a party by raising claims or defenses, courts “may cease to appear as neutral” arbiters.

Finally, a collateral attack waiver emanates from a plea agreement. In order to protect the integrity of the judicial process, FRCP 11(c)(1) prohibits courts from participating in plea-negotiation discussions. The Eleventh Circuit reasoned that the foregoing public policy rationale would be thwarted “if courts could later, of their own volition, invoke the government’s benefits conferred by the agreement arising from those very negotiations.” Thus, for the reasons discussed, the Court ruled that the FRCP governs the issue presented in this case, not the Supreme Court’s Day line of reasoning.  

In this case, the Eleventh Circuit’s ruling created a hybrid rule: While a court cannot invoke a collateral attack waiver on its own under the civil rules, it “may ask the government to state whether it intends to rely on the waiver.” If the government says it will, the court must give the prisoner “an opportunity to respond and be heard,” which follows the Supreme Court’s line of reasoning in Day and its progeny dealing with affirmative defenses and habeas actions.

The Eleventh Circuit made it clear that a court may not invoke a collateral attack waiver on its own to dismiss a § 2255 motion. Accordingly, the Court vacated the district court’s order denying Burgess’ motion to the extent it dismissed his ineffective assistance of counsel claim and remanded the case for further proceedings. See: Burgess v. United States, 874 F.3d 1292 (11th Cir. 2017). 

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