from the United States District Court for the Middle District
of Florida D.C. Docket Nos. 6:13-cv-01439-ACC-GJK;
ROSENBAUM and JULIE CARNES, Circuit Judges, and SCHLESINGER,
ROSENBAUM, CIRCUIT JUDGE
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. In this case, Petitioner-Appellant Michael
Frank Burgess filed an 18 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.
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. During his change-of-plea
hearing, Burgess testified under oath that he fully
understood this waiver of his right to file a collateral
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.
district court accepted Burgess's guilty plea and
ultimately sentenced Burgess to 180 months' imprisonment.
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.
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- 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.
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
(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 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."
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.
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 waiver, and it did not ask the
government whether the government wished to invoke the
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
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 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).
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 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
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.
The Rules Applying to Civil Cases
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). 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 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 ...