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Burgess v. United States

United States Court of Appeals, Eleventh Circuit

November 6, 2017

MICHAEL FRANK BURGESS, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket Nos. 6:13-cv-01439-ACC-GJK; 6:10-cr-00161-ACC-GJK-1

          Before ROSENBAUM and JULIE CARNES, Circuit Judges, and SCHLESINGER, [*] District Judge.

          ROSENBAUM, CIRCUIT JUDGE

         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 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.

         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 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- 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 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 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 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 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 ...


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