Burgess v. United States, 11th Cir., filed 11/6/17, Court Vacates §2255 Denial When Judge Sua Sponte Raises Procedural Bar

The 11th Circuit holds that Court cannot invoke a procedural bar, on its own accord, to deny a petitioner’s claim in a federal post-conviction action.

The petitioner here pleaded guilty to wire fraud and money laundering.  As part of this plea agreement, he did what every other defendant is unfairly forced to do– he waived his right to appeal, which also included his right to collaterally challenge his conviction (except as to issues that are not pertinent here).  He even gave up his right to challenge the ineffectiveness of his plea counsel which strikes me as completely unconscionable yet happens regularly in our federal courts.

Petitioner, however, did appeal, and his appeal was dismissed.  Then he filed a motion to set aside his sentence under 28 U.S.C. §2255, and alleged 8 grounds of plea counsel ineffectiveness.  In his fifth claim, he argued that his plea counsel was ineffective because he failed to timely file objections to the Presentence Investigation Report, and to object to aspects of it at sentencing.  He also argued that counsel should have presented mitigating evidence to refute the number of victims and loss amount at the plea hearing, which constituted the basis of additional enhancements in his sentence.

In responding to petitioner’s motion, the government did not raise any affirmative defenses, and instead argued that petitioner was not entitled to prevail on the merits.  The district court then denied petitioner’s motion, but dismissed petitioner’s Claim 5 based solely on the collateral-action waiver in his plea agreement.

The Court then analyzed a couple of competing lines of argument, but concluded that, in §2255 actions, a judge may not sua sponte raise a procedural bar that had not been raised by the government.  But, the Court held that the district court can explicitly ask the government whether they intend to rely on the waiver (a gentle nudge in case the government simply forgot to raise the affirmative defense).  If the district court does that, though, it must give the petitioner an opportunity to respond and be heard on the issue.

The Court vacated the order denying the §2255 motion and remanded for further proceedings consistent with the opinion.  Judge Carnes wrote a concurring opinion stressing the narrowness of the holding.