               Case: 13-10874       Date Filed: 07/08/2014      Page: 1 of 15


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-10874
                              ________________________

             D.C. Docket Nos. 1:12-cv-01427-CC; 1:08-cr-00082-CC-1


CHRISTOPHER STOUFFLET,

                                                                      Petitioner–Appellant,
                                            versus


UNITED STATES OF AMERICA,

                                                                     Respondent–Appellee.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                             _______________________

                                       (July 8, 2014)

Before PRYOR, Circuit Judge, WOOD, ∗ Chief District Judge, EDENFIELD, ∗ ∗
District Judge.


∗
 Honorable Lisa Godbey Wood, Chief United States District Judge for the Southern District of
Georgia, sitting by designation.
∗∗
 Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
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PRYOR, Circuit Judge:

      This appeal requires us to decide whether a federal prisoner may collaterally

attack the voluntariness of his guilty plea in a motion to vacate his sentence, 28

U.S.C. § 2255, after he already presented that issue as an objection to his appointed

counsel’s motion to withdraw in his direct appeal. See Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967). We conclude that the prisoner is procedurally

barred from relitigating the voluntariness of his plea. We affirm the denial of the

prisoner’s motion to vacate his sentence.

                                I. BACKGROUND

       Christopher Stoufflet conspired with others to establish an online pharmacy

in violation of federal law. Customers could order prescription drugs from the

online pharmacy by completing a form, which required them to choose the type

and quantity of drugs they wanted and to answer certain questions about their

medical conditions. The website of the online pharmacy represented that a

physician would review those forms before the online pharmacy distributed the

drugs, but no physician had face-to-face contact with the customers. The

conspirators dispensed over 260 thousand prescriptions, including Schedule III and

Schedule IV controlled substances, and generated over $75 million in sales.

      On August 8, 2006, a grand jury indicted Stoufflet and six others with

engaging in a drug conspiracy, 21 U.S.C. § 846, engaging in a money laundering

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conspiracy, 18 U.S.C. § 1956(h), money laundering, id.§§ 1956, 1957, and

distributing controlled substances, 21 U.S.C. § 841. Stoufflet pleaded not guilty

and proceeded to trial. In 2007, Stoufflet disclosed that he planned to defend

himself at trial on the ground that he lacked the mens rea to conspire because he

thought the online business was legal after consulting various attorneys.

      Initially, the United States asked Stoufflet to confirm that he intended to rely

on that advice-of-counsel defense so that it could interview the attorneys who had

advised him. But then in February 2008, the United States filed a motion in limine

to exclude Stoufflet’s advice-of-counsel defense. The United States argued that the

defense was irrelevant. The United States contended that, because Stoufflet was

charged with general-intent crimes, not specific-intent crimes, any advice he

received from attorneys was not a defense for his illegal conduct.

      Then on March 4, 2008, the United States initiated a second criminal

proceeding against Stoufflet by filing an information charging him with engaging

in a drug conspiracy, 21 U.S.C. §§ 841, 846, and money laundering, 18 U.S.C.

§ 1957. Stoufflet pleaded guilty the same day. He admitted to “conspir[ing],

combin[ing], confederat[ing], agree[ing], and ha[ving] a tacit understanding with

others, including . . . [the codefendants], to knowingly and intentionally distribute

and dispense Schedule III and IV controlled substances, . . . other than for a

legitimate medical purpose and not in the course of professional practice.” In

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exchange for that guilty plea, the United States agreed to dismiss the counts against

Stoufflet in the 2006 indictment.

      The district court accepted Stoufflet’s guilty plea as knowing and voluntary.

Three days after Stoufflet pleaded guilty, the district court denied the motion in

limine filed by the United States to exclude the advice-of-counsel defense in the

prosecution of the 2006 charges. The court ruled, contrary to the argument of the

United States, that the crimes were specific-intent crimes and Stoufflet’s advice-of-

counsel defense was relevant.

      Stoufflet then attempted to withdraw his guilty plea. Stoufflet’s newly

appointed counsel contended in the motion to withdraw that Stoufflet pleaded

guilty “under extreme pressure” because his former counsel advised that it was

“highly probable” that the district court would grant the motion in limine filed by

the United States for the trial of the 2006 charges. He stated that he was “numb” at

the plea hearing and that his attorneys forced him into the plea agreement.

      The district court conducted a hearing on Stoufflet’s motion to withdraw his

guilty plea, and Stoufflet and his former counsel testified. The district court denied

the motion to withdraw and later sentenced Stoufflet to 70 months of imprisonment

and 3 years of supervised release.

      Stoufflet filed a direct appeal, and the district court appointed appellate

counsel. The appointed appellate counsel moved to withdraw her representation.

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See Anders, 368 U.S. 738, 87 S. Ct. 1396. In her Anders brief, counsel concluded

that Stoufflet’s potential arguments on appeal were frivolous. Stoufflet filed a

response to the Anders brief, in which he argued that his plea was invalid because

he was unaware of all the elements of the crimes for which he was charged. He

explained that he did not understand that conspiracy was a specific-intent crime

until the district court denied the motion in limine in the other criminal proceeding.

      We granted the appointed counsel’s motion to withdraw, and we affirmed

Stoufflet’s judgment of conviction and sentence. United States v. Stoufflet, 424 F.

App’x 881 (11th Cir. 2011). We stated, in part, “Because independent examination

of the entire record reveals no arguable issues of merit, counsel’s motion to

withdraw is GRANTED, Stoufflet’s motion for the appointment of new counsel is

DENIED, and Stoufflet’s conviction and sentence are AFFIRMED.” Id. at 881.

      Stoufflet next filed a pro se motion to vacate his sentence. 28 U.S.C. § 2255.

He stated that he was “obliged to plead guilty” and that the “Court accepted [his]

plea without informing him that criminal intent was essential.”

      The district court denied the motion. Because our Court had rejected

Stoufflet’s claim that his plea was involuntary when we affirmed his conviction

and sentence in his direct appeal, the district court ruled that Stoufflet could not

relitigate that issue in a motion to vacate his sentence. But the district court granted

a certificate of appealability, which asks whether Stoufflet may again litigate

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whether his guilty plea was voluntary even though the appointed appellate counsel

and Stoufflet presented that claim in the Anders briefing and our Court rejected it

on direct appeal.

                          II. STANDARD OF REVIEW

      When we review the denial of a motion to vacate, 28 U.S.C. § 2255, we

review legal conclusions de novo and findings of fact for clear error. Thomas v.

United States, 572 F.3d 1300, 1303 (11th Cir. 2009).

                                 III. DISCUSSION

      It is long settled that a prisoner is procedurally barred from raising

arguments in a motion to vacate his sentence, 28 U.S.C. § 2255, that he already

raised and that we rejected in his direct appeal. See United States v. Nyhuis, 211

F.3d 1340, 1343 (11th Cir. 2000) (“Once a matter has been decided adversely to a

defendant on direct appeal it cannot be re-litigated in a collateral attack under

section 2255.” (internal quotation marks omitted)); Mills v. United States, 36 F.3d

1052, 1056 (11th Cir. 1994) (“[P]rior disposition of a ground of error on direct

appeal, in most cases, precludes further review in a subsequent collateral

proceeding.”); United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981)

(“This Court is not required on § 2255 motions to reconsider claims of error raised

and disposed of on direct appeal.”); United States v. Johnson, 615 F.2d 1125, 1128

(5th Cir. 1980) (“When an issue has already been determined on direct appeal, a


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Court need not reconsider it on a Section 2255 motion.”); Buckelew v. United

States, 575 F.2d 515, 517–18 (5th Cir. 1978) (“[A] matter need not be reconsidered

on a section 2255 motion if it has already been determined on direct appeal.”).

      Instead of applying this procedural bar, both Stoufflet and the United States

argue about whether the “law of the case” bars Stoufflet’s motion to vacate his

sentence, but we decline to invoke that doctrine. We have never applied the law-of-

the-case doctrine by name to a motion to vacate a prisoner’s sentence that raises

again an argument raised earlier in a prisoner’s direct appeal. See Rozier v. United

States, 701 F.3d 681, 684 (11th Cir. 2012) (declining to reconsider a claim already

decided against a prisoner because there had been no intervening change in law,

but not explicitly stating that the law-of-the-case doctrine barred the appeal);

Thomas v. United States, 572 F.3d 1300, 1304 (11th Cir. 2009) (“Because we find

that the law of the case doctrine does not bar review here as to each claim specified

in the [Certificate of Appealability], we assume that it could apply in such a

scenario.”).

      The law-of-the-case doctrine is similar to the procedural bar limiting the

claims a federal prisoner may bring in a motion to vacate his sentence, but it is

unfit to describe the interplay between claims raised in a direct appeal and those

raised in a collateral proceeding attacking a final judgment. Like the procedural bar

for federal prisoners, the law-of-the-case doctrine bars relitigation of issues that a

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court necessarily or by implication decided against the litigant in an earlier appeal.

See Schiavo ex rel. Schindler v. Schiavo ex rel. Schiavo, 403 F.3d 1289, 1291 (11th

Cir. 2005). Even though the law-of-the-case doctrine would control multiple

collateral attacks of a sentence, see Sanders v. United States, 373 U.S. 1, 9, 83 S.

Ct. 1068, 1074 (1963); Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984), that

doctrine is an imprecise descriptor for the preclusive effect of a judgment in a

direct appeal on a later collateral attack. The law-of-the-case doctrine is intended to

“regulate judicial affairs before final judgment.” 18B Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 4478 (2d ed. 1987) (emphasis

added). But when a federal prisoner files a motion to vacate his sentence, the

prosecution against him has come to an end. 28 U.S.C. § 2255(a) (“A prisoner in

custody under sentence of a court established by Act of Congress claiming the

right to be released . . . may move the court which imposed the sentence to vacate,

set aside or correct the sentence.”). Because a motion to vacate a sentence is a

collateral attack on a sentence that has become final, the resolution of that motion

is not part of the “single continuing lawsuit” beginning with the indictment against

the defendant-movant, but neither is it an entirely “separate action” from the

criminal proceeding. Wright & Miller, supra, § 4478. Even though the clerk

dockets a collateral attack by a federal prisoner on the same docket as the original

prosecution and even though the same court of appeals that considered his direct

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appeal will also consider any appeal arising from his collateral attack, the collateral

attack is distinct from the original prosecution that ended in a final judgment

against the prisoner.

      Moreover, we are reluctant to call the procedural bar the “law of the case”

because the exceptions to the discretionary law-of-the-case doctrine are in tension

with the limited scope of collateral review of federal prisoners’ sentences. An

appellant may overcome the law-of-the-case doctrine if he presents new and

substantially different evidence, if the prior decision was clearly erroneous and

would result in a manifest injustice, or if there has been an intervening change in

the law. See This That & the Other Gift & Tobacco, Inc. v. Cobb Cnty., Ga., 439

F.3d 1275, 1283–84 (11th Cir. 2006). But Congress and the courts have imposed

far greater limitations on collateral attacks than the limitations imposed by the law-

of-the-case doctrine and its exceptions. See 28 U.S.C. §§ 2241, 2253, 2255; United

States v. Addonizio, 442 U.S. 178, 185–87, 99 S. Ct. 2235, 2240–41 (1979); see

also Castro v. United States, 540 U.S. 375, 384, 124 S. Ct. 786, 793 (2003) (“[The

law-of-the-case doctrine] simply expresses common judicial practice; it does not

limit the courts’ power.” (internal quotation marks omitted)). For example, new

evidence, by itself, is not a ground for relief in a motion to vacate unless that new

evidence establishes an error of constitutional proportions or a “fundamental defect

which inherently results in a complete miscarriage of justice.” Hill v. United States,

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368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962); see, e.g., Mills, 36 F.3d at 1056

(“Even if this evidence could support a finding that the property had lost its

wetlands character prior to the appellants’ ownership, a finding upon which we

voice no opinion, the time to present this proof was at the trial on the merits.”).

Likewise, a court of appeals reviewing a motion to vacate will not disturb a prior

decision—even if so clearly erroneous that it results in manifest injustice—if that

decision did not result in a constitutional error or a complete miscarriage of justice.

Hill, 368 U.S. at 428, 82 S. Ct. at 471. And only a limited set of intervening

changes of law warrant setting aside a ruling in the defendant’s direct appeal

because not all intervening changes in law have retroactive effect after a judgment

of conviction has become final. See Teague v. Lane, 489 U.S. 288, 310–11, 109 S.

Ct. 1060, 1075 (1989) (“Unless they fall within an exception to the general rule,

new constitutional rules of criminal procedure will not be applicable to those cases

which have become final before the new rules are announced.”); McCoy v. United

States, 266 F.3d 1245, 1255 (11th Cir. 2001); see also Davis v. United States, 417

U.S. 333, 341–43 & 341 n.12, 94 S. Ct. 2298, 2303–04 & 2303 n.12 (1974)

(rejecting the application of law of the case by a court of appeals because there had

been an intervening change in law, but not deciding whether that intervening

change in law warranted relief because the parties had not argued whether the

change in law was retroactive). The procedural bar for collateral review better

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addresses these nuances than the common-law doctrine of law of the case, which

safeguards decisions of a court of appeals before final judgment. See Wright &

Miller, supra, § 4478 (“Law-of-the-case rules have developed to maintain

consistency and avoid reconsideration of matters once decided during the course of

a single continuing lawsuit. . . . After final judgment, direct relief from the

judgment is governed by the rules governing direct and collateral attack. . . .”).

      We acknowledge that the Seventh Circuit has described this procedural bar

as the “law of the case.” See, e.g., Fuller v. United States, 398 F.3d 644, 648 (7th

Cir. 2005); Peoples v. United States, 403 F.3d 844, 847 (7th Cir. 2005). But, unlike

the Seventh Circuit, we decline to read the decisions of the Supreme Court in

Sanders and Davis for the proposition that the procedural bar is synonymous with

the law-of-the-case doctrine. The Seventh Circuit has relied on Sanders for the

proposition that federal courts may “employ the more flexible doctrine of law of

the case even when rules of preclusion do not govern.” Peoples, 403 F.3d at 847.

But the Supreme Court in Sanders applied the doctrine to bar a second motion to

vacate because that second motion “sought to retry a claim previously fully

considered and decided against” the appellant in his first motion to vacate. 373

U.S. at 9, 83 S. Ct. at 1074 (“[N]othing in § 2255 requires that a sentencing court

grant a hearing on a successive motion alleging a ground for relief already fully

considered on a prior [§ 2255] motion and decided against the prisoner.”). The

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Seventh Circuit has also relied on Davis, but the Supreme Court in Davis did not

endorse the application of the law-of-the-case doctrine. 417 U.S. at 342, 94 S. Ct.

at 2303. Instead, the Supreme Court acknowledged that, when a court considers a

prisoner’s motion to vacate, the court must consider intervening changes in law

that would render a prisoner’s conviction invalid. Id. at 341 n.12, 346–47, 94 S. Ct.

at 2303 n.12, 2305 (explaining that collateral relief is justified if an intervening

change in law is retroactive and renders a prisoner guilty “for an act that the law

does not make criminal”). But in doing so, the Supreme Court did not purport to

apply the exceptions of the law-of-the-case doctrine; it instead applied the rules

that govern postconviction review and relief. The intervening change of law, the

Supreme Court recognized, might have rendered Davis guilty for an act that the

law did not make criminal. Id. at 346, 94 S. Ct. at 2305. If so, Davis’s final

conviction and sentence resulted in a complete miscarriage of justice. Id. at 346–

47, 94 S. Ct. at 2305. In fact, the Supreme Court has only “[a]ssum[ed] for

argument’s sake that the doctrine applies” to motions to vacate, and the Court has

rejected it as an “insurmountable obstacle” barring reconsideration of a prior

judgment. Castro, 540 U.S. at 384, 124 S. Ct. at 793.

      Instead of adopting the “law of the case” terminology, we conclude that

Stoufflet is procedurally barred from relitigating the voluntariness of his plea in a




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motion to vacate his sentence because he already raised that issue in his direct

appeal. See Nyhuis, 211 F.3d at 1343.

      We reject Stoufflet’s argument that his objection to appointed counsel’s

Anders brief should not trigger the procedural bar because the posture pits counsel

against defendant. Stoufflet clearly presented the issue of the voluntariness of his

plea when he responded to appointed counsel’s Anders brief. In her Anders brief,

appointed counsel evaluated the plea colloquy and Stoufflet’s motion to withdraw

that plea, and she concluded that his plea was knowing and voluntary such that it

would be frivolous to appeal the voluntariness of it. Stoufflet objected that his plea

was not voluntary because he was misinformed about the elements of his crime.

When our Court granted appointed counsel’s motion to withdraw, we agreed that

her “assessment of the relative merit of [Stoufflet’s] appeal [wa]s correct” and

affirmed Stoufflet’s conviction and sentence “[b]ecause independent examination

of the entire record reveal[ed] no arguable issues of merit.” Stoufflet, 424 F. App’x

at 881. We necessarily rejected Stoufflet’s contention about the voluntariness of

his plea. We agree with the Seventh Circuit that an issue “[p]resented is

presented,” White v. United States, 371 F.3d 900, 902–03 (7th Cir. 2004), even if

raised only in the pro se response to an Anders brief.

      Stoufflet’s argument that there has been an intervening change in the law of

conspiracy, which might warrant reconsideration of his claim previously rejected,

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is misguided. There has been no retroactive change in law that would render our

earlier consideration of Stoufflet’s claim incorrect as a matter of constitutional law

or a complete miscarriage of justice. See Rozier, 701 F.3d at 684–85. Stoufflet

contends that our decision in United States v. Tobin, 676 F.3d 1264 (11th Cir.

2012), which we decided after his direct appeal, made clear that the sentencing

judge should have instructed Stoufflet that his conduct must have been willful to

constitute criminal conspiracy. But in Tobin, we did not change the law of

conspiracy. Instead, we clarified that “[w]e have repeatedly recognized that a

conviction [for a drug conspiracy, 21 U.S.C. § 846,] requires evidence of

willfulness on the part of the defendant” and that “the defendant[] must have joined

the agreement knowing the unlawful purpose of the plan.” Tobin, 676 F.3d at

1284–85 (emphasis added). Setting aside whether our decision in Tobin would

constitute a “new rule,” Teague, 489 U.S. at 301, 109 S. Ct. at 1070, it is clear that

Tobin did not change the law of conspiracy.

      Stoufflet also urges us to reconsider our earlier rejection of his argument

because that decision was clearly erroneous and resulted in a manifest injustice.

But for the reasons stated above, we decline to import the exceptions of the law-of-

the-case doctrine, including the exception for manifest injustice, to the procedural

bar for federal prisoners. When he pleaded guilty, Stoufflet admitted under oath

that he conspired to knowingly and intentionally distributing and dispensing

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controlled substances. After a full hearing, the district court rejected Stoufflet’s

motion to withdraw that plea. And we later affirmed Stoufflet’s conviction over his

objection that his plea was involuntary. Stoufflet, 424 F. App’x at 881. We refuse

to reconsider our previous decision, which procedurally bars Stoufflet from again

arguing that his plea was involuntary in a motion to vacate his sentence.

                                 IV. CONCLUSION

      We AFFIRM the denial of the motion to vacate Stoufflet’s sentence.




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