                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0591n.06

                                        Case No. 16-1655

                          UNITED STATES COURT OF APPEALS                               FILED
                               FOR THE SIXTH CIRCUIT                                Nov 02, 2016
                                                                                DEBORAH S. HUNT, Clerk


In re: GARLAND DONTRELL GARNER,                      )
                                                     )      ON MOTION TO AUTHORIZE
        Movant.                                      )      THE FILING OF A SECOND OR
                                                     )      SUCCESSIVE APPLICATION FOR
                                                     )      HABEAS CORPUS RELIEF
                                                     )


        BEFORE: KEITH, ROGERS, and SUTTON, Circuit Judges.

        SUTTON, Circuit Judge. Garland Dontrell Garner, a federal prisoner represented by

counsel, moves for authorization to file a second or successive motion to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. Because Garner expressly waived his right to

attack his sentence collaterally in his plea agreement, we reject the motion.

        In 2013, Garner pleaded guilty to being a felon in possession of a firearm while on

pretrial release.   See 18 U.S.C. §§ 922(g)(1), 3147. The district court calculated Garner’s

guidelines range based in part on its finding that his prior Michigan conviction for attempted

assault with intent to commit great bodily harm less than murder was a “crime of violence” under

U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1(a)(1) & cmt. n.1. The court sentenced Garner to 110

months in prison. Garner appealed. We rejected his appeal after he acknowledged that he had

waived his right to appeal in the plea agreement. He then sought relief under § 2255. Same

result: He was not eligible for relief because he had waived the right to attack his sentence

collaterally.
Case No. 16-1655, In re Garner


       Garner now moves for authorization to file a second or successive motion to vacate. He

argues that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), he should not be subject

to an increased offense level under § 2K2.1(a)(1) because his prior Michigan conviction for

attempted assault with intent to commit great bodily harm less than murder no longer qualifies as

a “crime of violence” under § 4B1.2(a). In Johnson, the Supreme Court held that the residual

clause of the Armed Career Criminal Act is unconstitutionally vague. Id. at 2555, 2563. And we

have held that the identical residual clause in § 4B1.2(a)(2)’s definition of “crime of violence” is

also unconstitutionally vague. United States v. Pawlak, 822 F.3d 902, 903 (6th Cir. 2016).

       We may authorize a movant to file a second or successive motion to vacate when the

movant shows that his proposed claim relies on “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

28 U.S.C. § 2255(h)(2); see In re Watkins, 810 F.3d 375, 379 (6th Cir. 2015). The Supreme

Court has held that “Johnson announced a substantive rule that has retroactive effect in cases on

collateral review.” Welch v. United States, 136 S. Ct. 1257, 1268 (2016). In contrast, we do not

yet know “whether [we should] treat Pawlak as a new rule that the Supreme Court has not yet

made retroactive or as a rule dictated by Johnson that the Supreme Court has made retroactive.”

In re Embry, 831 F.3d 377, 378 (6th Cir. 2016).

       Regardless of the answer to that question, we must deny Garner’s motion for the same

reason he lost his direct appeal and his § 2255 action: Garner waived his right to challenge his

sentence collaterally in his plea agreement.

       A defendant’s waiver of his right to challenge his conviction and sentence under § 2255

is enforceable when it is entered into “knowingly, intelligently, and voluntarily.” Davila v.

United States, 258 F.3d 448, 451 (6th Cir. 2001); see In re Acosta, 480 F.3d 421, 422 (6th Cir.



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Case No. 16-1655, In re Garner


2007). In United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005), we held that “where

developments in the law later expand a right that a defendant has waived in a plea agreement, the

change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its

binding nature.” See also United States v. McGilvery, 403 F.3d 361, 363 (6th Cir. 2005).

Garner, like the defendant in Bradley, expressly “waive[d] the right to appeal his[] conviction or

sentence on any grounds” and “knowingly and voluntarily waive[d] th[e] right . . . to contest

his[] conviction or sentence in any post-conviction proceeding, including—but not limited to—

any proceeding under 28 U.S.C. § 2255.” R. 23 at 7; see Bradley, 400 F.3d at 461. In making

this waiver, he understood “that defendants generally have the right to attack their convictions

and sentences by filing post-conviction motions, petitions, or independent civil actions.” R. 23 at

7.

       Had Garner predicted the outcome of Johnson, it is true, he might not have used his rights

to challenge his sentence as bargaining chips in the plea negotiation. But Garner’s lack of

clairvoyance cannot undo his decision to waive the right to attack his sentence collaterally. His

“waiver[] of the right to appeal . . . would amount to little if future changes in the law permitted

the benefited party nonetheless to appeal.” Bradley, 400 F.3d at 465. And the Supreme Court

made clear, many years before Garner pleaded guilty, that “[n]ew substantive rules,” such as

Johnson, “generally apply retroactively.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004).

Congress designed § 2255(h)(2) to allow precisely these sorts of successive post-conviction

motions. Garner nonetheless waived his right to attack his sentence collaterally under § 2255.

All that matters is that the waiver is knowing; it need not be omniscient.

       Johnson, it is also true, “is not a traditional case.” United States v. Stephens, 651 F.

App’x 445, 447 (6th Cir. 2016). But Booker was not a traditional case either. And yet Bradley



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Case No. 16-1655, In re Garner


upheld a plea waiver that barred the defendant from raising a Booker challenge to the

constitutionality of his sentence. Bradley, 400 F.3d at 460. The circuit courts uniformly agreed

that appeal waivers barred later Booker challenges—whether anticipated or not. See, e.g., United

States v. Bownes, 405 F.3d 634, 636–37 (7th Cir. 2005); United States v. Killgo, 397 F.3d 628,

629 n.2 (8th Cir. 2005); United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005).

       This court recently held, it is also true, that a defendant “could not have intentionally

relinquished a claim based on Johnson, which was decided after his sentencing,” by “agree[ing]

with a career-offender designation” in a plea agreement and sentencing memorandum. United

States v. McBride, 826 F.3d 293, 295 (6th Cir. 2016); see also United States v. Priddy, 808 F.3d

676, 682 (6th Cir. 2015); Stephens, 651 F. App’x at 447. But the defendants in McBride,

Stephens, and Priddy did not sign plea agreements with provisions waiving their appellate and

collateral-review rights. See Bradley v. United States, No. 16-5231, at 4 (6th Cir. Aug. 17, 2016)

(order). “The Federal Rules of Criminal Procedure give the parties ample room to tailor plea

agreements to different needs—whether they are the right to appeal, the right to benefit from

future changes in the law or other concerns that the defendant (and his attorney) may have.”

Bradley, 400 F.3d at 466.      In exchange for his plea agreement and appeal waiver, the

government agreed to “dismiss count one of the First Superseding Indictment,” being a felon in

possession of a firearm on an earlier occasion. R. 23 at 6. Best we can tell, all of the courts of

appeals, save one, have followed the same path marked after Booker. They have enforced appeal

waivers to bar Johnson claims, like Booker claims, because “[a]n intervening change in law does

not render the appellate waiver unknowing or involuntary.” United States v. Agurs, 629 F.

App’x 288, 290 n.6 (3d Cir. 2015) (unpublished); see United States v. Bey, 825 F.3d 75, 83 (1st

Cir. 2016) (enforcing appellate waiver to bar Johnson challenge); United States v. Blackwell, 651



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F. App’x 8, 9–10 (2d Cir. 2016) (order) (same); United States v. Ford, 641 F. App’x 650, 651

(8th Cir. 2016) (per curiam) (same); United States v. Hurtado, No. 16-2021, 2016 WL 3410270,

at *1 (10th Cir. June 17, 2016) (same); see also United States v. Torres, 828 F.3d 1113, 1124–25

(9th Cir. 2016) (allowing appeal when the waiver “preserv[ed] the right to appeal a

determination that the [defendant] qualifies as an Armed Career Criminal”).               Garner’s

“willingness . . . to waive his right to appeal” and to attack his sentence collaterally “binds him

no less now than it did when he signed the agreement.” Bradley, 400 F.3d at 466.

       For these reasons, we deny Garner’s motion.




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Case No. 16-1655, In re Garner


          DAMON J. KEITH, Circuit Judge, dissenting.

          The United States Supreme Court has adopted the principle that, “[w]hen a court of

appeals raises a procedural impediment to disposition on the merits, and disposes of the case on

that ground, the district court’s labor is discounted and the appellate court acts not as a court of

review but as one of first view.” Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012). The majority

in this matter has disregarded this principle and acted as the court of first view. That is why I

cannot join the majority in this unpublished decision.

          This case is presented to this court following Mr. Garner’s petition to file a second,

successive habeas petition in accordance with 28 U.S.C. § 2244(b). It is true that Mr. Garner

signed a plea agreement which purportedly waived his right to collaterally appeal his sentence.

However, Mr. Garner argues that he did not knowingly and intelligently enter into the waiver

that he signed. Additionally, Mr. Garner argues contractual defenses that he claims would

otherwise invalidate the appeal waiver in his plea agreement.

          The majority relies on this court’s decision in Bradley to argue that Mr. Garner’s petition

should be dismissed on account of the waiver he signed in his plea agreement—despite the fact

that Garner challenges the very validity of the waiver. However, Bradley was decided on direct

appeal, not in a petition to file a second, successive petition. See U.S. v. Bradley, 400 F.3d 459,

460, 461 (6th Cir. 2005). This distinction is critical because this court’s role at the second,

successive petition stage is only to give permission to file—not to adjudicate—a second

collateral challenge to a sentence. We grant second, successive petitions based simply on “a

showing of possible merit sufficient to ‘warrant a fuller exploration by the district court.’” In re

Watkins, 810 F.3d 375, 379 (6th Cir. 2015) (quoting In re Lott, 366 F.3d 431, 432-433 (6th Cir.

2004)).



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Case No. 16-1655, In re Garner


        This court applies a “lenient” prima facie standard in the second, successive petition

context. In re Lott, 366 F.3d at 433. Our “lenient” review at this stage is a vital protection for

petitioners because the denial of a second, successive petition by this Court is not appealable and

not subject to petitions for rehearing or a writ of certiorari. Id.; 28 U.S.C. § 2244(b)(3)(e). The

lenient prima facie standard should have been applied here because, at this stage, we have no

record or fact-finding on the circumstances surrounding Mr. Garner’s collateral appeal waiver or

his challenge thereto. Thus, while Bradley may be persuasive to suggest that a waiver of

collateral appeal rights in plea agreement will generally be upheld as valid by the district court,

that ultimate finding is for the district court to make.

        While the majority cites a host of cases from other jurisdictions to support its claim that

“all of the courts of appeals, save one, have followed the same path marked after Booker . . .

[and] have enforced appeal waivers to bar Johnson claims,” none of these holdings were made at

the second, successive petition stage. For example, United States v. Agurs, 629 F. App’x 288 (3d

Cir. 2015) was a direct appeal in which the defendant claimed that his plea was involuntary

because he did not know about a case holding that already existed when he entered into the plea

agreement. Additionally, United States v. Bey, 825 F.3d 75 (1st Cir. 2016) was a direct appeal in

which Defendant did not challenge the validity of the waiver and there was no new Supreme

Court case which would have affected his sentence. Likewise, United States v. Blackwell, No.

15-1031, 2016 WL 3190569 (2d Cir. 2016) (order) was a direct appeal decided by unpublished

order. Similarly, United States v. Ford, 641 F. App’x 650 (8th Cir. 2016) was a direct appeal in

which the waiver was enforced, but the defendant did not make any argument that the waiver

was invalid. Further, United States v. Hurtado, No. 16-2021, 2016 WL 3410270 (10th Cir. June

17, 2016) was a direct appeal in which defendant conceded that the waiver barred appeal.



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Case No. 16-1655, In re Garner


Finally, United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016) was a direct appeal

involving no argument challenging the validity of the waiver. However, the court in Torres

nonetheless held that a possibly unconstitutional sentence under Johnson would necessarily

render the waiver invalid. The Ninth Circuit stated the following:

       [b]ased on the Government’s concession, we assume without deciding that
       Johnson’s holding nullifies § 4B1.2(a)(2)’s identically worded residual clause.
       We therefore accept the Government’s concession that the district court sentenced
       Torres pursuant to a provision in the Guidelines that is unconstitutionally vague.
       This renders Torres’s sentence ‘illegal,’ and therefore the waiver in his plea
       agreement does not bar this appeal.

Torres, 828 F.3d at 1125. Altogether, the cases cited by the majority do not support the notion

that a collateral appeal waiver in a plea agreement commands the denial of a second, successive

petition brought in accordance with 28 U.S.C. § 2244(b) when the petitioner challenges the very

validity of his or her waiver.

       Rather, in the only instance in which this court has dismissed a second, successive

petition on the basis of a collateral appeal waiver in a plea agreement, we stated that, “it would

be entirely circular for the government to argue that the defendant has waived his right to an

appeal or a collateral attack when the substance of his claim challenges the very validity of the

waiver itself.” In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007) (emphasis added). Indeed, this

court has frequently recognized that waivers can be invalid or inapplicable under a variety of

theories similar to Mr. Garner’s challenge on appeal. See, e.g., United States v. McBride,

826 F.3d 293, 295 (6th Cir. 2016) (defendant “could not have intentionally relinquished a claim

based on Johnson, which was decided after his sentencing”); United States v. Caruthers,

458 F.3d 459, 472 (6th Cir. 2006) (“an appellate waiver does not preclude an appeal asserting

that the statutory-maximum sentence has been exceeded”); United States v. Amos, 604 F. App’x

418, 422 (6th Cir.), cert. denied, 136 S. Ct. 114 (2015) (“we have yet to settle whether a district

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court's error in determining a defendant to be an armed career criminal results in a supramaximal

sentence, thereby barring an appeal waiver”).

        Because Mr. Garner, in the absence of a collateral appeal waiver, made a timely prima

facie showing of relief in light of Johnson after being sentenced under an identical residual

clause in USSG § 4B1.2(a)(2), and has challenged the validity of the collateral appeal waiver in

his plea agreement, we should treat him like any other such petitioner and grant the petition to be

held in abeyance until the Supreme Court rules on the issue in Beckles. See In re Embry,

831 F.3d 377, 382 (6th Cir. 2016); see also In re Patrick, No. 16-5353, 2016 WL 4254929, at

*3-4 (6th Cir. Aug. 12, 2016); cf. In re Acosta, 480 F.3d at 422. Whether Mr. Garner validly

waived his collateral appeal rights in light of Johnson and the upcoming decision in Beckles is an

issue for the district court.

        For these reasons, I dissent.




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