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                                                                                  [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-12045
                              ________________________

     D.C. Docket Nos. 6:13-cv-01439-ACC-GJK; 6:10-cr-00161-ACC-GJK-1



MICHAEL FRANK BURGESS,

                                                                        Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

                                                                      Respondent-Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                    (November 6, 2017)

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

ROSENBAUM, Circuit Judge:

         *
         Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.
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       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 a 28 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


       1
         See William Shakespeare, As You Like It act 4, sc. 1 (“[C]an one desire too much of a
good thing?”).
       2
           In particular, the appeal waiver states,
                 The defendant agrees that this Court has jurisdiction and authority
                 to impose any sentence up to the statutory maximum and expressly
                 waives the right to appeal defendant’s sentence or to challenge it
                 collaterally on any ground, including the ground that the Court
                 erred in determining the applicable guidelines range pursuant to
                 the United States Sentencing Guidelines, except (a) the ground that
                 the sentence exceeds the defendant’s applicable guidelines range as
                                                 2
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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-


              determined by the Court pursuant to the United States Sentencing
              Guidelines; (b) the ground that the sentence exceeds the statutory
              maximum penalty; or (c) the ground that the sentence violates the
              Eighth Amendment to the Constitution; provided, however, that if
              the government exercises its right to appeal the sentence imposed,
              as authorized by 18 U.S.C. § 3742(b), then the defendant is
              released from his waiver and may appeal the sentence as
              authorized by 18 U.S.C. § 3742(a).
(Emphasis in original omitted; emphasis added).
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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
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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


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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


       3
          This case does not involve the issue of whether a defendant can knowingly waive in a
plea agreement the right to collaterally raise an ineffective-assistance issue involving a future act
or failure to act on the part of counsel, that had not occurred at the time of the plea. See Gomez-
Diaz v. United States, 433 F.3d 788, 793 (11th Cir. 2005).
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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


       4
        As we explained in Brown,
              To summarize, the overwhelming history of § 2255 indicates that
              motions filed under that section could be considered civil in nature.
              Although there is limited support for the proposition that § 2255 is
              a criminal matter, or at least not purely civil in nature, the stray
              remarks in the Advisory Committee Note [to Rule 1 of the Rules
              Governing Section 2255 Cases] and a Senate Report on a bill that
              was incorporated into the bill that became § 2255 are not sufficient
              to alter the nature of § 2255 proceedings.
748 F.3d at 1065.
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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 proceeding “to the

extent that they are not inconsistent with any statutory provisions or [the § 2255

Rules].” 5

       So we turn to the § 2255 Rules to ascertain whether they answer our

question about whether the district court may, on its own initiative, invoke the

collateral-action waiver from a plea agreement to dismiss a case. Rule 5(b), §

2255 R., sets forth the requirements for any response the government might file to

a § 2255 motion. It requires the government to “address the allegations in the

motion” and to “state whether the moving party has used any other federal

remedies, including any prior post-conviction motions under these rules or any

previous rules, and whether the moving party received an evidentiary hearing.”

§ 2255 R. 5(b). The § 2255 Rules say nothing further about the government’s

response to a § 2255 motion or about the district court’s role in raising affirmative

defenses.




       5
         Rule 12 similarly provides for the Federal Rules of Criminal Procedure to be applied to
a § 2255 proceeding “to the extent that they are not inconsistent with any statutory provisions or
[the § 2255 Rules].” § 2255 R. 12.
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      We therefore look to the Federal Rules of Civil Procedure to see whether

they fill the gap. Rule 8(c) governs the pleading of affirmative defenses such as a

collateral-action waiver. It requires a party to “affirmatively state any avoidance or

affirmative defense, including . . . waiver.” Fed. R. Civ. P. 8(c). If a party fails in

its answer or amended answer to assert an affirmative defense identified in Rule

8(c), the party forfeits the defense. Fed. R. Civ. P. 12(b), 15(a); see also Day, 547

U.S. at 207-08 (citing Fed. R. Civ. P. 8(c), 12(b), 15(a)); Jackson v. Seaboard

Coast Line R. Co., 678 F.2d 992, 1012 (11th Cir. 1982). And we have recognized

that “courts generally lack the ability to raise an affirmative defense sua sponte.”

Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010) (citation,

quotation marks, and alteration omitted). That’s because “the principle of party

presentation [is] basic to our adversary system,” Wood v. Milyard, 566 U.S. 463,

___, 132 S. Ct. 1826, 1833 (2012), and the court’s invocation of a party’s

affirmative defense generally conflicts with that ideal.

      We see nothing rendering the requirements of Rules 8(c), 12(b), and 15(a),

“inconsistent with any statutory provisions or [the § 2255 Rules].” While the Civil

Rules impose requirements on the government’s answer beyond those set forth in

the § 2255 Rules, nothing about the additional requirements is at odds with the

§ 2255 Rules. Applying the Civil Rules, the government’s response to a § 2255




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motion must expressly invoke a collateral-action waiver.            Otherwise, the

government may be deemed to have forfeited that defense.

      As a result, if the line of legal reasoning governing civil cases applies here,

then the government may have forfeited its collateral-action-waiver defense by

failing to include it in its response to Burgess’s § 2255 motion. Relying on this

reasoning, Burgess asserts that the district court erred in raising the collateral-

action waiver on its own initiative and then dismissing Claim 5 on that basis.

B.    The Day Line of Cases

      But then there’s the Day line of cases to consider. Despite the fact that we

have described § 2255 motions as civil in nature, collateral-review cases such as

those involving § 2255 motions have their own peculiarities that render them

different in some ways from pure civil proceedings. The Supreme Court delved

into these differences and their procedural consequences in Day.

      Day involved a habeas petition filed in federal court under 18 U.S.C. § 2254.

547 U.S. at 201. AEDPA imposes a one-year limitation period for the filing of a

federal habeas petition under § 2254, id. (citing 28 U.S.C. § 2244(d)(1)(A)), and

Rule 5(b), Rules Governing § 2254 Cases (“§ 2254 Rules” or “§ 2254 R.”),

requires the state in responding to a § 2254 petition to, among other things, “state

whether any claim in the petition is barred by . . . a statute of limitations.”

Heeding this requirement, the state filed its answer to Day’s petition and expressly


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agreed that his petition was timely because it had been “filed after 352 days of

untolled time.” Day, 547 U.S. at 201.

      In fact, however, the state had made a mathematical error, and Day had filed

his petition after 388 days—beyond the 365-day statutory period. Id. at 201-02.

The magistrate judge noticed the error and gave Day an opportunity to show cause

why the petition should not be dismissed as untimely. Id. at 202. When the

magistrate judge found Day’s response inadequate, the magistrate judge

recommended dismissal of Day’s petition. Id. The district court adopted the

magistrate judge’s recommendation and dismissed the case. Id.

      On review, the Supreme Court considered “whether a federal court lacks

authority, on its own initiative, to dismiss a habeas petition as untimely, once the

State has answered the petition without contesting its timeliness.” Id. The Court

concluded that under the circumstances in Day’s case, “the federal court had

discretion to correct the State’s error and, accordingly, to dismiss the petition as

untimely under AEDPA’s one-year limitation.” Yet the Court was careful to note

that a district court would abuse its discretion if it “overr[o]de a State’s deliberate

waiver of a limitations defense.” Id.

      The Supreme Court rested its ruling on primarily two interrelated rationales.

First, the Court stated a preference for treating defenses identified in the same

§ 2254 Rule similarly. In this respect, it observed that although § 2254 Rule 5(b)


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requires the state in its answer to a habeas petition to “state whether any claim in

the petition is barred by a failure to exhaust state remedies, a procedural bar, non-

retroactivity, or a statute of limitations,” § 2254 R. 5(b), the Supreme Court has

held that federal courts may consider the defenses of exhaustion and

nonretroactivity, even if the state has failed to raise those defenses. Day, 547 U.S.

at 206. And it continued, noting that the United States Circuit Courts “have

unanimously held that, in appropriate circumstances, courts, on their own

initiative, may raise a petitioner’s procedural default . . . .” Id. Since courts may

on their own raise all other defenses set forth in Rule 5(b), § 2254 Rules, the Court

reasoned, it makes sense to treat the only remaining defense in that rule—

timeliness—the same way.

      Second, and more significantly, the Court opined that like the doctrines of

exhaustion, procedural bar, and nonretroactivity, AEDPA’s statute of limitations is

predicated on “values beyond the concerns of the parties.” Day, 547 U.S. at 205

(citation and quotation marks omitted). Specifically, the Court explained, “The

AEDPA statute of limitation promotes judicial efficiency and conservation of

judicial resources, safeguards the accuracy of state court judgments by requiring

resolution of constitutional questions while the record is fresh, and lends finality to

state court judgments within a reasonable time.” Id.




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      Because waiver is a threshold defense like timeliness, exhaustion, procedural

bar, and nonretroactivity, the Day line of cases may apply to the affirmative

defense of a collateral-action waiver. If so, the district court had the authority to

raise the waiver itself once the government failed to do so in its response to

Burgess’s § 2255 motion.

      Nevertheless, in Day, the Supreme Court concluded that a court’s ability to

revive a forfeited defense identified in § 2254 Rule 5(b) is not without limits. Id.

at 202, 210-11. First, if a court contemplates exercising its authority to invoke a

forfeited § 2254 Rule 5(b) defense, that court must first give the parties “fair notice

and an opportunity to present their positions” concerning whether the court should

apply the defense. Day, 547 U.S. at 210.

      Second, a court may not “override a State’s deliberate waiver” of § 2254

Rule 5(b) defenses. Wood v. Milyard, 566 U.S. 463, ___, 132 S. Ct. 1826, 1833-34

(2012) (quoting Day, 547 U.S. at 202); see also id. at 1833 n.5 (clarifying that Day

“made clear . . . that a federal court has the authority to resurrect only forfeited

defenses,” not waived ones). Otherwise, the court would violate “the principle of

party presentation basic to our adversary system.” Id. at 1833 (citation omitted).

      Third, a court may not rely on a forfeited § 2254 Rule 5(b) defense where

the state has “strategically withheld the defense,” as opposed to having

inadvertently overlooked it. Day, 547 U.S. at 211 (quotation marks omitted). And


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finally, in deciding whether to exercise its authority to apply a forfeited § 2254

Rule 5(b) defense, the court must ensure that “the petitioner is not significantly

prejudiced by the delayed focus on the [forfeited defense], and determine whether

the interests of justice would be better served by addressing the merits or by

dismissing the petition [on the forfeited defense].”         Id. at 210 (citation and

quotation marks omitted).

      So even if the Day line of cases applies and the district court had the

authority to raise the collateral-action waiver on its own initiative, the district court

still had to comply with the constraints on its authority before it could dismiss the

motion on that basis. In particular, the court first had to give the parties fair notice

and a chance to present their positions on the collateral-action-waiver defense, and

it had to consider the parties’ respective positions.        It also had to determine

whether any delay in the application of the collateral-action waiver significantly

prejudiced Burgess and “whether the interests of justice would be better served by

addressing the merits.” Id. at 210 (citation and quotation marks omitted).

C.    Which line of reasoning applies to the appeal-waiver defense?

      We conclude that the rules pertaining to civil cases, not the Day line of

reasoning, governs whether a district court has the authority to sua sponte invoke a

collateral-action waiver to dismiss a § 2255 motion. We reach this conclusion for

three reasons.


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         First, the reasoning underlying the Day line of cases does not translate

neatly to the context of the appeal-waiver defense. Beginning with the second and

significantly more important basis for Day’s conclusion—that AEDPA’s statute of

limitations accounts for “values beyond the concern of the parties”—we cannot say

that a collateral-action waiver implicates such values in the same way or to the

same extent that the defenses of timeliness, exhaustion, procedural bar, and

nonretroactivity do.

         Unlike a collateral-action waiver, which only certain criminal defendants opt

to enter into, all prisoners are bound by the statute of limitations and the doctrines

of exhaustion, procedural bar, and nonretroactivity.              And that is so because

Congress and the Judiciary6 have determined that the universally applicable rules

that the statute of limitations and these doctrines impose represent a proper

balancing of society’s interests in finality, conservation of judicial resources, and

comity (in the case of §2254 petitions), on the one side, and the individual’s

interest in having his habeas claim heard and society’s interest in ensuring that a

prisoner has been convicted and sentenced within the bounds of the law, on the

other.




         6
           Congress enacted AEDPA’s statute of limitations, and the Judiciary created the
doctrines of exhaustion, procedural bar, and nonretroactivity. See Day, 547 U.S. at 214 (Scalia,
J., dissenting); 18 U.S.C. § 2244(d).
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      But Congress could not enact legislation, and the Judiciary could not create a

judicial rule, requiring all criminal defendants to waive all collateral actions,

because that would likely violate the Constitution’s restrictions on suspending the

right to petition for habeas corpus. U.S. Const. art. I, § 9, cl. 2. Indeed, our

Constitution’s Suspension Clause reflects the determination that the proper

balancing of society’s interests in finality, conservation of judicial resources, and

comity, against the individual and society’s interest in ensuring that a prisoner has

been convicted and sentenced within the bounds of the law, see, e.g., Welch v.

United States, __ U.S. __, 136 S. Ct. 1257, 1266 (2016) (discussing in the context

of retroactivity doctrine societal interests in convictions and sentences that are

“authorized by substantive law”), requires the availability of collateral review in at

least some instances. So unlike with the four defenses enumerated in § 2254, a

district court’s invocation of a collateral-action waiver from a privately negotiated

plea agreement does not reflect an institutionally determined judgment that

concerns of finality and judicial economy generally outweigh the interests of

ensuring that a defendant has been convicted and sentenced within the bounds of

the law.

      As for the Day Court’s other basis for its conclusion—that defenses listed in

the same habeas rule should be treated in the same way—the application in that

case was clear: the statute-of-limitations defense expressly appears in § 2254 Rule


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5(b)   alongside    the   defenses   of   non-exhaustion,     procedural   bar,   and

nonretroactivity. Here, however, the appeal-waiver defense is mentioned neither

expressly nor implicitly in § 2255 Rule 5(b).            That rule does require the

government to provide information about a movant’s use of any other federal

remedies and evidentiary hearings—information that could allow a district court to

discern the existence of a threshold defense such as a procedural or statutory bar.

But § 2255 Rule 5(b) does not purport to put a collateral-appeal-waiver defense on

the same footing as, for example, the defenses of statutory and procedural bars.

That fact takes us outside the territory of Day and likewise removes a reason to

treat a collateral-action-waiver defense the same way as a statutory or procedural

bar.

       Second, the usual rule in our party-presentation system requires the parties to

invoke their own claims and defenses. As the Supreme Court has explained, “[W]e

rely on the parties to frame the issues for decision and assign to courts the role of

neutral arbiter of matters the parties present.” Greenlaw v. United States, 554 U.S.

237, 243 (2008). If a court engages in what may be perceived as the bidding of

one party by raising claims or defenses on its behalf, the court may cease to appear

as a neutral arbiter, and that could be damaging to our system of justice. Abiding

by the Federal Rules of Civil Procedure’s rules for raising affirmative defenses

avoids that problem.


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       Third, the neutral-arbiter concern is particularly apt when the court invokes

an affirmative defense on behalf of the government, where the only source of the

defense stems from the plea agreement.               Federal Rule of Criminal Procedure

11(c)(1) prohibits courts from participating in plea-negotiation discussions.

Among other reasons for this rule, courts have explained that it “protects the

integrity of the judicial process.” United States v. Casallas, 59 F.3d 1173, 1178

(11th Cir. 1995), abrogated on other grounds by United States v. Davila, __ U.S.

__, 133 S. Ct. 2139 (2013) (quoting United States v. Bruce, 976 F.2d 552, 557-58

(9th Cir. 1992), abrogated on other grounds by Davila, 113 S. Ct. 2139) (quotation

marks omitted). Insulating judges from plea-negotiations would hardly protect the

judicial process’s integrity if courts could later, of their own volition, invoke the

government’s benefits conferred by the agreement arising from those very

negotiations. 7




       7
         We do not suggest that a district court’s mere mentioning on its own initiative of a plea
agreement’s collateral-action waiver requires a harmless-error review, as would a district court’s
participation in plea discussions. See Davila, 133 S. Ct. at 2139. The two situations are
materially different. When a judge involves herself in plea discussions, a plea agreement may or
may not result, and the judge’s involvement can seem coercive to a defendant. But after the
government and the defendant enter into a plea agreement, a court’s reliance on its contents
cannot affect whether a plea is entered into in the first place. Rather, we discuss Rule 11(c)(1),
Fed. R. Crim. P., for the sole purpose of showing that the court’s neutrality is of particular
concern when it comes to matters surrounding a plea agreement.
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         For these reasons, we conclude that the rules applying to civil cases govern

here.8

                                               IV.

         Nevertheless, under the Federal Rules of Civil Procedure, a district court

may entertain a motion to amend the pleadings if the government’s initial response

to a movant’s § 2255 motion failed to invoke an available affirmative defense. See

Day, 547 U.S. at 216-17 & 217 n.2 (Scalia, J., dissenting); see also Fed. R. Civ. P.

15(a).       As Justice Scalia observed, “Requiring the [government] to take the

affirmative step of amending its own pleading at least observes the formalities of

our adversary system, which is a nontrivial value i[n] itself.” Day, 547 U.S. at 217

n.2 (Scalia, J., dissenting) (citation omitted). And once a party seeks to amend its

pleadings, the Federal Rules of Civil Procedure instruct district courts to “freely

give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2).




         8
           Our concurring colleague opines that “an appeal/collateral challenge waiver by a
prisoner is, at least at present, the only affirmative defense to a § 2255 motion that will be
deemed forfeitable by a breach of Rule 8(c).” Conc. at 6. She may or may not be correct. But
no other affirmative defenses are currently before us. So opining on whether they may be
forfeitable under Rule 8(c) would require an impermissible advisory opinion. See Flast v.
Cohen, 392 U.S. 83, 96-97 (1968) (the rule against advisory opinions “recognizes that such suits
often are not pressed before the Court with that clear concreteness provided when a question
emerges precisely framed and necessary for decision from a clash of adversary argument
exploring every aspect of a multifaced situation embracing conflicting and demanding
interests.”) (citation and internal quotation marks omitted). For that reason, beyond recognizing
the application of the Day line of cases to the affirmative defenses specifically addressed in those
cases, we do not opine on whether, in the context of collateral claims, any other affirmative
defenses are subject to Rule 8(c)’s forfeiture provision.
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      Amendment of pleadings, of course, can slow the judicial process and moot

proceedings that have preceded the amendments. In an effort to streamline the

proceedings and manage their dockets, district courts may make limited inquiry

into litigants’ possible claims and defenses, without violating the party-

presentation principle that animates our judicial system. Indeed, the Supreme

Court has “long recognized that a district court possesses inherent powers that are

governed not by rule or statute but by the control necessarily vested in courts to

manage their own affairs so as to achieve the orderly and expeditious disposition of

cases.” Dietz v. Bouldin, __ U.S. __, 136 S. Ct. 1885, 1891 (2016) (citation and

internal quotation marks omitted). So while a district court may not invoke a

collateral-action waiver in a plea agreement, in a case where such a waiver exists,

the court may ask the government to state whether it intends to rely on the waiver.

Of course, if the government decides to do so, the district court must provide the

movant with an opportunity to respond and be heard on the issue.

                                         V.

      For the reasons discussed above, we vacate the district court’s order denying

Burgess’s § 2255 motion to the extent that it dismissed Claim 5. We remand for

further proceedings consistent with this opinion.

      VACATED AND REMANDED.




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JULIE CARNES, Circuit Judge, concurring:

      As explained in the majority opinion, this appeal presents a novel question

whose answer is not immediately obvious. To recap, a magistrate judge directed

the Government to respond to Burgess’s § 2255 motion by indicating why the

motion should not be granted and by addressing, among other things, the

timeliness of the motion and whether Burgess had previously pursued other federal

remedies. The question whether Burgess had waived his right to file a § 2255

motion was not something that the court specifically directed the Government to

answer. The Government responded, offering multiple reasons why Burgess

should not succeed on his motion, but never mentioning that, as part of a plea

agreement, Burgess had waived his right to challenge collaterally the effectiveness

of his attorney at the sentencing hearing. Thereafter, with the case now before the

district court judge following the Government’s response, the district judge sua

sponte denied that part of the motion alleging ineffective counsel at sentencing, but

not on the merits as argued by the Government. Instead the court relied on the

appeal/collateral-attack waiver that Burgess had agreed to as part of his plea

agreement, which waiver prevented Burgess from raising this challenge in a § 2255

motion. And it was on this basis that the district court denied this particular claim.

      As the Government had already filed its response and had never mentioned

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this collateral-attack waiver in that response, the first question presented by this

appeal is whether the district court should have given Burgess an opportunity to

respond before it dismissed his § 2255 motion based on that waiver. I agree with

the majority opinion’s conclusion that pursuant to Day v. McDonough, 547 U.S.

198 (2006), the district court should have given Burgess that chance. And were

that all we had to decide, it would be simple enough to remand the case to the

district court to allow Burgess to respond, after which the district court would be

free to again deny the claim based on the waiver ground.

      But Burgess seeks a broader victory than just getting the chance to respond.

Rather, he argues that once the Government had filed a response in which it failed

to mention its “affirmative defense” of waiver, then the district court was no longer

free to rely on that defense sua sponte and the defense was kaput. Accordingly,

Burgess contends that the district court on remand will be required to determine

this particular claim on its merits. And that is the outcome reached by the majority

opinion.

      Although I concur with this result on these particular facts, in doing so I

acknowledge that it is a close question. In part, I write separately to emphasize the

narrowness of today’s holding. But mostly I write to emphasize that there is

nothing wrong with a judge, in screening the § 2255 case before her, to identify the

prisoner’s waiver of a right to file a collateral challenge as a potential defense, and


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to then allow the parties to respond. Moreover, even when the court has failed to

identify this waiver during the initial review period and when the Government has

also failed to mention the waiver in its subsequent response, the latter is still free to

later request an amendment of its response to permit the district court to consider

the defense.

       As to the limited impact of our decision, although today’s holding rests on

the use of a civil procedure rule to determine the outcome in a § 2255 case, I do not

foresee, as a general matter, the federal rules of civil procedure assuming an

outsized role in a protocol that operates on very different rules. 1 Why then did a

civil procedure rule control here? As the majority opinion acknowledges, there are

special rules to govern § 2255 proceedings, and nothing in those rules requires the

Government to assert its affirmative defenses in its response to the prisoner’s


1
   As to the very different protocol that governs a § 2255 proceeding versus a civil case, when a
traditional civil case is filed, the plaintiff is subject to different pleading requirements than the
Rules Governing § 2255 Proceedings require for its movants. (Compare Fed. R. Civ. P. 8(a)
with § 2255 Rule 2(b).) In a civil case, discovery is mandatory and the required disclosures are
set out in great detail, whereas in a § 2255 proceeding, discovery can be conducted only by leave
of the court and within the parameters it allows. (Compare Fed. R. Civ. P. 26 with § 2255 Rule
6). Further, as discussed infra, in § 2255 litigation, the district court is required by rule to take
the lead in initially reviewing the case to determine whether there is any potential merit; in
traditional civil litigation, the defendant typically shoulders that burden. Indeed, because some
of the federal civil rules are a poor fit for the procedures set out in the special rules that govern
§ 2255 proceedings, efforts to shoehorn them into the latter can be problematic. See. e.g.,
McBride v. Sharpe, 25 F.3d 962 at 967, 970 (11th Cir. 1994) (en banc), in which the court held
that the 10-day notice requirement found in the summary judgment provision of Fed. R. Civ. P.
56(c) is inconsistent with the summary disposition protocol established by the Rules Governing
§ 2254 Cases, Rule 8(a), when the parties do not raise issues requiring a factual inquiry outside
the record and the court does not rely on materials outside that record.


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motion. Indeed, § 2255 Rule 5 provides that the Government is not even required

to respond to the motion unless a judge requires it to do so, and when a response is

required, the rule requires only that the answer “address the allegations in the

motion,” “state whether the moving party has used any other federal remedies,”

and “whether the moving party received an evidentiary hearing.” Rules Governing

§ 2255 Rule 5. The federal civil procedure rules factor in only because of § 2255

Rule 12, which provides that “The Federal Rules of Civil Procedure and the

Federal Rules of Criminal Procedure, to the extent that they are not inconsistent

with any statutory provisions or these rules, may be applied to a proceeding under

these rules.” Thus, but for Fed. R. Civ. P. 8(c), which requires an affirmative

defense such as waiver to be asserted in any response to a pleading, Burgess would

lack any support for an argument that the Government had forfeited its ability to

rely on Burgess’s waiver of the right to challenge collaterally his sentence. Yet,

because Rule 8 (c)’s requirement that a defendant assert an affirmative defense is

not inconsistent with the § 2255 Rules’ silence on that point, in theory it should it

apply.

         But “theory” is the operative word because, as Day sets out, even a violation

of Fed. R. Civ. P. 8(c) can be insufficient to assure victory for a prisoner seeking to

collaterally attack his conviction or sentence in federal court. As the majority

opinion explains, the Supreme Court held in Day that even when a state authority


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has failed to assert in its response certain affirmative defenses—specifically,

exhaustion of remedies, procedural default, non-retroactivity of new decision, and

statute of limitations—available against a § 2254 claim, 2 Fed. R. Civ. P. 8(c) does

not operate to render these defenses forfeited by the respondent. Instead, the

reviewing district court may still, within certain parameters, assert the affirmative

defense on behalf of the State and rely on it in denying the petition. See Day, 547

U.S. at 205, 208–09. Thus, as to all of the above affirmative defenses, even a Rule

8(c) violation by a state or federal respondent will not, by itself, insulate the

prisoner from dismissal based on those defenses. But, as also noted by the

majority opinion, the Supreme Court indicated that it was only because the nature

of these particular defenses were predicated on “values beyond the concerns of the

parties” that the Court recognized an exemption from what would normally be

Rule 8(c)’s prohibition of a district court’s sua sponte reliance on a defense that the

respondent had omitted from its response.

       The novel question before us in this case is whether a post-response, sua

sponte judicial enforcement of a plea agreement provision waiving a right to

collaterally attack a sentence serves to protect the same sort of institutional values

as does a court’s enforcement of the affirmative defenses of timeliness, exhaustion


2
  28 U.S.C. § 2254 permits a state prisoner to collaterally challenge a state conviction in federal
court. 28 U.S.C. § 2255 governs the collateral challenge to a federal conviction.


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of remedies, procedural default, and non-retroactivity. If it does, then, just as with

those other affirmative defenses, Fed. R. Civ. P. 8(c) would not stand in the way

of a district court sua sponte relying on the defense, even though the Government

failed to assert it in its response. On this point, I agree with the majority that it is

mostly the concern of the parties, not the court, that such a plea agreement

provision be enforced, and it therefore makes sense to expect the party who would

benefit from enforcement to mention that concern either in pursuing or opposing

relief. And I therefore concur that a sua sponte, post-response dismissal based on a

collateral-attack waiver does not enjoy the protection from application of Rule 8(c)

that Day extends to other affirmative defenses. I also observe, however that taking

Day together with our ruling in this case, it appears that an appeal/collateral

challenge waiver by a prisoner is, at least at present, the only affirmative defense to

a § 2255 motion that will be deemed forfeitable by a breach of Rule 8(c). That

only one affirmative defense associated with a § 2255 motion appears to be

categorically precluded by a federal civil procedure rule that purportedly deems as

forfeited any affirmative defense not raised in a respondent’s response illustrates

the narrowness of our ruling.

       Moreover, I do not read our opinion today as in any way constraining the

ability of a district court to sua sponte raise the issue of the plea waiver when it is

setting out the issues in the case that it wishes the parties to address and develop.


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One of the most important distinctions between the federal civil procedure rules

and the rules governing § 2255 litigation lies in the very different role that the

district court occupies in each proceeding. In a civil case, the defendant typically

takes the lead in seeking dismissal of the case or a narrowing of the issue. See,

e.g., Fed. R. Civ. P. 12(b), 12(c), 12(e), 12(f). With a § 2255 motion, however, the

special rules vest in the district court the duty and responsibility to initially assess

the case to determine whether there is sufficient merit to permit it to move forward.

Specifically, § 2255 Rule 4 (Preliminary Review) requires that the clerk forward a

§ 2255 motion to the judge who tried the underlying criminal trial. Section 2255

Rule 4(a) (Initial consideration by judge) requires the judge to promptly examine

the motion and “[i]f it plainly appears from the motion, any attached exhibits, and

the record of prior proceedings that the moving party is not entitled to relief, the

judge must dismiss the motion . . . .” § 2255 Rule 4(b) (emphasis added). If the

court does not dismiss the motion, it must then direct the Government to respond

or to take other action directed by the court. Id. In short, § 2255 litigation can go

nowhere until the district court first reviews the prisoner’s motion and determines

that it can proceed: a process that is quite at odds with the way in which traditional

civil litigation operates. 3


3
  Under the Federal Rules of Civil Procedure, upon service of the complaint, the defendant is
required either to file an answer (Rule 12(a)(1)(A)), a motion to dismiss (Rule 12(b)), or a
motion for a more definite statement (Rule 12(f)). Obviously, the defendant in civil litigation is
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       And because it is the district court’s responsibility to initially assess and then

direct and manage the § 2255 litigation, I do not read our opinion as in any way

gagging the court as it goes about that endeavor. Further, even when the district

court, via its initial review, does not identify an appeal waiver as a matter for the

Government to address in its response—and the Government then fails to raise that

defense—our opinion today not mean that the Government cannot subsequently

file a motion pursuant to Fed. R. Civ. P. 15(a) to amend its response to add that

defense. 4 To that point, although affirming the district court’s action in Day,5 the

Supreme Court noted that instead of sua sponte issuing to the petitioner a show

cause order to explain why the petition was not untimely, the district court could

have informed the State of the timeliness issue and entertained any subsequent

motion by the State to amend its answer. Day, 547 U.S. at 209. As the Court

noted, “Recognizing that an amendment to the State’s answer might have obviated

this controversy, we see no dispositive difference between that route, and the one


not permitted to wait until the district court assesses the merits of the complaint before launching
its opening salvo.

4
  This avenue is not open to the Government in this case, though, because after it responded, the
Government never filed a motion to amend to assert the waiver defense. In short, on remand, the
district court will be required to decide Burgess’s collateral attack on his sentence on the merits.
5
  In Day, the state respondent had erroneously indicated in its response that the § 2254 petition
was timely, based on an erroneous mathematical calculation that was obvious to the magistrate
judge who had been newly assigned to the case. Taking notice of this error, the magistrate judge
sua sponte directed the § 2254 petitioner to show cause why the petition should not be dismissed
as untimely.
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taken here.” Id. (footnote omitted). Indeed, notwithstanding the dissent’s

disagreement that the district court was empowered to issue a sua sponte ruling

based on an affirmative defense not raised by the Government in its response, the

majority opinion in Day noted the Court’s unanimity on the above point. Id. at 209

n.9. The dissent confirmed its agreement that a post-response motion to amend by

the State, after being informed by the Court of the timeliness issue, would handle

its concerns and would be appropriate:

      I agree with the Court that today’s decision will have little impact on
      the outcome of district court proceedings. In particular, I agree that
      “if a district judge does detect a clear computation error, no Rule,
      statute, or constitutional provision commands the judge to suppress
      that knowledge,” ante, at [210]. Rather, a judge may call the
      timeliness issue to the State’s attention and invite a motion to amend
      the pleadings under Civil Rule 15(a), under which “leave shall be
      freely given when justice to requires.” In fact, in providing for leave
      whenever “justice so requires,” Rule 15(a), the Civil Rules fully
      accommodate the comity and finality interests that the Court thinks
      require a departure from the Civil Rules . . . Requiring the State to
      take the affirmative step of amending its own pleading at least
      observes the formalities of our adversary system, which is a nontrivial
      value in itself . . . .

Day, 547 U.S. at 216 n.2 (Scalia, J., dissenting) (emphasis added).

      In summary, the following is how I read the majority opinion and the basis

on which I concur. During its preliminary review and before any response is filed

by the Government, a district court may raise sua sponte a collateral-attack waiver

and direct the parties to respond. Day, 547 U.S. at 210. If the district court has

failed to instruct the Government to address the collateral-attack waiver, it is the
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Government’s responsibility to assert this particular affirmative defense in its

response. If, however, it fails to do so initially, the Government may nonetheless

later file a motion pursuant to Fed. R. Civ. P. 15(a) to amend its response to add

this waiver defense. In deciding whether it will allow the Government to belatedly

raise this affirmative defense, the district court will apply the standards

traditionally used to decide such a motion.

      With these points of emphasis, I concur in the majority opinion.




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