PUBLISHED
Filed: March 24, 2009
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-6137
v.
(2:04-cr-00016-RAJ-
JASON LANDIS LINDER, a/k/a Black, JEB-5)
a/k/a Rodney Peterson,
Defendant-Appellant.
ORDER
Appellant filed a petition for rehearing and rehearing en
banc.
The panel voted to deny the petition for rehearing. Accord-
ingly, the petition for rehearing is denied.
A member of the Court requested a poll on the petition for
rehearing en banc. Chief Judge Williams and Judges Wilkin-
son, Niemeyer, Traxler, King, Shedd, Duncan, and Agee
voted to deny rehearing en banc. Judges Michael, Motz, and
Gregory voted to grant rehearing en banc.
Because the poll on rehearing en banc failed to produce a
majority of judges in active service in favor of rehearing en
banc, the petition for rehearing en banc is denied.
Judge Motz wrote an opinion dissenting from the denial of
rehearing en banc.
2 UNITED STATES v. LINDER
For the Court
/s/ Patricia S. Connor
Clerk
OPINION
DIANA GRIBBON MOTZ, Circuit Judge, dissenting from
the denial of rehearing en banc:
In my view, by refusing to grant Jason Landis Linder
habeas relief, a panel of this court has not only seriously
erred, but also utterly failed to vindicate our Constitution’s
promise of equal justice under law.
No one disputes the following facts. The district court,
adhering to then-mandatory federal Sentencing Guidelines,
more than doubled Linder’s sentence on the basis of facts
never found by a jury. Shortly thereafter, in United States v.
Booker, 543 U.S. 220 (2005), the Supreme Court held such
sentences unconstitutional. The rule established in Booker
applies to Linder because his conviction was not final until
more than a year after Booker issued. But because Linder
waived his right to a direct appeal, we dismissed his direct
appeal on that ground. See United States v. Linder, 174 F.
App’x 174 (4th Cir. 2006) (unpublished). Linder then filed a
timely petition for habeas relief pursuant to 28 U.S.C. § 2255
(2006), seeking a remand for resentencing under Booker.
Linder has never waived his right to habeas relief.
Notwithstanding these undisputed facts, the panel has cho-
sen to ignore Linder’s concededly unconstitutional sentence
and deny him all habeas relief, reasoning that to do otherwise
would "circumvent" the dismissal of his direct appeal. United
States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009). This ratio-
nale offers precious little support for the panel’s decision to
UNITED STATES v. LINDER 3
leave in place Linder’s unconstitutional sentence. In fact,
granting Linder’s request on habeas—a remand for
resentencing—"circumvents" nothing because Linder’s
Booker claim was never considered, let alone fully and fairly
considered, on direct appeal. Instead, Linder’s direct appeal
was dismissed without resolution, or even discussion, of the
merits of his Booker claim.
Moreover, in holding that Linder has somehow defaulted
his right to habeas relief, the panel must rely on an argument
that was itself defaulted by the Government’s failure to raise
it in the district court. When habeas petitioners have sought
to advance such defaulted arguments, this court has stead-
fastly refused to consider them. Allowing the Government to
prevail on an argument that it defaulted seems to me the
antithesis of the equal justice under law guaranteed by our
Constitution. This unequal treatment works a particularly
inequitable result here given the contemporaneous statement
of the sentencing court that, if not bound by the then-
mandatory Sentencing Guidelines, it would have sentenced
Linder to less than half the twenty-two year sentence that the
Guidelines then required.
I.
Linder pled guilty to conspiracy to possess heroin with
intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1),
846 (2006). In doing so he waived his right to file a direct
appeal; he did not, however, waive his right to habeas corpus
relief pursuant to 28 U.S.C. § 2255 (2006).1
1
The written plea agreement indicates that both parties—Linder and the
Government—recognized that Linder’s waiver of his right to challenge his
conviction and sentence on direct appeal did not, and was not intended to,
waive his right to do so on habeas. The agreement expressly provides that
it "constitutes the complete plea agreement between [the parties]," and it
contains no waiver of Linder’s habeas rights to challenge his conviction
or sentence. In contrast, the plea agreement contains an express waiver of
4 UNITED STATES v. LINDER
After Linder’s plea, but before his sentencing, the Supreme
Court decided Blakely v. Washington, 542 U.S. 296 (2004),
which held Washington’s mandatory sentencing system
unconstitutional. In the wake of Blakely, an en banc majority
of this court held that Blakely did not apply to the mandatory
federal Sentencing Guidelines and so upheld their constitu-
tionality. United States v. Hammoud, 378 F.3d 426, 426 (4th
Cir. 2004), vacated, 543 U.S. 1097 (2005). Recognizing the
closeness of the question, however, we suggested that, in
addition to a sentence pursuant to the mandatory Guidelines,
sentencing courts "also announce . . . a sentence . . . treating
the guidelines as advisory only." Id.
In accord with this suggestion, when sentencing Linder the
district court explained that the mandatory Guidelines
required a sentence of 262 months in prison, but that if "not
confined by the sentencing guidelines in this case, the Court
would impose a sentence in this case of 120 months." Thus,
the sentencing court concluded that a sentence of ten years
was the appropriate punishment under 18 U.S.C. § 3553(a)
(2006)—rather than the sentence of almost twenty-two years
imposed because of the then-mandatory Guidelines. Indeed,
the criminal judgment sentencing Linder to a term of impris-
onment expressly includes this "alternative sentence," ren-
dered "pursuant to 18 U.S.C.A. § 3553(a)."
Given the district court’s "alternative sentence," Linder
understandably filed a direct appeal to this court, notwith-
both "direct appeal" and "habeas corpus" rights with respect to any forfei-
ture. Thus, when the parties intended to agree to a waiver of habeas corpus
rights, they explicitly said so. The Government knows how to include an
express habeas waiver in a plea agreement when parties agree to one. See,
e.g., United States v. Lemaster, 403 F.3d 216, 218 (4th Cir. 2005) (quoting
plea agreement containing express provision that the defendant "waive[s]
any right . . . to collaterally attack [the] conviction and/or sentence
imposed"). But the Government did not do so here.
UNITED STATES v. LINDER 5
standing his waiver of this right.2 While Linder’s direct appeal
was pending before us, the Supreme Court decided Booker
and overruled Hammoud. In Booker, the Supreme Court
squarely held that mandatory federal Guidelines—and sen-
tences imposed pursuant to them—violate the Sixth Amend-
ment right to trial by jury. 543 U.S. at 244. The Court made
its holding in Booker retroactive to all cases "‘pending on
direct review or not yet final,’" id. at 268 (quoting Griffith v.
Kentucky, 479 U.S. 314, 328 (1987)), recognizing that resen-
tencing rights would be subject to "ordinary prudential doc-
trines." Id. In accord with one such "prudential doctrine"—
Linder’s waiver of his right to bring a direct appeal—we dis-
missed Linder’s direct appeal. See Linder, 174 F. App’x at
175-76. The Supreme Court subsequently denied certiorari.
Linder v. United States, 549 U.S. 938 (2006).
While Linder’s petition for certiorari was pending, he filed
a pro se "Memorandum in Aid of Sentencing" requesting that
the district court impose the "alternative" ten-year sentence
contained within its original judgment. The district court con-
strued this as a petition for habeas relief pursuant to 28 U.S.C.
§ 2255 (2006). The Government opposed the petition, arguing
that Linder could not prevail because his conviction was final
prior to Booker, and Booker did not apply "to habeas proceed-
ings involving defendants whose convictions have become
final" before Booker issued. The district court denied Linder
2
At the time Linder filed his direct appeal, it was quite possible that,
were Booker to be decided in Linder’s favor, we might have later held that
plea agreements cannot waive constitutional Booker claims. See United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (defendants cannot
waive challenges to sentences imposed "based on a constitutionally imper-
missible factor"). Although we subsequently rejected this argument, see
United States v. Blick, 408 F.3d 162, 169–73 (4th Cir. 2005), Linder’s
appeal was certainly reasonable. The Government’s suggestion that Linder
should somehow be faulted for "breaching" his plea agreement thus rings
hollow. Linder was entitled to appeal, despite the appellate waiver, if only
to challenge the enforceability of that waiver. See United States v. John-
son, 410 F.3d 137, 151 (4th Cir. 2005).
6 UNITED STATES v. LINDER
habeas relief on this ground, finding that his "conviction was
final before Booker."
By adopting the Government’s argument and so holding,
the district court clearly erred.3 Yet, in response to Linder’s
pro se petition to alter the district court’s judgment, which
pointed out this error, the Government claimed that any error
had been "invited" by Linder and so he could not "complain"
about it. Once again the Government did not argue that
Linder’s waiver of his right to a direct appeal in any way fore-
closed his ability to obtain habeas relief; instead, the Govern-
ment addressed Linder’s habeas arguments on the merits. The
district court denied Linder’s pro se petition to alter the judg-
ment, again adopting the Government’s erroneous argument.
Linder then filed a timely pro se petition for a certificate of
appealability with this court, contending that the district court
erred in denying his habeas petition on the ground that his
conviction was final before Booker was decided. We granted
the certificate of appealability on "the issue of whether the
district court erred in ruling that Linder’s conviction was final
before United States v. Booker, 543 U.S. 220 (2005), and that
Booker was not available to Linder." Only then did the Gov-
ernment raise, for the first time, its new argument that
Linder’s waiver of appellate rights also precluded his right to
habeas relief.4 The panel affirmed on this ground alone. See
Linder, 552 F.3d at 396–97.
3
As the panel properly recognized, Linder’s conviction did not become
final until the denial of his petition for certiorari on October 2, 2006—
more than a year and a half after the Supreme Court decided Booker. See
Clay v. United States, 537 U.S. 522, 527 (2003).
4
The Government has abandoned the arguments it made to the district
court and now relies solely on Linder’s appeal waiver as the basis for
denying him habeas relief. Neither the Government nor the panel provides
any other reason why Booker does not compel a remand for resentencing
here.
UNITED STATES v. LINDER 7
Clearly, Linder did waive his right to challenge his sen-
tence on direct appeal. But, just as clearly, Linder never
waived his right to bring a collateral challenge to his sentence
under § 2255. Indeed, by failing to contend that Linder
waived his right to habeas relief in the district court, the Gov-
ernment waived this waiver argument.
Section 2255 commands that we provide relief to a habeas
petitioner when his "sentence was imposed in violation of the
Constitution." 28 U.S.C. § 2255(a)–(b) (2006). As the Gov-
ernment and the panel acknowledge, Linder’s sentence clearly
violates the Constitution. This should be the end of the matter.
We should, as we have in other cases, grant the petition for
relief and remand for resentencing. See, e.g., United States v.
Hughes, 401 F.3d 540, 543–44 (4th Cir. 2005) (remanding for
resentencing when the defendant’s sentence was imposed in
violation of Booker); United States v. Pasquantino, 230 F.
App’x 255, 256–57 (4th Cir. 2007) (approving resentencing
upon § 2255 petition when convictions were not final before
Booker) (unpublished).
II.
The panel, however, denies Linder this habeas relief
because it concludes that "Linder may not circumvent a
proper ruling on his Booker challenge on direct appeal by re-
raising the same challenge in a § 2255 motion." See Linder,
552 F.3d at 396–97 (citing Boeckenhaupt v. United States,
537 F.2d 1182, 1183 (4th Cir. 1976) (per curiam)).
The fundamental difficulty with this rationale is that
Linder’s habeas petition does not "circumvent" any direct
appeal "ruling on his Booker challenge." This court, on direct
appeal, never issued a ruling on Linder’s Booker challenge;
we simply dismissed the case because of Linder’s appeal
waiver. The panel’s reliance on Boeckenhaupt is thus mis-
placed. The bar against relitigation established by that case
only applies to claims "fully considered" in a prior direct
8 UNITED STATES v. LINDER
appeal. Boeckenhaupt, 537 F.2d at 1183. As we explained in
Blick, another case relied on by the panel, an appellate waiver
requires us to "dismiss[ ] the appeal without addressing the
merits." Blick, 408 F.3d at 167-68 (emphasis added). Thus,
when we dismissed Linder’s direct appeal we did not "fully
consider" or "address[ ] the merits" of his Booker claim;
rather, we expressly refused to consider the merits of that
claim. See Linder, 174 F. App’x at 175–76.5
Neither the panel nor the Government has cited any case
that has held, as the panel does here, that a dismissal of an
appeal constitutes a "full consideration" on the merits that
bars collateral review. As the Seventh Circuit has explained,
"[a]n issue previously raised on direct appeal cannot be reliti-
gated in a Section 2255 proceeding only if the issue was
resolved on the merits . . . ." Kramer v. United States, 788
F.2d 1229, 1231 (7th Cir. 1986) (emphasis added); see also
United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005)
(section 2255 relitigation bar applies to claims "raised and
decided" on direct appeal) (quotation omitted) (emphasis
added); Argencourt v. United States, 78 F.3d 14, 16 n.1 (1st
Cir. 1996) (same). On direct appeal, we never addressed—let
alone resolved—the merits of Linder’s Booker claim. Of
course, if we had, Linder would have undoubtedly obtained a
remand for resentencing. See Hughes, 401 F.3d at 543–44.
The panel opinion thus eliminates Linder’s collateral chal-
lenge rights even though he never agreed to waive those
rights. The Government itself candidly acknowledges that this
5
We have routinely made this distinction in cases involving ineffective
assistance of counsel. Indeed, when dismissing such a claim on direct
appeal as premature, we have expressly noted that it may be later litigated
in a § 2255 motion, presumably because dismissal did not address the
merits of the claim. See, e.g., United States v. Bartram, 407 F.3d 307, 311
n.2 (4th Cir. 2005); United States v. Williams, 977 F.2d 866, 871 (4th Cir.
1992); compare Fuller v. United States, 398 F.3d 644, 648–49 (7th Cir.
2005) (relitigation bar does apply when ineffective assistance claim was
"decided [on] the merits" on direct appeal).
UNITED STATES v. LINDER 9
result seems to "smuggle[ ] in the benefits of a § 2255 waiver
without an express § 2255 waiver." Response of the United
States to Petition for Rehearing En Banc at 10. The panel’s
holding does precisely that, erasing the clear distinction—
which we and other courts have long recognized—between
waivers of only direct appeal rights and waivers of both direct
appeal and habeas rights. See, e.g., Lemaster, 403 F.3d at 220;
Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir.
2001). Moreover, the panel’s holding conflicts with the settled
rule that criminal defendants may only waive habeas rights
expressly. See, e.g., United States v. Pruitt, 32 F.3d 431, 433
(9th Cir. 1994) ("A plea agreement does not waive the right
to bring a § 2255 motion unless it does so expressly. The gov-
ernment gets what it bargains for but nothing more."); accord
United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir.
2001); Allen v. Thomas, 161 F.3d 667, 670–73 (11th Cir.
1998).
In sum, Linder’s waiver of his right to bring a direct appeal
does not foreclose his habeas claim. The panel erred in hold-
ing that it does.
III.
Even if Linder’s waiver of appellate rights did somehow
also waive his habeas rights, the panel opinion fails for a more
fundamental reason: the Government did not raise this argu-
ment in the district court. Rather, the Government asserted
that Linder’s appeal waiver barred § 2255 habeas relief for the
first time in this appeal. We have long held—as have our sis-
ter circuits—that "the government’s failure to raise [a] waiver
as a procedural bar" constitutes "a waiver of the waiver."
United States v. Metzger, 3 F.3d 756, 757 (4th Cir. 1993);
accord United States v. Ware, 416 F.3d 1118, 1121 (9th Cir.
2005); United States v. Hicks, 945 F.2d 107, 108 (5th Cir.
1991). In short, "the government forfeited its right to rely on
the appeal-waiver provision by failing to raise the issue in the
10 UNITED STATES v. LINDER
district court." Hunter v. United States, 160 F.3d 1109, 1114
(6th Cir. 1998).
The panel opinion completely ignores this well-established
rule, to render an unnecessary—and unjust—result. A habeas
petitioner like Linder procedurally defaults his claim unless
he raises it at sentencing, on direct appeal, and in the district
court when seeking habeas relief. See United States v. Harris,
183 F.3d 313, 317 (4th Cir. 1999). Fundamental fairness
requires that the Government not prevail on an argument that
we would surely reject as defaulted if not raised by a peti-
tioner until this late stage.
Instead, without even a nod at this inequity, the panel deter-
mines to overlook the Government’s default because it
believes that, given the "unique circumstances of this case,"
to do otherwise would "effectively . . . revers[e] our prior
decision on direct appeal." Linder, 552 F.3d at 396 n.2. As
explained above, affording Linder habeas relief does not in
any way "reverse" the prior decision on Linder’s direct appeal
because that decision dismissed Linder’s appeal and did not
address its merits.
Moreover, and perhaps more importantly, the most critical
"unique circumstance" in this case is the conceded fact that
Linder’s sentence violates the Constitution. Rather than justi-
fying a denial of habeas relief, this "circumstance" provides
a powerful reason for granting such relief and refusing to
ignore the Government’s default.6
6
Compounding the injustice here is the panel’s disregard of the statu-
torily defined scope of our review. On appeal from the denial of a § 2255
petition, this court is empowered to consider only the "specific issue or
issues" set forth in the certificate of appealability. 28 U.S.C. § 2253(c)(3)
(2006). Here, the certificate of appealability set forth a single issue. Thus,
the panel ordered that: "[a] certificate of appealability is granted on the
issue of whether the district court erred in ruling that Linder’s conviction
was final before United States v. Booker, 543 U.S. 220 (2005), and that
UNITED STATES v. LINDER 11
IV.
To reach its desired result, the panel must not only hold that
a dismissal based on an appeal waiver somehow constitutes
an adjudication on the merits precluding habeas review, but
also exempt the Government from the usual rules barring con-
sideration of arguments not properly raised. I cannot under-
stand why the panel strains to ensure that a man’s
unconstitutional sentence remains in place, and why a major-
ity of my colleagues refuse to correct this injustice.
Twelve years of a man’s life ought to trump any imagined
tension between dismissal of Linder’s direct appeal and a
grant of habeas relief to him. Indeed, permitting this unconsti-
tutional sentence to stand may well constitute the sort of "mis-
carriage of justice" that we could and should correct even if
the Government had not defaulted its waiver argument. See
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Booker was not available to Linder for post-conviction relief on his Sixth
Amendment claim" (emphasis added). The panel then ordered "briefing on
this issue," deferring "action on any additional issues pending a review of
the case on the merits" (emphasis added).
The panel, having never ordered briefing or granted a certificate of
appealability on any other issue, found that the district court indeed erred
on the only issue properly before it. But instead of applying Booker to
Linder’s sentence, the panel went beyond the single issue set forth in the
certificate of appealability—and, indeed, beyond any argument that was
actually made in the district court—to deny Linder habeas relief. When
habeas petitioners raise arguments outside the certificate of appealability,
we routinely refuse to consider them. See, e.g., Griggs v. Maryland, 263
F.3d 355, 359 n.2 (4th Cir. 2001). In doing so, we adhere to the statutory
mandate of § 2253(c)(3) that "appellate review is limited to the issues
specified in the certificate of appealability." Carter v. Hopkins, 151 F.3d
872, 874 (8th Cir. 1998); see also Murray v. United States, 145 F.3d 1249,
1250–51 (11th Cir. 1998); Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir.
1997). Again, simple justice seems to me to require that we apply this
principle equally when the Government attempts to raise issues outside
those stated in the certificate of appealability.
12 UNITED STATES v. LINDER
With respect, and great regret, I dissent from the court’s
refusal to rehear this case en banc.