Oakes v. United States

United States Court of Appeals
For the First Circuit

No. 02-2640

DAVID J. OAKES,
Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

James H. Feldman, Jr., with whom Alan Ellis, Peter Goldberger,
and Law Offices of Alan Ellis were on brief, for appellant.
F. Mark Terison, Assistant United States Attorney (Senior
Litigation Counsel), with whom Paula D. Silsby, United States
Attorney, was on brief, for appellee.

March 16, 2005
 SELYA, Circuit Judge. Petitioner-appellant David J.

Oakes, a person incarcerated by reason of a previous conviction on

federal child pornography charges, appeals from the dismissal of

his petition to vacate his conviction and sentence. The district

court based its decision on procedural default even though the

government had failed to raise that defense in its response to

Oakes's petition. In a challenge that frames a question of first

impression in this circuit, Oakes now posits, inter alia, that the

district court lacked the authority to interject the question of

procedural default into the case sua sponte. Although we reject

that premise, we nonetheless vacate the judgment below because the

court failed to give Oakes either notice of its intention to

consider the previously unraised issue or an opportunity to be

heard on that issue before dismissing his petition.

We briefly rehearse the background. In July of 2000,

police officers executed a search warrant and discovered

approximately 45,000 images of what appeared to be child

pornography in Oakes's computer files. The next month, a federal

grand jury charged him with one count of knowingly receiving child

pornography and one count of knowingly possessing child

pornography. See 18 U.S.C. § 2252A(a)(2)(A) & (5)(B). Oakes

eventually entered a guilty plea to the first of these counts and,

on July 19, 2001, the district court sentenced him to a 54-month

incarcerative term.

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 Oakes appealed solely on sentence-related grounds.

During the pendency of that appeal, the Supreme Court decided

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). That

decision held unconstitutional under the First Amendment the Child

Pornography Prevention Act of 1996 (CPPA), insofar as it prohibited

virtual pornographic images (i.e., images that were created without

using actual children). See id. at 251-56. The CPPA encompassed

the statute of conviction in Oakes's case and, six days after the

decision in Free Speech Coalition, Oakes filed in the district

court a pro se petition to vacate his conviction and sentence

pursuant to the federal habeas statute, 28 U.S.C. § 2255.

On April 26, 2002, Oakes filed a supporting memorandum

that crystallized his argument. In it, he asserted that his

conviction and sentence should be vacated because his guilty plea

had been neither knowing nor voluntary. He based this assertion on

a claim that he did not understand, at the time he pleaded guilty,

that the government would have to prove that the images in his

possession depicted actual children. Anticipating what seemed a

likely government rejoinder, he also argued that his failure to

challenge his guilty plea on direct appeal should be excused as the

possibility of mounting a challenge based on the

unconstitutionality of the CPPA was not knowable at the time of

that appeal.

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 The district court referred Oakes's petition to a

magistrate judge, see Fed R. Civ. P. 72(b), who recommended that it

be dismissed without prejudice due to the pendency of Oakes's

direct appeal. See, e.g., United States v. Gordon, 634 F.2d 638,

638 (1st Cir. 1980) (holding that "the orderly administration of

criminal justice precludes a district court from considering a §

2255 motion while review of the direct appeal is still pending")

(citations and internal quotation marks omitted). Oakes objected,

thus bringing the matter before the district court for de novo

review. See Fed. R. Civ. P. 72(b). The court sensibly appointed

counsel for Oakes and directed the government to reply to the

petition. In its reply, the government did not raise a defense of

procedural default; it argued only that Free Speech Coalition was

inapposite to Oakes's case.

On October 4, 2002, this court rejected the petitioner's

direct appeal, see United States v. Oakes, 47 Fed. Appx. 5, 6 (1st

Cir. 2002) (per curiam), thus removing the sequencing obstacle that

had concerned the magistrate judge. A few weeks later, the

district court took up the habeas petition, raised sua sponte the

question of procedural default, and denied relief on that basis.

United States v. Oakes, 224 F. Supp. 2d 296, 298 (D. Me. 2002). In

the course of its ruling, the court discussed and discarded two

possible avenues for avoiding the usual consequences of procedural

default, namely, (i) cause and prejudice (including the argument

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preemptively raised in the petition),1 and (ii) actual innocence.

Id. at 300-02. Oakes was not afforded an opportunity to address

either avenue.

Oakes unsuccessfully sought to have the district court

issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1);

1st Cir. R. 22(b)(1). He then repaired to this court in search of

such a certificate. We obliged, limiting review to "[w]hether the

district court [had] erred in denying petitioner's 28 U.S.C. § 2255

motion on the ground of procedural default." This timely appeal

followed.

It is a bedrock principle that, under ordinary

circumstances, the voluntariness of a guilty plea can be questioned

on collateral review under 28 U.S.C. § 2255 only if, and to the

extent that, the plea has been challenged on direct appeal.

Bousley v. United States, 523 U.S. 614, 621 (1998). If a federal

habeas petitioner challenges his conviction or sentence on a ground

that he did not advance on direct appeal, his claim is deemed

procedurally defaulted. Id.

1
To this end, the district court noted that, at the time of
the petitioner's sentencing, the First Amendment argument that the
Supreme Court would later accept in Free Speech Coalition already
had been made and rejected in this circuit. See Oakes, 224 F.
Supp. 2d at 300-01 (citing United States v. Hilton, 167 F.3d 61, 73
(1st Cir. 1999)). Thus, such an argument was available — and the
fact that it may have seemed futile did not excuse the default.
Id. at 301.

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 A procedural default is not necessarily a total bar to

federal habeas relief. Notwithstanding such a default, a federal

habeas petition will be allowed to go forward if the petitioner can

show either (i) that there is cause for the default and actual

prejudice resulting from it, or (ii) that he is actually innocent

of the offense of conviction. See id. at 622-23; Derman v. United

States, 298 F.3d 34, 45 (1st Cir. 2002). Before us, the petitioner

does not dispute the default, but, rather, challenges both the

district court's ability to invoke the doctrine of procedural

default sua sponte and the court's treatment of the two avenues

that have the potential to offset his procedural default.

Oakes's first assignment of error has several dimensions.

He begins with the proposition that procedural default is an

affirmative defense and that, therefore, the government may lose

the defense by neglecting to raise it in a response to a habeas

petition. That is a correct statement of the law. See, e.g.,

Howard v. United States, 374 F.3d 1068, 1073 (11th Cir. 2004); Doe

v. United States, 51 F.3d 693, 698-99 (7th Cir. 1995); cf. Trest v.

Cain, 522 U.S. 87, 89 (1997) (holding, under 28 U.S.C. § 2254, that

"procedural default is normally a defense that the State is

obligated to raise" (citation and internal quotation marks

omitted)). Building on this foundation, Oakes urges us to find

that allowing the district court to "choose sides" by spontaneously

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curing the government's omission would undermine the adversarial

system.

This exhortation presents a question of first impression

in this circuit. There are, however, straws in the wind. In the

related context of habeas appeals from state convictions under 28

U.S.C. § 2254, we have sanctioned the practice of district courts

raising issues of procedural default sua sponte. See, e.g., Brewer

v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997). Other courts of

appeals have agreed that a district court has discretion to raise

the issue of procedural default sua sponte in the section 2254

milieu. See, e.g., Sweger v. Chesney, 294 F.3d 506, 520-21 (3d

Cir. 2002); Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999);

Burgin v. Broglin, 900 F.2d 990, 997-98 (7th Cir. 1990).

Oakes labors to distinguish between the two contexts by

pointing out that, in permitting district courts to raise

procedural default sua sponte in section 2254 cases, courts have

commented that doing so assuages federal-state comity concerns.

See, e.g., Sweger, 294 F.3d at 521; Yeatts, 166 F.3d at 261; Ortiz

v. Dubois, 19 F.3d 708, 714-15 (1st Cir. 1994). In that sense,

section 2254 offers more fertile soil for sua sponte recognition of

procedural default. Even so, the section 2254 cases furnish some

support for allowing district courts, in section 2255 cases, to

raise issues of procedural default sua sponte. We explain briefly.

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 In regard to section 2254, courts also have noted that

allowing sua sponte recognition of procedural defaults serves a

second interest: the federal courts' interest in husbanding, and

efficiently allocating, scarce judicial resources. See Sweger, 294

F.3d at 521; Yeatts, 166 F.3d at 261; Ortiz, 19 F.3d at 715; see

also Hardiman v. Reynolds, 971 F.2d 500, 502-03 (10th Cir. 1992).

That interest is equally compelling in section 2255 cases. And the

praxis, in both sets of cases, implicates the federal courts'

interest in finality. Cf. Andiarena v. United States, 967 F.2d

715, 717 (1st Cir. 1992) (per curiam) (rejecting any distinction

between section 2254 and section 2255 in "abuse of the writ" cases

and noting that while section 2254 abuse of the writ jurisprudence

has its roots in comity and federalism, "the central concern

underlying [that jurisprudence] — the importance of promoting

finality in the criminal arena — is not confined to state

prisoners"). That is a matter of great import because "[i]nroads

on the concept of finality tend to undermine confidence in the

integrity of our procedures." Hines v. United States, 971 F.2d

506, 508 (10th Cir. 1992) (quoting United States v. Addonizio, 442

U.S. 178, 184 n.11 (1979)). We previously have recognized the

strong interest in finality served by section 2255's procedural

default rule. See Prou v. United States, 199 F.3d 37, 47 (1st Cir.

1999); United States v. Barrett, 178 F.3d 34, 38 (1st Cir. 1999).

That interest is heightened in the circumstances of this case. See

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Bousley, 523 U.S. at 621 (noting that the "concern with finality

served by the limitation on collateral attack has special force

with respect to convictions based on guilty pleas") (quoting United

States v. Timmreck, 441 U.S. 780, 784 (1979)).

We add, moreover, that the articulation of the procedural

default rule in state habeas cases under section 2254 is similar to

that in federal habeas cases under section 2255. In both

instances, the rule holds that if a person in custody has cut

himself off from otherwise-available remedies on a particular

matter due to his own procedural default, that default constitutes

an independent and adequate ground sufficient to foreclose federal

habeas review of the alleged error. Ortiz, 19 F.3d at 714 (citing

Wainwright v. Sykes, 433 U.S. 72, 87 (1977)); accord Derman, 298

F.3d at 44 & n.5 (noting that the Supreme Court has extended

Wainwright's "general rule that a criminal defendant must

seasonably advance an objection to a potential constitutional

infirmity in order to preserve the point for collateral attack" to

the section 2255 context) (citing Bousley, 523 U.S. at 622); see

generally 3 Charles Alan Wright et al., Federal Practice and

Procedure § 596.1 (3d ed. 2004); 17A id. §§ 4266-4266.1 (2d ed.

1988). So viewed, the rule has the salutary effect of preventing

criminal defendants from using collateral review as a painless

surrogate for direct appellate review. See Bousley, 523 U.S. at

621 (discussing procedural default in the section 2255 context);

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Reed v. Farley, 512 U.S. 339, 354 (1994) (discussing procedural

default in the section 2254 context).

To sum up, judicial economy and finality, like comity,

are institutional values that transcend the litigants' parochial

interests. Where such values are in play, the court should have

some say in deciding whether a defense should be considered or

deemed waived. Cf. Hardiman, 971 F.2d at 503 ("Unless the state

procedural bar defense can be raised sua sponte, a state that fails

to raise that defense can effectively force a federal court to

review the merits of a case that may be simpler to decide on

procedural grounds."). Preventing the facile use of a habeas

petition as a substitute for a direct appeal can best be

accomplished if district courts have the discretion to enforce the

procedural default rule even though the government (federal or

state) turns a blind eye. Consequently, we hold that a district

court has the discretion, in a section 2255 case, to raise

questions of procedural default sua sponte, even when the

government has filed a reply and eschewed any reference to that

defense.2 This holding is consistent with the position adopted by

the two other courts of appeals that have addressed this matter to

date. See United States v. Willis, 273 F.3d 592, 596-97 (5th Cir.

2
We emphasize that this authority is discretionary and that a
district court, if it so elects, may choose to hold the government
to its waiver. See Hines, 971 F.2d at 509; cf. Trest, 522 U.S. at
89 (noting, in a section 2254 case, that a "court of appeals is not
required to raise the issue of procedural default sua sponte").

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2001); Hines, 971 F.2d at 508-09; cf. Femia v. United States, 47

F.3d 519, 523 (2d Cir. 1995) (relying on the interests of judicial

economy and finality in allowing district court to dismiss section

2255 petition sua sponte on the procedural ground of abuse of the

writ); United States v. Fallon, 992 F.2d 212, 213 (8th Cir. 1993)

(same).

This holding does not end our inquiry. Oakes argues

persuasively that he should not have been required to be prescient.

He says that he had no duty to anticipate potential affirmative

defenses, but, rather, was entitled to wait and address such

defenses when and if they were raised. Thus, even if the district

court acted within the realm of its discretion in bringing up the

issue of procedural default sua sponte — and we have held that it

did — he (Oakes) should have been given notice of the court's

intention and afforded an opportunity to respond.

We think that this position is well-taken. The ubiquity

of the "notice and opportunity to be heard" principle as a matter

of fundamental fairness is deeply engrained in our jurisprudence.

See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)

(stating that notice and an opportunity to be heard together

comprise an "essential principle of due process"); Earle v.

McVeigh, 91 U.S. 503, 504 (1875) (citing the "well-known legal

maxim, that no one shall be condemned in his person or property

without notice, and an opportunity to be heard in his defence").

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That this principle applies in the context of the procedural

default defense cannot be gainsaid. See, e.g., Willis, 273 F.3d at

597; Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hines,

971 F.2d at 509; Hardiman, 971 F.2d at 505. This is as it should

be; procedural default is an affirmative defense, and a plaintiff

generally is not required to negate an affirmative defense unless

and until the defendant has placed it in issue. See, e.g., Gomez

v. Toledo, 446 U.S. 635, 640 (1980); Tregenza v. Great Am.

Communications Co., 12 F.3d 717, 718 (7th Cir. 1993). That rule

applies foursquare in habeas cases — and particularly so in cases

involving pro se petitioners. See, e.g., Hill v. Braxton, 277 F.3d

701, 706 (4th Cir. 2002).

In this instance, the district court directed the

government to reply to the petition. Its response omitted any

mention of procedural default. At that juncture, Oakes was

entitled to assume that the defense was by the boards and the fact

that he had preemptively addressed the defense in his original pro

se petition does not alter this entitlement. For one thing, once

the government chose to eschew the defense despite the petition's

explicit reference to it, Oakes had even more cause than usual to

assume that the issue was out of the case. Cf. Lewis v. Sternes,

390 F.3d 1019, 1029 (7th Cir. 2004) (noting that government's

specific failure to raise procedural default after it has been

mentioned elsewhere in pleadings may raise an inference of

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intentional waiver). For another thing, the petitioner's

preemptive thrust did not exhaust the compendium of his possible

answers to a procedural default defense. Had he been made aware

that the issue was live, he could have mustered all of his

arguments in response. Cf. Bousley, 523 U.S. at 623 (finding it

"appropriate" to permit a habeas petitioner to raise an actual

innocence claim for the first time on remand even though he had not

raised the claim in his initial petition).

To be sure, despite the government's nonchalance the

district court lawfully exercised its discretion in choosing to

resurrect the procedural default issue. At that point, however,

the court should have given the petitioner notice of its intention

and afforded him an opportunity to respond before dismissing the

petition. See Lugo v. Keane, 15 F.3d 29, 30 (2d Cir. 1994) (per

curiam) ("No principle is more fundamental to our system of

judicial administration than that a person is entitled to notice

before adverse judicial action is taken against him."); cf.

Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996)

(enforcing, in the sua sponte summary judgment context, a

requirement of notice and an opportunity to be heard).

In some circumstances, such an error might be harmless.

That would be true if, say, a petitioner admittedly could not

demonstrate either cause and prejudice or actual innocence. Cf.

Lattab v. Ashcroft, 384 F.3d 8, 20-21 & n.6 (1st Cir. 2004) (noting

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that claim of lack of due process need not be adjudicated when, in

all events, petitioner's admissions conclusively showed a lack of

any prejudice). But this is not such a case. We explain briefly.

While Oakes does not challenge the district court's

holding that the supposed "unavailability" of a First Amendment

defense does not constitute cause for his procedural default, see

supra note 1, he does advance two other theories on which the

default might be excused. First, he proffers a claim of actual

innocence.3 Although the district court did state that it believed

Oakes would not be able to successfully raise such a claim, Oakes,

224 F. Supp. 2d at 302 n.8, it hardly can fault the petitioner for

failing to flesh out a winning "actual innocence" argument when it

deprived him both of notice that such an argument would be

necessary and of an opportunity to develop it.

The petitioner also insinuates that he has another

possible ground for cause: ineffective assistance of counsel. In

this regard, he notes that the Supreme Court decided Free Speech

Coalition while briefing was still ongoing in his direct appeal.

Building on this foundation, he suggests that counsel's failure to

raise the First Amendment argument during that proceeding

3
We note that the district court found that Oakes failed to
raise actual innocence in his pro se petition. Oakes, 224 F. Supp.
2d at 302. Whether or not he raised the point is hotly contested
but, in the last analysis, is beside the point. After all, Oakes
was not under an obligation to meet a charge of procedural default
unless and until such a charge was levied (either by the government
or by the district court).

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constituted substandard performance that redounded to his

detriment. Ineffective assistance of counsel, if proved, would

constitute cause for excusing the procedural default. Murray v.

Carrier, 477 U.S. 478, 488 (1986); Prou, 199 F.3d at 47. Here too,

however, Oakes was not given notice and a fair chance to make that

case.

We need go no further. Because the lower court failed to

afford Oakes either notice of its intention to rely upon his

procedural default or an opportunity to respond to that issue, we

must vacate the judgment and remand the case for further

proceedings consistent with this opinion. In that respect, we hold

only that Oakes should have a fair opportunity to show why his

petition is not barred by procedural default. We take no view

either of his claim of actual innocence or of his claim of

ineffective assistance of counsel.

Vacated and remanded.

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