United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 18, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41214
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
FIDEL ARTURO DEL TORO-ALEJANDRE
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(USDC No. 2:05-CV-284)
(USDC No. 2:04-CR-369)
Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Fidel Arturo Del Toro-Alejandre, federal number 33407-179,
pleaded guilty to possession with the intent to distribute
approximately three kilograms of cocaine. In his plea agreement,
Del Toro-Alejandre agreed not to appeal his sentence. He also
waived his right to attack collaterally his conviction or sentence
through any post-conviction proceeding. The district court
sentenced him to 60 months of imprisonment. Del Toro-Alejandre did
not appeal, but later filed a timely petition under 28 U.S.C. §
2255, arguing that counsel was ineffective for failing to argue
that Del Toro-Alejandre was entitled to be sentenced under the
safety valve provision of U.S.S.G. § 5C1.2. He argued that he had
truthfully provided the Government with all the information he had
concerning his offense and that his attorney was ineffective for
failing to challenge the Government's assertion to the contrary.
The district court dismissed Del Toro-Alejandre's petition
with prejudice, finding that Del Toro-Alejandre knowingly and
voluntarily waived his right to bring a § 2255 motion challenging
his sentence. The district court sua sponte denied him a COA. We
granted COA “as to whether, in light of Story, the district court’s
sua sponte enforcement of the waiver provision in Del Toro-
Alejandre’s plea agreement was proper.”
I
Our only question is whether the district court may dismiss a
section 2255 motion without first determining whether the
government will insist that a defendant’s waiver of post-conviction
relief be enforced. We hold that the district court’s sua sponte
dismissal was proper.
Generally, “an informed and voluntary waiver of
post-conviction relief is effective to bar such relief.”1
1
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The exception,
not relevant here, is where “the claimed [ineffective] assistance directly
affected the validity of that waiver or the plea itself." United States v.
White, 307 F.3d 336, 343 (5th Cir. 2002). Del Toro-Alejandre did not argue in
the district court that his plea agreement was not entered knowingly or
voluntarily. Yet he now argues that he pleaded guilty because counsel told him
that he qualified for sentencing under the safety valve and therefore his plea
was not entered knowingly or voluntarily. Del Toro-Alejandre raised the issue
of the voluntariness of his guilty plea for the first time in his COA
application, and the district court has not had an opportunity to address it.
Therefore, this court did not address this claim in its order granting a COA.
2
However, these waivers are contracts between the parties and as
such do not limit the court’s jurisdiction.2 Relatedly, their
enforcement must be asserted by the government or be deemed waived,
functioning much like affirmative defenses.
Citing this principle, Del Toro-Alejandre argues that the
district court erred in sua sponte enforcing the waiver provision
in his plea agreement; that the court should not have enforced the
agreement without the government’s assertion of contractual rights
it bargained for in the plea agreement.
The government replies that it waives its contractual rights
only when it fails to invoke a waiver in its brief or expressly
declines to rely on a waiver; that a motion seeking relief under 28
U.S.C. § 2255 may, by the terms of the statute, be dismissed
without serving the Government where “the motion and the files and
records of the case conclusively show that the prisoner is entitled
to no relief.”3
We agree, but with a word of caution. The Supreme Court in
Jones v. Bock recently held that because the PLRA’s exhaustion
requirement is an affirmative defense, a district court must
usually demand from the government an answer raising the defense of
exhaustion.4 The Court cautioned that the PLRA’s screening
2
United States v. Story, 439 F.3d at 226, 230 (5th Cir. 2006).
3
28 U.S.C. § 2255.
4
Id.
3
requirement “does not justify deviating from the usual procedural
practice.”5 Importantly, however, the Court recognized that the
usual PLRA practice would permit a district court to dismiss sua
sponte a prisoners complaint for failure to exhaust in the rare
instance where the prisoner’s failure to exhaust appeared on the
face of his complaint.6
Here the district court was not unfaithful to the federal
rules of civil procedure. Section 2255, unlike the PLRA, is the
source of the prisoner’s claim and has its own attendant
procedures. A claim covered by the PLRA is brought usually under
section 1983, and except where the PLRA dictates otherwise,
proceeds by the federal rules of civil procedure, including
12(b)(6).7 To the point, a prisoner’s section 2255 can be
dismissed without notice to the government where “the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.”8
Because under the “usual” procedures of section 2255 the
district court must consider “the files and records of the case,”9
and because the files and records of this case disclose a bargained
5
Jones v. Bock, 127 S.Ct. 910, 920 (2007).
6
See Jones, 127 S.Ct. at 920-21.
7
Id. at 919.
8
28 U.S.C. § 2255.
9
Id.
4
for waiver of the defendant’s right to attack collaterally his
conviction or sentence through any post-conviction proceeding, the
district court can dismiss sua sponte, much like a PLRA complaint
with failure-to-exhaust appearing on its face.10
In this result, characterization as an affirmative defense
aside, there is an implicit assumption that absent word otherwise
the government will seek enforcement of a waiver it bargained for
in the case at hand, but under Bock we do not assume that the
government will insist upon a defense of failure to exhaust. While
this difference is because the federal rules of civil procedure are
applicable with one and not the other, it also makes practical
sense in that failure-to-exhaust is by statute, available across
cases, providing no insight into the government’s position in any
particular case. The waiver provision, in contrast, was bargained
for in the case at hand, and it is reasonable to assume that the
government will insist on its terms, unless it says otherwise.
Nor is this in tension with our usual practice under Anders v.
California.11 It is true that, like a section 2255 motion, an
Anders brief is served on the Government, but when as is the usual
practice the Government does not respond, we still require defense
counsel to verify that the Government would enforce the defendant’s
10
This reading is also consistent with Story, where we noted that neither
party’s briefs had mentioned the appellate-wavier provision Story, 439 F.3d at
229.
11
386 U.S. 738 (1967).
5
appellate waiver. This might suggest that the district court
should do the same, verifying that the government wishes to enforce
a bargained for waiver. With Anders, however, the verification
step flows from defense counsel’s obligation to zealously defend
her client, to chase the chance that the government might not seek
enforcement.12 A district court, ruling on a 2255 motion, has no
such obligation and is entitled to conclude that the government
wishes what it bargained for unless it says otherwise. The
judgment of the district court is
AFFIRMED.
12
United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006).
6