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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