Oakes v. U.S.

• Decision Date: 16 March 2005
• Docket Number: No. 02-2640.,02-2640.
• Parties: David J. OAKES, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

400 F.3d 92

David J. OAKES, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 02-2640.

United States Court of Appeals, First Circuit.

Heard February 8, 2005.

Decided March 16, 2005.

COPYRIGHT MATERIAL OMITTED

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.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

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.

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, 122 S.Ct. 1389, 152 L.Ed.2d 403 (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, 122 S.Ct. 1389. 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.

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 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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (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.

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, 118 S.Ct. 1604; 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, 118 S.Ct. 478, 139 L.Ed.2d 444 (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 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.

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...