Portis v. United States
| Decision Date | 03 May 2022 |
| Docket Number | 20-3780,20-3776 |
| Parties | Marlon Portis, Jr. (20-3776); Demonte Thompson (20-3780), Petitioners-Appellants, v. United States of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:12-cr-00131 1:20-cv-00760 (Portis), and 1:20-cv-00763 (Thompson); Patricia A. Gaughan, Chief District Judge.
ON BRIEF:
Vanessa Faye Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER Akron, Ohio, for Appellants.
Kelly L. Galvin, UNITED STATES ATTORNEY'S OFFICE, Cleveland Ohio, for Respondent.
Before: SUTTON, Chief Judge; McKEAGUE and WHITE, Circuit Judges.
SUTTON, C.J., delivered the opinion of the court in which McKEAGUE, J., joined. WHITE, J. (pp. 11-16), delivered a separate dissenting opinion.
Marlon Portis and Demonte Thompson pleaded guilty to conspiring to rob electronics stores and to using firearms in the process. The plea agreements prohibited the defendants from bringing direct or collateral challenges to their convictions.
Relying on a later U.S. Supreme Court decision that limited what offenses qualify as crimes of violence, United States v. Davis, 139 S.Ct. 2319, 2336 (2019), they filed these collateral challenges to their firearms convictions under § 2255, claiming that this change in law permits them to sidestep the plea agreements' prohibitions on bringing collateral challenges to their convictions. Because they knowingly and voluntarily waived these challenges in their plea agreements and because later developments in the law do not permit the parties to the contract- whether the government or a criminal defendant-to back out of their obligations, see United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005), we dismiss their appeals.
In 2011, Portis and Thompson committed a series of robberies. A federal grand jury indicted them on one count of conspiring to commit a Hobbs Act robbery, two counts of robbery under the Hobbs Act, and two counts of using a firearm during a crime of violence.
Under virtually identical written plea agreements, they each pleaded guilty to one count of conspiring to commit a Hobbs Act robbery and one count of using a firearm during a crime of violence. See 18 U.S.C. § 924(c). As part of each agreement and in return for the government's withdrawal of the two Hobbs Act robbery counts and one of the firearm counts, Portis and Thompson "expressly and voluntarily waive[d]" their rights to appeal their convictions or to challenge their convictions through a postconviction proceeding, "including a proceeding under 28 U.S.C. § 2255." R.102 at 10; R.101 at 10. Both defendants reserved the right to appeal if they received sentences that exceeded "the statutory maximum" or the Sentencing Guidelines range. R.102 at 10; R.101 at 10. And both retained their rights to pursue claims of ineffective assistance of counsel or prosecutorial misconduct. The district court accepted their pleas after a plea colloquy that confirmed they understood they were waiving their rights to appeal and to bring postconviction challenges.
Seven years after their convictions, the Supreme Court determined that § 924(c)'s residual clause was unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319, 2336 (2019). The decision narrowed the types of offenses that qualify as "crimes of violence" under § 924(c), ultimately requiring the government to prove that a defendant met the requirements of the statute's elements clause. Davis, we have held, applies retroactively. In re Franklin, 950 F.3d 909, 911 (6th Cir. 2020) (per curiam). Since Davis, we have limited the statute's application further, ruling that a conspiracy to commit Hobbs Act robbery does not count as a predicate "crime of violence" for § 924(c) purposes, whether under the residual clause or the elements clause. United States v. Ledbetter, 929 F.3d 338, 361 (6th Cir. 2019).
After these developments, Portis and Thompson sought relief under § 2255. Once in the district court, they argued that their conspiracy convictions served as the predicate offenses for their § 924(c) convictions. Because Hobbs Act conspiracies no longer qualify as crimes of violence, they asked the district court to vacate their § 924(c) convictions. The government responded that the men waived their rights to file § 2255 motions, and that in any event the robberies (rather than the conspiracy) served as the predicate offenses. The district court denied the motions on the merits, concluding that the robberies served as the predicate offenses and opting not to enforce the § 2255 motion waiver. Portis and Thompson now appeal.
We begin and end with the plea agreement. In no uncertain terms, it waives each defendant's right to challenge his convictions in "a proceeding under 28 U.S.C. § 2255." R.101 at 10; R.102 at 10. A defendant may waive any right, even a constitutional one, in a plea agreement, if he relinquishes that right knowingly and voluntarily. See Brady v. United States, 397 U.S. 742, 748 (1970). It follows that a defendant may waive his right to bring future postconviction challenges, which are not constitutionally required, so long as the waiver is knowing and voluntary. Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999).
Such waivers are not without limit. We will not enforce them if counsel provided constitutionally ineffective assistance or if the government breached the agreement, and we will not enforce waivers infected by race discrimination. See United States v. Ferguson, 669 F.3d 756, 764, 767 (6th Cir. 2012); United States v. Swanberg, 370 F.3d 622, 627-28 (6th Cir. 2004). The process leading to the waiver also must be fair and comply with Rule 11 of the Federal Rules of Criminal Procedure. But neither defendant challenges the waiver on any of these grounds. They do not complain about the process leading to the plea agreement. They do not challenge the plea colloquy. They do not deny that they knowingly and voluntarily entered the plea agreement in return for the government's decision to drop several counts against them. And they do not claim that counsel provided constitutionally ineffective assistance or that the waiver was premised on race discrimination.
That leaves two other possibilities for challenging their convictions. One, they say, is that the § 2255 waiver does not apply if later changes in the law might benefit them. The other, they say, is that the limitation in the agreement to sentences below "the statutory maximum" permits them to seek relief here. Regrettably for Portis and Thompson, neither option works.
As to the first option, waivers of the right to bring postconviction challenges remain enforceable after changes in law, here the Davis decision. Subsequent "developments in the law" that would make a right to bring a postconviction challenge more valuable do not "suddenly make the plea involuntary or unknowing or otherwise undo its binding nature." United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005). Any "waiver[ ] of the right to appeal," we have explained, "would amount to little if future changes in the law permitted the benefited party nonetheless to appeal." Id. at 465. "Plea bargains always entail risks," but they "allocate[] risk between the two parties as they see fit." Id. at 464. And "[i]f courts disturb the parties' allocation of risk in an agreement, they threaten to damage the parties' ability to ascertain their legal rights when they sit down at the bargaining table." Id. "[M]ore problematically for criminal defendants," when courts throw out mutually beneficial plea agreements, it may "reduce the likelihood that prosecutors will bargain away counts." Id.
The principle that future changes in law do not vitiate collateral-challenge waivers is mainstream. In Brady v. United States, 397 U.S. 742 (1970), the defendant pleaded guilty to a crime that came with exposure to a life sentence in order to avoid the risk of a death sentence, only to watch the threat of enforcement of the death-penalty provision disappear when the provision was declared unconstitutional. The Court held the defendant to his bargain despite the change in law and despite the reality that the plea turned on a mistaken assumption about the (later) meaning of the law. See id. at 750. "[A] voluntary plea of guilty intelligently made in the light of the then applicable law," the Court reasoned, "does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise." Id. at 757; see also United States v. Ruiz, 536 U.S. 622, 630 (2002) ().
All circuits to our knowledge follow this principle of plea-bargaining law. See United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005); United States v. Riggi, 649 F.3d 143, 149 n.7 (2d Cir. 2011); United States v. Lockett, 406 F.3d 207, 213-14 (3d Cir. 2005); United States v. Blick, 408 F.3d 162, 173 (4th Cir. 2005); United States v. Barnes, 953 F.3d 383, 387-88, 388 n.9 (5th Cir. 2020); United States v. Bownes, 405 F.3d 634, 636-37 (7th Cir. 2005); United States v. Cooney, 875 F.3d 414, 416 (8th Cir. 2017); United States v. Johnson, 67 F.3d 200, 202-03 (9th Cir. 1995); United States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005); United States v. Masilotti, 565 Fed.Appx. 837, 839-40 (11th Cir. 2014) (per curiam).
This settled law and this plea agreement leave no room for the first way of thinking about Portis and Thompson's argument. The...
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