United States v. Barnes

• Decision Date: 23 March 2020
• Docket Number: No. 18-60497,18-60497
• Citation: 953 F.3d 383
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael James BARNES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

953 F.3d 383

UNITED STATES of America, Plaintiff–Appellee,

v.Michael James BARNES, Defendant–Appellant.

No. 18-60497

United States Court of Appeals, Fifth Circuit.

FILED March 23, 2020

Gregory Layne Kennedy, Esq., Carla J. Clark, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Mississippi, Jackson, MS, Eugene Carlos Tanner, III, Esq., Tanner & Associates, L.L.C., Jackson, MS, for Plaintiff-Appellee

Michael L. Scott, Esq., Thomas Creagher Turner, Jr., Esq., Federal Public Defender's Office, Southern District of Mississippi, Jackson, MS, for Defendant-Appellant

Before JOLLY, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Per a plea agreement, Michael Barnes pleaded guilty, waived his right to challenge his conviction and sentence (both directly and collaterally), and was sentenced under the Armed Career Criminal Act ("ACCA"). Then in Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), the Court held ACCA’s residual clause unconstitutional. Based on Johnson , Barnes filed a 28 U.S.C. § 2255 motion to vacate his sentence. The district court dismissed his challenge, and Barnes appeals. Because Barnes’s petition is barred by the collateral-review waiver in his plea agreement, we dismiss the appeal.

I.

In July 2013, Barnes pleaded guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The plea agreement identified four of Barnes’s past convictions that constituted either "violent felon[ies]" or "serious drug offense[s]," which triggered ACCA’s mandatory minimum sentence of fifteen years. Id . § 924(e)(1).

As part of the plea agreement, Barnes agreed to waive his "right to contest the conviction and sentence or the manner in which the sentence was imposed in any post-conviction proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255 ...." Barnes waived that right, among others, "in exchange for the United States Attorney entering into this Plea Agreement and accompanying Plea Agreement Supplement."¹ The district court accepted Barnes’s plea and sentenced him to the fifteen-year mandatory minimum. Barnes didn’t appeal.

In June 2015, the Supreme Court held that one of ACCA’s clauses defining what constitutes a "violent felony"—§ 924(e)(2)(B)(ii), also called § 924(e)(2)(B)’s residual clause—was unconstitutionally vague. See Johnson , 135 S. Ct. at 2557. About three months later—and notwithstanding his collateral-review waiver promising not to do so—Barnes filed a § 2255 motion challenging his sentence as "imposed in violation of the Constitution" because, after Johnson , he had no longer been convicted of the three necessary violent felonies or serious drug offenses. The government opposed his challenge on two grounds: (1) Johnson didn’t apply, and thus Barnes’s petition was untimely, because his sentence could be sustained under another of ACCA’s definitions of "violent felony"; and (2) Barnes’s collateral-review waiver barred his § 2255 petition.

The district court dismissed Barnes’s petition. The court found that (1) "Barnes previously waived his right to collaterally attack his sentence in a § 2255 motion," (2) "he failed to demonstrate that he was entitled to proceed under the auspices and parameters of [ Johnson ]," and (3) his contention that he didn’t have the requisite number of "violent felonies" was "both untimely and procedurally barred." The court also rejected Barnes’s "miscarriage of justice" contention. The district court denied Barnes a certificate of appealability, but a judge of this court granted him one on two issues: (1) "whether Barnes’s Johnson claims are barred by the collateral-review waiver" and (2) "whether the district court erred by dismissing the § 2255 motion as time-barred based on its determination that Johnson did not affect his sentence under the ACCA."

II.

We review de novo whether a collateral-review waiver bars an appeal.² We consider "(1) whether the waiver was knowing and voluntary and (2) whether the waiver applies to the circumstances at hand, based on the plain language of the agreement." United States v. Kelly , 915 F.3d 344, 348 (5th Cir. 2019). "A waiver is knowing and voluntary if the defendant knows that he has the right to collateral review and that he is waiving it in the plea agreement."³ Though we construe waivers in plea agreements narrowly, United States v. Pleitez , 876 F.3d 150, 156 (5th Cir. 2017), the government nonetheless "has a strong and legitimate interest in both the finality of convictions and in the enforcement of plea bargains." United States v. Dyer , 136 F.3d 417, 429 (5th Cir. 1998) (footnote omitted).

Before considering Barnes’s contentions, it’s important to identify what he isn’t challenging. He doesn’t dispute that he was aware of his right to collateral review or that he agreed to waive that right. Nor is he asserting that the language of his waiver doesn’t apply to his Johnson -based challenge or that his waivers were tainted by ineffective assistance of counsel. Instead, he posits that his waiver is unenforceable for three reasons. First, he maintains that "a defendant cannot waive a right that is unknown at the time that the waiver provision is executed." Second, relying on United States v. Torres , 828 F.3d 1113 (9th Cir. 2016), he avers that he can’t waive his right to challenge an illegal or unconstitutional sentence. And finally, we could adopt a "miscarriage of justice" exception and refuse to enforce his waiver on that ground.

Unfortunately for Barnes, we already confronted—and rejected—each of those positions in Timothy Burns , 770 F. App'x at 190–91. Barnes acknowledged as much in his reply brief. Though Timothy Burns is unpublished, "we may consider the opinion as persuasive authority." Light-Age, Inc. v. Ashcroft-Smith , 922 F.3d 320, 322 n.1 (5th Cir. 2019) (per curiam). And given the strong support that its reasoning finds in our caselaw, Timothy Burns is instructive.

A.

Barnes’s contention that he couldn’t have waived a right that was unknown at the time of his waiver is foreclosed by United States v. Creadell Burns , 433 F.3d 442 (5th Cir. 2005). There, the defendant pleaded guilty, waived his right to appeal, and was sentenced under the then-mandatory sentencing guidelines. Id. at 443–44. After the Supreme Court held that the mandatory guidelines violated the Sixth Amendment,⁴ Creadell Burns contended that he couldn’t have waived his right to assert a Booker -based challenge on appeal because that case hadn’t yet been decided when he entered his plea. See id. at 446–47. We rejected that position, holding instead that "an otherwise valid appeal waiver is not rendered invalid, or inapplicable to an appeal seeking to raise a Booker ... issue (whether or not that issue would have substantive merit), merely because the waiver was made before Booker ." Id. at 450–51. Said differently, "a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise." Brady v. United States , 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

Barnes attempts to discount Creadell Burns by contending that it either conflicts with or was called into doubt by (1) Smith v. Blackburn , 632 F.2d 1194 (5th Cir. Unit A 1980) (per curiam), (2) United States v. Wright , 681 F. App'x 418 (5th Cir. 2017) (per curiam), (3) three orders from the Southern District of Mississippi,⁵ and (4) United States v. McBride , 826 F.3d 293 (6th Cir. 2016). None of those efforts is persuasive.

In Smith , 632 F.2d at 1195, a Louisiana defendant was offered two choices: (1) a jury of six members who could convict by five votes or (2) a jury of five members who could convict by a unanimous vote. The defendant chose the latter, thereby waiving his right to the former. Id . After he was convicted, the Supreme Court determined that both of those options were unconstitutional.⁶ On appeal of his federal habeas petition, this court held that Smith hadn’t waive a "known right or privilege" because Ballew wasn’t decided until three years after he was put to his choice. Id . But critically, and unlike this case, there is no indication that the defendant in Smith agreed to an appellate or collateral-review waiver. Smith is therefore inapposite.

Next, Barnes is correct that Wright held that "[w]here, as here, a right is established by precedent that does not exist at the time of purported waiver, a party cannot intentionally relinquish that right because it is unknown at that time." Wright , 681 F. App'x at 420. But Wright , which is unpublished, didn’t cite or even consider the published opinion in Creadell Burns . And to the extent the decisions conflict, Creadell Burns controls under our rule of orderliness.⁷ The same naturally holds true for the three rulings from the Southern District of Mississippi.⁸

Finally, even if, hypothetically, an out-of-circuit decision could trump Creadell Burns , McBride doesn’t provide any help to Barnes. In McBride , 826 F.3d at 295, the Sixth Circuit did find that the defendant "could not have intentionally relinquished a claim based on Johnson ." "But the McBride plea agreement, unlike the one here, did not include an appeal waiver." United States v. Morrison , 852 F.3d 488, 491 (6th Cir. 2017). And based on that distinction, the Sixth Circuit held in Morrison that a defendant’s appellate waiver barred his Johnson -based challenge, even though Johnson wasn’t decided until after he was sentenced. Id.

At base, Barnes needn’t have understood all the possible eventualities that could, in the future, have allowed him to challenge his conviction or sentence. His waiver only needed to be "knowing," not "all-knowing." When Barnes waived his right to post-conviction review, he was aware of the right that he was giving up. By doing so, "he assumed the risk that he would be denied...