United States v. Rudolph

Full title: UNITED STATES of America, v. Eric Robert RUDOLPH, Defendant.

Court: United States District Court, N.D. Georgia, Atlanta Division.

Date published: Nov 8, 2021

570 F. Supp. 3d 1277 (N.D. Ga. 2021)

Opinion

CRIMINAL ACTION NO. 1:00-CR-0805-CAP

2021-11-08

UNITED STATES of America, v. Eric Robert RUDOLPH, Defendant.

David E. Nahmias, Supreme Court of Georgia, Dunwoody, GA, F. Gentry Shelnutt, Jr., Sally Quillian Yates, Yonette Sam-Buchanan, Gabriel Adam Mendel, Office of United States Attorney, Northern District of Georgia, Atlanta, GA, for United States of America.

CHARLES A. PANNELL, JR., United States District Judge

David E. Nahmias, Supreme Court of Georgia, Dunwoody, GA, F. Gentry Shelnutt, Jr., Sally Quillian Yates, Yonette Sam-Buchanan, Gabriel Adam Mendel, Office of United States Attorney, Northern District of Georgia, Atlanta, GA, for United States of America.

ORDER

CHARLES A. PANNELL, JR., United States District Judge Eric Robert Rudolph was indicted on November 15, 2000, on charges related to the bombing at Centennial Olympic Park in Atlanta, Georgia during the 1996 Summer Olympics.¹ Alice Hawthorne died from injuries sustained during the bombing, and over one hundred other individuals were injured. Rudolph was also indicted on charges related to bombings at three other locations: Northside Family Planning Services located in the Sandy Springs Professional Building in Sandy Springs, Georgia on January 16, 1997, The Otherside Lounge in Atlanta, Georgia on February 21, 1997, and the New Woman All Women Health Care Clinic in Birmingham, Alabama on January 29, 1998. No deaths resulted from the bombings at Northside Family Planning Services and The Otherside Lounge,² however, several individuals were injured at each location. Birmingham police officer Robert Sanderson was killed during the bombing at the New Woman All Women Health Care Clinic in Birmingham, AL. Emily Lyons, a nurse, was seriously injured.

1 Although the indictment was issued in November 2000, Rudolph remained a fugitive for years despite significant efforts by law enforcement to locate him. He did not make his initial appearance in this court until April 13, 2005. [Doc. No. 18].

2 There were two bombs at each of these locations. The second bomb at each location was designed to detonate after a delayed period, when emergency responders would have arrived on the scene.

Rudolph pled guilty on April 13, 2005, to eight counts of the twenty-one-count indictment. This was a binding plea with an appeal waiver. On the same day, he pled guilty in the Northern District of Alabama to a two-count indictment for the bombing at the New Woman All Women Health Care Clinic in Birmingham, AL, and for using an explosive device in that bombing.³ That was also a binding plea with an appeal waiver.

3 The charges in the Northern District of Georgia concerning the New Woman All Women Health Care Clinic in Birmingham, Alabama were limited to transportation of the explosive used in that bombing and writing the "Army of God" letters claiming responsibility for the bombing and threatening to commit additional bombings.

The court in the Northern District of Alabama sentenced Rudolph on July 18, 2005, to two life sentences, to be served consecutively to each other. On August 22, 2005, this court sentenced Rudolph to four life sentences, to run consecutively to each other, along with an additional 120 years of imprisonment, to run consecutively to the life sentences. The sentence that Rudolph received in this district is broken down by count as follows:

18 U.S.C. § 844(i)18 U.S.C. § 924(c)18 U.S.C. § 844(i)18 U.S.C. § 924(c)18 U.S.C. § 844(i)18 U.S.C. § 844(i)18 U.S.C. § 924(c)18 U.S.C. § 844(i)

Title & Section	Nature of the Offense	Count No.	Sentence
Malicious Damage of Property with an Explosive Device Resulting in Death and/or Personal Injury	1	Life
	(the Centennial Olympic Park Bombing, one death resulted)
Use of a Destructive Device During and in Relation to a Crime of Violence (i.e ., the charge in Count 1, the Centennial Olympic Park Bombing)	2	Life, consecutive
Malicious Damage of Property with an Explosive Device	5	20 Years, consecutive
	(the first bombing at the Sandy Springs Professional Building that contained the offices of Northside Family Planning Services)
Use of a Destructive Device During and in Relation to a Crime of Violence (i.e. , the charge in Count 5, the first bombing at the Sandy Springs Professional Building that contained the offices of Northside Family Planning Services)	6	Life, consecutive
Malicious Damage of Property with an Explosive Device Resulting in Death and/or Personal Injury	7	40 Years, Consecutive
	(the second bombing at the Sandy Springs Professional Building that contained the offices of Northside Family Planning Services – no death resulted, only injury)
Malicious Damage of Property with an Explosive Device Resulting in Death and/or Personal Injury	10	40 Years, Consecutive
	(the first Otherside Lounge bombing – no death resulted, only injury)
Use of a Destructive Device During and in Relation to a Crime of Violence (i.e. , the charge in Count 10, the first bombing at the Otherside Lounge)	11	Life, consecutive
Malicious Damage of Property with an Explosive Device	12	20 Years, consecutive
	(the second bombing at the Otherside Lounge)

Rudolph is currently serving this sentence at USP Florence ADMAX, a supermax facility.⁴

4 A supermax facility is classified as providing a higher and more controlled level of custody than a maximum-security prison.

I. Rudolph files a motion pursuant to U.S.C. § 2255 to vacate, set aside, or correct his sentence

On June 26, 2020, Rudolph filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Doc. No. 30]. This motion is based on the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019), that the residual clause in 18 U.S.C. § 924(c) is void for vagueness.⁵ Pursuant to an Administrative Order from the Chief Judge of this district concerning retroactive application of Davis [Doc. No. 32], the Federal Defender Program reviewed Rudolph's case and filed an amended § 2255 motion on his behalf. Specifically, the amended § 2255 motion seeks to vacate the convictions and sentences on the § 924(c) charges in light of the Supreme Court's holding in Davis that the definition of the term "crime of violence" contained in 18 U.S.C. § 924(c)(3)(B) ⁶ is unconstitutionally vague. [Doc. No. 36]. The government has filed a response in opposition [Doc. No. 37], and Rudolph has filed a reply brief [Doc. No. 38]. The motion is now before the court for consideration.

5 Rudolph also filed a similar motion in the Northern District of Alabama. On July 29, 2021, that court denied Rudolph's motion. [Doc. No. 47]. Rudolph has appealed that decision. No. 21-12828-DD (11th Cir. Aug. 18, 2021). On October 18, 2021, that appeal was stayed pending this court's ruling.

6 This section of the statute is often referred to as the "residual clause."

A. The Supreme Court's ruling in Davis

Under 18 U.S.C. § 924(c), there is a heightened penalty for anyone adjudicated guilty of using, carrying, or possessing a firearm, or explosive device, in "relation to any crime of violence or drug trafficking crime." The term "crime of violence" is then further defined in two subparts of the statute. Section 924(c)(3)(A) is known as the elements clause and defines "crime of violence" as "an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Section 924(c)(3)(B), also known as the residual clause, defined "crime of violence" as "an offense that is a felony and that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing an offense." It is this residual clause that the Supreme Court struck down on June 24, 2019, as being unconstitutionally vague because it "provides no reliable way to determine which offenses qualify as crimes of violence." Davis , 139 S. Ct. at 2324 (2019). The Eleventh Circuit ruled in In re Hammoud , 931 F.3d 1032, 1039 (11th Cir. 2019), that Davis is "retroactively applicable to criminal cases that became final before Davis was announced." Rudolph's pro se § 2255 motion is timely, having been filed within one year of the ruling in Davis. ⁷

7 Although Rudolph's pro se motion has a file date of June 26, 2020, it is signed June 20, 2020. "Under the ‘prison mailbox rule,’ a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing." Williams v. McNeil , 557 F.3d 1287, 1290 n.2 (11th Cir. 2009). "Absent evidence to the contrary," we "assume that [the prisoner's filing] was delivered to prison authorities the day he signed it." Washington v. United States , 243 F.3d 1299, 1301 (11th Cir. 2001). The government has not contested the timeliness of Rudolph's motion.

B. Rudolph's argument

Rudolph pled guilty to five counts of violating 18 U.S.C. § 844(i), known as malicious destruction of property with an explosive device, or more commonly, arson. This crime is defined in § 844(i) as follows:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned.

Arson is the predicate crime for Rudolph's 18 U.S.C. § 924(c) charges. Rudolph presents several arguments that the offense defined in § 844(i) does not fit within § 924(c) ’s elements clause. Rudolph's argument boils down to the following: that the arson crime charged in § 844(i) can no longer be considered a crime of violence for purposes of § 924(c) following the Davis ruling.

Rudolph seeks to have the life sentences on the three § 924(c) charges vacated (Counts 2, 6, and 11). He then wants the court to "unbundle the sentencing package of the original judgment and revisit the prison terms on the remaining counts." [Doc. No. 36 at 20]. He cites to United States v. Fowler , 749 F.3d 1010 (11th Cir. 2014) for the proposition that the court can redesign the sentencing package. The government responds that this sentencing package doctrine is discretionary and does not apply here, because the sentences imposed on each count were not part of any package created by the court but were instead required by the binding plea.⁸ [Doc. No. 37 at 17].

8 The plea required the court to impose a life sentence on each of Counts 1, 2, 6, and 11, as well as the "the maximum term of imprisonment allowed by law" on the remaining counts. [Doc. No. 18-1 at 3].

II. Is Rudolph's § 2255 motion procedurally barred?

"A federal criminal defendant who fails to preserve a claim by objecting at trial or raising it on direct appeal is procedurally barred from raising the claim in a § 2255 motion, absent a showing of cause and prejudice or a fundamental miscarriage of justice." Rivers v. United States , 476 F. App'x 848, 849 (11th Cir. 2012) (citing Jones v. United States , 153 F.3d 1305, 1307 (11th Cir. 1998) ). "The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massaro v. United States , 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

Here, Rudolph did not raise a vagueness claim concerning his § 924(c) charges at any time prior to filing his § 2255 motion. The government maintains that Rudolph has procedurally defaulted his Davis claims. [Doc. No. 44]. Rudolph contends, however, that "the government waived the opportunity to raise the procedural-default defense, so this Court is forbidden to rely on it now." [Doc. No. 45 at 1].

A. Procedural history

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "[t]he judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." This rule does not discuss concrete situations that may warrant summary dismissal of a § 2255 motion, however, there is an abundance of decisions establishing the authority of the court to address non-jurisdictional affirmative defenses during this preliminary review. Such defenses include exhaustion, abuse of the writ, the statute of limitations, and procedural default. Because procedural default is the only such defense of concern in the instant action, the court will limit its discussion to that defense.

Courts across the nation follow the precept that § 2255 claims can be dismissed on the Rule 4(b) review for procedural default. "Summary dismissal under Rule 4(b) is appropriate where the record supports the conclusion that the petitioner cannot make the requisite ‘cause’ and ‘prejudice’ showing" for failing to raise an issue on appeal. Guapacha v. United States , No. CV-92-5456, 1992 WL 391378, at *1 (E.D. Pa. Dec. 3, 1992) (citing Abatino v. United States , 750 F.2d 1442, 1446 (9th Cir. 1985) ) (affirming summary dismissal of a § 2255 motion for procedural default because the motion "upon its face shows no grounds for relief."). See also Dyer v. United States , No. 19-CV-1694-JPS, 2020 WL 2042777, at *2 (E.D. Wisc. Apr. 28, 2020) ("Upon an initial Rule 4 review, the Court will analyze whether the movant has complied with the statute of limitations, avoided procedural default, and set forth cognizable claims.").

In United States v. Gagliardi , No. 10-480, 2011 WL 1362620, at *4-5 (E.D. Penn Apr. 6, 2011), a district court denied a petitioner's Rule 60(b) motion for relief from the order dismissing his § 2255 claims as procedurally defaulted without considering them on the merit and expressly rejected the argument "that Rule 4(b) of the Rules Governing Section 2255 Proceedings required us to consider on the merits the seven claims that he raised or could have raised on direct appeal." Other courts have also summarily dismissed § 2255 claims for procedural default after the Rule 4(b) review. Dominguez v. United States , No. 04 Civ. 293DAB, 95 CR. 942, 2004 WL 1574717 S.D. N.Y. July 14, 2004 ; United States v. Myrie , No. 2:06–cr–00239–RCJ–PAL, 2012 WL 2847747 (D. Nev. July 11, 2012) (same); Escalera v. United States , Nos. EP-06-CA-0157-DB, EP-04-CR-2333-DB, 2006 WL 1341017 (W.D. Tex. May 11, 2006) (same); United States v. Gough , 952 F.2d 1400 (9th Cir. 1992) (unpublished) (affirming district court's summary dismissal of the § 2255 motion because the claims were procedurally defaulted); United States v. Efthimiatos , No. 4:15-cv-00045-SMR, 2015 WL 10793427 (S.D. Iowa, June 23, 2015) (summarily dismissing the Fourth Amendment claim in the § 2255 motion on the Rule 4(b) review as barred because the petitioner could not show ineffective assistance of counsel); United States v. Cofer , No. 96-2005, 1997 WL 375001, at *1 (7th Cir. 1997) (unpublished) (affirming district court's dismissal of the § 2255 motion "on procedural default grounds pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings").

In Paez v. Sec'y, Florida Dep't of Corrs. , 947 F.3d 649, 653-54 (2020), the Eleventh Circuit addressed the authority of the district court to summarily dismiss a § 2254 habeas petition due to a procedural bar. The Eleventh Circuit stated:

First, the text of Rule 4 does not restrict summary dismissals to merits-based deficiencies. As we've already noted, the district court must dismiss a § 2254 petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rules Governing § 2254 Cases, R. 4. Both a procedural bar and a merits-based deficiency could lead a district court to conclude that the petitioner is "not entitled to relief."

Id. The court determined that this interpretation accorded with the Supreme Court's decision in Day v. McDonough , 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006), that a district court may dismiss a habeas petition as untimely even when the state has not contested timeliness in its answer so long as the district court provides fair notice to the parties, a chance for them to present their positions, and does not override a deliberate waiver by the state. In Gay v. United States , 816 F.2d 614, 616 n.1 (11th Cir. 1987) (per curiam), the Eleventh Circuit determined that "the principles developed in habeas cases also apply to § 2255 motions." (citation omitted). Courts in this circuit have thus applied the procedure in Paez and Day to § 2255 petitions. See Cooke v. United States , No. 1:20-00031-KD, 2020 WL 5200645, at *1 (S.D. Ala. Aug. 6, 2020) adopted by 2020 WL 5166044 (S.D. Ala. Aug. 31, 2020) (dismissing a § 2255 motion after the Rule 4(b) review and affording the parties an opportunity to respond in accordance with the procedure outlined in Paez ); Hosley v. United States , No. 21-CIV-80112-RAR, 2021 WL 327066, at *1 (S.D. Fla. Jan. 31, 2021) (dismissing § 2255 motion after Rule 4(b) review and providing the parties an opportunity to submit responses containing their positions for de novo review); Evans v. United States , Nos. CV613–005, CR610–029, 2013 WL 587535, at *2 (S.D. Ga. Feb. 14, 2013), adopted by 2013 WL 839239 (S.D. Ga. March 6, 2013) (recommending the dismissal of five claims in the § 2255 motion as procedurally defaulted after the Rule 4(b) review because "[f]ederal habeas courts are authorized to apply the procedural default defense sua sponte .")

At first blush, it seems that the court should have looked at procedural default when it conducted the Rule 4(b) review of Rudolph's § 2255 motion. However, when Rudolph's motion was filed, the rulings from this court and many of its brethren on the bench suggested that Rudolph could show cause for any procedural default. Specifically, this court and others had ruled that a movant's challenge to § 924(c) ’s residual clause was not available until after the Supreme Court's invalidation of the similarly worded residual clause in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and the subsequent invalidation of § 924(c) ’s residual clause in Davis. This is because Johnson "is the quintessence of a sufficiently clear break with the past, [such] that an attorney representing the defendant would not reasonably have had the tools for presenting the claim." Garibo-Carmona v. United States , 216 F.Supp.3d 1373, 1379 (N.D. Ga. 2016) (internal quotation omitted). After Johnson , other clauses with language materially similar to that of the residual clause in § 924(e)(2)(B)(ii) were challenged. For example, it was after Johnson that the Supreme Court issued its ruling in Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), that the residual clause in 18 U.S.C. § 16 was unconstitutionally vague. That clause, like the residual clause in § 924(e)(2) (B)(ii), "bear[s] more than a passing resemblance to § 924(c)(3)(B) ’s residual clause." Davis at 2325.

On April 2, 2020, less than three months before Rudolph filed his motion, this court wrote in another case that "the movant lacked a reasonable basis for challenging § 924(c) ’s residual clause until long after his conviction was final and he had exhausted his direct appeal—that is, when the Supreme Court issued its opinion several years later in Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), and then four years after that in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019)." United States v. Williams , No. 1:03-cr-0155-CAP-4, Doc. No. 1591 at 7, 2009 WL 10649600 (N.D. Ga.). As Rudolph points out in his motion, other judges in this court had decided similarly. See United States v. Watson , No. 1:04-CR-591-LMM-1, Doc. 428 at 4-7 (N.D. Ga. March 9, 2020); United States v. Bibiano-Vazquez , No. 4:12-CR-9-MLB-2, Doc. 412 at 3-6 (N.D. Ga. May 18, 2020). This position was not limited to just courts in this district, however. Other courts in this circuit and around the nation had also decided similarly. See Munoz v. United States , No. 19-25239-CV-MARTINEZ, 2020 WL 9219149, at *3 (S.D. Fla. Dec. 29, 2020) adopted by 2021 WL 1135074 (S.D. Fla. Mar 25, 2021) (finding that "Respondent's procedural default argument is foreclosed ... because the [ Davis ] claim Movant raises was ‘previously unavailable.’ "); Thomas v. United States , No. 19-23378-CV-SCOLA, 2019 WL 7484696, at *4 (S.D. Fla. Dec. 5, 2019) adopted by 2020 WL 59750 (S.D. Fla. Jan. 6, 2020) (same); Hammoud v. United States , No. 8:19-cv-2541-T-27TGW, 2020 WL 3440649, at *3 (M.D. Fla. June 23, 2020) (ruling that "at the time of [the petitioner's] direct appeal, a claim that his § 924(c) conviction was invalid because the statute's residual clause was unconstitutional was so novel that its legal basis [was] not reasonably available to counsel and therefore his failure to raise the claim is sufficiently excusable to satisfy the cause requirement" of the procedural default analysis) (internal quotation omitted); Carter v. United States , No. 16-cv-02184, 2019 WL 4126074, at *5 (C.D. Ill. Aug. 29, 2019) (determining that the movant had shown cause for failing to raise his Davis claim previously because "while Davis might have been anticipated after Johnson was decided, at the time of [the petitioner's] trial and direct appeal, no one could have reasonably anticipated Davis "); Howie v. United States , No. 3:16-cv-437-RJC, 3:06-cr-50-RJC-1, 2019 WL 4743724, at *5 (W.D. N.C. Sept. 27, 2019) (collecting cases).

Thus, on initial review of Rudolph's § 2255 motion, it was not apparent to the court that his Davis claim was procedurally defaulted. As explained above, the court initially considered that he could show cause for the default. As for establishing prejudice, this court has also previously determined in another case that a movant who received a longer sentence than he would have received without the § 924(c) conviction could show prejudice. Williams v. United States , 1:03-cr-0155-CAP-4, Doc. 1591 at 9 (N.D. Ga. Apr. 2, 2020). In Rudolph's case, his three § 924(c) convictions amount to an extra three consecutive life sentences, thus his sentence without those convictions would be significantly reduced. After reviewing Rudolph's motion, the court directed the government to file a response. That order did not pose questions to the government and did not mention procedural default; it merely directed the filing of a response by the government and a reply brief from Rudolph. See Minute Order dated August 25, 2020.

A primary argument of Rudolph's motion is that the predicate crime for which he pled guilty does not fit within the elements clause of the § 924(c) convictions because the predicate crime requires only a mens rea of recklessness. [Doc. No. 36 at 13]. At the time the motion was filed, both the Eleventh Circuit and the Supreme Court had pending cases on the issue of whether a predicate crime that can be satisfied by the mens rea of recklessness qualifies as a violent felony under the materially similar elements clause of the ACCA. In United States v. Moss , 920 F.3d 752 (11th Cir. 2019), the Eleventh Circuit held that where a predicate crime can be satisfied by a mens rea of recklessness, it cannot qualify as a violent felony under the ACCA. After granting the government's petition for a rehearing en banc , the Eleventh Circuit stayed the appeal in Moss pending the Supreme Court's ruling in Borden v. United States , No. 19-5410 and Burris v. United States , No. 19-6186, ––– U.S. ––––, 141 S.Ct. 2781, 210 L.Ed.2d 919 (2021) on the same issue. Rudolph argued that "[t]he outcome in Borden and Moss will presumably apply, too, to the nearly-identical § 924(c)(3)(A) elements clause." [Doc. No 36 at 14].

The parties then agreed that a stay of the proceedings was warranted pending the Supreme Court's rulings in Borden and Burris so as to "serve the interests of justice and judicial economy." [Doc. No. 40 at 1]. While the case was stayed, the Eleventh Circuit issued a ruling in Granda v. United States , 990 F.3d 1272, 1288 (2021), that although Davis announced a new constitutional rule that was made retroactive via In re Hammoud , 931 F.3d 1032 (11th Cir. 2019), the petitioner could not show cause for the procedural default of his Davis claim because, at the time of his appeal in 2009, "the tools existed to challenge myriad other portions of § 924(c) as vague; they existed to support a similar challenge to its residual clause" (internal quotation omitted). Approximately one month later, the Eleventh Circuit concluded likewise in Martinez v. United States , 853 F. App'x 416, 418 (2021), that "a defendant had the building blocks of a due process vagueness challenge to the § 924(c) residual clause even before the Supreme Court's decision in Davis " and thus could not show cause to excuse the default of his Davis claim. Whereas Granda was sentenced after Rudolph in 2009, Martinez was sentenced before Rudolph, on September 1, 2000.⁹

9 Rudolph was sentenced in 2005.

The Eleventh Circuit decision in Granda contravenes rulings of the district courts referenced above, including the undersigned, that a movant with a Davis claim could automatically show cause to excuse procedural default. "In United States v. Granda , we held that although Davis announced a new constitutional rule of retroactive application, it was not a ‘sufficiently clear break with the past’ such that an attorney would not reasonably have had the tools necessary to present the claim before that decision." Martinez at 418, (quoting Granda at 1286 ).

When binding precedent is issued during the pendency of a case on an issue that may affect that case, it is not unusual for a court to seek supplemental briefing because "federal district courts are bound by precedent of their circuit." Brownlee v. United States , No. 17-cv-23072-KMM, 2018 WL 10096595, at *1 (S.D. Fla. Apr. 24, 2018). The Supreme Court has "long recognized that a district court possesses inherent powers that are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Dietz v. Bouldin , 579 U.S. 40, 136 S.Ct. 1885, 195 L.Ed.2d 161 (2016) (citation and internal quotation marks omitted). See also Smith v. Psychiatric Solutions, Inc. , 750 F.3d 1253, 1262 (11th Cir. 2014) ("District courts have unquestionable authority to control their own dockets [and] [t]his authority includes broad discretion in deciding how best to manage the cases before them.") To that end, after becoming aware of the binding Granda decision and other district court decisions in this circuit citing Granda and finding that the movants had procedurally defaulted their Davis claims, the court notified the parties of such and directed them "to brief the issue of procedural default." [Doc. No. 43 at 5]. The parties have since filed supplemental briefs on this issue. [Doc. Nos. 44, 45, and 46].

B. Is the court barred from addressing the issue of procedural default at this stage of the litigation?

To be clear, the government did not raise the issue of procedural default in its initial response to Rudolph's § 2255 motion. Rudolph suggests that it is thus improper for the court to consider whether he procedurally defaulted his Davis claims. He poses the question: "May a court invoke the procedural-default defense on its own, as the Court tried to do here?" and answers it by "say[ing] that the Court is forbidden to raise the defense at this late hour." [Doc. No. 45 at 11]. The government responds that Rudolph is improperly "conflat[ing] this Court's sua sponte request for additional briefing with the Court making a sua sponte ruling." [Doc. No. 46 at 5] (emphasis in original).

The court agrees with the government that this is an important distinction. As Rudolph points out, the Eleventh Circuit has recently stated that "there is some uncertainty in the law as to exactly when it is appropriate for a court to raise the issue [of procedural default] sua sponte." Walker v. United States , 2021 WL 3754596, at *4 (11th Cir. Aug. 25, 2021) (unpublished). The Supreme Court has clearly ruled that "[a] court of appeal is not ‘required’ to raise the issue of procedural default sua sponte. " Trest v. Cain , 522 U.S. 87, 89, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997) (emphasis added). The Court declined to go further and address whether the appeals courts are permitted, rather than required, to raise procedural default sua sponte. In Trest , the Fifth Circuit had applied the bar sua sponte without requesting briefing from the parties, and the Court remarked on that. "We do not say that a court must always ask for further briefing when it disposes of a case on a basis not previously argued. But often, as here, that somewhat longer (and often fairer) way ‘round is the shortest way home.’ " Id. at 92, 118 S.Ct. 478. That precept is the same one followed by the Eleventh Circuit in Paez and expressed in Esslinger v. Davis , 44 F.3d 1515, 1528 (11th Cir. 1995), where the circuit stated that "we think it fundamentally unfair for a court sua sponte to invoke a procedural default without giving the petitioner an opportunity to show cause for the default." Thus, this court felt it was important to give Rudolph an opportunity to show cause. " Trest makes clear that, for a court to respond to the Government's initial failure to raise procedural default by ‘giving the parties an opportunity for argument,’ or ‘ask[ing] for further briefing,’ so that the court may ultimately decide the petition on the basis of procedural default, is different than the court simply ‘rais[ing] the procedural default sua sponte.’ " Trudeau v. United States , No. 3:16-CV-273 (JCH), 2017 WL 1754765, at *7 (D. Conn. May 4, 2017).

The Eleventh Circuit has recognized that district courts may raise the issue of procedural default. In Howard v. United States , 374 F.3d 1068, 1073 (11th Cir. 2004), the Circuit remarked that "[t]he government failed to raise the defense of procedural default in the district court, and the court did not bring it up either. In these circumstances Gray v. Netherland , 518 U.S. 152, 165–66, 116 S.Ct. 2074, 2082, 135 L.Ed.2d 457 (1996), prevents the government from benefitting now from a defense it did not raise then." (emphasis added). The Eleventh Circuit reiterated this position in Hartge v. McDonough , 210 F. App'x 940, 944 n.3 (11th Cir. 2006), when it determined that the state had waived the defense of procedural default because "[t]his theory of procedural default was neither raised by the state nor considered by the district court." (emphasis added).

The Supreme Court has likewise allowed that a court may consider a defense not raised by the government. As described above, the Court in Trest emphasized that an appeals court was not required to raise the issue of procedural default sua sponte , thereby allowing for the possibility that it may raise the issue sua sponte. The Court has also stated that it can address defenses not raised by the government in habeas cases. In Schiro v. Farley , 510 U.S. 222, 228-29, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994), the Court remarked that the state had failed in that habeas case to raise the argument that providing the petitioner with the relief he sought would require an improper retroactive application of a new rule, in violation of the principle asserted in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). The court then indicated that even though the "State can waive the Teague bar by not raising it ... we undoubtedly have the discretion to reach the State's Teague argument." Id. at 788-89. The Court ultimately declined to do so, however, because the State had omitted the Teague defense from its certiorari submission, not because it did not raise the argument in a lower court. Various courts have considered Rudolph's question. In Yeatts v. Angelone , 166 F.3d 255, 261-62 (1999), the Fourth Circuit analyzed case law and answered the question in the affirmative:

Nevertheless, in the presence of overriding interests of comity and judicial efficiency that transcend the interests of the parties, a federal habeas court may, in its discretion, deny federal habeas relief on the basis of issues that were not preserved or presented properly by a state. See Granberry v. Greer , 481 U.S. 129, 131–36, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987) (holding that based on concerns of comity and judicial economy, a federal habeas court, within its discretion, may raise an exhaustion defense that was not raised in the district court). Those concerns support the conclusion that a federal habeas court possesses the authority to address, in its discretion, whether there exists an unexcused adequate and independent state-law ground for a denial of relief from a challenged conviction or sentence.

Comity is a two-way street, requiring a delicate balancing of sometimes-competing state and federal concerns. See Hardiman v. Reynolds , 971 F.2d 500, 503 (10th Cir. 1992). On occasion, interests of comity may counsel a federal habeas court to ignore the failure of a state to assert a defense founded upon procedural default. See id. Furthermore, often—though by no means always—judicial efficiency is advanced when a federal habeas court addresses an issue of procedural default despite the failure of the state to preserve the issue properly. For example, a federal court may find that a petitioner obviously has procedurally defaulted an issue and may avoid a decision on a complex federal question presented by that issue by denying relief on the basis of the adequate and independent state-law ground despite the failure of a state to assert a procedural bar. In such a situation, a federal court would be justified in considering the issue of procedural default and denying the petition on that basis. Conversely, on occasion the determination of whether a petitioner has defaulted his claims will present difficult issues of state law that are not readily susceptible to decision by a federal court, while the claim advanced by the petitioner patently is without merit. In such a situation, a federal habeas court would not be justified in considering the procedural default issue. See id.

Our conclusion that a federal habeas court possesses the authority, in its discretion, to decide a petitioner's claim on the basis of procedural default despite the failure of the state to properly preserve procedural default as a defense comports with the unanimous decisions of the other courts of appeals that have considered this question. The First, Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits all agree that a federal court, in the exercise of its judicial discretion, may address procedural default despite the failure of the state to preserve or present the issue properly. See Windham v. Merkle , 163 F.3d 1092, 1099–1101 (9th Cir. 1998) ; Magouirk v. Phillips , 144 F.3d 348, 357–58 (5th Cir. 1998) ; Brewer v. Marshall , 119 F.3d 993, 999 (1st Cir. 1997), cert. denied , 522 U.S. 1151, 118 S.Ct. 1172, 140 L.Ed.2d 182 (1998) ; Esslinger v. Davis , 44 F.3d 1515, 1524–25 (11th Cir. 1995) ; Washington v. James , 996 F.2d 1442, 1448 (2d Cir. 1993) ; Hardiman v. Reynolds , 971 F.2d 500, 501–05 (10th Cir. 1992) ; Hull v. Freeman , 932 F.2d 159, 164 n. 4 (3d Cir. 1991), overruled on other grounds by Caswell v. Ryan , 953 F.2d 853 (3d Cir. 1992) ; Burgin v. Broglin , 900 F.2d 990, 997–98 (7th Cir. 1990) ; see also Bannister v. Delo , 100 F.3d 610, 619 (8th Cir. 1996) (noting that district court rejected

petitioner's argument that the circuit court improperly raised procedural default sua sponte in a prior appeal).

A federal habeas court, in determining whether it should exercise its discretion to notice a petitioner's procedural default, should be guided by the interests of comity and judicial efficiency that support the consideration of this issue despite the failure of the state to preserve or present the issue properly. The "exercise of ... discretion should not be automatic, but must in every case be informed by those factors relevant to balancing the federal interests in comity and judicial economy against the petitioner's substantial interest in justice." Magouirk , 144 F.3d at 360. Additionally, "the court should consider whether justice requires that the habeas petitioner be afforded with notice and a reasonable opportunity to present briefing and argument opposing dismissal." Id. Further, the court should take into consideration whether the failure of the state to raise the matter of procedural default in a timely manner was intentional or inadvertent, and when a state intentionally has declined to pursue the defense for strategic reasons, the court should be circumspect in addressing the issue. See id. at 359–60.

Other courts around the nation have also determined that a court may raise the issue of procedural default sua sponte . See Green v. United States , Nos. CV408–193, CR407–042, 2009 WL 6496558, at *5 n.7 (S.D. Ga., Sept. 23, 2009), Nasirun v. United States , No. 8:05-CV-411-T-27MSS, 2008 WL 717823 *4 (M.D. Fla. 2008), Bradford v. United States , No. 7: 20-CV-138 (WLS), 2021 WL 3503770, at *3 n.1 (M.D. Ga. April 7, 2021), Oakes v. United States , 400 F.3d 92, 97 (1st Cir. 2005) ("[W]e 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."). See also United States v. Willis , 273 F.3d 592, 596 (5th Cir. 2001) ("[A] court may, sua sponte , invoke the procedural default rule as a bar to § 2255."); Hines v. United States , 971 F.2d 506, 509 (10th Cir. 1992) (same), Chacon-Vela v. United States , No. 1:07–cr–0148–JEC–2, 2012 WL 1657193, at *2 (N.D. Ga. May 9, 2012) ("It is true that a court may sua sponte raise the issue [of procedural default], if it provides the defendant with an opportunity to show cause for his default."); Macias-Ortiz v. United States , Nos. 8:09–cv–1494–T–24 TGW, 8:07–cr–0086–T–30 TGW, 2009 WL 5214985, at *3 n.9 (M.D. Fl. Dec. 29, 2009) (citing cases in support of raising the issue of procedural default where the government has failed to raise the defense); Evans v. United States , Nos. CV613–005, CR610–029, 2013 WL 587535, at *2 (S.D. Ga. Feb. 14, 2013) adopted by 2013 WL 839239 (S.D. Ga. Mar 06, 2013) (applying the procedural default bar and recommending dismissal of the § 2255 petition during the Rule 4(b) preliminary review because "[f]ederal habeas courts are authorized to apply the procedural default defense sua sponte ").

In Day v. McDonough , 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006), the Supreme Court stated that "the [statute of] limitations defense resembles other threshold barriers — exhaustion of state remedies, procedural default, nonretroactivity — courts have typed ‘nonjurisdictional,’ although recognizing that those defenses ‘implicat[e] values beyond the concerns of the parties.’ " (quoting Acosta v. Artuz , 221 F.3d 117, 123 (2nd Cir. 2000) ). The Court then found:

that district courts are permitted, but not obliged, to consider, sua sponte , the timeliness of a state prisoner's habeas petition. We so hold, noting that it would make scant sense to distinguish in this regard AEDPA's time bar from other

threshold constraints on federal habeas petitioners. See supra , at 1682; Habeas Rule 5(b) (placing "a statute of limitations" defense on a par with "failure to exhaust state remedies, a procedural bar, [and] non-retroactivity"); Long , 393 F.3d at 404 ("AEDPA's statute of limitations advances the same concerns as those advanced by the doctrines of exhaustion and procedural default, and must be treated the same.").

Id. at 209. The Eleventh Circuit then determined in Burgess v. United States , 874 F.3d 1292, 1298 (2017), that under Day , "a district court had the authority to raise [a threshold defense] itself once the government failed to do so in its response to [the petitioner's] § 2255 motion."¹⁰ The Circuit went on to outline the constraints imposed by Day on the district court before it could exercise this authority:

10 In Burgess , the Eleventh Circuit held that a district court may not sua sponte invoke a collateral-action waiver where the government has not included that defense in its response to the § 2255 motion. The circuit remarked that the court may, however, ask the government if it intends to rely on the waiver. If the government indicates that it does so intend, the district court should provide the movant with an opportunity to be heard on the issue. The Eleventh Circuit distinguished procedural default from collateral-action waiver and applied the Federal Rules of Civil Procedure rather than Day to collateral-action waiver because "[u]nlike a collateral-action waiver, which only certain criminal defendants opt to enter into, all prisoners are bound by the statute of limitations and the doctrines of exhaustion, procedural bar, and nonretroactivity." 874 F.3d at 1299.

the court first had to give the parties fair notice and a chance to present their positions on the [threshold] defense, and it had to consider the parties’ respective positions. It also had to determine whether any delay in the application of the [threshold defense] significantly prejudiced [the petitioner] and "whether the interests of justice would be better served by addressing the merits."

Id. at 1298-99. Here, the court has given the parties fair notice and an opportunity to present their positions concerning procedural default. The court does not find any prejudice to Rudolph in the delayed focus on this issue. There have been no other proceedings or actions in this case in the interim, and Rudolph himself now seeks another stay of the litigation.¹¹ Even if the § 2255 motion is successful and three of his life sentences are vacated, Rudolph is still currently subject to another life sentence and consecutive 120 years of imprisonment. Furthermore, there is nothing in the record to indicate that the government strategically withheld the procedural default defense. Instead, it affirmatively asserts the defense in its supplemental brief. Applying Granda , it is clear that Rudolph cannot show cause for his procedural default. The procedural default defense "substantially implicate[s] the interests of judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice." Hines v. United States , 971 F.2d 506, 509 (10th Cir. 1992). Procedural default is manifest from the record in this case. The interests of justice and judicial economy would be better served by dismissing Rudolph's motion on the basis of procedural default. The court therefore finds that it has the discretion to consider procedural default in this case. C. Has the government deliberately waived the procedural default defense?

11 Rudolph requests that the court stay any ruling on his § 2255 motion until the Supreme Court resolves certiorari petitions in Blackwell v. United States , No. 20-8016, ––– U.S. ––––, 142 S.Ct. 139, 211 L,Ed.2d 49 (2021), and Granda . [Doc. No. 45 at 24]. The petition in Blackwell was denied on October 4, 2021. A petition in Granda was filed on November 1, 2021. No. 21-6171. The court declines to further stay this litigation.

Rudolph next argues that the government has deliberately waived the procedural default defense. [Doc. No. 45 at 9]. He bases this argument on two grounds: (1) that the government did not raise procedural default prior to the court's order for supplemental briefing, and (2) his review of other Davis § 2255 motions in this district and his resulting determination that "the government well knows how to raise the procedural-default defense when it wants to." [Doc. No. 45 at 2]. The government maintains that it did not deliberately waive this defense and stresses that "the omission of a discussion regarding procedural default in the government's initial response was an oversight, not deliberate." [Doc. No. 46 at 5]. The government points to its history of arguing procedural default in cases such as Rudolph's where it has foregone serious changes for the sake of the plea agreement. [Id. ].¹²

12 Here, the government agreed to forego the death penalty and other charges in exchange for Rudolph's guilty plea.

Both sides point to the government's actions in other cases; however, this court is concerned only with the government's actions in this case. "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). To penalize the government in this case simply because it chose to waive procedural bars in cases where it concluded the interests of justice warranted such waivers would have a chilling effect on the government's decision to waive procedural bars in any cases, to the detriment of criminal defendants generally. The court thus does not imply waiver by the fact that the government acted differently in other cases. "In keeping with the need to avoid judicial second-guessing of prosecutorial decisions, we have never held that similarly situated defendants must be treated identically. We allow the government discretion to decide which individuals to prosecute, which offenses to charge, and what measure of punishment to seek." United States v. Lawrence , 179 F.3d 343, 348 (5th Cir. 1999) (finding that "[n]otwithstanding [the petitioner's] protestations, the government had a rational and proper basis for its decision to oppose a [ § 2255 ] motion identical to one that it had earlier conceded."). Rudolph "cannot estop the government from changing its position as the evolving nature of the law encourages the government (as well as defendants) to seek new pronouncements from the courts." Id. at 350.

Furthermore, "[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation omitted). In Day v. McDonough , 547 U.S. 198, 199, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006), the Supreme Court determined that "[t]he District Court in this case confronted no intelligent waiver on the State's part" where the state asserted in its answer that the habeas petition was timely yet the magistrate judge determined under controlling Eleventh Circuit precedent that the petition was actually untimely.¹³ Nine months after the state answered the petition, the magistrate judge issued notice to the defendant and afforded him an opportunity to show why his petition was not untimely.¹⁴ At that time, the government still did not contest the timeliness of the petition. The Court stated that the record did not indicate the State "strategically" withheld the defense or deliberately waived it. The Court characterized the government's actions as "inadvertent error, a miscalculation that was plain under Circuit precedent." Id. at 211, 126 S.Ct. 1675. In contrast, the Court found deliberate waiver by the government in Wood v. Milyard , 566 U.S. 463, 474, 132 S.Ct. 1826, 182 L.Ed.2d 733 where "the State, after expressing its clear and accurate understanding of the timeliness issue ... deliberately steered the District Court away from the question and towards the merits of Wood's petition." The Court noted that "the State informed the District Court it would ‘not challenge’ Wood's petition on timeliness grounds." Id. at 470, 132 S.Ct. 1826. The government's conduct in this case aligns more with the state's conduct in Day than in Wood. Here, the government has not stated that it will not challenge Rudolph's petition on procedural grounds. Instead, it has affirmatively asserted the defense in its supplemental briefing. This conduct does not constitute a deliberate waiver but rather a forfeiture at most. As explained in Day , a court can raise a forfeited defense. See also Wood at 471, 132 S.Ct. 1826 (clarifying that "[i]n Day , we affirmed a federal district court's authority to consider a forfeited habeas defense when extraordinary circumstances so warrant."); Burgess at 1298 (explaining the limits on the court's ability to address a forfeited defense). The court does not find there to be a deliberate waiver on the part of the government thus it may apply the procedural default doctrine in this case.

13 The district court adopted the magistrate judge's recommendation.

14 In this case, the court requested supplemental briefing on the issue of procedural default ten months after the government filed its initial response to the § 2255 motion. During approximately six of these months the case was stayed pending the Supreme Court's rulings in Borden and Burris.

D. Has Rudolph procedurally defaulted his Davis claim?

Rudolph argues that the Eleventh Circuit decision in Granda "is wrong to say that a Davis claimant cannot establish cause and prejudice" necessary to excuse procedural default. [Doc. No. 45 at 17]. He maintains that his "claim was not reasonably available until the Supreme Court expressly overruled its own precedents and issued novel opinions red-lining three nearly-identical residual clauses." [Id. at 18]. However, in Bryant v. Warden, FCC Coleman-Medium , 738 F.3d 1253, 1261 (11th Cir. 2013) (overruled on other grounds by McCarthan v. Director of Goodwill Industries-Suncoast, Inc. , 851 F. 3d 1076 (11th Cir. 2017) ), the Eleventh Circuit stressed that:

This Court has made clear that futility of a claim due to adverse Circuit precedent at the time of direct appeal does not constitute cause to excuse a procedural default in a first § 2255 motion. McCoy , 266 F.3d at 1258–59 (applying the procedural default rule in a first § 2255 motion because petitioner did not raise his Apprendi claim on direct appeal, even though the claim was rejected by "every circuit which had addressed the issue" at the time). (footnote omitted)

Granda makes clear that Rudolph "had the building blocks of a due process vagueness challenge to the § 924(c) residual clause even before the Supreme Court's decision in Davis. " Martinez v. United States , 853 F. App'x 416, 418 (11th Cir. 2021). As the government puts it, "Rudolph's response argues that Granda is wrongly decided, but it is beyond the power of this Court to ignore Eleventh Circuit precedent." [Doc. No. 46 at 8].¹⁵ Because Rudolph cannot establish cause to excuse his procedural default, the court need not address the prejudice prong of the procedural default analysis.

15 Counsel for Rudolph filed a petition for certiorari in another case in this district, Blackwell v. United States , No. 20-8016, ––– U.S. ––––, 142 S.Ct. 139, 211 L.Ed.2d 49 (2021), concerning procedural default and the Granda decision. Prior to the ruling in Granda , the court in Blackwell determined that the movant had procedurally defaulted his Davis claims. Counsel's petition stated that the Eleventh Circuit in Granda adopted the view of the district court in Blackwell. The petition included the question of "[w]hether a defendant can ever show cause and prejudice to avoid the procedural default bar on a meritorious Davis challenge to a § 924(c) conviction?" The Supreme Court denied certiorari on October 4, 2021. [Doc. No. 48].

Rudolph maintains, however, that should the court find he cannot show either cause or prejudice, his default should still be excused because he is actually innocent of the § 924(c) convictions. "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’ " Bousley v. United States , 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citations omitted). Rudolph asserts that he "is actually innocent of his § 924(c) offenses because each is based solely on invalid, residual-clause predicates." [Doc. No. 45 at 21]. The government responds that Rudolph must show that he is actually innocent not just of the § 924(c) charges, but also Count 19 of the indictment and Counts 1 of the indictments in both this district and the Northern District of Alabama.¹⁶ [Doc. No. 44 at 10]. This is because the government dismissed Count 19 (which was punishable by death) and did not pursue the death penalty on Counts 1 of the Georgia and Alabama indictments in exchange for Rudolph's guilty plea. The government maintains that Rudolph's admissions both in the plea agreement and the plea colloquy prevent him from being able to make a showing of actual innocence on these charges.

16 Count 19 of the Northern District of Georgia indictment charged Rudolph with transporting the explosive used to bomb the New Woman All Women Health Care Clinic in Birmingham, Alabama. [Doc. No. 4 at 8-9]. Count 1 of the Northern District of Georgia indictment concerned the bombing at Centennial Olympic Park. [Id. at 1]. Count 1 of the Northern District of Alabama indictment concerned the bombing at the New Woman All Women Health Care Clinic.

The government cites to Bousley in support of this argument. There, the Supreme Court held that "[i]n cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges." 523 U.S. at 624, 118 S.Ct. 1604. Rudolph disagrees with the government's characterization and avers that "[n]one of the government's examples qualify as ‘more serious charges.’ " [Doc. No. 45 at 22]. He contends that he pled guilty to Count 1 of each indictment and that "the agreement not to seek death on that count is not a ‘charge’ at all, but merely a discretionary sentencing enhancement." [Id. ]. As for Count 19, he maintains that it is "equally serious" to the charges in Counts 1 of the two indictments. [Id. ]. He thus asserts that he does not need to show actual innocence on those charges.

In return for Rudolph's guilty plea, the government agreed not to file notice of intent to seek the death penalty for Counts 1 and 2. [Doc. No. 19-1 at 14]. Counts 1 and 2 of the indictment concern the bombing at Centennial Olympic Park, in which Alice Hawthorne was killed. The statutes in Counts 1 and 2, 18 U.S.C. §§ 844(i) and 924(c), both provide for punishment by death when death results. The government also agreed to dismiss thirteen other charges in the indictment in return for Rudolph's guilty plea. [Doc. No. 18-1 at 3]. Two of those charges, Counts 3 and 19, concern transportation of the explosive used in some of the bombings. The statute in Counts 3 and 19, 18 U.S.C. § 844(d), also provides for punishment by death when death results.¹⁷

17 In its brief, the government refers the court only to Count 19, which like Count 3 is a charge under 18 U.S.C. § 844(d). Count 19 concerns transportation of the explosive used in the bombing at the New Woman All Women Health Care Clinic in Birmingham, Alabama, in which Robert Sanderson was killed. However, the government also dismissed Count 3 pursuant to the plea agreement. Count 3 concerned transportation of the explosive used in the bombing at Centennial Olympic Park, in which Alice Hawthorne was killed.

Because all three statutes allow for punishment by death in this situation, Rudolph maintains that the § 844(d) charge "is merely equivalent to the crimes to which Mr. Rudolph pled guilty." [Doc. No. 45 at 22]. The Supreme Court did not define the term "more serious charges" in Bousley. It did stress, however, that the reason why actual innocence can excuse procedural default is to prevent excessive punishment of someone who is factually innocent. 523 U.S. at 623, 118 S.Ct. 1604. Understanding the dynamics behind plea negotiations, the Court emphasized that the showing of actual innocence would have to extend to any more serious charges forgone by the government during the plea negotiations. As the court in Booth v. Thomas , No. 7:12-cv-0747, 2015 WL 400662, at * 10 (N.D. Ala. Jan. 28, 2015) explained, "[t]he likely rationale for Bousely ’s rule regarding a showing of actual innocence of foregone charges is that the defendant should not receive an unjustified windfall as a result of his guilty plea." "Under Bousley , a defendant must demonstrate actual innocence for a more serious charge or ‘a petitioner could escape criminal liability [simply] because of a prosecutor's lenience in agreeing to conviction on less serious, but now invalid, counts in obtaining the plea.’ " United States v. Hernandez , No. 14-cr-00120-EMC-6, 2020 WL 4349850, at *5 (N.D. Cal. July 29, 2020) (quoting Vosgien v. Persson , 742 F.3d 1131 (9th Cir. 2014) ).

Here, Rudolph is technically correct that the death penalty for Counts 1 and 2 is not a separate charge listed in the indictment. But it also not just "a discretionary sentencing enhancement" as Rudolph tries to characterize it. [Doc. No. 45 at 22]. Under 18 U.S.C. § 3593(a)(2), the government must file and serve on the defendant a notice "setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death." After the defendant is either found guilty by a jury or pleads guilty, a separate hearing must be conducted to determine if the death penalty should be imposed. This hearing may be held before the jury that convicted the defendant, a separate jury empaneled for sentencing purposes if the defendant pled guilty, or the judge if the defendant so moves and the government agrees. 18 U.S.C. § 3593(b). At this hearing, "the government must prove the existence of any aggravating factor beyond a reasonable doubt." United States v. Lighty , 616 F.3d 321, 343 (4th Cir. 2010). While it may be within the government's discretion to seek the death penalty, the death penalty itself is not a discretionary enhancement to a defendant's sentence. "[T]he Eighth Amendment requires that a sentence of death not be imposed arbitrarily." Jones v. United States , 527 U.S. 373, 381, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

It is clear from the record of this case that the government decided to forego the death penalty on Counts 1 and 2 in exchange for Rudolph's guilty plea. The government also agreed to withdraw its previously filed notice of intent to seek the death penalty in the Northern District of Alabama case. [Doc. No. 19-1 at 15]. Additionally, the government "agree[d] not to bring further criminal charges against the defendant related to the charges to which he's pleading guilty, or to the information that the defendant provide[d] to the government" concerning the location of hidden explosives and firearms,¹⁸ as described in paragraph 11 of the plea agreement. [Id. ]. The government also dismissed thirteen other charges in the federal indictment that were pending against Rudolph.

18 Rudolph had informed the government that there were five locations containing "a significant amount of hidden dynamite." [Doc. No. at 18-1 at 3]. One of these locations "contain[ed] a hidden bomb buried approximately 50 yards from a major roadway and approximately 200 yards from homes and businesses." [Id. at 4].

These decisions by the government to forego the death penalty and additional significant charges limited Rudolph's exposure at sentencing. Also, there is no indication in the record that the government would not have elected to seek the death penalty on Counts 3 and 19 had Rudolph not pled guilty. Thus, Counts 3 and 19 could be characterized in that respect as more serious charges than the charges to which Rudolph pled guilty. At the very least, they contain equally serious charges to those in Counts 1 and 2. Again, the concerns implicated in the actual innocence analysis include ensuring that a movant is not being punished more severely than he should be. Thus, it is sensical that a movant who pled guilty and asserts actual innocence should have to make a showing of factual innocence as to any equally serious charges that were foregone by the government in exchange for his guilty plea. Courts in both this circuit and across the nation have found that "the Bousley actual-innocence showing extends to more-serious and as-serious charges." United States v. Ross , No.: 2:10-CR-178, 2017 WL 3769758, at *14 (N.D. Ind. Aug. 31, 2017). See also Lewis v. Peterson , 329 F.3d 934, 937 (7th Cir. 2003) ("The logic of the Bousley opinion does not require that the charge that was dropped or forgone in the plea negotiations be more serious than the charge to which the petitioner pleaded guilty. It is enough that it is as serious. For if it is as serious, the petitioner would have gained little or nothing had the government and he realized that the charge to which he pleaded guilty was unsound."); Tavera v. United States , No. 16-22346-CIV-KING/White, 2018 WL 3014073, at *5 (S.D. Fla. June 15, 2018) ("In the guilty plea context, in addition to showing that he was actually innocent of the offense to which he pled guilty, the defendant also must demonstrate that he was actually innocent of any charges of greater or equal seriousness that the government dismissed or withheld from charging in return for the guilty plea."); United States v. Caso , 723 F.3d 215, 221-22 (D.C. Cir. 2013) (finding that the analysis undertaken by the Supreme Court in Bousley would have been superfluous if it was not necessary for a movant to make a showing of actual innocence on equally serious charges); Kimbrough v. United States , No. 3:19-cv-1006, 2021 WL 809678, at *6 (M.D. Tenn. Mar. 3, 2021) (stating that the § 2255 movant failed to make the requisite showing of actual innocence on equally serious charges that also carried potential life sentences); Ford v. United States , No. CV 115-034, 2016 WL 6211722, at *2 (S.D. Ga. Oct. 24, 2016) (ruling that the movant was procedurally barred because he could not show he was actually innocent of equally serious charges that were dropped during the process of plea bargaining); Booth v. Thomas , No. 7:12-CV-0747-AKK-JEO, 2015 WL 400662, at *10 (N.D. Ala. Jan. 28, 2015) (same).

The actual innocence exception is a narrow one that has been described as a " ‘safety valve’ for the ‘extraordinary case’ where a substantial claim of factual innocence is precluded by an inability to show cause." Harris v. Reed , 489 U.S. 255, 271, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (O'Connor, J., concurring). The primary purpose of the actual innocence analysis is to prevent a fundamental miscarriage of justice. To that end, the court can see no cogent basis for distinguishing between whether a foregone charge was "more serious" or "equally serious." Rudolph has not made a threshold showing of actual innocence. Indeed, he has not even attempted to show that he is factually innocent of the § 844(d) charges or even any of the other charges that the government forewent in the plea agreement. His admissions in both the plea agreement and the plea colloquy establish his guilt. The court finds that he has failed to establish actual innocence to overcome his procedural default.

Because Rudolph cannot establish cause to excuse his procedural default or show actual innocence to overcome the default, the court finds that he has procedurally defaulted his Davis claims.

III. Even if Rudolph could overcome procedural default, he cannot proceed on his § 2255 motion because he waived the ability to collaterally attack his sentence.

In its response to Rudolph's § 2255 motion, the government argues that Rudolph has waived the ability to collaterally attack his sentence. [Doc. No. 37 at 5]. The government refers the court to Paragraph 14 of the plea agreement:

14. WAIVER OF APPEAL: In consideration of the Government's recommended disposition, the defendant voluntarily and expressly waives, to the maximum extent permitted by federal law, the right to appeal his conviction and sentence in this case, and the right to collaterally attack his sentence in any post-conviction proceeding, including motions brought under 28 U.S.C. § 2255 or 18 U.S.C. § 3771, on any ground.

[Doc. No. 18-1 at 4]. The government argues that Rudolph knowingly and voluntarily agreed to this waiver, and that this waiver prevents him from seeking relief via the § 2255 motion. Rudolph presents two arguments in response: (1) that the plea agreement only bars him from challenging his sentence and not his § 924(c) convictions and (2) the waiver cannot be enforced because the sentence he has received is now beyond the statutory maximum following the Supreme Court's decision in Davis. The court will address each of these arguments in turn.

A. Does the waiver bar Rudolph from collaterally attacking the § 924(c) convictions?

Rudolph contends that the plea agreement waives only his ability to collaterally attack his sentence, not the underlying convictions as he maintains he is doing in his § 2255 motion. He emphasizes the language in the plea agreement in support of his argument. He also cites the portion of the plea transcript in which the court queries him as follows: "You are also waiving your right to ever collaterally attack your sentence in any post-conviction proceeding, such as a habeas corpus or other type proceeding. Do you understand that? Yes." [Doc. No. 19 at 49, emphasis added by defendant]. He cites the following cases in support of his argument that the language of the plea agreement allows him to collaterally attack his § 924(c) convictions:

United States v. Palmer , 456 F.3d 484, 488 (5th Cir. 2006) ("A defendant's waiver of his right to appeal a sentence is just that: it does not also constitute a waiver of his right to challenge a conviction."); Cowart v. United States , 139 Fed. Appx. 206, 208 (11th Cir. 2005) (unpublished) ("the language of Cowart's sentence appeal waiver provided that she waived her right ‘to collaterally attack her sentence,’ and did not mention a waiver of the right to attack her plea or the plea agreement itself [and therefore] Cowart's valid sentence-appeal waiver does not preclude these issues"); United States v. Copeland , 381 F.3d 1101, 1105 (11th Cir. 2004) (holding that waiver of "right to appeal any sentence imposed" does not bar defendant from appealing on grounds that government breached plea agreement); Allen v. Thomas , 161 F.3d 667, 673 (11th Cir. 1998) (holding that agreement not to seek "parole, commutation of sentence, reprieve, or any other form of relief from life imprisonment" did not bar defendant from seeking federal habeas review of underlying convictions because it referred "to a reduction of the sentence, not to relief from the underlying conviction itself").

[Doc. No. 38 at 4]. Rudolph argues that "[b]ecause the plea colloquy in this case only conveyed to Mr. Rudolph that he was waiving the right to collaterally attack his sentences, not his convictions, it does not meet the Bushert test ." [Id. at 5]. In United States v. Bushert , 997 F.2d 1343, 1351 (11th Cir. 1993), the Eleventh Circuit held that in order to enforce a sentence appeal waiver, "[t]he government must show that either (1) the district court specifically questioned the defendant concerning the sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear from the record that the defendant otherwise understood the full significance of the waiver."

The cases cited by Rudolph are inapposite. In Cowart ,¹⁹ the § 2255 movant attacked the validity of her guilty plea due to the ineffectiveness of her counsel. The Eleventh Circuit determined that her challenge to her plea was not barred by the appeal waiver because the waiver only concerned the sentence, and not the plea itself. Here, Rudolph has not challenged the validity of his plea. In Copeland , the Eleventh Circuit rejected the government's argument that Copeland had "waived his right to appeal anything connected with [the drug] case except for the three exceptions listed in paragraph 22 of the waiver of appeal, none of which apply." 381 F.3d at 1104-5 (emphasis added, internal quotation omitted). In Thomas , the Eleventh Circuit focused on the phrase "or any other form of relief from life imprisonment" in the waiver provision and determined "that language of that level of generality is not sufficient to constitute a valid waiver of specific rights." 161 F.3d at 672. Here, there is no ambiguity in the waiver provision of Rudolph's plea agreement. Palmer concerned the waiver of the right to appeal a conviction, not collaterally attack it. There, the Fifth Circuit held that "[a] defendant's waiver of his right to appeal a sentence is just that: it does not also constitute a waiver of his right to challenge a conviction." 456 F.3d at 487. Here, the language of the waiver provision is clear that Rudolph waived the ability to appeal both his conviction and his sentence, thus Palmer has no bearing on this case.

19 The court also notes that this is an unpublished decision and thus is not binding precedent. See Crocker v. Beatty , 995 F.3d 1232, 1241 n.6 (11th Cir. 2021) ("unpublished cases ... do not serve as binding precedent and cannot be relied upon to define clearly established law") (internal quotation omitted).

Indeed, the holdings in all of these cases cited by Rudolph are narrowly tailored to the facts of those individual cases, thus they are not helpful to Rudolph's cause. This is because "[a] plea agreement is, in essence, a contract between the Government and a criminal defendant." United States v. Howle , 166 F.3d 1166, 1168 (11th Cir. 1999). There is no requirement that each contract, or plea agreement, be crafted the same in every case. If there were, the whole system of plea negotiations would be a useless exercise. In the cases cited by Rudolph, the courts looked closely at the language of the individual plea agreements to determine if the defendants had agreed to the asserted waiver. Here, the court will do likewise.

Rudolph's argument hinges on the lack of the words "or conviction" in the collateral attack waiver portion of the plea agreement and in a statement signed by Rudolph and attached to the plea agreement. For the purposes of clarity, the court reproduces this portion of Rudolph's argument below with the emphasis as supplied by Rudolph:

The government quotes the plea agreement, but it fails to understand it. The agreement states:

WAIVER OF APPEAL: In consideration of the Government's recommended disposition, the defendant voluntarily and expressly waives, to the maximum extent permitted by federal law, the right to appeal his conviction and sentence in this case, and the right to collaterally attack his sentence in any post-conviction proceeding , including a motion brought under 23 U.S.C. § 2255 or 18 U.S.C. § 3771, on any ground.

The text states that Mr. Rudolph only waived (1) "the right to appeal his conviction and sentence" and (2) "the right to collaterally attack his sentence." The language near the end of the agreement, directly above Mr. Rudolph's signature, draws this same line:

I also have discussed with my attorney the rights I may have to appeal or challenge my sentence, and I understand that the appeal waiver contained in the Plea Agreement will prevent me, to the maximum extent permitted by federal law, from appealing my conviction or sentence or challenging my sentence in any post-conviction proceeding.

[Doc. No. 38 at 2-3, footnotes omitted]. Rudolph goes on then to declare that "[t]he text speaks for itself." [Id. at 3].

But the court's inquiry where a waiver provision is concerned is not limited to just the text itself. As the Eleventh Circuit explained in United States v. Jeffries , 908 F.2d 1520, 1523 (1990) :

Plea agreements are interpreted and applied in a manner that is sometimes likened to contractual interpretation. This analogy, however, should not be taken too far. In In re Arnett , 804 F.2d 1200, 1203 (11th Cir. 1986), this court summarized the standards applied to interpretation of plea agreements. First, the court noted that a "hyper-technical reading of the written agreement" and "a rigidly literal approach in the construction of language" should not be accepted. Id. Second, the written agreement should be viewed "against the background of the negotiations" and should not be interpreted to "directly contradic[t] [an] oral understanding." Id. Finally, a plea agreement that is ambiguous "must be read against the government." Id. (citing United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986) ). The rational for this method of interpretation is that a plea agreement must be

construed in light of the fact that it constitutes a waiver of "substantial constitutional rights" requiring that the defendant be adequately warned of the consequences of the plea. Arnett , 804 F.2d at 1203.

Because a waiver of either the right to appeal or collaterally attack is a serious relinquishment of rights, courts look to what a defendant "reasonably understood at the time he signed his plea agreement." United States v. Copeland , 381 F.3d 1101, 1109 (11th Cir. 2004). "To constitute a valid waiver of substantial constitutional rights, a guilty plea ... must be offered with sufficient awareness of the likely consequences." In Re Arnett , 804 F.2d 1200, 1203 (11th Cir. 1986) (per curiam) (citing Brady v. United States , 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ). See also United States v. Hunter , 835 F.3d 1320, 1329 (11th Cir. 2016) (finding that the defendant "is entitled to specific performance of the terms of the agreement as he reasonably understood them at the time of his plea.").

The inquiry then is what Rudolph understood the term "sentence" in the waiver provision and the court's plea colloquy to mean. Where "it is manifestly clear from the record that the defendant otherwise understood the full significance of the waiver," the waiver will be enforced. Bushert , 997 F.2d at 1351. "[A] defendant's informed and voluntary waiver of the right to collaterally attack a conviction and sentence is enforceable." In re Acosta , 480 F.3d 421, 422 (6th Cir. 2007). Rudolph does not allege that he did not understand the waiver provision.

The waiver language in his plea agreement does not treat the issue of his guilt as separate from the sentence to be imposed. Paragraph 2 of the plea agreement specifically outlines the rights he waived concerning adjudication of his guilt (e.g. , "the right to plead not guilty and the right to be tried by a jury ... the right to confront and cross-examine the witnesses against him ... [the right] to testify on his own behalf and present evidence in his defense.") [Doc. No. 18-1 a 1]. That paragraph goes on to state:

The defendant understands that by pleading guilty, he is giving up all of these rights and there will not be a trial of any kind. The defendant also understands that he ordinarily would have the right to appeal his sentence and, under some circumstances, to attack the sentence in post-conviction proceedings. By entering the Plea Agreement, the defendant is waiving those rights to appeal or collaterally attack his sentence, as specified in paragraph 14 below.

[Id. ]

This was a binding plea under Federal Rule of Criminal Procedure 11(c)(1)(C). Thus, the conviction and the sentence are intertwined. During the plea hearing, the court specifically queried Rudolph on his understanding that his plea of guilty was tied to a specific sentence:

THE COURT: I note that in your plea agreement on page 3, if you want to turn to that, paragraph 7, that all parties, including Mr. Rudolph, have agreed that he shall be sentenced to life imprisonment on Counts 1, 2, 6 and 11. That each of the remaining counts, that is Counts 5, 7, 10 and 12, as to those counts, he shall receive the maximum allowed on each count. Further, it provides that there shall be no fine. Is that your agreement and understanding?

THE DEFENDANT: It is.

[Doc. No. 19-1 at 19]. The court then questioned Rudolph specifically regarding the sentence that would be imposed if he pled guilty:

THE COURT: According to my calculations, you will receive four life sentences, one each for Counts 1, 2, 6 and 7.

On Count 5 under your plea agreement, you will receive 20 years. On Count 7, you will receive 40 years. On Count 10, you will receive 40 years. And on Count 12, you will receive 20 years. Now these sentences may be run consecutively, which means that you will receive four life sentences, consecutively, and 120 years to follow. In fact, the statutes in this case require that each of the life sentences in this particular Indictment be run consecutively. Do you understand that?

THE DEFENDANT: Yes.

[Id. at 46-47]. The court again inquired if Rudolph understood that he would receive a predetermined sentence under the binding plea if he pled guilty:

THE COURT: Okay. Are you aware that the United States Sentencing Commission has issued guidelines for judges to follow in determining the sentence in a criminal case?

THE DEFENDANT: Yes.

THE COURT: Have you and your attorneys talked about the Sentencing Commission guidelines and how they might apply to your case?

THE DEFENDANT: Yes.

THE COURT: While the Court will have a presentence report prepared for use later by the Bureau of Prisons, it will primarily be for the computation of the restitution. In this case, there is a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), and if I accept your plea agreement, the agreed disposition or sentence will be included in the judgment, and you will not be able to withdraw your plea.

However, you may challenge the facts reported in the presentence report, and the Court will resolve those objections at the time of sentencing. Do you understand that?

THE DEFENDANT: Yes.

[Id. at 48]. In advising Rudolph that he was waiving his right to appeal, the court did not distinguish between conviction and sentence, because the two are so intertwined. The court likewise did not make such a distinction when advising Rudolph that he was waiving his right to collaterally attack his sentence. [Id. at 49]. At the end of the hearing, the court informed Rudolph:

Mr. Rudolph, pursuant to the Federal Rules of Criminal Procedure 11(c)(1)(C), I hereby accept your plea and approve your plea agreement. I now advise you that the agreed upon disposition will be included in the judgment of the Court.

[Id. at 53]. It is clear from the plea colloquy, the two paragraphs in the plea agreement describing waiver (Paragraphs 2 and 14), as well as the additional statement signed by Rudolph and attached to the plea agreement, that he understood the full significance of the waiver.

Furthermore, the court expressly advised Rudolph that the Sentencing Guidelines would not be considered when imposing his sentence. While it is possible to collaterally attack a sentence without challenging a conviction via a § 2255 motion, that is not the scenario in this case. For instance, a movant may challenge an increased sentence that was applied under the residual clause of the Armed Career Criminal Act, which was subsequently struck down as unconstitutionally vague in Johnson. In such a case, the defendant is not challenging his conviction but rather the enhancement to his sentence. Here, the sentence was not based on anything other than Rudolph's plea and the counts of conviction. "[I]t is the binding plea agreement that is the foundation for the term of imprisonment to which the defendant is sentenced." Freeman v. United States , 564 U.S. 522, 535, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) (Sotomayor, J., concurring). Any relief that Rudolph seeks as to his conviction can only be achieved through a collateral attack on his sentence. As the court in the Northern District of Alabama explained in its order analyzing the waiver in that case, "in order for Rudolph to collaterally attack his conviction , he first must attack his sentence , which he has waived the right to do." Rudolph v. United States , 551 F.Supp.3d 1270, 1289 (N.D. Ala. July 29, 2021) (emphasis in original). The waiver in the Northern District of Alabama case contains the same language as the waiver in this case. The court finds Rudolph's argument that the waiver does not bar his challenge to the § 924(c) convictions to be unpersuasive.

B. Can the waiver be enforced following the Supreme Court's decision in Davis if the predicate crime of arson is no longer a crime of violence for purposes of § 924(c) ?

Rudolph argues that the waiver cannot be enforced because the sentence he has received is now beyond the statutory maximum following the Supreme Court's decision in Davis. On its face, this argument presumes that the court agrees with Rudolph his " § 924(c) convictions are no longer viable after Davis. " [Doc. No. 38 at 7]. The court makes no determination on that issue, however, as it need not proceed to a merits analysis of Rudolph's § 2255 motion because he has procedurally defaulted his Davis claims and the waiver bars him from receiving relief via this collateral attack. Nevertheless, the court may still dispense with Rudolph's argument. As explained above, the plea agreement is essentially a contract between Rudolph and the government. "In a contract (and equally in a plea agreement) one binds oneself to do something that someone else wants, in exchange for some benefit to oneself. By binding oneself one assumes the risk of future changes in circumstances in light of which one's bargain may prove to have been a bad one. That is the risk inherent in all contracts; they limit the parties’ ability to take advantage of what may happen over the period in which the contract is in effect." United States v. Bownes , 405 F.3d 634, 636 (7th Cir. 2005).

In Oliver v. United States , 951 F.3d 841 (7th Cir. 2020), the Seventh Circuit held that a defendant can waive the right to challenge the constitutionality of his statute of conviction, even in a situation such as Rudolph's where a § 924(c) conviction may be based on a crime that no longer serves as a valid precedent.²⁰ In Grzegorczyk v. United States , 997 F.3d 743, 748 (7th Cir. 2021), the Seventh Circuit also rejected the argument that the movant's § 2255 was constitutional in nature because it "merely asserts that murder-for-hire is not a ‘crime of violence’ under the elements clause [of § 924(c) ]. This is an issue of statutory construction, not a claim of constitutional immunity from prosecution. As we have explained before, an unconditional guilty plea implicitly waives such challenges." (internal citations omitted).²¹ The Ninth Circuit ruled similarly in United States v. Goodall , 15 F.4th 987 (9th Cir. 2021). There, the Ninth Circuit stated:

20 The court emphasizes that it has not made a determination on the merits of Rudolph's argument that arson, the offense defined in 18 U.S.C. § 844(i), is no longer a crime of violence in light of the Supreme Court's ruling in Davis.

21 A petition for certiorari was filed in this case on October 8, 2021, on the question of whether "an unconditional guilty plea, by itself, waive[s] a defendant's right to challenge his conviction under § 924(c) on the grounds that Davis rendered it unconstitutional."

The contours of a conviction are fully known when the defendant pleads guilty and waives his appellate rights. The defendant admits his guilt, the facts alleged

in the plea agreement, and the sufficiency of the facts to establish his guilt on each element of the crime charged. He also knows precisely what he is giving up in exchange for the benefits of the guilty plea at the very moment the plea is entered—a trial and the constitutional rights that accompany it. Although there always remains a chance the law could change in the defendant's favor, the defendant knowingly and voluntarily assumes that risk because he receives a presumably favorable deal under existing law.

(internal quotation and citation omitted). The court in Rudolph's case in the Northern District of Alabama found similarly. So too has a district court in the Fifth Circuit. In Love v. United States , No. 3:17-cv-1431-B (BT), 2021 WL 2252141, at *2 (N.D. Tex. June 2, 2021), the court rejected the petitioner's argument that:

"[a]side from being a miscarriage of justice, it would be an absurd result of this Court to understand and adopt the ruling in Davis by the Supreme Court, but then not give any defendant a chance to benefit from it because of a waiver made at the time the case had not yet been decided’’ (emphasis added) ... because not every defendant pleads guilty, as his argument appears to presume. Moreover, even if all defendants pleaded guilty, they do not always do so pursuant to a written plea agreement with the Government containing a waiver provision.

(internal citation omitted). As the Eleventh Circuit stated in United States v. Melton , 861 F.3d 1320, 1321-22 (11th Cir. 2017) :

In negotiating a plea bargain, both sides aim for the best terms they can get, placing bets on what the future will hold. The problem is that the future and certainty are strangers, and not everyone wins a wager. Sometimes, a deal, like a tattoo, does not age well and what appeared to be attractive in the past seems unattractive in the future. But plea agreements, like most tattoos, are written in permanent ink and cannot be redrawn just because one party suffers from the plea bargain form of buyer's remorse.

Although it may seem unfair to Rudolph that the change in the law following Davis will not affect his sentence, it is not a miscarriage of justice to enforce the waiver that Rudolph negotiated and agreed to when he decided to enter his guilty plea.²² Because Rudolph has procedurally defaulted his Davis claims and the waiver bars him from pursuing this collateral attack, the court denies his § 2255 motion.

22 Putting the waiver issue aside, the court notes that changes in law, even when they may be on point for a certain case, do not necessarily result in relief for seemingly affected defendants. For instance, not all changes in law are made retroactive. For years, many defendants could not receive relief under the Fair Sentencing Act of 2010. The Fair Sentencing Act became law on August 3, 2010, but was not made retroactive. It was not until the First Step Act was enacted on December 21, 2018, that the relief provided under the Fair Sentencing Act became available to defendants who were sentenced prior to August 3, 2010. On November 1, 2014, Amendment 782 to the United States Sentencing Guidelines was enacted, lowering the base offense level for most drug offenses under U.S.S.G. § 2D1.1. It was not made retroactive, however, until 2015. The Supreme Court's determination in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) that the Sentencing Guidelines are not mandatory is not retroactively applicable to cases on collateral review. The list could go on.

IV. Certificate of appealability

Rule 11 of the Rules Governing § 2255 Proceedings states that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A § 2255 movant "cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1). Section 2253(c)(2) in turn states that a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." A substantial showing of the denial of a constitutional right "includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the [motion] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted).

The court understands that Rudolph has appealed the denial of the § 2255 motion that he filed in the Northern District of Alabama. No. 21-12828-DD (11th Cir. Aug. 18, 2021). That motion raised the same Davis claims that were before this court. On October 18, 2021, the Eleventh Circuit granted Rudolph's motion to stay that appeal pending this court's ruling. The court in Alabama has granted Rudolph a certificate of appealability on the following issue:

Whether Mr. Rudolph's plea agreement — in which he waived "the right to appeal his conviction and sentence" and "the right to collaterally attack his sentence in any post-conviction proceeding, including a motion brought under 28 U.S.C. § 2255 or 18 U.S.C. § 3771, on any ground" — now bars him from attacking his conviction under United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), by way of a motion brought under 28 U.S.C. § 2255 ?

No. 2:20-cv-8024-CLS (N.D. Ala. Aug. 17, 2021). As noted above, the waiver in Rudolph's plea agreement in the Northern District of Alabama is identical to the waiver in his plea agreement in this court. This court will therefore issue Rudolph a certificate of appealability on the same issue.

Unlike the court in Alabama, however, this court has also found that Rudolph has procedurally defaulted his Davis claims. In the interests of conserving judicial resources, the court will also grant Rudolph a certificate of appealability on the issue of whether this court erred in determining that he has procedurally defaulted his Davis claims.

V. Conclusion

For the reasons explained above, the court DENIES Rudolph's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. Nos. 30, 36]. The court issues a certificate of appealability on the waiver and procedural default issues outlined above.

SO ORDERED this 8^th day of November, 2021.