District Court May Dismiss 2255 Petition Sua Sponte Without Determining Whether Gov't Will Seek Enforcement of Post-Conviction Relief Waiver

United States v. Del Toro-Alejandre, No. 05-41214 (5th Cir. June 18, 2007) (Higginbotham, Davis, Wiener)

Here's one for all you habeas-heads out there. The quesion in the case "is whether the district court may dismiss a section 2255 motion without first determining whether the government will insist that a defendant’s waiver of post-conviction relief be enforced."

The context: Del Toro pled guilty to a drug offense pursuant to a plea agreement in which he waived his right to appeal as well as his right to collaterally attack the conviction in any post-conviction proceeding. (The opinion doesn't contain the actual text of the waiver provisions in the plea agreement.) He was sentenced to 60 months (a mandatory minimum?)

Del Toro-Alejandre did not appeal, but later filed a timely petition under 28 U.S.C. § 2255, arguing that counsel was ineffective for failing to argue that Del Toro-Alejandre was entitled to be sentenced under the safety valve provision of U.S.S.G. § 5C1.2. He argued that he had truthfully provided the Government with all the information he had concerning his offense and that his attorney was ineffective for failing to challenge the Government's assertion to the contrary.

The district court dismissed the petition sua sponte, citing the post-conviction relief waiver in the plea agreement.

Del Toro appealed, citing the general rule that the government must seek enforcement of contractual provisions, otherwise they will be waived. He argued that because the Government didn't seek enforcement of his waiver, the district court shouldn't have enforced it. The Government responded that

it waives its contractual rights only when it fails to invoke a waiver in its brief or expressly declines to rely on a waiver; that a motion seeking relief under 28 U.S.C. § 2255 may, by the terms of the statute, be dismissed without serving the Government where “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”

The court agreed with the Government, "but with a word of caution." Relying on the Supreme Court's recent decision in Jones v. Bock (involving the Prison Litigation Reform Act), the court drew a distinction between enforcement of a waiver and a defense of failure to exhaust. Because the Government bargained for the waiver in the first place, it is assumed that it will seek enforcement of the waiver unless the Government says otherwise. But under Bock, a court does "not assume that the Government will insist upon a defense of failure to exhaust."

Some of you may be wondering why the waiver provision applied here, given Del Toro's claim of ineffective assistance. It's because Del Toro's petition did not claim that the ineffective assistance affected the validity of the waiver or the plea agreement itself:

Del Toro-Alejandre did not argue in the district court that his plea agreement was not entered knowingly or voluntarily. Yet he now argues that he pleaded guilty because counsel told him that he qualified for sentencing under the safety valve and therefore his plea was not entered knowingly or voluntarily. Del Toro-Alejandre raised the issue of the voluntariness of his guilty plea for the first time in his COA application, and the district court has not had an opportunity to address it. Therefore, this court did not address this claim in its order granting a COA.