Eric Robert Rudolph v. USA

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12828 & No. 22-10135
____________________
ERIC ROBERT RUDOLPH,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent- Appellee.
____________________
Appeals from the United States District Court
for the Northern District of Alabama
D.C. Docket Nos. 2:20-cv-08024-CLS,
2:00-cr-00422-CLS-TMP-1
____________________
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2 Opinion of the Court 21-12828
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket Nos. 1:20-cv-02726-CAP,
1:00-cr-00805-CAP-1
____________________
Before WILSON, G RANT, and B RASHER , Circuit Judges.
G RANT, Circuit Judge:
To avoid the death penalty, Olympic bomber Eric Rudolph
pleaded guilty to six federal arson charges and four counts of use of
a destructive device during and in relation to a crime of violence.
As part of his plea deal, Rudolph waived the right to appeal his
conviction and his sentence, as well as the right to collaterally
attack his sentence in any post-conviction proceeding, including
under 28 U.S.C. § 2255.
In spite of the plain language of his plea agreement, Rudolph
filed two petitions for habeas corpus, seeking to vacate several of
his sentences under 28 U.S.C. § 2255. Those petitions—a result of
the evergreen litigation opportunities introduced by the categorical
approach—asserted that his convictions for using an explosive
during a crime of violence were unlawful in light of new Supreme
Court precedent. Whether or not that is true, Rudolph’s motions
are collateral attacks on his sentences, so his plea agreements do
not allow them.
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21-12828 Opinion of the Court 3
I.
A.
Eric Rudolph committed a series of bombings in Atlanta and
Birmingham between 1996 and 1998, killing two people and
injuring many others. He used homemade explosives designed to
maximize casualties.
His first target was the 1996 Centennial Summer Olympic
Games in Atlanta. He specifically selected this location as a “good
target” for his first act of domestic terrorism because “the whole
world would be watching.” On the night of July 26, 1996, more
than 50,000 people were gathered in downtown Atlanta’s
Centennial Olympic Park. Unbeknownst to them, Rudolph had
placed a bomb under a bench near the main stage—three metal
plumbing pipes covered with more than five pounds of three-inch
cut masonry nails serving as homemade shrapnel. In the early
morning hours, the bomb exploded, instantly killing Alice
Hawthorne, a 44-year-old woman who had come to Atlanta with
her daughter to participate in the Olympic festivities. More than
100 other people were seriously injured, and a cameraman also
died after suffering a heart attack during the commotion.
Six months later, Rudolph attacked his next target. He
placed one bomb on the ground floor exterior wall outside the
operating room of Northside Family Planning Services (an
abortion clinic in Sandy Springs, Georgia), and one on the ground
under some shrubbery in the corner of the parking lot. The
placement of the two bombs was intentional. The first bomb
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4 Opinion of the Court 21-12828
would trigger an evacuation of personnel and prompt the response
of law enforcement, who would then be drawn within the blast
range of the second. As planned, the first bomb badly damaged the
building and the clinic. The second bomb detonated about an hour
later, seriously injuring two federal agents, sending five people to
the hospital, and causing hearing loss in about fifty others.
Rudolph attacked again five weeks later. This time his target
was the Otherside Lounge, an Atlanta nightclub with a “largely gay
and lesbian clientele.” He again placed two bombs. The first
injured five patrons and caused extensive property damage. As for
the second, this time an Atlanta police officer noticed a suspicious
backpack in the parking lot and quickly initiated “render-safe”
procedures. Though the bomb exploded, no one else was hurt.
Just hours later, Rudolph mailed letters to four Atlanta news
outlets claiming responsibility for the bombings on behalf of the
“Army of God.” The letters explained his targets: the first bombs
were for supporters of abortion and homosexuality, and the second
bombs were for federal agents. The letters, which concluded with
the phrase “DEATH TO THE NEW WORLD ORDER,” also
warned of more bombings against those targets in the future.
Almost a year later, Rudolph committed what would turn
out to be his last bombing. This time, he targeted the New Woman
All Women Health Care Clinic—another abortion clinic—in
Birmingham, Alabama. He hid the bomb under some shrubbery
next to the walkway leading up to the clinic. True to form, this
bomb contained over five and a half pounds of nails, but this time
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21-12828 Opinion of the Court 5
Rudolph used a remote-control detonator. He waited until Robert
Sanderson, a Birmingham Police Officer, was leaning over the
bomb to detonate the device, killing him. Emily Lyons, the clinic’s
head nurse, was seriously and permanently injured in the
explosion. Again, Rudolph sent letters to two Atlanta news outlets
claiming responsibility on behalf of the “Army of God” and
threatening more violence.
The next morning, Rudolph learned from a nationally
televised news conference that he had been identified as a suspect
in the Birmingham clinic bombing. He fled into the mountains of
western North Carolina where he remained a fugitive until his
arrest in May of 2003, five years later.
B.
Rudolph was indicted in the Northern District of Georgia on
twenty-one counts relating to the bombings. The indictment
included five counts under 18 U.S.C. § 844(i), the federal arson
statute. Section 844(i) provides that 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” shall be
imprisoned for between five and twenty years, or between seven
and forty years if injury results, and up to life imprisonment or the
death penalty if death results. 18 U.S.C. § 844(i). Based on those
arson charges, Rudolph was also indicted on five counts of
knowingly using and carrying a firearm (the bombs) during and in
relation to a crime of violence (the arson) under 18 U.S.C. § 924(c).
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Additionally, he was indicted under 18 U.S.C. § 844(d) on four
counts of transporting an explosive in interstate commerce with
the intent that it would be used to kill, injure, and intimidate
individuals and to unlawfully damage property. Finally, Rudolph
was charged with seven counts of willfully making threats
concerning an attempt to kill, injure, and intimidate and to
unlawfully damage property with an explosive in violation of 18
U.S.C. § 844(e).
The government also charged Rudolph in the Northern
District of Alabama. There, the charges included one count of
maliciously damaging property by means of an explosive resulting
in death, in violation of 18 U.S.C. § 844(i), and one count of
carrying a firearm during and in relation to that crime of violence,
in violation of 18 U.S.C. § 924(c). The government also filed a
notice of its intent to seek the death penalty.
Rudolph entered into simultaneous plea agreements in the
Northern District of Georgia and the Northern District of Alabama
on April 13, 2005. For the Georgia charges, Rudolph pleaded guilty
to all five counts of arson under § 844(i) for the bombings, and to
three counts of violating § 924(c) for using a destructive device
during and in relation to a crime of violence. The government
dropped all of the remaining counts under § 844(d) and § 844(e). As
for the charges in Alabama, Rudolph pleaded guilty to both
counts—the § 844(i) arson and the § 924(c) use of a destructive
device in relation to that arson. In exchange, the government
agreed not to seek the death penalty.
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21-12828 Opinion of the Court 7
Each court entered judgment against Rudolph according to
the terms of the respective plea agreements, which specified that
he would be sentenced to “the maximum term of imprisonment
allowed by law” for each count, except that the government agreed
not to seek the death penalty. In Georgia, Rudolph was sentenced
to four life sentences—one for the § 844(i) arson charge that
resulted in Alice Hawthorne’s death and three for the § 924(c)
charges for using an explosive device during a crime of violence.
He was also sentenced to sixty years for the bombings at the Sandy
Springs clinic, and another sixty years for the bombings at the
Otherside Lounge. In Alabama, Rudolph received two more life
sentences—one under § 844(i) for the bombing that killed Robert
Sanderson, and one for using an explosive device during that crime
of violence under § 924(c). All those sentences were to run
consecutively, meaning that Rudolph would serve six consecutive
life sentences, followed by 120 years imprisonment.
Both plea agreements contain the same appeal waiver
provision:
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.
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8 Opinion of the Court 21-12828
Rudolph confirmed in both courts that these waivers were
voluntary. He also affirmed in writing that he understood both his
legal rights and the plea agreements’ effects on those rights—
including that the waiver would prevent him from appealing his
conviction or sentence and from challenging his sentence in any
post-conviction proceeding.
C.
Fifteen years came and went. In June 2020, Rudolph filed
pro se motions in both the Northern District of Alabama and the
Northern District of Georgia. He sought to “vacate his 924(c)
sentences pursuant to 28 U.S.C. § 2255 in light of U.S. v. Davis, 139
S. Ct. 2319 (2019).” In each jurisdiction he was appointed counsel,
who then filed an amended motion and reply in Georgia, and a
reply in Alabama. These motions all made the same basic
argument: Rudolph’s sentences for using or carrying a firearm
during a crime of violence were unlawful because in the wake of
United States v. Davis, 139 S. Ct. 2319 (2019), his arson offenses were
no longer crimes of violence under the federal statute.
Rudolph’s requested relief included vacatur of the life
sentences imposed under § 924(c) and resentencing on his
remaining counts: “Mr. Rudolph respectfully requests that this
Court grant his 28 U.S.C. § 2255 motion, vacate his conviction
under 18 U.S.C. § 924(c), and set this case for a resentencing
hearing on the remaining count of conviction.” Rudolph
characterized these challenges as attacks on his convictions rather
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21-12828 Opinion of the Court 9
than his sentences, presumably in an attempt to avoid the bar set
in his plea agreement.
Both district courts denied Rudolph’s § 2255 motions. The
District Court for the Northern District of Alabama first agreed
that, after Davis, § 844(i) arson does not qualify as a crime of
violence under § 924(c). But it also concluded that Rudolph’s
appeal waiver barred his motion, because it “is not possible to
collaterally attack only a conviction under 28 U.S.C. § 2255, which
provides an avenue to attack the defendant’s sentence.” The District
Court for the Northern District of Georgia did not opine on the
merits of Rudolph’s argument. Instead, that court concluded that
his motions were barred because he had procedurally defaulted by
failing to raise the Davis issue sooner, or, in the alternative, because
he had waived the right to collaterally attack his sentences in the
plea agreement. Rudolph appealed both orders, and the cases were
consolidated on appeal.
II.
When reviewing a district court’s denial of a § 2255 motion,
this Court reviews questions of law de novo and factual findings
for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.
2004). The scope and validity of an appeal waiver are reviewed de
novo. King v. United States, 41 F.4th 1363, 1366 (11th Cir. 2022).
III.
“A plea agreement is, in essence, a contract between the
Government and a criminal defendant.” Id. at 1367 (quotation
omitted). And because it functions as a contract, a plea agreement
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10 Opinion of the Court 21-12828
“should be interpreted in accord with what the parties intended.”
United States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005)
(collecting cases). In discerning that intent, the court should avoid
construing a plea agreement in a way that would “deprive the
government of the benefit that it has bargained for and obtained in
the plea agreement.” United States v. Boyd, 975 F.3d 1185, 1191
(11th Cir. 2020) (quotation omitted). But make no mistake—the
government is not the only party to benefit from these deals.
Defendants trade costly trials and the risk of lengthy sentences for
the certainty offered by a guilty plea to a lesser set of charges. And
confidence about the meaning of terms in a plea agreement helps
defendants in the long run by reducing transaction costs and
making plea agreements worthwhile for the government to strike.
See King, 41 F.4th at 1367.
One common provision in such agreements is a defendant’s
waiver of the right to appeal his sentence or conviction. Likewise
for collateral attacks, which are generally brought in a separate
proceeding once the direct appeal is complete. See, e.g., id. at 1366.
A § 2255 motion is one kind of collateral attack, enabling a prisoner
who has already run the gamut of direct appeals to later claim the
right to be released on separate grounds. Here, Rudolph insists
that his § 2255 motions are collateral attacks on his convictions,
while the government says that they are (and could only ever be)
attacks on his sentences.
The government has the better of the argument. The text
of 28 U.S.C. § 2255, the history of that same statute, and the habeas
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21-12828 Opinion of the Court 11
corpus right that it codified, all point in the same direction: § 2255
is a vehicle for attacking sentences, not convictions. Supreme
Court precedents show the same, as does Rudolph’s requested
relief.
A.
We start with the plain language of § 2255, which shows that
any motion brought under that provision is necessarily an attack
on the movant’s sentence:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside
or correct the sentence.
28 U.S.C. § 2255(a) (emphasis added).
To begin, the statute lists four grounds on which a prisoner
in custody “may move the court which imposed the sentence to
vacate, set aside or correct the sentence.” Id. (emphasis added). So,
right from the start, the statute informs us that a motion filed under
this provision challenges a sentence.
The first three clauses each offer the ability to challenge a
specific problem with a sentence: (1) “that the sentence was
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12 Opinion of the Court 21-12828
imposed in violation of the Constitution or laws of the United
States”; (2) “that the court was without jurisdiction to impose such
sentence”; or (3) “that the sentence was in excess of the maximum
authorized by law.” Id. The fourth is a catch-all, allowing a
challenge to a sentence that (4) “is otherwise subject to collateral
attack.” Id. Unlike the earlier clauses, this fourth one lacks a
subject. But the only logical inference is that this clause refers to
the same subject as the last—the movant’s sentence. Because the
first three enumerated grounds for a motion relate to infirmities
with the movant’s sentence, and no word besides “sentence” is
available to serve as the subject, the fourth clause must be limited
to the same class as the first three—problems with sentences. The
grammatical structure offers no room for the clause to refer to
anything else.
Rudolph has no real response to this text. Instead, his
argument rests on the next section of the statute, which outlines a
sentencing court’s responsibilities once it receives what appears to
be a facially valid motion for relief. According to Rudolph, that
section extends the sentencing court’s habeas jurisdiction beyond
sentences and into convictions. Why? Rudolph says it is because
§ 2255(b) “permits the reviewing court to grant relief if it ‘finds that
the judgment was rendered without jurisdiction . . . or that there has
been such a denial or infringement of the constitutional rights of
the prisoner as to render the judgment vulnerable to collateral attack,’
and instructs the court ‘shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.’”
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21-12828 Opinion of the Court 13
It would be remarkable for a statute authorizing a challenge
on one basis to give the court the authority to offer relief for a
different violation. The fact that § 2255(b) uses the word
“judgment” does not change the fact that this motion is ultimately
a challenge to a sentence. Again, the only “judgment” the section
refers to is the one referenced in the previous section—the
judgment imposing the sentence. It would make no sense for the
remedies in § 2255(b) to be completely different than the ones that
could be requested in the § 2255(a) motion.
A few more clues in the text resolve any residual doubt that
attacks under § 2255 are on sentences. The title of a statute is not
dispositive, but it can inform the text’s meaning. See Essex Ins. v.
Zota, 466 F.3d 981, 989–90 (11th Cir. 2006). Section 2255’s title is
one that sheds light: “Federal custody; remedies on motion
attacking sentence.” 28 U.S.C. § 2255. Plus, only a “prisoner in
custody under sentence of a court” can invoke the statute’s
protections. Id. § 2255(a). In other words, a prisoner must still be
serving a prison sentence to bring a § 2255 challenge; no motion
can be filed after release, which makes perfect sense for a challenge
to a sentence. Moreover, the first line of the statute says the
prisoner is “claiming the right to be released” from a sentence on
one of the enumerated grounds. Id. This provision likewise makes
sense only in the context of a challenge to a sentence—not a
conviction.
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The text of § 2255 points to one conclusion. These motions
are collateral attacks on a movant’s sentence—the exact thing that
Rudolph waived the right to do.1
B.
Lacking support in § 2255’s text, Rudolph turns to
precedent. His primary argument is that Davis v. United States says
that § 2255 can be used to challenge convictions rather than just
sentences. 417 U.S. 333 (1974). But neither Davis nor the history it
cites are on Rudolph’s side.
First, Davis. The issue there was not whether § 2255 could
be used to attack a conviction. Instead, the Court was deciding
whether a change in a circuit court’s case law was enough to attack
“the sentence imposed,” or whether the error needed to be of a
“constitutional dimension.” Id. at 341–43. The majority thought a
legal error was sufficient; the dissent thought habeas relief was
available only to remedy a constitutional error. So the dispute was
over the available grounds for attacking a sentence under § 2255.
What the Court was not deciding was whether § 2255 is a vehicle
for collaterally attacking sentences, convictions, or both.
1 Rudolph points to two decisions (one unreported) of our sister circuits, both
concluding that § 2255 enables a collateral attack on a conviction separately
from a collateral attack on a sentence. See United States v. Loumoli, 13 F.4th
1006, 1009–10 (10th Cir. 2021); In re Brooks, No. 19-6189, 2020 U.S. App. LEXIS
6371, at *3 (6th Cir. Feb. 28, 2020). Both of these decisions are under reasoned,
and we are convinced that the textual and historical arguments outlined here
justify departing from them.
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21-12828 Opinion of the Court 15
Davis established that inmates have a right to attack their
sentences by showing a legal-but-not-constitutional infirmity in the
convictions that led to those sentences. Rudolph focuses not on
this holding, but on one sentence that suggests a different
implication from the case: “Nowhere in the history of Section 2255
do we find any purpose to impinge upon prisoners’ rights of
collateral attack upon their convictions.” Id. at 344. This, he says,
is enough to prove that § 2255 can be used to challenge not just his
sentence, but his conviction too.
To start, this part of the Davis opinion has little to do with
the Court’s holding. As a rule, “a statement that neither constitutes
the holding of a case, nor arises from a part of the opinion that is
necessary to the holding of the case” is dicta. United States v. Gillis,
938 F.3d 1181, 1198 (11th Cir. 2019) (quotation omitted). And dicta
is “not binding on anyone for any purpose.” Edwards v. Prime, Inc.,
602 F.3d 1276, 1298 (11th Cir. 2010). Both of these points are
crucial—not only to letting courts decide the cases before them,
but also to avoiding the risk that stray language will take on
importance in a new context that its drafters could not have
anticipated.
That is also why we “cannot read a court’s opinion like we
would read words in a statute.” See Nealy v. Warner Chappell Music,
Inc., 60 F.4th 1325, 1332 (11th Cir. 2023). Instead, we consider
opinions in their context, including the questions presented and the
facts of the case. Id. Here, the context shows that the Court was
responding to the dissenting opinion’s attempt to confine the
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16 Opinion of the Court 21-12828
nature of the allowed challenge to constitutional errors—not
addressing whether § 2255 motions attack convictions or
sentences. See Davis, 417 U.S. at 343–44. An understanding had
developed that prisoners could challenge their sentences by
showing that the convictions that led to them were unlawful. And
Davis resolved the debate about whether those infirmities needed
to be constitutional ones.
Rudolph argues that we should also rely on Davis’s reference
to the history of habeas corpus. We have no argument there—but
the history does not support his expansionary view of the statute.
Section 2255 maintained the historical rule of habeas corpus as a
remedy for unlawful imprisonment.
The “glory of the English law consists in clearly defining the
times, the causes, and the extent, when, wherefore, and to what
degree, the imprisonment of the subject may be lawful.” 3 William
Blackstone, Commentaries *133. And though the complete origins
of habeas corpus are obscured by history, the writ is naturally
connected with “those clauses of Magna Carta which prohibited
imprisonment without due process of law.” 9 William S.
Holdsworth, A History of English Law 111 (1926); see also George F.
Longsdorf, Habeas Corpus: A Protean Writ and Remedy, 8 F.R.D. 179,
180–81 (1948). Here too, release from an illegal sentence was
understood to be the reason for habeas corpus: “The decision that
the individual shall be imprisoned must always precede the
application for a writ of habeas corpus, and this writ must always be
for the purpose of revising that decision.” See Ex parte Bollman, 8
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21-12828 Opinion of the Court 17
U.S. (4 Cranch) 75, 101 (1807). Relief from illegal detention, in
short, has long been a defining feature of the Anglo-American legal
landscape.
To be sure, what qualifies as illegal detention for these
purposes has broadened over time. At the Founding, a conviction
in a court of competent jurisdiction was sufficient evidence that
due process had been given and imprisonment was lawful. See 3
William Blackstone, Commentaries *131–32. Courts considering
habeas petitions thus examined only the power and authority of
the court to imprison the petitioner, not the correctness of that
court’s legal conclusions. See, e.g., Ex parte Watkins, 28 U.S. (3 Pet.)
193, 201–03 (1830); Ex parte Burford, 7 U.S. (3 Cranch) 448, 449–53
(1806). “If the point of the writ was to ensure due process attended
an individual’s confinement, a trial was generally considered proof
he had received just that.” Brown v. Davenport, 596 U.S. 118, 128
(2022).
In the latter half of the nineteenth century and into the early
twentieth, however, this jurisdictional inquiry expanded into a
more searching review for constitutional defects in the underlying
conviction—but it did so within the original jurisdictional
framework. In short, a constitutional defect at the trial level acted
to rescind the jurisdiction of that court, rendering the sentence
vulnerable to attack. So as the Court explained in Ex parte Siebold,
a conviction under an unconstitutional law “is not merely
erroneous, but is illegal and void, and cannot be a legal cause of
imprisonment.” 100 U.S. 371, 376–77 (1879) (emphasis added); see
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also Ex parte Lange, 85 U.S. (18 Wall.) 163, 178 (1873) (writ granted
because sentence “was pronounced without authority, and he
should therefore be discharged”); Ex parte Wilson, 114 U.S. 417, 429
(1885) (writ granted because trial court “exceeded its jurisdiction,
and he is therefore entitled to be discharged”). But the courts never
wavered from understanding habeas corpus as a remedy for an
illegal sentence—not a second round of appeals for the purpose of
vindicating an improper conviction. See George F. Longsdorf,
Habeas Corpus: A Protean Writ and Remedy, 8 F.R.D. 179, 188–90
(1948).
Enter § 2255, passed during an era of increased codification.
See generally Guido Calabresi, A Common Law for the Age of Statutes
(1982). The Judicial Conference of the United States recommended
two bills: one intended to curb abuse of the writ, and the other
jurisdictional—enabling federal prisoners to bring collateral attacks
in the courts that sentenced them, rather than the courts where
they were confined.2 United States v. Hayman, 342 U.S. 205, 214–15
2 This new habeas corpus statute offered a solution to the discrete problem
that habeas corpus petitions could be filed only in the district of a prisoner’s
confinement. Habeas Corpus Act of 1867, ch. 28, 14 Stat. 385; see also United
States v. Hayman, 342 U.S. 205, 212–13 (1952). That presented a problem in the
modern era, with its interstate federal prison system. Relevant records
remained in the original court of conviction and could be difficult to obtain, a
practical difficulty magnified by the fact that most federal prisons were located
in a handful of states. Hayman, 342 U.S. at 212–14. That meant district courts
in those states were flooded with a disproportionate number of habeas
petitions, “far from the scene of the facts, the homes of the witnesses and the
records of the sentencing court.” Id. at 214 (emphasis added).
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(1952). Indeed, the Conference underlined the fact that this second
proposal (the precursor to § 2255) was about challenging sentences:
This section applies only to Federal sentences. It
creates a statutory remedy consisting of a motion
before the court where the movant has been
convicted. The remedy is in the nature of, but much
broader than, coram nobis. The motion remedy
broadly covers all situations where the sentence is
“open to collateral attack.” As a remedy, it is intended
to be as broad as habeas corpus.
Comm. on the Judiciary, Regulating the Review of Judgments of
Conviction in Certain Criminal Cases, S. Rep. No. 80-1526, at 2 (1948).
“As broad as habeas corpus” does not mean “broader than
habeas corpus,” which was always understood to be an attack on
illegal imprisonment. Section 2255 fundamentally remains a
procedure for prisoners to challenge their sentences. That is no less
true when the method of attack is to show that a conviction was
illegal. Even then, a motion under § 2255 is “a collateral attack on
the proceeding or process of detention.” George F. Longsdorf,
Habeas Corpus: A Protean Writ and Remedy, 8 F.R.D. 179, 190 (1948).
This understanding of § 2255 pervaded the Supreme Court’s
entire opinion in Jones v. Hendrix, a recent case considering the
scope of § 2255(e)’s so-called savings clause. 599 U.S. 465 (2023).
In that opinion the Court noted that “Congress created § 2255 as a
separate remedial vehicle specifically designed for federal
prisoners’ collateral attacks on their sentences”; that § 2255 reroutes
“federal prisoners’ collateral attacks on their sentences to the courts
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20 Opinion of the Court 21-12828
that had sentenced them”; and that § 2255 provides the “venue for
a federal prisoner’s collateral attack on his sentence.” Id. at 473, 474,
479 (emphasis added); see also id. at 469, 477, 478, 490, 492. We
agree.
C.
As a practical matter, it is clear that Rudolph’s § 2255
motions are exactly what his appeal waiver was intended to
prevent. In fact, the waiver specifically contemplates motions
under § 2255: Rudolph waived “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.”
Though he claims to be challenging the validity of his
underlying convictions, the relief Rudolph sought in the district
courts was tied entirely to his sentences. To start, he asked for the
life sentences imposed for the § 924(c) convictions to be vacated.
He also asserted that “because the multi-count sentence was
negotiated and imposed as a package,” the courts should “set the
case for resentencing” and “unbundle the sentencing package of
the original judgment and revisit the prison terms on the remaining
counts.” Rudolph thus sought to collaterally attack his sentences
under § 2255—a right that he expressly waived in his plea
agreement.
D.
Alternatively, Rudolph argues that his appeal waivers are
unenforceable because he did not know that he was giving up the
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21-12828 Opinion of the Court 21
right to collaterally attack his convictions when he entered into his
plea agreements. If he had only known, he says, he would never
have agreed to waive this right. But as we have already shown,
Rudolph’s § 2255 motions are not collateral attacks on his
convictions—they are collateral attacks on his sentences.
There may be mechanisms by which Rudolph can
collaterally challenge his convictions, but § 2255 is not one of them.
Our precedent confirms that “28 U.S.C. § 2255 was not enacted to
provide the exclusive remedy for a prisoner to obtain
postconviction habeas corpus relief in all circumstances,” and that
“federal courts may properly fill the interstices of the federal
postconviction remedial framework through remedies available at
common law.” United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.
2005) (quoting United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir.
1990)). Thus, as the government confirmed, there are “ways to
collaterally attack a conviction that are not 2255 motions.
Arguably, Mr. Rudolph wouldn’t be prohibited from bringing
those given the text of his plea agreement.” Habeas corpus may be
the Great Writ, but it isn’t the only writ.
E.
In a last-ditch effort, Rudolph urges us to adopt the so-called
miscarriage of justice exception to the general rule that appeal
waivers are enforceable. We have repeatedly declined to adopt
that exception. Even if we were inclined to change course here—
which we are not—Rudolph would not qualify for relief for any
number of reasons.
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Our Circuit has long held that knowing and voluntary
waivers of the right to appeal are enforceable, and we have “never
adopted a general ‘miscarriage of justice’ exception to the rule that
valid appeal waivers must be enforced according to their terms.”3
King, 41 F.4th at 1368 n.3. Some of our sister circuits have adopted
such an exception—overriding a valid waiver where “denying a
right of appeal would work a miscarriage of justice”—but this
exception has proved “infinitely variable.” United States v. Teeter,
257 F.3d 14, 25 & n.9 (1st Cir. 2001); see also United States v. Andis,
333 F.3d 886 (8th Cir. 2003) (applying the miscarriage of justice
exception to an “illegal sentence”).
Rudolph has suggested that we should adopt a miscarriage
of justice exception and apply it to him because he is “actually
innocent” of the § 924(c) crimes which charged him with using a
destructive device while committing arson. That contention is
preposterous. Rudolph argues that, for technical reasons, his arson
convictions did not meet the categorical definition of a crime of
violence under 18 U.S.C. § 924(c) because someone else,
theoretically, could be convicted for setting a fire on their own
property, or for committing arson with recklessness rather than
intent, neither of which would qualify as violent crimes.
3 Though we have not adopted the miscarriage of justice exception, we have
recognized that “there are certain fundamental and immutable legal
landmarks within which the district court must operate regardless of the
existence of sentence appeal waivers.” United States v. Bushert, 997 F.2d 1343,
1350 n.18 (11th Cir. 1993). Such landmarks include, to start, the inviolability
of statutory maximum sentences.
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21-12828 Opinion of the Court 23
That is a far cry from actual innocence. To establish actual
innocence in the procedural default context, a prisoner must show
that “it is more likely than not that no reasonable juror would have
convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998)
(quotation omitted). And “actual innocence” means “factual
innocence, not mere legal insufficiency.” Id. In cases like
Rudolph’s where the Government has forgone other, more serious
charges in the course of plea bargaining, the petitioner must show
that he is actually innocent of the forgone charges as well.4 Id. at
624.
We cannot, in good conscience, seriously suggest that Eric
Rudolph is “actually innocent” of using an explosive device during
and in relation to a crime of violence under 18 U.S.C. § 924(c). Let
alone actually innocent of the dropped charges, which included
four counts under 18 U.S.C. § 844(d) for transporting an explosive
in interstate commerce with intent to kill, injure, and intimidate
individuals and to unlawfully damage property, and seven counts
under 18 U.S.C. § 844(e) for willfully making threats concerning an
attempt to kill, injure, and intimidate and to unlawfully damage
property with an explosive. It would defy all reason to contend
that he is factually, rather than (potentially) legally, innocent of that
4 There has been some disagreement as to whether a petitioner must show
that he is also innocent of equally serious dropped charges, in addition to more
serious charges, to defend against procedural default. See, e.g., United States v.
Caso, 723 F.3d 215, 221–22 (D.C. Cir. 2013). Because we reject the invitation
to create an exception for Rudolph either way, we refrain from weighing in
on the scope of actual innocence in this context.
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24 Opinion of the Court 21-12828
crime for the purposes of habeas corpus. We decline to create this
exception, or to apply it for Rudolph.
* * *
Eric Rudolph is bound by the terms of his own bargain. He
negotiated to spare his life, and in return he waived the right to
collaterally attack his sentences in any post-conviction proceedings.
We will not disrupt that agreement. Because Rudolph’s § 2255
motions are collateral attacks on his sentences, they are barred by
his plea agreement.
AFFIRMED.
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