Eric Robert Rudolph v. United States

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 1 of 24

[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

____________________

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 2 of 24

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, GRANT, and BRASHER, Circuit Judges.

GRANT, 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.

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 3 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 4 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 5 of 24

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).

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 6 of 24

6 Opinion of the Court 21-12828

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.

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 7 of 24

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.

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 8 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 9 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 10 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 11 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 12 of 24

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.’”

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 13 of 24

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.

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 14 of 24

14 Opinion of the Court 21-12828

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.

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 15 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 16 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 17 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 18 of 24

18 Opinion of the Court 21-12828

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).

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 19 of 24

21-12828 Opinion of the Court 19

(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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 20 of 24

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

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 21 of 24

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.

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 22 of 24

22 Opinion of the Court 21-12828

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.

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 23 of 24

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.

USCA11 Case: 21-12828 Document: 51-1 Date Filed: 02/12/2024 Page: 24 of 24

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.