Love v. USA
Order Accepting Findings and Recommendations and Love is granted a COA on the following issues: (1) whether the appellate-review waiver in his plea agreement bars his Davis claim; and (2) whether his appellate-review waiver is unenforceable under the miscarriageof- justice exception. re: 40 Findings and Recommendations on Case re: 2 Motion to Vacate under 28 U.S.C. 2255 filed by Savalas Christopher Love. (Ordered by Judge Jane J. Boyle on 6/2/2021) (svc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
SAVALAS CHRISTOPHER LOVE,
UNITED STATES OF AMERICA,
No. 3:17-cv-1431-B (BT)
ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are Movant Savalas Christopher Love’s Objections (CV doc. 41)1 to the
United States Magistrate Judge’s May 5, 2021 Findings, Conclusions, and Recommendation
addressing Love’s motion under 28 U.S.C. § 2255. At the outset, the Court notes that Love’s
specific objections solely address his claim under United States v. Davis, 139 S. Ct. 2319 (2019), and
the Court will conduct a de novo review of those matters.2 To the extent that Love has generally
objected to the Magistrate Judge’s Findings, Conclusions, and Recommendation, the Court will
review his objections only for plain error.3 See Fed. R. Civ. P. 72(b)(3) (“The district judge must
For purposes of this Order, “CV doc.” refers to Love’s civil action under 28 U.S.C. §
2255, case number 3:17-cv-1431-B-BT, and “CR doc.” refers to his criminal action, case number
In addition to his Davis claim, Love also raised the following § 2255 claims: (1) his
confession was involuntary; (2) his conspiracy to commit Hobbs Act robbery offense is not a
crime of violence; (3) he received “points” and “time” for charges that were dismissed; (4) he was
“led” by his attorney and the prosecutor to plead guilty to a gun enhancement under 18 U.S.C. §
924(c) that does not apply to him; (5) his attorney did not allow him to view the Presentence
Report (PSR); and (6) he should not have received “any point enhancement” for his criminal
By way of example, Love generally argues, “Mr. Love objects to the findings and
conclusions made in regard to denying his 28 U.S.C. § 2255 Motion.” Obj. 1 (CV doc. 41).
determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”);
see also Roe v. Johnson County, Texas, No. 3:18-cv-2497-B-BN, 2020 WL 5542333, at *1 (N.D. Tex.
Sept. 15, 2020).
Love initially argues that his Davis claim is not procedurally barred because he has shown
excusable cause for procedural default and actual prejudice resulting from the error. Obj. 2-6 (CV
doc. 41). This argument was not addressed in the Magistrate Judge’s Findings, Conclusions, and
Recommendation, and this argument need not be addressed by this Court now. Rather, the
Magistrate Judge recommended that the Court find and this Court now finds that Love’s Davis claim
is waived. FCR 4-11 (CV doc. 40). Because Love’s Davis claim is waived, the Court need not
address whether it is also procedurally defaulted. As the Magistrate Judge noted, the Government
argues that Love’s Davis claim was procedurally barred, but because Love’s Davis claim is waived,
“the Court should pretermit consideration of this additional argument.” FCR 11 (CV doc. 40).
Consequently, this objection is overruled.
Next, Love argues that his Davis claim is not barred by the appellate-rights waiver in his plea
agreement. Obj. 7-10 (CV doc. 41). Specifically, Love contends that the Government’s reliance on
United States v. Burns, 433 F.3d 442 (5th Cir. 2005), is misplaced because Burns addressed whether
the appeal waiver applied to the defendant’s sentence and not whether the conviction itself was
invalid. Id. Love’s argument is not compelling because the Magistrate Judge appropriately
recognized the instant case is distinguishable from Burns. In pertinent part, the Magistrate Judge
found, “The Fifth Circuit Court of Appeals has not specifically ruled on the validity of a collateralreview waiver in the context of Davis, but the Court recently addressed a case that is otherwise
comparable and instructive here: United States v. Barnes, 953 F.3d 383 (5th Cir. 2020).” FCR 6 (CV
doc. 40) (footnote omitted and emphasis added).
Love cites to Thompson v. United States, No. 3:14-CR-340-K, 2020 WL 1905817, at *2 (N.D.
Tex. Apr. 17, 2020) (J. Kinkeade), to support his claim that a miscarriage-of-justice exception should
be applied. Obj. 7-8 (CV doc. 41). As Love concedes, however, “the Fifth Circuit has declined to
explicitly adopt or reject a miscarriage of justice exception.” Id. at 7. As the Magistrate Judge
pointed out, the Fifth Circuit Court of Appeals refused to apply the miscarriage-of-justice exception
in Barnes, and the Court specifically noted that “other circuits recognize such an exception, [but]
the Fifth Circuit has declined to explicitly adopt or reject it.” FCR 8 (CV doc. 40) (citing Barnes,
953 F.3d at 389 (citing United States v. Ford, 688 F. App’x 309, 309 (5th Cir. 2017) (per curiam)).
Love makes an appropriate concession, and the Magistrate Judge correctly states the law. Because
a miscarriage-of-justice exception has not been recognized by the Fifth Circuit Court of Appeals, this
objection is overruled.
In a footnote, Love argues 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.” Obj. 9 n.4 (CV doc. 41) (emphasis added). Love’s argument lacks
merit 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. For these reasons, this argument lacks merit.
Finally, Love argues that the Government pointed to Oliver v. United States, 951 F.3d 841
(7th Cir. 2020), a Seventh Circuit Court of Appeals case where the manifest-justice-exception was
recognized, but the instant case is distinguishable because he would not be in a “better” position if
all parties had foreseen Davis. Obj. 9-10 (CV doc. 41). In particular, Love contends that he would
not be in a “better” position because he still faces the conspiracy to commit Hobbs Act robbery he
pleaded guilty to, and vacating the 18 U.S.C. § 924(c) charge would protect his constitutional right
to not be charged with an unlawful conviction yet still hold him accountable for his conspiracy to
commit Hobbs Act robbery charge. Id. at 9-10.
In pertinent part, in the magistrate judge found:
The Seventh Circuit has recognized a manifest-justice exception, but even
there, the Court recently held that two defendants in a virtually identical situation
as Love could not benefit from the exception. Oliver v. United States, 951 F.3d 841,
847 (7th Cir. 2020). The Court explained:
The robbery of pawnshop plainly violated the Hobbs Act, which we and
other circuits have held, after Johnson, qualifies as a "crime of violence"
under § 924(c)'s elements clause. Thus, even overlooking the shootout that
occurred, the government could easily have premised the § 924(c) counts
on the Hobbs Act robbery of the pawn shop in Indiana. It is not a
miscarriage of justice to refuse to put Oliver and Ross in a better position
than they would have been in if all relevant actors had foreseen Davis.
Id. (internal citations omitted). The same rationale is applicable here. Love
committed four substantive Hobbs Act robberies, and he admitted that he committed
those offenses in his factual resume and under oath at his rearraignment on
November 19, 2015. (CR ECF Nos. 57, 77.) Therefore, enforcing Love's
appellate-rights waiver would not result in a miscarriage of justice. Likewise, Love
should not be allowed to benefit from a windfall that neither he nor the Government
anticipated or bargained for.
FCR 9-10 (CV doc. 40).
As the Magistrate Judge noted, the Fifth Circuit has declined to explicitly adopt or reject a
miscarriage-of-justice exception, but it has been recognized in other circuits. FCR 7-8 (CV doc. 40).
In the Seventh Circuit, in Oliver, the Court recognized a manifest-justice exception. In the instant
case, Love committed four substantive Hobbs Act robberies, and he admitted to those crimes both
in his factual resume and under oath at his rearraignment. FCR 10 (CV doc. 40) (citing CR docs.
57, 77). For this reason, enforcing Love’s collateral-attack waiver would not result in a miscarriage
of justice, and the Magistrate Judge correctly found that Love’s Davis claim is waived. This objection
is therefore overruled.
Consistent with the foregoing, the Court finds that the Findings and Recommendation of the
Magistrate Judge are correct, and they are accepted as the Findings, Conclusions, and
Recommendation of the Court.
IT IS, THEREFORE, ORDERED that the Findings, Conclusions, and Recommendation
of the United States Magistrate Judge are accepted.
Certificate of Appealability
A certificate of appealability (COA) will be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 330 (2003); accord Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir. 2006).
The applicant makes a substantial showing if he demonstrates “that jurists of reason could debate
the propriety of the district court’s assessment of his constitutional claims or conclude that his claims
are ‘adequate to deserve encouragement to proceed further.’” United States v. Wainwright, 237 F.
App’x 913, 914 (5th Cir. 2007) (per curiam) (quoting Miller-El, 537 U.S. at 327); see Foster, 466
F.3d at 364.
Considering the Supreme Court’s decision in Davis and the specific facts of this case, “jurists
of reason could debate the propriety” of the recommendations contained herein and conclude “that
[the] claims are adequate to deserve encouragement to proceed further.” Therefore, Love is granted
a COA on the following issues: (1) whether the appellate-review waiver in his plea agreement bars
his Davis claim; and (2) whether his appellate-review waiver is unenforceable under the miscarriageof-justice exception.
SO ORDERED this 2nd day of June, 2021.
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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