ATLANTA (CN) — The 11th Circuit considered an appeal Tuesday from a man who waived his right to challenge his sentence when he pleaded guilty nearly two decades ago to a series of deadly bombings.
Attorneys for Eric Robert Rudolph with the public defender's office insisted at the Tuesday hearing the appellate waiver Rudolph signed as part of his guilty plea foreclosed challenges only to his sentence, leaving the door open for him to challenge the basis of his conviction.
“He’s not attacking the process by which the sentence was imposed or saying there was something unlawful about how the sentence was imposed,” federal public defender Deanna Oswald argued before the panel in Atlanta on Tuesday. “He’s saying his convictions are not valid. It’s not an attack on the sentence generally.”
The distinction did appear to sway U.S. Circuit Judge Charles Wilson, a Clinton appointee considering the challenge, but counsel for the government tried to frame the move as a loophole.
“His motions collaterally attack his sentence and the way he’s doing that under [the law] is saying the convictions those sentences are based on are invalid,” Assistant U.S. Attorney Gabriel Mendel said.
Mendel insisted that Rudolph’s arguments are “both in function and in form, collateral attacks on his sentence.”
“It’s the only argument he could make, but he waived the right to make it,” Mendel said.
In connection to his 2005 plea, Rudolph is serving consecutive life sentences at ADX Florence, a federal super-maximum-security prison in the Colorado desert, for bombing the Atlanta Summer Olympics in 1996 and an abortion clinic in Birmingham, Ala., two years later.
In between those fatal attacks, Rudolph also carried out the bombings in early 1997 of an abortion clinic in Sandy Springs, Georgia, and an Atlanta lesbian bar.
The government withdrew its notice of intent to seek the death penalty in exchange for Rudolph agreeing that he would not appeal or “collaterally attack” his convictions and sentences.
Rudolph held up his end of the bargain until June 2020 when he filed a motion to vacate his sentence based on United States v. Davis, a 2019 decision in which the U.S. Supreme Court threw out sentencing rules that rested on what it found as an unconstitutionally vague definition of the term “crime of violence.” A year later, the U.S. Supreme Court ruled in Borden v. United States that "reckless" crimes cannot qualify as violent felonies under the Armed Career Criminal Act.
Rudolph went to the 11th Circuit after an Alabama federal judge denied his challenge, finding it barred by his plea agreement even if Davis and Borden mean Rudolph’s conviction for “use of a destructive device” cannot rest on his separate conviction for interstate arson resulting in death and personal injury.
“Rudolph’s plea agreement included three provisions that explicitly acknowledged his understanding that, by entering pleas of guilty to both counts of the superseding indictment, he waived his rights to directly appeal and collaterally attack his convictions and sentences,” U.S. District Judge C. Lynwood Smith Jr. wrote in a 43-page decision.
The defendant himself appeared to miss the distinction in his handwritten original motion, which he titled “Defendant’s Pro-se Motion to Vacate His 924 (C) Sentence.”
But federal public defender Oswald said Smith was wrong to find that Rudolph cannot attack his conviction without also attacking his sentence.
“The label on the motion… doesn’t change the nature of Rudolph’s claim or transform it into an attack on his sentence,” Oswald said. “The court should look to [the motion’s] function, not its label.”
Matthew Dodge, a federal public defender representing Rudolph, argued Tuesday that, if his client’s arson conviction is no longer lawful after the Davis ruling, he should be considered “actually innocent” of the offenses.
The panel did not indicate when it would reach a decision in the case.
Wilson was joined on the panel by U.S. Circuit Judges Britt Grant and Andrew Brasher, both Trump appointees.
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