RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0073P (6th Cir.) File Name: 00a0073p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  ARTHUR CHARLES ELZY, JR.,  Petitioner-Appellant,   No. 98-6223 v.  > UNITED STATES OF AMERICA,  Respondent-Appellee.  1 Appeal from the United States District Court for the Western District of Kentucky at Louisville. Nos. 97-00628; 96-00044—Edward H. Johnstone, Senior District Judge. Argued: October 13, 1999 Decided and Filed: March 1, 2000 Before: NELSON, BOGGS, and BATCHELDER, Circuit Judges. _________________ COUNSEL ARGUED: Thomas M. Dawson, Leavenworth, Kansas, for Appellant. James A. Earhart, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee. ON BRIEF: David V. Ayres, Leavenworth, Kansas, for Appellant. James A. Earhart, Terry M. Cushing,

1 2 Elzy v. United States No. 98-6223

ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee. _________________ OPINION _________________ ALICE M. BATCHELDER, Circuit Judge. Defendant- Appellant Arthur Charles Elzy appeals from the district court’s order denying his 28 U.S.C. § 2255 motion to vacate his sentence. Elzy’s motion claims that the Government breached the terms of the written plea agreement pursuant to which he was convicted and sentenced, a claim Elzy did not raise either at sentencing or on direct appeal. The district court denied the motion on its merits. Because we hold that Elzy’s claim is procedurally defaulted and he has not demonstrated the cause and prejudice required to excuse that default, we AFFIRM the dismissal of the motion without reaching its merits. I. Factual and Procedural History Pursuant to a written agreement with the Government, Elzy waived indictment and pled guilty to a superseding indictment which charged him with one count of conspiracy to manufacture marijuana and three counts of tax evasion, and sought forfeiture of certain property. He was sentenced to four concurrent sentences of 60 months of imprisonment, a $200 fine, and four years of supervised release. Elzy also agreed to forfeit $100,000 worth of property purchased with the proceeds of marijuana sales and to pay the IRS $75,000, representing the approximate value of the sixty to eighty kilograms of marijuana that he had produced. One year after he was sentenced, Elzy filed a motion under 28 U.S.C. § 2255 to modify his sentence, alleging that the Government breached the terms of the plea agreement by failing to file a § 5K1.1 downward departure motion in return for Elzy’s “substantial assistance” in investigating or prosecuting other criminals. Elzy had not challenged the 10 Elzy v. United States No. 98-6223 No. 98-6223 Elzy v. United States 3

III. Conclusion Government’s compliance with the plea agreement at sentencing; neither had he requested an evidentiary hearing, For the foregoing reasons, the district court’s denial of or filed a direct appeal. Elzy’s § 2255 motion is AFFIRMED. The relevant section of Elzy’s plea agreement provided: At the time of sentencing, the United States will [...] E. Consider making a motion for a downward departure pursuant to 18 U.S.C. § 3553(e) and § 5K1.1 of the Sentencing Guidelines, stating the extent to which the Defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense. According to the Government, the plea negotiations included lengthy discussions among Elzy and his counsel, the Assistant U.S. Attorney (“AUSA”) and federal agents on the meaning of “substantial assistance.” The Government advised Elzy that the term meant more than just general information, and that he must provide information that actually advanced an investigation or prosecution. Elzy does not dispute this recounting. Elzy also does not dispute that he refused to participate in undercover operations to gather evidence on others, and had no information to share with the Government regarding current illegal activities. What he did provide was one or two sentences of information about the criminal histories of each of eight associates. Additionally, Elzy’s wife, Traci, made efforts to arrange a controlled drug purchase, but only after Elzy was sentenced. The Government cited three reasons for refusing to file a § 5K1.1 motion: (1) Elzy’s failure to provide information that could be corroborated by an independent, credible source; (2) his unwillingness to take any active role in an investigation; and (3) his continued and repeated drug use while on pretrial release. While Elzy was awaiting trial, the AUSA received three bond violation reports from Elzy’s probation officer, all for marijuana use. 4 Elzy v. United States No. 98-6223 No. 98-6223 Elzy v. United States 9

The district court does not appear to have addressed Elzy’s ineffective assistance of counsel was never objected to in the failure to raise at the sentencing hearing or on direct appeal § 2255 proceedings, and has not been brought before us his claim that the Government breached the plea agreement. either. Instead, after receiving briefs from both parties, the court denied the § 2255 motion on its merits and issued a We also note that the Government failed to raise Elzy’s Certificate of Appealability. This appeal followed. default, either before the district court or before us on appeal. But we are not required to review the merits of defaulted II. Analysis claims simply because the Government has failed to raise the issue. While procedural default is not a jurisdictional bar to The sole issue raised in this appeal is whether the review of such a claim, see Trest v. Cain, 522 U.S. 87, 118 S. Government breached the plea agreement by failing to make Ct. 478, 480 (1997), and the Government’s failure to raise the a § 5K1.1 motion. The Government’s failure to adhere to its default may operate as a forfeiture of its right to defend on plea agreement in good faith has been held to implicate a that ground, see id., we nonetheless may raise these issues sua defendant’s due process rights. See Santobello v. New York, sponte. See Rosario v. United States, 164 F.3d 729, 732-33 404 U.S. 257 (1971); United States v. White, 71 F.3d 920, 925 (2d Cir. 1998) (holding that appellate court may raise issues (D.C. Cir. 1995); United States v. Leonard, 50 F.3d 1152, of default sua sponte where necessary to protect, inter alia, 1157-58 (2d Cir. 1995). We conclude, however, that by the finality of federal criminal judgments); Hines v. United failing to raise it at sentencing or on direct appeal, Elzy States, 971 F.2d 506, 508 (10th Cir. 1992) (holding that waived this claim. Therefore, in order to pursue this claim because concerns of finality of criminal judgments, judicial through a collateral attack on his sentence, he was required to economy and orderly administration of justice substantially demonstrate in the § 2255 proceedings before the district implicate important interests beyond those of the parties, court cause and prejudice to excuse the double default. See appellate court may raise Frady defense sua sponte).2 We Murray v. Carrier, 477 U.S. 478,485 (1986); United States v. conclude that in this case we are justified in raising sua sponte Frady, 456 U.S. 152, 167 (1982); Murr v. United States, 200 the issue of Elzy’s double default, and we do so in no small F.3d 895, 2000 WL 6152, at *4 (6th Cir. 2000). This hurdle part in order to lay to rest in this circuit the notion advanced is an intentionally high one for the petitioner to surmount, for by Elzy that the Government’s alleged breach of a plea respect for the finality of judgments demands that collateral agreement may be raised for the first time in a § 2255 motion attack generally not be allowed to do service for an appeal. without regard to the law of procedural default. Moreover, See Frady, 456 U.S. at 165. we see no need in this case to invite supplemental briefs from the parties on the issue, as the procedural default is manifest The record before us indicates that the only arguable cause in the record and there is nothing further that the parties could for the default would be a claim of ineffective assistance of bring to our attention that could bear upon the default. counsel, but Elzy has never raised such a claim. It is true that in his § 2255 motion, Elzy offered—in response to the pre- printed form’s question—that the reason his claim of breach of the plea agreement had never been presented previously 2 was that he had asked his trial counsel to file a direct appeal The issue in Trest was whether the district court was required to but his counsel had not done so. It is also true that Elzy’s raise sua sponte an habeas petitioner’s procedural default, where the Government had failed to raise it. While holding that there is no such brief in support of his § 2255 motion before the district court requirement, the Supreme Court expressly declined to reach the separate acknowledged that he had not claimed either at sentencing or question of whether the law permits the court to raise the issue sua sponte. See Trest, 118 S. Ct. at 480. 8 Elzy v. United States No. 98-6223 No. 98-6223 Elzy v. United States 5

direct appeal constitutes ineffective assistance of counsel and on direct appeal that the Government had breached the plea demonstrates both cause and prejudice under the Frady test” agreement, but concluded, is wholly insufficient to raise the issue of ineffective assistance of counsel, and although he submitted his own a Governmental breach of a plea agreement is an issue affidavit as well as affidavits of others in support of his that can be raised for the first time in a Motion Pursuant § 2255 motion, he submitted nothing with regard to his to 28 U.S.C. § 2255 either because: 1) the Frady cause attorney’s failure to file a notice of appeal of his sentence. and prejudice standard does not apply to such a claim; The district court denied the § 2255 motion on its merits and United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Elzy filed a notice of appeal and moved for a certificate of Cir. 1993); or (2) counsel’s failure to raise the issue appealability from the district court “allowing Elzy to appeal either at sentencing or on direct appeal constitutes the single issue raised in his § 2255: Whether the ineffective assistance of counsel and demonstrates both Government breached Elzy’s plea agreement.” Again, Elzy cause and prejudice under the Frady test; Id. made no mention of any claim that his trial counsel had been ineffective in any regard. De la Fuente, however, does not hold that the Frady cause and prejudice analysis does not apply to a defaulted claim that Before us in this appeal, Elzy argues only that the the Government breached a plea agreement. In that case, a Government breached the plea agreement. His brief makes no panel of the Ninth Circuit said, “we note that it is by no mention whatsoever of any claim that he asked his trial means clear that Frady’s ‘cause and prejudice’ requirement counsel to file a notice of appeal of his sentence, or that his applies to claims of government breach of an executed plea trial counsel was ineffective in any regard. agreement. Such a breach implicates the constitutional guarantee of due process.” De la Fuente, 8 F.3d at 1336. The This is not a pro se proceeding, and, in fact, Elzy has not De la Fuente panel went on to say (inexplicably, in our view) proceeded pro se at any time. He was represented by retained that counsel at trial and sentencing; he retained different counsel who filed his § 2255 motion and accompanying brief and the Supreme Court has never held that the Frady test documentation and who represent him in this appeal. We applies to every claim of constitutional error, but has only therefore are not bound to construe his pleadings liberally; applied the test to claims running afoul of an express much less ought we to construe them in such a way as to statutory waiver provision. Thus, under the Court’s construct for Elzy the case that he has not made. And even if precedent, some constitutional claims may remain that do we were to find that the mere mention in the § 2255 not require a showing of ‘cause and prejudice’ to allow proceedings of trial counsel’s failure to file an appeal was collateral review. sufficient to raise an ineffective assistance claim, which the district court should have considered in order to determine Id. (footnote omitted). The panel then referred to the case of whether it could proceed to the merits of Elzy’s claim that the United States v. Benchimol, 471 U.S. 453 (1985) (per Government breached the plea agreement, we would be curiam), to make the point that even three years after Frady, constrained to hold that Elzy has waived the issue on appeal the Court did not mention procedural default or the cause and because he neither mentioned it in his motion for a certificate prejudice test in ruling on a claim that the Government had of appealability nor raised it in his brief on appeal. In short, breached a plea agreement. But Benchimol was brought the failure of the district court to notice and hold an under Fed. R. Crim. P. 32(d) as well as 28 U.S.C. § 2255. At evidentiary hearing on an implied claim that Elzy had the time the petitioner in that case was asking to withdraw his plea because the Government had allegedly breached the plea 6 Elzy v. United States No. 98-6223 No. 98-6223 Elzy v. United States 7

agreement, Rule 32(d) provided a route for making exactly or by motion under 28 U.S.C. § 2255.” FED. R. CRIM. P. that kind of collateral attack on a guilty plea. Rule 32(d) at 32(d) (1989). the time of the proceedings in Benchimol read: In our view, the Ninth Circuit had absolutely no basis for its A motion to withdraw a plea of guilty or nolo contendere claim that Frady may not apply to claims such as the one in may be made only before sentence is imposed or De la Fuente. Our research reveals no other cases standing imposition of sentence is suspended; but to correct for that proposition, and indeed the Supreme Court’s manifest injustice the court after sentence may set aside decisions in the past decade suggest that the cause and the judgment of conviction and permit the defendant to prejudice test should be uniformly applied to all procedural withdraw his plea. defaults. See, e.g., Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-8 (1992) (“[T]he cause-and-prejudice standard applicable to (emphasis added). There is a good discussion of the rule as failure to raise a particular claim should apply as well to it was then in the case of United States v. Watson, 548 F.2d failure to appeal at all. All of the State's interests--in 1058,1063-64 (D.C. Cir. 1977): channeling the resolution of claims to the most appropriate forum, in finality, and in having an opportunity to correct its It will be noted from the foregoing language of the Rule own errors--are implicated whether a prisoner defaults one that there is no limitation upon the time within which claim or all of them . . . . As in cases of state procedural relief thereunder may, after sentencing, be sought. In this default, application of the cause-and-prejudice standard to respect it embodies the central feature of collateral attack excuse a state prisoner's failure to develop material facts in under 2255. Indeed, it would appear to us that Rule state court will appropriately accommodate concerns of 32(d) can in substance be regarded as a special, and finality, comity, judicial economy, and channeling the perhaps exclusive, avenue of collateral challenge to an resolution of claims into the most appropriate forum.”) allegedly improper taking of a guilty plea. It contains its (internal quotations and citations omitted) 1(explaining own explicit formulation of the standard to be applied, Coleman v. Thompson, 501 U.S. 722 (1991)). We have namely, " to correct manifest injustice." And, although never adopted the De la Fuente view, and we decline Elzy’s it remains for the court to determine the reach of that invitation to do so now. standard in relation to the facts of a particular case, the express terms of the standard itself have the force of a Having failed to raise his claim before the district court or statute, and were presumably intended to govern in the on direct appeal, Elzy was required to demonstrate in his case of any person seeking belatedly to withdraw his § 2255 proceedings cause and prejudice with regard to that guilty plea. They have at any rate the virtue of being default. He did not. Elzy’s § 2255 motion raised one issue immune from the shifting and still somewhat opaque only, and that was the claimed breach. His conclusory judicial formulations differentiating between direct statement in his brief in support of the § 2255 motion that appeals and 2255 motions. “counsel’s failure to raise the issue either at sentencing or on (footnotes omitted). By the time the defendant in De la Fuente was prosecuted, Rule 32 had been changed to require 1 that prior to sentencing, the court may permit the withdrawal Although Keeney addressed a procedural default in state court of a plea for any fair and just reason, but after sentence has instead of the federal procedures at issue here, “the federal interest in finality is as great as the States’, and the relevant federal constitutional been imposed, “a plea may be set aside only on direct appeal strictures apply with equal force to both jurisdictions.” Frady, 456 U.S. at 169 n. 17.