Elzy v. U.S.

• Decision Date: 13 October 1999
• Docket Number: RESPONDENT-APPELLEE,PETITIONER-APPELLAN,V,No. 98-6223,98-6223
• Citation: 205 F.3d 882
• Parties: (6th Cir. 2000) ARTHUR CHARLES ELZY, JR.,UNITED STATES OF AMERICA, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 882

205 F.3d 882 (6th Cir. 2000)

ARTHUR CHARLES ELZY, JR., PETITIONER-APPELLANT,

V.

UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

No. 98-6223

U.S. Court of Appeals, Sixth Circuit

Argued: October 13, 1999

Decided and Filed: March 01, 2000

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.

Thomas M. Dawson (argued), David V. Ayres (briefed), Leavenworth, Kansas, for Appellant.

James A. Earhart (argued and briefed), Terry M. Cushing (briefed), Assistant United States Attorneys, Louisville, Kentucky, for Appellee.

Before: Nelson, Boggs, and Batchelder, Circuit Judges.

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 Government's compliance with the plea agreement at sentencing; neither had he requested an evidentiary hearing, or filed a direct appeal.

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.

The district court does not appear to have addressed Elzy's failure to raise at the sentencing hearing or on direct appeal his claim that the Government breached the plea agreement. Instead, after receiving briefs from both parties, the court denied the § 2255 motion on its merits and issued a Certificate of Appealability. This appeal followed.

II. Analysis

The sole issue raised in this appeal is whether the Government breached the plea agreement by failing to make a § 5K1.1 motion. The Government's failure to adhere to its plea agreement in good faith has been held to implicate a defendant's due process rights. See Santobello v. New York, 404 U.S. 257 (1971); United States v. White, 71 F.3d 920, 925 (D.C. Cir. 1995); United States v. Leonard, 50 F.3d 1152, 1157-58 (2d Cir. 1995). We conclude, however, that by failing to raise it at sentencing or on direct appeal, Elzy waived this claim. Therefore, in order to pursue this claim through a collateral attack on his sentence, he was required to demonstrate in the § 2255 proceedings before the district court cause and prejudice to excuse the double default. See Murray v. Carrier, 477 U.S. 478,485 (1986); United States v. Frady, 456 U.S. 152, 167 (1982); Murr v. United States, 200 F.3d 895, 2000 WL 6152, at *4 (6th Cir. 2000). This hurdle is an intentionally high one for the petitioner to surmount, for respect for the finality of judgments demands that collateral attack generally not be allowed to do service for an appeal. See Frady, 456 U.S. at 165.

The record before us indicates that the only arguable cause for the default would be a claim of ineffective assistance of 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 was that he had asked his trial counsel to file a direct appeal but his counsel had not done so. It is also true that Elzy's brief in support of his § 2255 motion before the district court acknowledged that he had not claimed either at sentencing or on direct appeal that the Government had breached the plea agreement, but concluded,

a Governmental breach of a plea agreement is an issue that can be raised for the first time in a Motion Pursuant to 28 U.S.C. § 2255 either because: 1) the Frady cause and prejudice standard does not apply to such a claim; United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993); or (2) counsel's failure to raise the issue either at sentencing or on direct appeal constitutes ineffective assistance of counsel and demonstrates both cause and prejudice under the Frady test; Id.

De la Fuente, however, does not hold that the Frady cause and prejudice analysis does not apply to a defaulted claim that the Government breached a plea agreement. In that case, a panel of the Ninth Circuit said, "we note that it is by no means clear that Frady's 'cause and prejudice' requirement applies to claims of government breach of an executed plea agreement. Such a breach implicates the constitutional guarantee of due process." De la Fuente, 8 F.3d at 1336. The De la Fuente panel went on to say (inexplicably, in our view) that

the Supreme Court has never held that the Frady test applies to every claim of constitutional error, but has only applied the test to claims running afoul of an express statutory waiver provision. Thus, under the Court's precedent, some constitutional claims may remain that do not require a showing of 'cause and prejudice' to allow collateral review.

Id. (footnote omitted). The panel then referred to the case of United States v. Benchimol, 471 U.S. 453 (1985) (per curiam), to make the point that even three years after Frady, the Court did not mention procedural default or the cause and prejudice test in ruling on a claim that the Government had breached a plea agreement. But Benchimol was brought under Fed. R. Crim. P. 32(d) as well as 28 U.S.C. § 2255. At the time the petitioner in that case was asking to withdraw his plea because the Government had allegedly breached the plea agreement, Rule 32(d) provided a route for making exactly that kind of collateral attack on a guilty plea. Rule 32(d) at the time of the proceedings in Benchimol read:

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

(emphasis added). There is a good discussion of the rule as it was then in the case of United States v. Watson, 548 F.2d 1058,1063-64 (D.C. Cir. 1977):

It will be noted from the foregoing language of the Rule that there is no limitation upon the time within which relief thereunder may, after sentencing, be sought. In this respect it embodies the central feature of collateral attack under 2255. Indeed, it would appear to us that Rule 32(d) can in substance be regarded as a special, and perhaps exclusive, avenue of collateral challenge to an allegedly improper taking of a guilty plea. It contains its own explicit formulation of the standard to be applied, namely, " to correct manifest injustice." And, although it remains for the court to determine the reach of that standard in relation to the facts of a particular case, the express terms of the standard itself have the force of a statute, and were presumably intended to govern in the case of any person seeking belatedly to withdraw his guilty plea. They have at any rate the virtue of being immune from the shifting and still somewhat opaque judicial formulations differentiating between direct...