Harris v. U.S., 97-6788

• Citation: 149 F.3d 1304
• Decision Date: 13 August 1998
• Docket Number: No. 97-6788,97-6788
• Parties: 11 Fla. L. Weekly Fed. C 1735 Roy Anthony HARRIS, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1304

149 F.3d 1304

11 Fla. L. Weekly Fed. C 1735

Roy Anthony HARRIS, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 97-6788.

United States Court of Appeals Eleventh Circuit.

Aug. 13, 1998.

William R. King, Fed. Pub. Defender, Montgomery, AL, for Harris.

Redding Pitt, U.S. Atty., Montgomery, AL, for United States.

Appeal from the United States District Court for the Middle District of Alabama.

Before DUBINA and MARCUS, Circuit Judges, and HILL, Senior Circuit Judge.

MARCUS, Circuit Judge:

Appellant Harris was sentenced in the United States District Court for the Middle District of Alabama after pleading guilty to charges of distribution of marijuana and cocaine. Harris argues in this § 2255 petition that the district court erred in holding that he had procedurally defaulted his challenge to the court's jurisdiction to impose an enhanced sentence based on a prior conviction. We agree and therefore reverse and remand for re-sentencing.

I.

On August 4, 1993, Harris was indicted for conspiracy to distribute and possess with intent to distribute cocaine (Count I), distribution of marijuana (Count II), and distribution of cocaine (Count III). Soon thereafter, on September 21, 1993, Harris appeared in court to enter a guilty plea to Counts II and III of the indictment. ¹ During the course of the plea hearing, the prosecutor stated that he "did not know that Mr. Harris was going to enter a plea this morning." When asked if he had any objections to the plea, he responded, "No, Your Honor, I don't. However, it was the United States' intention to file a notice of prior conviction on Mr. Harris, and I have not had an opportunity to do that." The district court responded, "Okay. The Court will accept it when you file it." The court then accepted Harris's plea of guilty. The government filed the information pursuant to 21 U.S.C. § 851 shortly after the plea hearing, and thereafter, on November 23, 1993, the court applied the enhancement in sentencing Harris to 120 months imprisonment. Harris did not take a direct appeal from the conviction. Rather, on August 8, 1994, he filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, alleging that (1) his counsel was ineffective because she failed to appeal his sentence pursuant to his request; (2) the prosecutor failed to file an information to establish his prior conviction before he entered his guilty plea, as required by 21 U.S.C. § 851(a)(1); and (3) he did not receive notice that his sentence would be enhanced. The district court denied that motion, adopting the magistrate judge's report and recommendation finding that Harris procedurally defaulted his claims, and that the failure of his counsel to file a direct appeal regarding the § 851 issue resulted in no prejudice because he was on full record notice of the government's intention to use his prior conviction and its consequences. Harris then appealed the denial of his § 2255 motion to this Court. We remanded the case to the district court for an evidentiary hearing on Harris's allegation that he requested his counsel to file a direct appeal. Harris v. United States, No. 96-6165, slip op. at 5 (11th Cir. April 28, 1997). Thereafter, the district court held such a hearing and found that he did not do so. Harris then filed this appeal of the § 851 issue.

II.

We review the district court's conclusion of law de novo. See Macklin v. Singletary, 24 F.3d 1307, 1312-13 (11th Cir.1994), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).

Title 21, Section 851 of the United States Code provides:

(a)(1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts....

...

(b) If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

The Eleventh Circuit and its predecessor court have unambiguously and repeatedly held that a district court lacks jurisdiction to enhance a sentence unless the government strictly complies with the procedural requirements of § 851(a). ² As we observed in United States v. Olson:

An enhanced sentence is a special remedy prescribed by the Congress; prosecutorial discretion is vested in the executive branch of the government, and the district court has no authority to exercise it or pretermit it. As we have pointed out, Congress advisedly vested this discretion in the prosecutor. Unless and until prosecutorial discretion is invoked and the government files and serves an information as required by Sec. 851, the district court has no power to act with respect to an enhanced sentence; it can no more enhance the sentence than it could impose imprisonment under a statute that only prescribes a fine. Harmless error cannot give the district court authority that it does not possess.

716 F.2d 850, 853 (11th Cir.1983). In Olson, we explicitly reaffirmed the holdings of the former Fifth Circuit in United States v. Cevallos, 538 F.2d 1122, 1125 n. 4 (5th Cir.1976) (describing prior holding in Noland as finding that "the failure to file the information of previous conviction prior to trial deprived the district court of jurisdiction to impose an enhanced sentence") ³ and United States v. Noland, 495 F.2d 529, 533 (5th Cir.1974) (holding that the mandatory language of § 851 "restrict[s] the court's authority to impose enhanced sentences to cases where the information is filed with the court and served on the defendant before trial"). ⁴ Thus, even where a defendant receives actual notice that the government intends to rely on a previous conviction to enhance his sentence, the district court lacks jurisdiction to impose an enhanced sentence until the government files an information as required under § 851. See Noland, 495 F.2d at 533. Congress could not have more clearly evinced its purpose in providing for an enhanced sentence under § 851 only when the government seeks it by filing an information prior to trial or plea.

Because the government failed to file an information concerning Harris's prior conviction before the acceptance of his plea, the district court plainly lacked jurisdiction to impose the enhanced sentence. ⁵ Harris, however, failed to object to the enhancement on jurisdictional grounds at trial or on direct appeal. Instead, he filed a motion under 28 U.S.C. § 2255, which allows collateral attack on a sentence "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." According to the Supreme Court, "[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The government therefore contends that Harris procedurally defaulted his jurisdictional objection by failing to raise it at trial or on direct appeal, and consequently he must show cause and prejudice to collaterally attack the error.

The applicability of the cause-and-prejudice standard to a collateral attack on jurisdictional grounds is an issue of first impression in this Circuit. In collateral attacks based on non-jurisdictional grounds that a defendant has procedurally defaulted, we have regularly applied the cause-and-prejudice standard. For example, a defendant may procedurally default many of his constitutional rights. ⁶ See, e.g., Levine v. United States, 362 U.S. 610, 619-20, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960) (Sixth Amendment right to a public trial); Riner v. Owens, 764 F.2d 1253, 1256-57 (7th Cir.1985) (Sixth Amendment right to be confronted with one's accusers), cert. denied, 475 U.S. 1055, 106 S.Ct. 1282, 89 L.Ed.2d 589 (1986); United States v. Bascaro, 742 F.2d 1335, 1365(11th Cir.1984) (Fifth Amendment protection from double jeopardy), cert. denied sub nom. Hobson v. United States, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985). Upon collateral attack, he must show cause (and resulting prejudice) for his procedural default to justify his failure to timely assert his constitutional rights. See, e.g., Coulter v. Herring, 60 F.3d 1499, 1505-06 (11th Cir.1995) (finding defendant failed to show cause excusing his procedural default of protection from double jeopardy), cert. denied, 516 U.S. 1122, 116 S.Ct. 934, 133 L.Ed.2d 860 (1996).

Notably, jurisdictional defects, by contrast, cannot be procedurally defaulted. As federal courts, we are courts of limited jurisdiction, deriving our power solely from Article III of the Constitution and from the legislative acts of Congress. See Insurance Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). We therefore...