Prou v. U.S.A.

• Decision Date: 04 November 1999
• Docket Number: No. 98-1854,98-1854
• Parties: (1st Cir. 1999) STANLEY PROU, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 37

199 F.3d 37 (1st Cir. 1999)

STANLEY PROU, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee.

No. 98-1854.

United States Court of Appeals, for the First Circuit.

Heard Nov. 4, 1999.

Decided December 17, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. Ronald R. Lagueux, U.S. District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Elizabeth L. Prevett, Federal Defender Office, with whom Owen S. Walker, Federal Public Defender, and Stanley Prou, pro se ipso, were on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Stephanie S. Browne, Assistant United States Attorney, were on brief, for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.

SELYA, Circuit Judge.

The mandatory minimum sentence for distribution of a controlled substance ordinarily doubles if the accused has a prior felony drug conviction. See 21 U.S.C. § 841. But this enhancement accrues only if the government elects to pursue it. In that event, the government must file, within a specified time frame, an information signaling its intention and identifying the previous conviction(s) on which it relies. See id. § 851(a)(1).

In this appeal, petitioner-appellant Stanley Prou challenges an enhanced sentence imposed on the basis of a concededly untimely filing. He shrugs off the fact that the issue was not raised on direct appeal, claiming that the usual rules of procedural default do not apply. Although this claim derives support from decisions of two sister circuits, we reject it. As a fallback, Prou asserts that he has shown cause and prejudice sufficient to excuse his procedural default. We agree with this assertion. Consequently, we reverse the order dismissing Prou's section 2255 petition, vacate the enhanced sentence, and remand for resentencing.

I

The relevant facts are essentially undisputed. On April 6, 1995, a federal grand jury indicted the petitioner for conspiring to distribute (or to possess with intent to distribute) cocaine, aiding and abetting such conduct, and carrying a firearm in relation to a drug-trafficking crime. See 21 U.S.C. §§ 841, 846; 18 U.S.C. §§ 2, 924(c). On June 13, the United States Attorney filed a so-called "Rule 404(b) notice" disclosing the government's intention to introduce evidence of the petitioner's 1993 state court conviction for possession of marijuana with intent to distribute.¹ A jury was empaneled (but not sworn) on June 22. Nineteen days later, the government filed the crucial section 851(a)(1) information, again referencing the 1993 conviction. The court (Pettine, J.) administered the jury oath on August 21. Trial proceeded and the jurors found the petitioner guilty on all counts.

The petitioner's court-appointed attorney raised several objections to the presentence investigation report, including a claim that the petitioner's 1993 state conviction was insufficient to trigger the statutory enhancement because it was for a misdemeanor, not a felony. Counsel did not succeed in scuttling the enhancement, but he did convince Judge Pettine to pare the drug quantity and eliminate the double-counting of a probation violation. These successes had the effect of shrinking the guideline sentencing range for the drug-trafficking counts from 168-210 months to 78-97 months. Basing the sentence on one kilogram of cocaine instead of five also reduced the mandatory minimum sentence from ten years to five. Compare 21 U.S.C. § 841(b)(1)(A) with id. § 841(b)(1)(B). Nevertheless, defense counsel did not question the timeliness of the section 851(a)(1) information, and the ensuing enhancement boosted the petitioner's sentence to ten years. In addition, Judge Pettine imposed a five-year consecutive sentence on the firearms count.

The petitioner unsuccessfully pursued a direct appeal, see 101 F.3d 106 (1st Cir. 1996) (table), cert. denied, 520 U.S. 1129 (1997), but his court-appointed appellate counsel never questioned the timeliness of the section 851(a)(1) information. Prou then filed a pro se motion under 28 U.S.C. § 2255. In an accompanying memorandum, he asseverated, as part of an ineffective assistance of counsel claim, that his attorneys had "failed to object to untimely filing of enhancement 21 U.S.C. § 841(b) 21 U.S.C. § 851 by the government." The United States ignored this allegation in its response. The petitioner, however, reiterated the point in his rejoinder, repeating the quoted language and elaborating upon it:

The government filed 18 U.S.C. § 851 late, that section requires filing before jury selection begins. Which would allow the petitioner ample time to determine whether he should enter a plea or go to trial, and to plan his trial strategy with full knowledge of the consequence of a potential guilty verdict. See . . . Arnold v. United States, 443 A.2d 1318, 1326 (D.C. 1982); (information not timely filed after jury selection process had begun.) . . . .

He then attempted to demonstrate "cause" and "prejudice."

Judge Pettine had retired, and the section 2255 motion came before Chief Judge Lagueux, who denied it summarily (without a hearing and without specifically addressing the petitioner's section 851(a)(1) claim). Judge Lagueux thereafter refused to issue a certificate of appealability (COA). See 28 U.S.C. § 2253. On subsequent application, we granted a COA limited to the following question: "Whether the district court was without jurisdiction to impose an enhanced sentence when the information required by 21 U.S.C. § 851 to be filed 'before trial' was filed after the jury was impaneled?" We simultaneously appointed counsel for the petitioner and indicated specific areas to be addressed in subsequent briefing.

II

We quickly parry a preliminary thrust. The government declares that the petitioner failed adequately to raise the timeliness of the section 851(a)(1) information in his pro se motion for relief under section 2255. We think not.

In his motion, the petitioner specifically mentioned ineffective assistance of counsel resulting from an asserted failure to object to the untimeliness of the informational filing. While the petitioner made this allegation pithily, its gist was clear and distinct. The petitioner then reiterated the point in his reply memorandum, citing relevant authority. We conclude that further elaboration was unnecessary. The petitioner's submissions sufficiently charged the court and the government with notice of the claim, especially since the described error virtually jumps off the face of the docket. It would be unreasonable to require more from a pro se prisoner. See Lema v. United States, 987 F.2d 48, 54 n.5 (1st Cir. 1993); cf. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam) (holding pro se complaints to less stringent standards than pleadings drafted by counsel).

III

The petitioner posits that the absence of a timeous section 851(a)(1) information deprived the sentencing court of jurisdiction to impose the enhanced sentence. Because jurisdictional failings are immune from normal rules of waiver and procedural default,² his reasoning goes, the district court had an obligation to consider the claim on collateral review despite his failure to raise it either before sentencing or on direct appeal. The government resists this syllogism. It urges us to draw a distinction between nonwaivable issues of subject-matter jurisdiction and waivable issues of statutory authorization, and to locate section 851(a)(1) in the latter category -- a placement which, under United States v. Frady, 456 U.S. 152, 167 (1982), would require a showing of "cause" and "actual prejudice" to keep the issue in play. In sifting through these conflicting approaches, our review is plenary. See United States v. McGill, 11 F.3d 223, 226 n.2 (1st Cir. 1993); see also Scarpa v. Dubois, 38 F.3d 1, 9 (1st Cir. 1994) (applying de novo review to legal determinations in habeas proceeding).

A

We do not write on an empty slate. In Hardy v. United States, 691 F.2d 39 (1st Cir. 1982), a panel of this court, speaking through then-Judge Breyer, explained that a district court lacks authority to impose the statutory enhancement unless the government has complied with section 851(a)(1)'s temporal strictures. See id. at 41. Judge Breyer expressed doubt as to whether a section 2255 petitioner raising the issue for the first time on collateral review had to show cause and prejudice under Frady, but found it unnecessary to answer the question because Hardy cleared both hurdles. See Hardy, 691 F.2d at 41-42. We apparently resolved this doubt a decade later in Suveges v. United States, 7 F.3d 6, 10 (1st Cir. 1993), in which we ruled that failure to raise a section 851(a)(1) objection on direct appeal constituted a procedural default, thus requiring a section 2255 petitioner to satisfy Frady. There is no indication, however, that Suveges sought to exempt himself from the cause-and-prejudice paradigm. In all events, our ambivalence on this issue soon resurfaced. See United States v. Romero-Carrion, 54 F.3d 15, 17-18 (1st Cir. 1995) (dictum) (stating that "failure to file the information required by section 851(a) deprives the district court of jurisdiction to impose an enhanced sentence" and suggesting that "harmless error" analysis is inapposite).

The government contends that Suveges represents binding circuit precedent and thus forecloses us from reaching the section 851(a)(1) issue in the absence of cause and prejudice. But Suveges at one point described section 851(a)(1)'s strictures as "jurisdictional," 7 F.3d at 10, and two courts of appeals since have held that section 851(a)(1) claims are not subject to the usual rules of procedural default, see Harris v. United States, 149 F.3d 1304, 1306-09 (11th Cir. 1998); Kelly v. United States, 29 F.3d 1107, 1112-14 (7th Cir. 1994). Given...