United States v. Cuff

• Docket Number: 18-30694
• Decision Date: 17 August 2023
• Citation: 79 F.4th 470
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Robert CUFF, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

79 F.4th 470

UNITED STATES of America, Plaintiff—Appellee, v. Robert CUFF, Defendant—Appellant.

No. 18-30694

United States Court of Appeals, Fifth Circuit

FILED August 17, 2023

Appeal from the United States District Court for the Western District of Louisiana, USDCNo. 5:14-CV-3384, S. Maurice Hicks, Jr., U.S. District Judge

Cristina Walker, Assistant U.S. Attorney(argued), U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA, for Plaintiff—Appellee.

Herbert V. Larson, Jr.(argued), New Orleans, LA, for Defendant—Appellant.

Before Higginbotham, Jones, and Oldham, Circuit Judges.

Edith H. Jones, Circuit Judge:

Robert Cuff, a federal prisoner, appeals the denial of this 28 U.S.C. § 2255 motion alleging breach of his plea agreement based on serious allegations against Assistant U.S. Attorneys and ineffective assistance of counsel.We disagree with the district court's application of the procedural bar to the breach-of-plea agreement claim and must reverse and remand but affirm its disposition of the ineffective assistance of counsel claim.

I.BACKGROUND

In 2011, a federal grand jury in Louisiana indicted Robert Cuff with three counts relating to his participation in an internet bulletin board dedicated to the distribution of child pornography.Cuff was arrested and his house in El Paso, Texas was searched.While searching Cuff's residence, law enforcement found videos of Cuff sexually abusing his girlfriend's five-year-old daughter.There was no evidence that these videos had been shared on the bulletin board.The videos were recorded in the Western District of Texas.

Cuff began negotiating a plea deal with the government after his arrest.According to his affidavit, Cuff's defense attorney, Stephen Karns, inquired whether charges would be brought against Cuff for the abuse of the five-year-old.He told the prosecutor for the Western District of Louisiana, AUSA Walker, that Karns "would need to know if [Cuff] was going to be prosecuted in Texas" before Cuff pled guilty to the charges involving the bulletin board in Louisiana.In response, Walker referred Karns to AUSA Brandy Gardes from the United States Attorney's Office in the Western District of Texas.Karns described his conversation with AUSA Gardes as follows:

My conversation with AUSA Gardes was consistent with my conversation with AUSA Walker.From my conversation with AUSA Gardes, I understood that the Government would use the videos in the Western District of Louisiana proceedings to avoid having to use the victim as a witness.It was my understanding from my conversation with AUSA Walker and/or AUSA Gardes that the victim and/or her family were reluctant to be involved and that the Government believed that using the videos in Western Louisiana would permit the Government to avoid using the victim as a witness, but still cause Mr. Cuff to be sentenced in Western Louisiana for the offenses which occurred in Texas because the offenses were on the videos.I also learned from AUSA Gardes that the state of Texas would not be prosecuting Mr. Cuff.

Cuff reached a plea deal with prosecutors in the Western District of Louisiana, and the district court accepted the agreement on December 1, 2011.In return for Cuff's guilty plea, the government dropped two of the charges it had brought against him, leaving only the charge for engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g).The agreement also stated that "the Government . . . will not prosecute the Defendant for any other offense known to the United States Attorney's Office, based on the investigation which forms the basis of [Cuff's indictment]."

In spite of the plea agreement, a grand jury in the Western District of Texas indicted Cuff for sexually abusing the five-year-old.This transpired on December 14, 2011, two weeks after the judge in the Louisiana case accepted the plea agreement.The government moved to seal this new indictment, claiming that the "disclosure of the existence of the Indictment would seriously jeopardize the ability of law enforcement officers to locate the Defendant and apprehend him without incident."This was certainly false; Cuff had been in custody since July.The district judge in the Western District of Texas granted the motion.

The Order to Seal stipulated that the indictment would be made public when Cuff "was arrested."Yet it is unclear whether Cuff was actually arrested at this juncture.Because Cuff was already in custody, the United States Marshals Service lodged a detainer with the facility where he was being held on January 9, 2012.This notified the facility of the charges pending against Cuff, but by itself would not necessarily have notified Cuff of the charges.The document from the Marshals Service refers to the event both as an "arrest" and a "detainer."The district court treated the event as an arrest and unsealed the indictment the next day.

Karns and Cuff claim that Cuff was never arrested and that they were unaware of the detainer.In fact, they assert that they were entirely unaware of the charges in the Western District of Texas until after Cuff had already been sentenced in the Western District of Louisiana in July 2012.Cuff also presents a Naval Criminal Investigative Service report indicating that the Texas U.S. Attorney's Office knew of the Louisiana prosecution as of December 2011 and intended to keep the indictment sealed until Cuff's sentencing.The judge in the Louisiana case and the United States Probation Office in Western Louisiana were also seemingly left unaware.

Meanwhile, back at the ranch, the Louisiana prosecution continued apace.Pursuant to the plea agreement, evidence of Cuff's abuse of the five-year-old was introduced for purposes of sentencing.The probation office made no mention of the Texas prosecution in its presentence report (PSR) in July 2012.Indeed, it erroneously stated that there were no additional pending charges against Cuff.The PSR recommended a sentencing enhancement based on Cuff's child abuse.With the enhancement, Cuff's sentencing range was life imprisonment.Cuff moved to withdraw his guilty plea on the grounds that an anti-malarial drug he was prescribed while serving in the U.S. Navy had driven him insane at the time he pled guilty.The district court denied the motion, adopted the PSR's analysis, and sentenced Cuff to life in July 2012.Cuff appealed.

In August 2012, while his appeal was pending, Cuff was arrested for the Texas charges.Now formally apprised of the Texas prosecution, Cuff argued that it supported his motion to withdraw the guilty plea.¹However, he did not raise the breach-of-plea agreement claim that is the gravamen of his § 2255 motion here.Instead, he alleged misconduct only as an aspect of whether the district court erred in not vacating the plea agreement pursuant to the factors outlined in United States v. Carr, 740 F.2d 339, 343-44(5th Cir.1984).This court affirmed the conviction.The court held that the district court did not abuse its discretion under Carr and specifically noted that Cuff did not develop a prosecutorial misconduct claim.United States v. Cuff, 538 F. App'x 411, 414(5th Cir.2013).

In December 2014, Cuff sought to vacate his sentence under § 2255, arguing among other things that the government breached his plea agreement.After Cuff filed but before the district court ruled on the motion, the Texas USAO dismissed its case against Cuff.The district court then held that the breach-of-plea agreement claim was procedurally defaulted because Cuff had not raised it in his direct appeal.Cuff timely appealed, and this court granted a Certificate of Appealability on the issues related to the breach-of-plea claim.

II.DISCUSSION

Cuff raises three issues: first, whether the breach-of-plea agreement claim was procedurally defaulted; second, whether the plea agreement was breached; and third, whether the government's actions deprived his counsel of essential information so as to give rise to an ineffective-assistance-of-counsel claim.We remand the first two issues to the district court and affirm on the third issue.

When assessing a denial of a § 2255 motion, this court reviews legal conclusions de novo and factual findings for clear error.United States v. Cavitt, 550 F.3d 430, 435(5th Cir.2008).

A.Procedural Default

When a defendant fails to raise a claim on direct review, that claim is usually procedurally barred in collateral proceedings.Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611, 140 L.Ed.2d 828(1998).Such claims may be raised on collateral review "only if the defendant can first demonstrate either 'cause' and actual prejudice . . . or that he is 'actually innocent.' "Id."The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments."Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1693, 155 L.Ed.2d 714(2003).

There are instances where the procedural default rule does not advance the interests that justify its existence.Accordingly, some claims can be raised for the first time in a collateral proceeding—the prime example being ineffective-assistance-of-counsel claims.Id.This exception exists because defendants otherwise would be compelled to "raise the issue before there has been an opportunity fully to develop the factual predicate for the claim" and litigate "in a forum not best suited to assess those facts."Id. at 504, 1694, 123 S. Ct. 1690, 1693.

Cuff argues that his breach-of-plea agreement claim, like one for ineffective assistance of counsel, should be exempt from procedural default analysis.He avers that he could not have raised his claim because he did not learn of the second indictment until after he had been sentenced.Thus, this § 2255 motion provided his first opportunity to raise the issue.He...