Case: 18-30694 Document: 00516862523 Page: 1 Date Filed: 08/17/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 17, 2023
No. 18-30694 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Robert Cuff,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:14-CV-3384
______________________________
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.
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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
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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
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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
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argued that it supported his motion to withdraw the guilty plea. 1 However,
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-
_____________________
1
For example, Cuff’s brief on direct appeal from his conviction stated that “if Cuff
and his counsel had known that he was to be prosecuted in Texas for this offense, it would
have had a tremendous impact on the decisions that he made in the Western District of
Louisiana. Moreover, if Cuff had known that the United States Attorney in the Western
District of Texas not only intended to prosecute him, but that the prosecutor intended to
use his federal conviction in Louisiana to enhance his potential sentence in Texas, his
decisionmaking process would have been very different indeed.”
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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 (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 (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.
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
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§ 2255 motion provided his first opportunity to raise the issue. He points to
several cases where this court has not applied the usual procedural default
rules to support this argument. The most relevant are two instances where
the court considered breach-of-plea agreement claims even though the
defendant apparently did not raise the issue on appeal. 2 See United States v.
Borders, 992 F.2d 563, 566 (5th Cir. 1993), United States v. Cates,
952 F.2d
149, 151 (5th Cir. 1992).
If Cuff was not on notice of the indictment, it is unclear whether
procedural default analysis should apply at all. The breach-of-plea agreement
cases cited by Cuff are outliers. In cases where the issue has been considered,
procedural default is applied to such claims. See, e.g., United States v. Allen,
918 F.3d 457, 460 (5th Cir. 2019); United States v. Sullivan,
241 F. App’x 217,
218 (5th Cir. 2007). Yet in cases like Allen, the relevant facts arose at or
before sentencing, and the defendants could have raised their complaints in
Rule 11(d) motions before the sentencing courts. See Allen, 918 F.3d at 458–
59; Sullivan, 241 F. App’x at 218–19. The parties do not identify, and this
court has not found, any cases where the defendant claims to have been put
on notice of the factual basis for his claim after appeal.
Cuff could not have returned to the sentencing court for relief on the
alleged facts. This court has held that when the government breaches its plea
agreement with the defendant, that defendant “may seek one of two
remedies: (1) specific performance, requiring that the sentence be vacated
and that a different judge sentence the defendant; or (2) withdrawal of the
_____________________
2
Cuff also cites United States v. Casiano, 929 F.2d 1046, 1051 (5th Cir. 1991) and
United States v. Harper,
901 F.2d 471, 472–73 (5th Cir. 1990). But neither case is analogous,
and both involved established exceptions to procedural default. Casiano dealt with an
ineffective assistance of counsel claim and Harper dealt with a scenario where the court of
conviction lacked jurisdiction over the defendant. Casiano,
929 F.2d at 1051; Harper,
901 F.2d at 472.
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guilty plea.” United States v. Williams, 821 F.3d 656, 658 (5th Cir. 2016)
(quoting United States v. Gonzalez,
309 F.3d 882, 886 (5th Cir. 2002)). Cuff
seeks to withdraw his guilty plea in this case. Yet the Federal Rules of
Criminal Procedure prevents the district court from granting this remedy:
Finality of a Guilty or Nolo Contendere Plea. After the court
imposes sentence, the defendant may not withdraw a plea of
guilty or nolo contendere, and the plea may be set aside only on
direct appeal or collateral attack.
Fed. R. Crim. P. 11(e).
This court’s guidance makes clear that Cuff’s claim was also
inappropriate for direct appeal because it requires factual development by a
district court. As the Fifth Circuit has repeatedly found, “[a]rguments not
raised in district court will not be considered absent ‘extraordinary
circumstances,’ and ‘[e]xtraordinary circumstances exist when the issue
involved is a pure question of law and a miscarriage of justice would result
from our failure to consider it.’” Chevron USA, Inc. v. Aker Mar. Inc.,
689 F.3d 497, 503 (5th Cir. 2012) (quoting N. Alamo Water Supply Corp. v.
City of San Juan, Tex.,
90 F.3d 910, 916 (5th Cir. 1996)). Cuff’s breach of
plea agreement claim did not raise a pure question of law, as the sentencing
court had no opportunity to make factual findings regarding exactly when the
plea agreement would have been breached or when Cuff or Karns gained
knowledge of breach. This court does not make findings in the first instance.
Pickett v. Tex. Tech Univ. Health Scis. Ctr.,
37 F.4th 1013, 1019 (5th Cir.
2022). And as the government notes, when Cuff raised prosecutorial
misconduct in his direct appeal, this court concluded that “he did not
develop the facts supporting this claim, so we are not able to review it on
appeal.” Cuff,
538 F. App’x at 414. Because Cuff’s claim was not cognizable
on appeal, § 2255 represented the only remaining avenue of potential relief.
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Cuff presents a defensible argument that the procedural bar should
not apply on his version of the facts, but even if the procedural bar applies,
Cuff’s allegations can satisfy the cause-and-prejudice standard.
“A showing of cause requires that ‘some objective factor external to
the defense impeded counsel’s efforts to comply with the State’s procedural
rule,’ such as ‘the factual or legal basis for a claim was not reasonably
available to counsel, or that some interference by officials made compliance
impracticable.’” Smith v. Quarterman, 515 F.3d 392, 403 (5th Cir. 2008)
(quoting Murray v. Carrier,
477 U.S. 478, 488 (1986)). The “mere fact that
counsel failed to recognize the factual or legal basis for a claim . . . does not
constitute cause for a procedural default.” Murray v. Carrier,
477 U.S. 478,
486,
106 S. Ct. 2639, 2644 (1986). But to be barred from relief, a petitioner
must have at least “constructive knowledge” of the basis for the claim.
Herbst v. Scott,
42 F.3d 902, 906 (5th Cir. 1995); see also Malone v. Johnson,
252 F.3d 1356 (5th Cir. 2001).
If the underlying allegations are proven, Cuff can meet this standard.
He has presented evidence that an AUSA in the Western District of Texas
misled him about being prosecuted there, and government officials sealed the
indictment against him on the false premise that he was still at large. He has
also presented evidence that the government planned to keep the indictment
a secret until after his sentencing. Moreover, even when the indictment was
unsealed, it was allegedly not made “reasonably available to counsel,” Smith,
515 F.3d at 403, and Cuff consequently did not have “constructive
knowledge” of the indictment. Herbst,
42 F.3d at 906. Citizens do not bear
the burden of searching PACER in all 94 federal judicial districts to
determine whether or not the government has indicted them recently. Cf.
Doggett v. United States,
505 U.S. 647, 653–54,
112 S. Ct. 2686, 2691 (1992)
(finding, in the Speedy Trial Clause context, that a defendant is not on notice
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to discover his own indictment). These allegations facially support a finding
of cause.
As this discussion demonstrates, Cuff’s argument relies on the
proposition that he was not put on notice of the Texas indictment before his
direct appeal. The parties dispute whether this is true, but the district court
only addressed whether Cuff was aware of the indictment during his appeal.
We may not resolve this disputed issue on appeal. It is fundamental that
“factfinding is the basic responsibility of district courts, rather than appellate
courts.” DeMarco v. United States, 415 U.S. 449, 450,
94 S. Ct. 1185, 1186,
n. (1974); see also
28 U.S.C. § 2255(b) (“Unless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief,
the court [which imposed the sentence] shall cause notice thereof to be
served upon the United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law with
respect thereto.”).
This is particularly true here where the record does not supply clear
answers. The Marshals filed a detainer with the Bossier Parish Medical
Facility in January of 2012, six months before Cuff’s sentencing. The
government appears to conflate “detainer” with “arrest,” and it confusingly
alleges that Cuff was “arrested” for a second time in August after it filed a
motion to detain on the Texas charge. A detainer is not the same as arrest,
but rather “a request filed by a criminal justice agency with the institution in
which a prisoner is incarcerated, asking that the prisoner be held for the
agency, or that the agency be advised when the prisoner's release is
imminent.” Fex v. Michigan, 507 U.S. 43, 44,
113 S. Ct. 1085, 1087 (1993).
The record contains no information indicating whether Bossier Parish
Medical Facility notifies a prisoner that a detainer has been lodged, or
whether it followed any such policy in this case. It is also not crystal clear
that the word “arrested” in the government’s motion to seal, cannot also
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refer to a detainer, or that the government in fact unsealed the indictment in
response to notifying Cuff or his counsel. These issues must be addressed by
the district court.
Further factfinding is also necessary to decide whether Cuff was
prejudiced. To show prejudice, “the petition must show ‘not merely that the
errors . . . created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.’” Quarterman, 515 F.3d at 403 (quoting Murray,
477 U.S. at 493). The government argues that Cuff cannot establish
prejudice because the Louisiana USAO did not breach the plea agreement
and because Cuff would have pled guilty even if he knew of the second
indictment. As explained above, the district court is in the best position to
determine the veracity of these claims. But the district court grounded its
ruling on cause and never addressed the arguments regarding prejudice.
Therefore, we must remand to the district court with instructions to
determine (1) whether Cuff or his counsel knew or should have known of the
Texas indictment before Cuff’s sentencing and (2) if not, whether Cuff was
prejudiced.
B. Breach
Until the question of procedural default is resolved, we are not in a
position to decide whether Cuff’s plea agreement was breached. The district
court did not reach the issue after it held the claim procedurally barred. The
district court will be best equipped to determine whether a breach occurred
as part and parcel of its factfinding on remand.
C. Ineffective Assistance of Counsel
Cuff’s ineffective-assistance-of-counsel claim, however, cannot
succeed. He argues that the government’s failure to notify his attorney of the
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second indictment resulted in a violation of his Sixth Amendment right to
effective assistance of counsel. But as the district court noted, none of the
four ineffective-assistance-of-counsel claims that he raised in his § 2255
motion relate to the plea agreement. The argument is therefore forfeit, and
“[w]e do not ordinarily consider issues that are forfeited because they are
raised for the first time on appeal.” Rollins v. Home Depot USA, 8 F.4th 393,
398 (5th Cir. 2021). We already expressly denied a certificate of appealability
on the issue for this reason. Moreover, the claim lacks merit. Cuff contends
that his attorney—Karns—provided him “patently erroneous advice”
regarding the guilty plea because Karns did not know about the second
indictment, and that this amounted to ineffective assistance. But, as all
parties agree, the Texas USAO had not yet indicted Cuff at the time he
entered his guilty plea. Karns could not have known the indictment at that
time, and he therefore could not have fallen below the “objective standard of
reasonableness” Strickland requires. Strickland v. Washington,
466 U.S. 668,
688 (1984).
III. Conclusion
For the foregoing reasons, we AFFIRM IN PART, REVERSE IN
PART and REMAND to determine whether Cuff can overcome the
procedural bar and, if so, whether the plea agreement was breached.
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Andrew S. Oldham, Circuit Judge, dissenting:
This is a straightforward case. Robert Cuff procedurally defaulted his
claim that the Government breached his plea agreement, and he cannot show
cause and prejudice to overcome that default. No fact-finding by the district
court alters that result. Accordingly, I would affirm the district court’s order
in its entirety.
I.
Robert Cuff, also known by the username “slapalot,” was part of an
online bulletin board where he disseminated child pornography. To become
a member, he had to submit an advertisement for child pornography as well
as a certain amount of child pornography. As a member, he posted 43
pornographic files to the board—most of which depicted young children
forced to engage in sexual acts with adults. The other board members
elevated him to “VIP” status. When law enforcement arrested him and
searched his residence in Texas, they discovered multiple videos of Cuff
sexually abusing his girlfriend’s five-year-old daughter.
Cuff was indicted in the Western District of Louisiana for engaging in
a child exploitation enterprise, conspiracy to advertise the distribution of
child pornography, and conspiracy to distribute child pornography. He was
arrested in the Western District of Texas, and the U.S. Marshals Service
transported him to the Western District of Louisiana. On December 1, 2011,
he entered a plea agreement with the Western District of Louisiana U.S.
Attorney’s Office and pled guilty to the child exploitation charge. As part of
the plea agreement, the Louisiana U.S. Attorney’s Office stated: “[T]he
Government agrees to dismiss the remaining Counts of the Second
Superceding Indictment after sentencing and it 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 the Second
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Superceding Indictment.” ROA.976–77. Cuff was then held in the Bossier
Parish Medical Facility while he awaited sentencing.
On December 14, 2011, a grand jury in the Western District of Texas
issued a sealed indictment, charging Cuff with aggravated sexual abuse,
sexual exploitation of children, and sexual exploitation of minors. The
magistrate judge ordered the indictment to be unsealed when the defendant
was arrested. And the judge issued a warrant for Cuff’s arrest that same day.
On January 9, 2012, a detainer was filed with the Bossier Parish
Medical Facility by the U.S. Marshals Service on behalf of the Western
District of Texas. It specified that Cuff had been arrested. The notice was
sent to the U.S. Attorney’s Office, U.S. District Clerk, U.S. Magistrate, U.S.
Pre-Trial Services, and U.S. Marshals Service. The docket for the Western
District of Texas case reflected that Cuff was arrested that day, and Cuff’s
indictment was unsealed the next day.
In July 2012, Cuff was sentenced in the Western District of Louisiana.
At the time of Cuff’s sentencing on the Louisiana charges, Cuff’s Texas
arrest was six months old. But he did not say to the district judge in Louisiana,
“wait a minute, I don’t want this Louisiana plea deal because the
Government breached its promise in Texas.” Rather he did not mention the
arrest. The federal district court accepted the Louisiana plea agreement. And
the court sentenced Cuff to life imprisonment and supervised release for life.
He appealed his Louisiana conviction and sentence.
A few weeks later, while his Louisiana appeal was still pending, the
Western District of Texas U.S. Attorney’s Office filed an application for writ
of habeas corpus in the Bossier Parish Medical Facility demanding Cuff’s
appearance in the Texas court. He was again arrested on August 29, 2012.
Cuff’s first attorney entered an appearance in the Texas case on August 30,
2012. And Cuff waived the right of personal appearance at his Texas
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arraignment on September 4, 2012. Cuff’s second attorney entered an
appearance on October 12, 2012. And Cuff filed a series of motions to
continue the Texas docket call between September 19, 2012, and August 1,
2013.
He filed his brief in the Fifth Circuit Court of Appeals challenging his
Louisiana conviction on November 28, 2012. At that point, Cuff had known
about the Texas proceedings for eleven months—ever since he was arrested
on the Texas charges in January 2012. But at no point in his direct-appeal
proceeding did Cuff ever complain that the Government breached his
Louisiana plea agreement by indicting him in Texas. On August 7, 2013, a
panel of this court affirmed Cuff’s Louisiana sentence. Subsequently, the
Western District of Texas dismissed the criminal charges against him.
Cuff now seeks to vindicate his breach-of-plea-agreement claim in
federal habeas. This avenue is plainly foreclosed. I would affirm the district
court because (I) Cuff procedurally defaulted this claim by failing to raise it
on direct appeal and (II) Cuff cannot show cause and prejudice to overcome
the default.
II.
First, Cuff defaulted his breach claim. Courts must abide by the
“general rule that claims not raised on direct appeal may not be raised on
collateral review unless the petitioner shows cause and prejudice.” Massaro
v. United States, 538 U.S. 500, 504 (2003); see also Reed v. Farley,
512 U.S.
339, 354 (1994). The rule applies equally to claims a defendant discovers for
the first time after his sentence. See Massaro,
538 U.S. at 504; 3 Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure Criminal § 631 (5th ed.). That is because § 2255 relief is
reserved for “a narrow range of injuries that could not have been raised on
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direct appeal.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)
(mem.) (per curiam) (emphasis added).
The “only” exception to the general procedural default rule is the
“narrow exception [for] claims of ineffective assistance of counsel at trial and
only when, under state law, those claims must be raised in an initial-review
collateral proceeding.” Davila v. Davis, 582 U.S. 521, 530 (2017) (emphasis
added) (quotation omitted); see also United States v. Frady,
456 U.S. 152, 167
(1982) (procedural default rules apply to federal habeas petitions under
§ 2255). Only means only: We cannot “extend[] [this] narrow exception [for
IAC claims] to new categories of procedurally defaulted claims.” Davila, 582
U.S. at 529–30. As the leading treatise on Federal Courts puts it:
In a collateral attack under § 2255, the district court may not
consider any matter that the petitioner should have raised at
trial or on direct appeal and did not. The Supreme Court has
recognized an exception to this general rule for claims of
ineffective assistance of counsel, which need not be raised until
collateral review. Outside the context of ineffective assistance
claims, the district court is barred from considering claims not
previously raised unless the petitioner can show both cause for
not raising the claim and prejudice.
3 Wright & Miller, supra, § 631 (emphasis added). There’s no
exception for breach of plea agreement claims.
This circuit has also held on multiple occasions that the procedural
default bar applies to breach of plea agreement claims. See United States v.
Allen, 918 F.3d 457, 460 (5th Cir. 2019); United States v. Sullivan,
241 F.
App’x 217, 218 (5th Cir. 2007) (per curiam); United States v. Young,
77 F.
App’x 708, 709 (5th Cir. 2003) (per curiam); United States v. Townley, 114
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F.3d 1182, 1182 (5th Cir. 1997) (unpublished) (per curiam); United States v.
Suddeth,
26 F.3d 1118, 1118 (5th Cir. 1994) (unpublished) (per curiam). 1
All agree that Cuff knew about the alleged breach before he filed his
appellate brief to challenge the conviction and sentence in the Louisiana case.
But he said nothing about the alleged breach in his brief. Therefore, he
defaulted the breach claim. The majority does not dispute this point.
III.
Because Cuff procedurally defaulted his claim by failing to raise it on
direct review, he can raise this claim “in habeas only if [he] can first
demonstrate either cause and actual prejudice, or that he is actually
innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (quotation
omitted) (emphasis added). Cuff never argues that he is actually innocent.
That means Cuff can only overcome his default if he can show both cause and
prejudice. But Cuff cannot prove either (A) cause or (B) prejudice, (C) the
majority’s counterarguments notwithstanding.
A.
First, Cuff cannot show cause. The Supreme Court has “explained
clearly that ‘cause’ under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be attributed to him.”
Coleman v. Thompson, 501 U.S. 722, 753 (1991). And a lawyer’s choices—so
long as they do not constitute unconstitutionally ineffective assistance of
counsel—are attributable to the prisoner. See
id. at 752. That is why the
Supreme Court has determined on multiple occasions that counsel’s failure
_____________________
1
Neither United States v. Cates, 952 F.2d 149 (5th Cir. 1992), nor United States v.
Borders,
992 F.2d 563 (5th Cir. 1993), is to the contrary. Neither discussed the procedural
bar at all. And these cases pre-date Davila, holding that the only exception to procedural
default is for ineffective assistance of counsel claims.
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to pursue an objection, for whatever reason, does not establish cause to
excuse a procedural default. See, e.g., id. at 753; Smith v. Murray, 477 U.S.
527, 535 (1986); Murray v. Carrier,
477 U.S. 478, 492 (1986); Wainwright v.
Sykes,
433 U.S. 72, 91 n.14 (1977).
For example, in Murray v. Carrier, the question presented was
“whether a federal habeas petitioner can show cause for a procedural default
by establishing that competent defense counsel inadvertently failed to raise
the substantive claim of error.” 477 U.S. at 481. The Court held that any
failure on the part of the attorney to raise a claim—whether deliberate or
inadvertent—does not amount to cause. Id. at 487–88; see also id. at 486
(“[T]he mere fact that counsel failed to recognize the factual or legal basis
for a claim, or failed to raise the claim despite recognizing it, does not
constitute cause for a procedural default.”). So long as the default was within
defense counsel’s control, and counsel was not ineffective, 2 a prisoner cannot
show cause for the default. See id. at 487; see also Coleman, 501 U.S. at 753;
Wainwright,
433 U.S. at 91 n.14.
Instead, cause requires a showing of some “objective factor external
to the defense imped[ing] counsel’s efforts to comply” with the default rules.
Carrier, 477 U.S. at 488; accord Coleman,
501 U.S. at 753. In other words, the
prisoner must demonstrate that the “legal basis of the claim [he] now presses
on federal habeas was unavailable to counsel at the time of the direct appeal.”
Smith,
477 U.S. at 537; see also Carrier,
477 U.S. at 486.
And these rules apply equally to procedural defaults on appeal as well
as to those at trial. See Smith, 477 U.S. at 533; see also Carrier,
477 U.S. at 489.
_____________________
2
A constitutionally ineffective counsel is the equivalent of “no counsel at all.”
Evitts v. Lucey, 469 U.S. 387, 396 (1985); see also Strickland v. Washington,
466 U.S. 668,
685 (1984). So long as the counsel was acting as a counsel, his choices are attributable to
the prisoner and cannot constitute cause for a default.
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The prisoner in Carrier urged the Supreme Court to adopt a different
standard for procedural defaults on appeal. 477 U.S. at 490. The prisoner
contended that “the concerns that underlie the cause and prejudice test are
not present in the case of defaults on appeal.” Ibid. But the Supreme Court
found this argument “unpersuasive.” Ibid. The Court held “that the cause
and prejudice test applies to defaults on appeal as well as to those at trial”;
simply put, “the standard for cause should not vary depending on the timing
of a procedural default.” Id. at 491. That’s because “[f]ailure to raise a claim
on appeal” likewise “reduces the finality of appellate proceedings” and
“deprives the appellate court of an opportunity to review trial error.” Ibid.
As the Court summarized its holding,
counsel’s failure to raise a particular claim on appeal is to be
scrutinized under the cause and prejudice standard . . . .
Attorney error short of ineffective assistance of counsel does
not constitute cause for a procedural default even when that
default occurs on appeal rather than at trial. To the contrary,
cause for a procedural default on appeal ordinarily requires a
showing of some external impediment preventing counsel from
constructing or raising the claim.
Id. at 492 (emphasis added). These rules apply with equal force in the federal
habeas context. See Frady, 456 U.S. at 167–68.
And these rules make especially good sense here, where Cuff had the
opportunity to raise his breach claim on direct appeal and obtain the exact
remedy he now seeks. The Supreme Court and this court have repeatedly
examined breach of plea agreement claims never presented in the district court
for plain error. See, e.g., Puckett v. United States, 556 U.S. 129 (2009); United
States v. Cluff,
857 F.3d 292 (5th Cir. 2017); United States v. Kirkland,
851
F.3d 499 (5th Cir. 2017); United States v. Williams,
821 F.3d 656 (5th Cir.
2016); United States v. Hebron,
684 F.3d 554 (5th Cir. 2012); United States v.
Puckett,
505 F.3d 377, 383 (5th Cir. 2007); United States v. Munoz,
408 F.3d
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222 (5th Cir. 2005); United States v. Brown, 328 F.3d 787 (5th Cir. 2003);
United States v. Reeves,
255 F.3d 208 (5th Cir. 2001); United States v. Branam,
231 F.3d 931 (5th Cir. 2000). And this court has awarded defendants who
pursue their breach claims for the first time on direct appeal the remedy Cuff
seeks—i.e., a choice between resentencing before a different judge or
withdrawal of the plea. See, e.g., Williams,
821 F.3d at 658; Munoz,
408 F.3d
at 226, 229.
These rules leave no room for Cuff’s claim in federal habeas. Even if
he can show that he did not have notice of the breach prior to his sentencing,
he plainly had notice on appeal. Nothing prohibited, or even hindered his
counsel, from presenting this claim to the court of appeals and attaining the
remedy he now seeks. See Carrier, 477 U.S. at 492. As the majority agrees,
his counsel was not ineffective. Thus, any “ignorance,” “inadvertence,” or
“deliberate decision” on their part in failing to raise this claim on direct
appeal does not amount to cause.
Id. at 487.
Cuff’s counterargument is that he did not know about the Western
District of Texas indictment until his arrest in August 2012, so the external
factor of ignorance prevented him from raising the breach claim before he
was sentenced in the Western District of Louisiana in July 2012. He cites his
Louisiana pre-sentence report that did not include this pending charge. And
he offers a statement from his attorney that he did not know about the breach
prior to his sentencing.
But as noted above, the record shows that Cuff had notice in January
2012. First, a detainer was lodged against him for the Texas case while he was
in the Bossier Parish Medical Facility on January 9, 2012. The U.S. District
Clerk, U.S. Magistrate Judge, U.S. Pre-Trial, and U.S. Marshals Service
were all notified. Second, the Texas sealing order said the indictment would
remain sealed until Cuff was arrested. And the day after the detainer was
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lodged, January 10, 2012, the Texas indictment was unsealed. He had notice
then—six months before his sentencing in the Louisiana case. Accordingly,
Cuff cannot meet his burden to show cause. Cf. Kutzner v. Cockrell, 303 F.3d
333, 336 (5th Cir. 2002) (“When evidence is equally available to both the
defense and the prosecution, the defendant must bear the responsibility of
failing to conduct a diligent investigation.”).
And even if Cuff could show that he did not know about the breach
prior to his Louisiana sentencing, that would not excuse his failure to raise
his breach claim on direct appeal. He concedes that he knew of the breach on
August 29, 2012, just a few weeks after he appealed his Louisiana conviction,
three months before he filed his appellate brief, and almost a year before a
panel of this court issued a decision. He had plenty of time and notice to raise
this issue on appeal. And he admits:
Upon direct appeal, Cuff’s new counsel were aware of the
Texas prosecution. They determined, however, not to pursue
the breach of plea agreement claim given this Circuit’s caselaw
holding that matters not raised before the trial court are not
appropriate for appeal, that is, no record below existed on this
question for the court of appeals to review.
Blue Brief at 10 (emphasis added). Even though his attorneys had the relevant
information to make this claim on direct appeal, they concededly knew and
made a deliberate decision not to raise it. That is an obvious, conscious choice
by constitutionally effective counsel; it is attributable to Cuff; and it prevents
him from showing cause for the default. See, e.g., Carrier, 477 U.S. at 488–
89.
B.
Cuff also cannot show prejudice for two, independent reasons, each of
which is sufficient to deny his breach of agreement claim.
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First, there was no prejudice because there was no breach of the plea
agreement. The non-prosecution clause did not apply to other districts—
only the Western District of Louisiana. As we have held:
It is well established that the federal government will not be
bound by a contract or agreement entered into by one of its
agents unless such agent is acting within the limits of his actual
authority. . . . [N]ot even a United States Attorney can bind his
counterpart in another district to dismiss an indictment . . . .
United States v. D’Apice, 664 F.2d 75, 78 (5th Cir. 1981) (quoting Dresser
Indus., Inc. v. United States,
596 F.2d 1231 (5th Cir. 1979)). The Western
District of Louisiana did not have the power to constrain prosecutors in other
districts. See
ibid.
And even if the Western District of Louisiana U.S. Attorney’s Office
did have the power to bind other districts, the terms of the agreement did not
suggest that it did so. Its mere use of the term “Government” in the
agreement does not prove otherwise. See United States v. Johnston, 199 F.3d
1015, 1021, 1021 n.4 (9th Cir. 1999); United States v. Salameh,
152 F.2d 88,
120 (2d Cir. 1998); United States v. Robison,
924 F.2d 612, 613–14 (6th Cir.
1991). Cuff relies on his attorney’s affidavit, where his attorney said, “It is
my opinion that the Government breached its plea agreement with Mr.
Cuff.” ROA.319. But as this court has previously held, “A defense counsel’s
subjective belief that a defendant’s plea will preclude future prosecution
related to an ongoing investigation, even if the defendant relied upon it, does
not, without more, immunize him from prosecution.” United States v.
McClure,
854 F.3d 789, 796 (5th Cir. 2017).
Second, Cuff was not prejudiced because he obtained the benefits
contemplated by the plea agreement when the Western District of Texas
dismissed the indictment. See United States v. Castaneda, 162 F.3d 832, 837
(5th Cir. 1998). As the Supreme Court held in Puckett v. United States, when
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evaluating whether a defendant was prejudiced under the third prong of plain
error review, “[t]he defendant whose plea agreement has been broken by the
Government will not always be able to show prejudice, either because he
obtained the benefits contemplated by the deal . . . or because he likely would
not have obtained those benefits in any event.” 556 U.S. at 141–42. If that is
true in the plain-error context, how much truer is it in the federal habeas
context, where prejudice requires an exponentially greater showing. See, e.g.,
Engle v. Isaac, 456 U.S. 107, 134–35 (1982) (holding burden to demonstrate
cause and prejudice is far “greater than the showing required to establish
plain error on direct appeal” (quotation omitted)); Frady,
456 U.S. at 164
(“Because it was intended for use on direct appeal, however, the ‘plain error’
standard is out of place when a prisoner launches a collateral attack . . . .”).
What was the benefit of Cuff’s Louisiana plea deal? It was dismissal of
the Texas indictment, which cured the Government’s breach of the non-prosecution promise. We have previously held that dismissal of a second
indictment “adequately cure[s]” such a breach. United States v. Purser, 747
F.3d 284, 293 (5th Cir. 2014). And that is exactly what the Government did
here even before today’s decision.
Cuff never argues that dismissal of the Texas indictment was too
little—just that it was too late. Specifically, Cuff contends that he suffered
prejudice in that the late-discovered facts delayed victory on his breach claim
(from direct appeal to this § 2255 proceeding). That is wrong because, even
on Cuff’s version of the facts, he could have prevailed on his breach claim on
direct appeal without saying anything about it in the district court. See, e.g.,
Williams, 821 F.3d 656. And in any event, Cuff did not have to wait until this
§ 2255 proceeding to win all of the relief he could possibly hope to win
because he got total victory when the Government dismissed the Texas
indictment. That dismissal was the benefit of the bargain he made in
Louisiana. The Government has already honored it. So I do not understand
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why Cuff should get the full benefit of the Louisiana plea agreement and then
also get to walk away from the deal before paying its costs.
C.
Against the weight of all of this, the majority argues that Cuff may be
able to show cause and prejudice because Cuff may not have had the relevant
facts before sentencing and therefore could not have raised his breach claim
in a Rule 11(d) motion before the sentencing court, like the defendant in
Allen. With all respect to my learned colleagues in the majority, this is
incorrect for seven reasons.
First, the procedural default occurred on November 28, 2012—when
Cuff filed his blue brief in the direct appeal from his conviction and sentence
in the Louisiana case. Massaro, Wright & Miller, and the other
authorities cited in the preceding section make clear that the failure to object
on direct appeal constitutes the default. And when Cuff filed his direct appeal
brief in November 2012, he undisputedly knew about the alleged breach. He
undisputedly could have objected to it. He said nothing and thus defaulted
the claim. It would not matter whether other defendants (as in Allen) could
have objected earlier, because Cuff could have objected before the direct-appeal deadline in November 2012.
Second, in any event, Cuff could have objected in the district court
just as the defendant could have in Allen. The Western District of Louisiana
sentenced Cuff in July 2012—at which point Cuff’s first arrest on the Texas
charges was six months old. Recall that the federal grand jury in Texas indicted
Cuff in December 2011, and the federal court in Texas ordered that
indictment to remain sealed until Cuff was arrested. He was arrested in
January of 2012, and that indictment was unsealed at that time. Yet at no
point between January and July 2012—between the arrest on the Texas
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charge and the sentencing on the Louisiana charge—did Cuff object to the
breach.
Third, it is no answer to say that Cuff could not object to the alleged
breach in his November 2012 blue brief because his claim “require[d] factual
development by a district court.” Ante, at 8. Cuff could have objected as early
as January 2012, when he was arrested on the Texas charges and the Texas
indictment was unsealed. But even if one thinks that Cuff did not get the
relevant facts until his second arrest in August 2012, he still could have
objected in his November 2012 blue brief. And the only fact he needed for
that alleged breach was the existence of the Texas docket—a fact that he
could establish simply by pointing to the docket number.
Fourth, the majority’s reliance on prior decisions from this court,
where we have not considered issues raised for the first time on appeal, does
not support its theory. See ante, at 8 (citing Chevron USA, Inc. v. Aker Mar.
Inc., 689 F.3d 497, 503 (5th Cir. 2012) and N. Alamo Water Supply Corp. v.
City of San Juan, Tex.,
90 F.3d 910, 916 (5th Cir. 1996)). These are civil, not
criminal, cases. And again, in the criminal context, the Supreme Court and
this court have repeatedly entertained breach claims never raised in the
district court under our plain error standard of review. See, e.g., Puckett,
556
U.S. 129; Cluff,
857 F.3d 292; Kirkland,
851 F.3d 499; Williams,
821 F.3d
656; Hebron,
684 F.3d 554; Puckett,
505 F.3d 377; Munoz,
408 F.3d 222;
Brown,
328 F.3d 787; Reeves,
255 F.3d 208; Branam,
231 F.3d 931. Given this
long, nonexhaustive list of precedents, Cuff’s counsel had ample notice that
relief was available to him on direct appeal. There was no “external
impediment preventing counsel from constructing or raising the claim.”
Carrier,
477 U.S. at 492. Any “ignorance” or mistaken reliance on civil cases
by Cuff’s counsel provide no excuse.
Id. at 490.
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Fifth, it is particularly odd to say that Cuff’s counsel reasonably chose
not to raise his breach claim on direct appeal given the other claims that same
direct-appeal counsel did raise. For example, Cuff contended on direct appeal
that the district court failed to admonish him that he would have to register
as a sex offender. We pointed out that Cuff could have raised that claim in
the district court at his rearraignment, so we could only review it for plain
error. ROA.215. Cuff also objected to the factual basis for his plea agreement.
Again, we pointed out that Cuff could have raised that claim in the district
court and failed to do so. Ibid. Cuff attempted to raise a claim of prosecutorial
misconduct, but “he did not develop the facts supporting this claim, so we
[were] not able to review on appeal.” ROA.217. And Cuff’s direct-appeal
brief even attempted to raise the one claim—ineffective assistance of
counsel—that is not defaulted by failure to raise it on direct appeal.
Ibid. With
all respect, it blinks reality that Cuff attempted to raise all these claims for the
first time on direct appeal but had a “defensible” belief that he could not raise
his breach claim. Ante, at 9.
Sixth, the majority’s contrary rule encourages prisoners to sleep on
their rights. It is a bedrock principle of procedural-default doctrine that
prisoners should raise their claims at the first conceivable opportunity. See
Frady, 456 U.S. at 167–68; Wainwright, 433 U.S. at 88–90; Francis v.
Henderson, 425 U.S. 536, 540–42 (1976); Davis v. United States,
411 U.S. 233,
239–42 (1973); Michel v. State of Louisiana,
350 U.S. 91, 99 (1955); cf. Engle,
456 U.S. at 134 (applying procedural default rule even where defense counsel
was unaware of constitutional claim at time of trial). But the majority allows
Cuff to raise his breach claim after sleeping on it at his July 2012 sentencing
and during his subsequent direct-appeal proceeding.
Seventh, the majority’s rule encourages courts to make unnecessary
constitutional pronouncements. It is a well-settled principle of federal law
that we have an obligation to avoid resolving unnecessary constitutional
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questions. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018); Crowell
v. Benson,
285 U.S. 22, 62 (1932). Yet our decision in Cuff’s direct appeal
resolved a constitutional question regarding his mental competency,
ROA.214 (citing Godinez v. Moran,
509 U.S. 389 (1993)), that would have
been completely unnecessary if we had a non-constitutional basis for vacating
the plea agreement.
…
I respectfully dissent.
27
