United States v. Young

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
September 15, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50571
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JON THOMAS YOUNG, SR., also known as Jon Young,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-00-CV-344
USDC No. W-98-CR-102-ALL
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Jon Thomas Young Sr., Texas inmate # 82497-080, appeals the
denial of his 28 U.S.C. § 2255 motion following the grant of a
certificate of appealability on the issue whether the Government
breached the plea agreement. Young is currently serving a 210-
month sentence for a conviction obtained on his guilty plea to a

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charge of distribution of amphetamine. Young’s motion for leave
to file a reply brief out-of-time is GRANTED.
Young contends that the Government breached the plea
agreement because it did not recommend that he receive a three-
level credit for acceptance of responsibility and in fact, argued
at sentencing against Young’s receipt of such credit. Young
asserts that he pleaded based on the promise of a recommendation
of credit for acceptance of responsibility, that the Government
argued against the inducement for his plea, and that his guilty
plea is invalid.
Relief under 28 U.S.C. § 2255 is reserved for transgressions
of constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice. United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). An
allegation of a breached plea agreement raises a constitutional
issue that may be cognizable in a 28 U.S.C. § 2255 motion. See
United States v. Cates, 952 F.2d 149, 151 (5th Cir. 1992).
However, “a ‘collateral challenge may not do service for an
appeal.’” United States v. Shaid, 937 F.2d 228, 231 (5th Cir.
1991) (en banc). A defendant who raises a constitutional or
jurisdictional issue for the first time on collateral review must
show “both ‘cause’ for his procedural default, and ‘actual
prejudice’ resulting from the error.” Shaid, 937 F.2d at 232.
The 28 U.S.C. § 2255 cause and actual prejudice standard presents

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a significantly higher hurdle than the plain error standard of
review that is applied on direct appeal. United States v.
Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992). The only exception
to the cause and prejudice test is the “extraordinary case . . .
in which a constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Id. Young has not
asserted actual innocence.
The Government raised the procedural bar in the district
court. See United States v. Drobny, 955 F.2d 990, 995 (5th Cir.
1992). Young therefore was provided notice of the procedural bar
issue and a reasonable opportunity to argue against the bar in
the district court. See United States v. Willis, 273 F.3d 592,
597 (5th Cir. 2001). Young has not asserted cause and prejudice
for his procedural default and has not overcome the procedural
bar. Accordingly, the judgment of the district court is
AFFIRMED.
AFFIRMED; MOTION FOR LEAVE TO FILE REPLY BRIEF OUT-OF-TIME
GRANTED.

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