Arthur Charles Elzy , J R. v. United States of America

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0073P (6th Cir.)
File Name: 00a0073p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ARTHUR C HARLES ELZY , J R.,
Petitioner-Appellant,
v.
UNITED S TATES OF AMERICA ,
Respondent-Appellee.
;>

1
No. 98-6223
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
Nos. 97-00628; 96-00044—Edward H. Johnstone,
Senior District Judge.
Argued: October 13, 1999
Decided and Filed: March 1, 2000
Before: NELSON, BOGGS, and BATCHELDER, Circuit
Judges.
_________________
COUNSEL
ARGUED: Thomas M. Dawson, Leavenworth, Kansas, for
Appellant. James A. Earhart, ASSISTANT UNITED
STATES ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: David V. Ayres, Leavenworth, Kansas, for
Appellant. James A. Earhart, Terry M. Cushing,

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2 Elzy v. United States No. 98-6223
ASSISTANT UNITED STATES ATTORNEYS, Louisville,
Kentucky, for Appellee.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Defendant-
Appellant Arthur Charles Elzy appeals from the district
court’s order denying his 28 U.S.C. § 2255 motion to vacate
his sentence. Elzy’s motion claims that the Government
breached the terms of the written plea agreement pursuant to
which he was convicted and sentenced, a claim Elzy did not
raise either at sentencing or on direct appeal. The district
court denied the motion on its merits. Because we hold that
Elzy’s claim is procedurally defaulted and he has not
demonstrated the cause and prejudice required to excuse that
default, we AFFIRM the dismissal of the motion without
reaching its merits.
I. Factual and Procedural History
Pursuant to a written agreement with the Government, Elzy
waived indictment and pled guilty to a superseding indictment
which charged him with one count of conspiracy to
manufacture marijuana and three counts of tax evasion, and
sought forfeiture of certain property. He was sentenced to
four concurrent sentences of 60 months of imprisonment, a
$200 fine, and four years of supervised release. Elzy also
agreed to forfeit $100,000 worth of property purchased with
the proceeds of marijuana sales and to pay the IRS $75,000,
representing the approximate value of the sixty to eighty
kilograms of marijuana that he had produced.
One year after he was sentenced, Elzy filed a motion under
28 U.S.C. § 2255 to modify his sentence, alleging that the
Government breached the terms of the plea agreement by
failing to file a § 5K1.1 downward departure motion in return
for Elzy’s “substantial assistance” in investigating or
prosecuting other criminals. Elzy had not challenged the

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10 Elzy v. United States No. 98-6223
III. Conclusion
For the foregoing reasons, the district court’s denial of
Elzy’s § 2255 motion is AFFIRMED.
No. 98-6223 Elzy v. United States 3
Government’s compliance with the plea agreement at
sentencing; neither had he requested an evidentiary hearing,
or filed a direct appeal.
The relevant section of Elzy’s plea agreement provided:
At the time of sentencing, the United States will [...]
E. Consider making a motion for a downward departure
pursuant to 18 U.S.C. § 3553(e) and § 5K1.1 of the
Sentencing Guidelines, stating the extent to which the
Defendant has provided substantial assistance in the
investigation or prosecution of another person who has
committed an offense.
According to the Government, the plea negotiations included
lengthy discussions among Elzy and his counsel, the Assistant
U.S. Attorney (“AUSA”) and federal agents on the meaning
of “substantial assistance.” The Government advised Elzy
that the term meant more than just general information, and
that he must provide information that actually advanced an
investigation or prosecution. Elzy does not dispute this
recounting. Elzy also does not dispute that he refused to
participate in undercover operations to gather evidence on
others, and had no information to share with the Government
regarding current illegal activities. What he did provide was
one or two sentences of information about the criminal
histories of each of eight associates. Additionally, Elzy’s
wife, Traci, made efforts to arrange a controlled drug
purchase, but only after Elzy was sentenced.
The Government cited three reasons for refusing to file a
§ 5K1.1 motion: (1) Elzy’s failure to provide information that
could be corroborated by an independent, credible source; (2)
his unwillingness to take any active role in an investigation;
and (3) his continued and repeated drug use while on pretrial
release. While Elzy was awaiting trial, the AUSA received
three bond violation reports from Elzy’s probation officer, all
for marijuana use.

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4 Elzy v. United States No. 98-6223
The district court does not appear to have addressed Elzy’s
failure to raise at the sentencing hearing or on direct appeal
his claim that the Government breached the plea agreement.
Instead, after receiving briefs from both parties, the court
denied the § 2255 motion on its merits and issued a
Certificate of Appealability. This appeal followed.
II. Analysis
The sole issue raised in this appeal is whether the
Government breached the plea agreement by failing to make
a § 5K1.1 motion. The Government’s failure to adhere to its
plea agreement in good faith has been held to implicate a
defendant’s due process rights. See Santobello v. New York,
404 U.S. 257 (1971); United States v. White, 71 F.3d 920, 925
(D.C. Cir. 1995); United States v. Leonard, 50 F.3d 1152,
1157-58 (2d Cir. 1995). We conclude, however, that by
failing to raise it at sentencing or on direct appeal, Elzy
waived this claim. Therefore, in order to pursue this claim
through a collateral attack on his sentence, he was required to
demonstrate in the § 2255 proceedings before the district
court cause and prejudice to excuse the double default. See
Murray v. Carrier, 477 U.S. 478,485 (1986); United States v.
Frady, 456 U.S. 152, 167 (1982); Murr v. United States, 200
F.3d 895, 2000 WL 6152, at *4 (6th Cir. 2000). This hurdle
is an intentionally high one for the petitioner to surmount, for
respect for the finality of judgments demands that collateral
attack generally not be allowed to do service for an appeal.
See Frady, 456 U.S. at 165.
The record before us indicates that the only arguable cause
for the default would be a claim of ineffective assistance of
counsel, but Elzy has never raised such a claim. It is true that
in his § 2255 motion, Elzy offered—in response to the pre-
printed form’s question—that the reason his claim of breach
of the plea agreement had never been presented previously
was that he had asked his trial counsel to file a direct appeal
but his counsel had not done so. It is also true that Elzy’s
brief in support of his § 2255 motion before the district court
acknowledged that he had not claimed either at sentencing or
No. 98-6223 Elzy v. United States 9
2The issue in Trest was whether the district court was required to
raise sua sponte an habeas petitioner’s procedural default, where the
Government had failed to raise it. While holding that there is no such
requirement, the Supreme Court expressly declined to reach the separate
question of whether the law permits the court to raise the issue sua sponte.
See Trest, 118 S. Ct. at 480.
ineffective assistance of counsel was never objected to in the
§ 2255 proceedings, and has not been brought before us
either.
We also note that the Government failed to raise Elzy’s
default, either before the district court or before us on appeal.
But we are not required to review the merits of defaulted
claims simply because the Government has failed to raise the
issue. While procedural default is not a jurisdictional bar to
review of such a claim, see Trest v. Cain, 522 U.S. 87, 118 S.
Ct. 478, 480 (1997), and the Government’s failure to raise the
default may operate as a forfeiture of its right to defend on
that ground, see id., we nonetheless may raise these issues sua
sponte. See Rosario v. United States, 164 F.3d 729, 732-33
(2d Cir. 1998) (holding that appellate court may raise issues
of default sua sponte where necessary to protect, inter alia,
the finality of federal criminal judgments); Hines v. United
States, 971 F.2d 506, 508 (10th Cir. 1992) (holding that
because concerns of finality of criminal judgments, judicial
economy and orderly administration of justice substantially
implicate important interests beyond those of the parties,
appellate court may raise Frady defense sua sponte).2 We
conclude that in this case we are justified in raising sua sponte
the issue of Elzy’s double default, and we do so in no small
part in order to lay to rest in this circuit the notion advanced
by Elzy that the Government’s alleged breach of a plea
agreement may be raised for the first time in a § 2255 motion
without regard to the law of procedural default. Moreover,
we see no need in this case to invite supplemental briefs from
the parties on the issue, as the procedural default is manifest
in the record and there is nothing further that the parties could
bring to our attention that could bear upon the default.

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8 Elzy v. United States No. 98-6223
direct appeal constitutes ineffective assistance of counsel and
demonstrates both cause and prejudice under the Frady test”
is wholly insufficient to raise the issue of ineffective
assistance of counsel, and although he submitted his own
affidavit as well as affidavits of others in support of his
§ 2255 motion, he submitted nothing with regard to his
attorney’s failure to file a notice of appeal of his sentence.
The district court denied the § 2255 motion on its merits and
Elzy filed a notice of appeal and moved for a certificate of
appealability from the district court “allowing Elzy to appeal
the single issue raised in his § 2255: Whether the
Government breached Elzy’s plea agreement.” Again, Elzy
made no mention of any claim that his trial counsel had been
ineffective in any regard.
Before us in this appeal, Elzy argues only that the
Government breached the plea agreement. His brief makes no
mention whatsoever of any claim that he asked his trial
counsel to file a notice of appeal of his sentence, or that his
trial counsel was ineffective in any regard.
This is not a pro se proceeding, and, in fact, Elzy has not
proceeded pro se at any time. He was represented by retained
counsel at trial and sentencing; he retained different counsel
who filed his § 2255 motion and accompanying brief and
documentation and who represent him in this appeal. We
therefore are not bound to construe his pleadings liberally;
much less ought we to construe them in such a way as to
construct for Elzy the case that he has not made. And even if
we were to find that the mere mention in the § 2255
proceedings of trial counsel’s failure to file an appeal was
sufficient to raise an ineffective assistance claim, which the
district court should have considered in order to determine
whether it could proceed to the merits of Elzy’s claim that the
Government breached the plea agreement, we would be
constrained to hold that Elzy has waived the issue on appeal
because he neither mentioned it in his motion for a certificate
of appealability nor raised it in his brief on appeal. In short,
the failure of the district court to notice and hold an
evidentiary hearing on an implied claim that Elzy had
No. 98-6223 Elzy v. United States 5
on direct appeal that the Government had breached the plea
agreement, but concluded,
a Governmental breach of a plea agreement is an issue
that can be raised for the first time in a Motion Pursuant
to 28 U.S.C. § 2255 either because: 1) the Frady cause
and prejudice standard does not apply to such a claim;
United States v. De la Fuente, 8 F.3d 1333, 1337 (9th
Cir. 1993); or (2) counsel’s failure to raise the issue
either at sentencing or on direct appeal constitutes
ineffective assistance of counsel and demonstrates both
cause and prejudice under the Frady test; Id.
De la Fuente, however, does not hold that the Frady cause
and prejudice analysis does not apply to a defaulted claim that
the Government breached a plea agreement. In that case, a
panel of the Ninth Circuit said, “we note that it is by no
means clear that Frady’s ‘cause and prejudice’ requirement
applies to claims of government breach of an executed plea
agreement. Such a breach implicates the constitutional
guarantee of due process.” De la Fuente, 8 F.3d at 1336. The
De la Fuente panel went on to say (inexplicably, in our view)
that
the Supreme Court has never held that the Frady test
applies to every claim of constitutional error, but has only
applied the test to claims running afoul of an express
statutory waiver provision. Thus, under the Court’s
precedent, some constitutional claims may remain that do
not require a showing of ‘cause and prejudice’ to allow
collateral review.
Id. (footnote omitted). The panel then referred to the case of
United States v. Benchimol, 471 U.S. 453 (1985) (per
curiam), to make the point that even three years after Frady,
the Court did not mention procedural default or the cause and
prejudice test in ruling on a claim that the Government had
breached a plea agreement. But Benchimol was brought
under Fed. R. Crim. P. 32(d) as well as 28 U.S.C. § 2255. At
the time the petitioner in that case was asking to withdraw his
plea because the Government had allegedly breached the plea

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6 Elzy v. United States No. 98-6223
agreement, Rule 32(d) provided a route for making exactly
that kind of collateral attack on a guilty plea. Rule 32(d) at
the time of the proceedings in Benchimol read:
A motion to withdraw a plea of guilty or nolo contendere
may be made only before sentence is imposed or
imposition of sentence is suspended; but to correct
manifest injustice the court after sentence may set aside
the judgment of conviction and permit the defendant to
withdraw his plea.
(emphasis added). There is a good discussion of the rule as
it was then in the case of United States v. Watson, 548 F.2d
1058,1063-64 (D.C. Cir. 1977):
It will be noted from the foregoing language of the Rule
that there is no limitation upon the time within which
relief thereunder may, after sentencing, be sought. In this
respect it embodies the central feature of collateral attack
under 2255. Indeed, it would appear to us that Rule
32(d) can in substance be regarded as a special, and
perhaps exclusive, avenue of collateral challenge to an
allegedly improper taking of a guilty plea. It contains its
own explicit formulation of the standard to be applied,
namely, " to correct manifest injustice." And, although
it remains for the court to determine the reach of that
standard in relation to the facts of a particular case, the
express terms of the standard itself have the force of a
statute, and were presumably intended to govern in the
case of any person seeking belatedly to withdraw his
guilty plea. They have at any rate the virtue of being
immune from the shifting and still somewhat opaque
judicial formulations differentiating between direct
appeals and 2255 motions.
(footnotes omitted). By the time the defendant in De la
Fuente was prosecuted, Rule 32 had been changed to require
that prior to sentencing, the court may permit the withdrawal
of a plea for any fair and just reason, but after sentence has
been imposed, “a plea may be set aside only on direct appeal
No. 98-6223 Elzy v. United States 7
1Although Keeney addressed a procedural default in state court
instead of the federal procedures at issue here, “the federal interest in
finality is as great as the States’, and the relevant federal constitutional
strictures apply with equal force to both jurisdictions.” Frady, 456 U.S.
at 169 n. 17.
or by motion under 28 U.S.C. § 2255.” FED . R. C RIM. P.
32(d) (1989).
In our view, the Ninth Circuit had absolutely no basis for its
claim that Frady may not apply to claims such as the one in
De la Fuente. Our research reveals no other cases standing
for that proposition, and indeed the Supreme Court’s
decisions in the past decade suggest that the cause and
prejudice test should be uniformly applied to all procedural
defaults. See, e.g., Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-8
(1992) (“[T]he cause-and-prejudice standard applicable to
failure to raise a particular claim should apply as well to
failure to appeal at all. All of the State's interests--in
channeling the resolution of claims to the most appropriate
forum, in finality, and in having an opportunity to correct its
own errors--are implicated whether a prisoner defaults one
claim or all of them . . . . As in cases of state procedural
default, application of the cause-and-prejudice standard to
excuse a state prisoner's failure to develop material facts in
state court will appropriately accommodate concerns of
finality, comity, judicial economy, and channeling the
resolution of claims into the most appropriate forum.”)
(internal quotations and citations omitted) (explaining
Coleman v. Thompson, 501 U.S. 722 (1991)).1 We have
never adopted the De la Fuente view, and we decline Elzy’s
invitation to do so now.
Having failed to raise his claim before the district court or
on direct appeal, Elzy was required to demonstrate in his
§ 2255 proceedings cause and prejudice with regard to that
default. He did not. Elzy’s § 2255 motion raised one issue
only, and that was the claimed breach. His conclusory
statement in his brief in support of the § 2255 motion that
“counsel’s failure to raise the issue either at sentencing or on

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