        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 CHARLES ELZY, JR.,
                                   
        Petitioner-Appellant,
                                   
                                   
                                      No. 98-6223
            v.
                                   
                                    >
 UNITED STATES OF AMERICA, 
          Respondent-Appellee. 
                                  1
       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,


                             1
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
10   Elzy v. United States                    No. 98-6223     No. 98-6223                        Elzy v. United States     3

                     III. Conclusion                          Government’s compliance with the plea agreement at
                                                              sentencing; neither had he requested an evidentiary hearing,
  For the foregoing reasons, the district court’s denial of   or filed a direct appeal.
Elzy’s § 2255 motion is AFFIRMED.
                                                                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.
4    Elzy v. United States                        No. 98-6223      No. 98-6223                               Elzy v. United States           9

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

direct appeal constitutes ineffective assistance of counsel and    on direct appeal that the Government had breached the plea
demonstrates both cause and prejudice under the Frady test”        agreement, but concluded,
is wholly insufficient to raise the issue of ineffective
assistance of counsel, and although he submitted his own             a Governmental breach of a plea agreement is an issue
affidavit as well as affidavits of others in support of his          that can be raised for the first time in a Motion Pursuant
§ 2255 motion, he submitted nothing with regard to his               to 28 U.S.C. § 2255 either because: 1) the Frady cause
attorney’s failure to file a notice of appeal of his sentence.       and prejudice standard does not apply to such a claim;
The district court denied the § 2255 motion on its merits and        United States v. De la Fuente, 8 F.3d 1333, 1337 (9th
Elzy filed a notice of appeal and moved for a certificate of         Cir. 1993); or (2) counsel’s failure to raise the issue
appealability from the district court “allowing Elzy to appeal       either at sentencing or on direct appeal constitutes
the single issue raised in his § 2255: Whether the                   ineffective assistance of counsel and demonstrates both
Government breached Elzy’s plea agreement.” Again, Elzy              cause and prejudice under the Frady test; Id.
made no mention of any claim that his trial counsel had been
ineffective in any regard.                                         De la Fuente, however, does not hold that the Frady cause
                                                                   and prejudice analysis does not apply to a defaulted claim that
   Before us in this appeal, Elzy argues only that the             the Government breached a plea agreement. In that case, a
Government breached the plea agreement. His brief makes no         panel of the Ninth Circuit said, “we note that it is by no
mention whatsoever of any claim that he asked his trial            means clear that Frady’s ‘cause and prejudice’ requirement
counsel to file a notice of appeal of his sentence, or that his    applies to claims of government breach of an executed plea
trial counsel was ineffective in any regard.                       agreement. Such a breach implicates the constitutional
                                                                   guarantee of due process.” De la Fuente, 8 F.3d at 1336. The
  This is not a pro se proceeding, and, in fact, Elzy has not      De la Fuente panel went on to say (inexplicably, in our view)
proceeded pro se at any time. He was represented by retained       that
counsel at trial and sentencing; he retained different counsel
who filed his § 2255 motion and accompanying brief and               the Supreme Court has never held that the Frady test
documentation and who represent him in this appeal. We               applies to every claim of constitutional error, but has only
therefore are not bound to construe his pleadings liberally;         applied the test to claims running afoul of an express
much less ought we to construe them in such a way as to              statutory waiver provision. Thus, under the Court’s
construct for Elzy the case that he has not made. And even if        precedent, some constitutional claims may remain that do
we were to find that the mere mention in the § 2255                  not require a showing of ‘cause and prejudice’ to allow
proceedings of trial counsel’s failure to file an appeal was         collateral review.
sufficient to raise an ineffective assistance claim, which the
district court should have considered in order to determine        Id. (footnote omitted). The panel then referred to the case of
whether it could proceed to the merits of Elzy’s claim that the    United States v. Benchimol, 471 U.S. 453 (1985) (per
Government breached the plea agreement, we would be                curiam), to make the point that even three years after Frady,
constrained to hold that Elzy has waived the issue on appeal       the Court did not mention procedural default or the cause and
because he neither mentioned it in his motion for a certificate    prejudice test in ruling on a claim that the Government had
of appealability nor raised it in his brief on appeal. In short,   breached a plea agreement. But Benchimol was brought
the failure of the district court to notice and hold an            under Fed. R. Crim. P. 32(d) as well as 28 U.S.C. § 2255. At
evidentiary hearing on an implied claim that Elzy had              the time the petitioner in that case was asking to withdraw his
                                                                   plea because the Government had allegedly breached the plea
6      Elzy v. United States                        No. 98-6223    No. 98-6223                               Elzy v. United States           7

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