                                                                              PUBLISH



                   IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                               ________________________           U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                      No. 97-6788                        08/13/98
                               ________________________              THOMAS K. KAHN
                                                                          CLERK
                             D.C. Docket Nos. CR-93-216-N
                                   CV-94-D-1023-N



ROY ANTHONY HARRIS,

                                                                Petitioner-Appellee,

      versus



UNITED STATES OF AMERICA,

                                                                Respondent-Appellant.


                             __________________________

                    Appeal from the United States District Court for the
                               Middle District of Alabama
                              _________________________

                                    (August 13, 1998)


Before DUBINA and MARCUS, Circuit Judges, and HILL, Senior Circuit Judge.
MARCUS, Circuit Judge:

       Appellant Harris was sentenced in the United States District Court for the Middle District

of Alabama after pleading guilty to charges of distribution of marijuana and cocaine. Harris

argues in this § 2255 petition that the district court erred in holding that he had procedurally

defaulted his challenge to the court’s jurisdiction to impose an enhanced sentence based on a

prior conviction. We agree and therefore reverse and remand for re-sentencing.

                                                  I.

       On August 4, 1993, Harris was indicted for conspiracy to distribute and possess with

intent to distribute cocaine (Count I), distribution of marijuana (Count II), and distribution of

cocaine (Count III). Soon thereafter, on September 21, 1993, Harris appeared in court to enter a

guilty plea to Counts II and III of the indictment.1 During the course of the plea hearing, the

prosecutor stated that he “did not know that Mr. Harris was going to enter a plea this morning.”

When asked if he had any objections to the plea, he responded, “No, Your Honor, I don’t.

However, it was the United States’ intention to file a notice of prior conviction on Mr. Harris,

and I have not had an opportunity to do that.” The district court responded, “Okay. The Court

will accept it when you file it.” The court then accepted Harris’s plea of guilty. The government

filed the information pursuant to 21 U.S.C. § 851 shortly after the plea hearing, and thereafter,

on November 23, 1993, the court applied the enhancement in sentencing Harris to 120 months

imprisonment. Harris did not take a direct appeal from the conviction. Rather, on August 8,

1994, he filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255,

alleging that (1) his counsel was ineffective because she failed to appeal his sentence pursuant to


       1
        The government agreed to dismiss Count I.

                                                  2
his request; (2) the prosecutor failed to file an information to establish his prior conviction before

he entered his guilty plea, as required by 21 U.S.C. § 851(a)(1); and (3) he did not receive notice

that his sentence would be enhanced. The district court denied that motion, adopting the

magistrate judge’s report and recommendation finding that Harris procedurally defaulted his

claims, and that the failure of his counsel to file a direct appeal regarding the § 851 issue resulted

in no prejudice because he was on full record notice of the government’s intention to use his

prior conviction and its consequences. Harris then appealed the denial of his § 2255 motion to

this Court. We remanded the case to the district court for an evidentiary hearing on Harris’s

allegation that he requested his counsel to file a direct appeal. Harris v. United States, No. 96-

6165, slip op. at 5 (11th Cir. April 28, 1997). Thereafter, the district court held such a hearing

and found that he did not do so. Harris then filed this appeal of the § 851 issue.

                                                 II.

       We review the district court’s conclusion of law de novo. See Macklin v. Singletary, 24

F.3d 1307, 1312-13 (11th Cir. 1994), cert. denied, 513 U.S. 1160 (1995).

       Title 21, Section 851 of the United States Code provides:

       (a)(1) No person who stands convicted of an offense under this part shall be
       sentenced to increased punishment by reason of one or more prior convictions,
       unless before trial, or before entry of a plea of guilty, the United States attorney
       files an information with the court (and serves a copy of such information on the
       person or counsel for the person) stating in writing the previous convictions to be
       relied upon. Upon a showing by the United States attorney that facts regarding
       prior convictions could not with due diligence be obtained prior to trial or before
       entry of a plea of guilty, the court may postpone the trial or the taking of the plea
       of guilty for a reasonable period for the purpose of obtaining such facts. . . .
       ...
       (b) If the United States attorney files an information under this section, the court
       shall after conviction but before pronouncement of sentence inquire of the person
       with respect to whom the information was filed whether he affirms or denies that
       he has been previously convicted as alleged in the information, and shall inform

                                                  3
         him that any challenge to a prior conviction which is not made before sentence is
         imposed may not thereafter be raised to attack the sentence.

         The Eleventh Circuit and its predecessor court have unambiguously and repeatedly held

that a district court lacks jurisdiction to enhance a sentence unless the government strictly

complies with the procedural requirements of § 851(a).2 As we observed in United States v.

Olson:

         An enhanced sentence is a special remedy prescribed by the Congress;
         prosecutorial discretion is vested in the executive branch of the government, and
         the district court has no authority to exercise it or pretermit it. As we have
         pointed out, Congress advisedly vested this discretion in the prosecutor. Unless
         and until prosecutorial discretion is invoked and the government files and serves
         an information as required by Sec. 851, the district court has no power to act with
         respect to an enhanced sentence; it can no more enhance the sentence than it
         could impose imprisonment under a statute that only prescribes a fine. Harmless
         error cannot give the district court authority that it does not possess.

716 F.2d 850, 853 (11th Cir. 1983). In Olson, we explicitly reaffirmed the holdings of the

former Fifth Circuit in United States v. Cevallos, 538 F.2d 1122, 1125 n.4 (5th Cir. 1976)

(describing prior holding in Noland as finding that “the failure to file the information of previous

conviction prior to trial deprived the district court of jurisdiction to impose an enhanced

sentence”)3 and United States v. Noland, 495 F.2d 529, 533 (5th Cir. 1974) (holding that the




         2
         During oral argument, Appellee pointed to United States v. Weaver, 905 F.2d 1466,
1481 (11th Cir. 1990), for the proposition that the government is not required to strictly comply
with the procedural requirements of § 851. In Weaver, the Court did not purport to hold that
strict compliance with § 851 is not required. Indeed, the Court reaffirmed that strict compliance
is mandatory, see id. at 1481 (citing Noland, 495 F.2d at 533 and Cevallos, 538 F.2d at 1126-27),
and then concluded that the government strictly complied with § 851 because it timely served
defense counsel with the information prior to trial and notified the court prior to the
commencement of jury selection.
         3
        In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.

                                                  4
mandatory language of § 851 “restrict[s] the court’s authority to impose enhanced sentences to

cases where the information is filed with the court and served on the defendant before trial”).4

Thus, even where a defendant receives actual notice that the government intends to rely on a

previous conviction to enhance his sentence, the district court lacks jurisdiction to impose an

enhanced sentence until the government files an information as required under § 851. See

Noland, 495 F.2d at 533. Congress could not have more clearly evinced its purpose in providing

for an enhanced sentence under § 851 only when the government seeks it by filing an

information prior to trial or plea.

        Because the government failed to file an information concerning Harris’s prior

conviction before the acceptance of his plea, the district court plainly lacked jurisdiction to

impose the enhanced sentence.5 Harris, however, failed to object to the enhancement on

jurisdictional grounds at trial or on direct appeal. Instead, he filed a motion under 28 U.S.C. §

2255, which allows collateral attack on a sentence “upon the ground that the sentence was


        4
          Four other circuit courts of appeals -- the First, the Sixth, the Seventh, and the Tenth --
have likewise found that § 851(a) imposes a jurisdictional requirement. See United States v.
Hill, 142 F.3d 305, 312 (6th Cir. 1998) (“Section 851(a)(1) imposes a jurisdictional requirement
granting the district court jurisdiction to enhance a defendant's sentence only when the United
States attorney files an information with the court, stating in writing the previous convictions to
be relied on.”); United States v. Romero-Carrion, 54 F.3d 15, 17-18 (1st Cir. 1995) (“It is clear .
. . that failure to file the information required by section 851(a) deprives the district court of
jurisdiction to impose an enhanced sentence.”); United States v. Belanger, 970 F.2d 416, 418
(7th Cir. 1992) (“Failure to file the notice prior to trial deprives the district court of jurisdiction
to impose an enhanced sentence.”); United States v. Wright, 932 F.2d 868, 882 (10th Cir. 1991)
(“Failure to file the information prior to trial deprives the district court of jurisdiction to impose
an enhanced sentence.”).
        5
        We note that the government could have sought a postponement as provided in § 851(a):
“Upon a showing by the United States attorney that facts regarding prior convictions could not
with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may
postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of
obtaining such facts. . . .”

                                                   5
imposed in violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

authorized by law.” According to the Supreme Court, “to obtain collateral relief based on trial

errors to which no contemporaneous objection was made, a convicted defendant must show both

(1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the

errors of which he complains.” United States v. Frady, 456 U.S. 152, 167 (1982). The

government therefore contends that Harris procedurally defaulted his jurisdictional objection by

failing to raise it at trial or on direct appeal, and consequently he must show cause and prejudice

to collaterally attack the error.

        The applicability of the cause-and-prejudice standard to a collateral attack on

jurisdictional grounds is an issue of first impression in this Circuit. In collateral attacks based on

non-jurisdictional grounds that a defendant has procedurally defaulted, we have regularly applied

the cause-and-prejudice standard. For example, a defendant may procedurally default many of

his constitutional rights.6 See, e.g., Levine v. United States, 362 U.S. 610, 619-20 (1960) (Sixth

Amendment right to a public trial); Riner v. Owens, 764 F.2d 1253, 1256-57 (7th Cir. 1985)

(Sixth Amendment right be confronted with one’s accusers), cert. denied, 475 U.S. 1055 (1986);

United States v. Bascaro, 742 F.2d 1335, 1365(11th Cir. 1984) (Fifth Amendment protection

        6
         Courts often conflate the concepts of procedural default, or forfeiture, and waiver.
“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the
‘intentional relinquishment or abandonment of a known right.’” United States v. Olano, 507
U.S. 725, 733 (1993) (quoting. Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Rights that can be
forfeited necessarily can be waived. Freytag v. Commissioner, 501 U.S. 868, 894 n.2 (1991)
(Scalia, J., concurring in part and concurring in judgment). Some rights, however, can be
waived but not forfeited. See id. (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (right to
counsel); Patton v. United States, 281 U.S. 276, 312 (1930) (right to trial by jury), overruled on
other grounds, Williams v. Florida, 399 U.S. 78 (1970)). The cause-and-prejudice standard
applies only to collateral attacks involving forfeited rights.

                                                  6
from double jeopardy), cert. denied sub nom. Hobson v. United States, 472 U.S. 1017 (1985).

Upon collateral attack, he must show cause (and resulting prejudice) for his procedural default to

justify his failure to timely assert his constitutional rights. See, e.g., Coulter v. Herring, 60 F.3d

1499, 1505-06 (11th Cir. 1995) (finding defendant failed to show cause excusing his procedural

default of protection from double jeopardy), cert. denied, 516 U.S. 1122 (1996).

       Notably, jurisdictional defects, by contrast, cannot be procedurally defaulted. As federal

courts, we are courts of limited jurisdiction, deriving our power solely from Article III of the

Constitution and from the legislative acts of Congress. See Insurance Corp. of Ir., Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). We therefore cannot derive

power to act from the actions of the parties before us. See id. at 702. Consequently, the parties

are incapable of conferring upon us a jurisdictional foundation we otherwise lack simply by

waiver or procedural default. See United States v. Griffin, 303 U.S. 226, 229 (1938) (Since

lack of jurisdiction of a federal court touching the subject matter of the litigation cannot be

waived by the parties, we must upon this appeal examine the contention.”); Hertz Corp. v.

Alamo Rent-A-Car, Inc.,16 F.3d 1126, 1131 (11th Cir. 1994) (“Subject-matter jurisdiction can

never be waived or conferred by the consent of the parties.”) (quoting Latin Am. Property &

Cas. Ins. Co. v. Hi-Lift Marina, Inc., 887 F.2d 1477, 1479 (11th Cir. 1989)); Fitzgerald v.

Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1250 (11th Cir. 1985) (“It is a well known fact that

parties cannot confer jurisdiction upon the federal courts.”); Love v. Turlington, 733 F.2d 1562,

1564 (11th Cir. 1984) (“It is an established principle of law that subject matter jurisdiction

cannot be created or waived by agreement of the parties.”); Eagerton v. Valuations, Inc., 698

F.2d 1115, 1118 (11th Cir. 1983) (“[I]t is well established that subject matter jurisdiction cannot



                                                   7
be waived or conferred on a court by consent of the parties.”). Furthermore, we are bound to

assure ourselves of jurisdiction even if the parties fail to raise the issue. See Insurance Corp. of

Ir., Ltd., 456 U.S. at 702 (“[A] court . . . will raise lack of subject-matter jurisdiction on its own

motion.”); Fitzgerald, 760 F.2d at 1251 (“A federal court not only has the power but also the

obligation at any time to inquire into jurisdiction whenever the possibility that jurisdiction does

not exist arises.”) (citing Philbrook v. Glodgett, 421 U.S. 707 (1975); City of Kenosha v. Bruno,

412 U.S. 507 (1973)).

        In short, because jurisdictional claims may not be defaulted, a defendant need not show

“cause” to justify his failure to raise such a claim. The Seventh Circuit reached a similar result

in Kelly v. United States, 29 F.3d 1107 (7th Cir. 1994).7 In Kelly, as here, the court considered a

§ 2255 collateral attack on a sentence enhancement where the prosecutor failed to timely file the

information. The court concluded that Kelly was not required to show cause and prejudice to

excuse his failure to challenge the district court’s jurisdiction, explaining, “The point of cause

and prejudice, we repeat, is to overcome the waiver. But this analysis of course assumes that the

error in question is a waivable one. And jurisdictional defects are not.” Id. at 1112. The court

concluded, “Because jurisdictional defects are nonwaivable, Kelly need not provide us with an

excuse (‘cause and prejudice’) adequate to convince us to forgive his waiver.” Id. at 1114.

        Our research reveals that two courts have applied the “cause and prejudice” standard to

jurisdictional challenges to enhancements under § 851. First, in Suveges v. United States, the

First Circuit held that the defendant had procedurally defaulted his jurisdictional challenge to his



        7
         The Ninth Circuit also agreed in an unpublished opinion, stating that “because [the
error] is jurisdictional, [the defendant] need not show cause and prejudice.” United States v.
Broadwell, 1992 WL 66649 *2, 1992 U.S.App. Lexis 6366, *5 (9th Cir.)

                                                   8
enhanced supervised release term after the government had failed to file an information about his

prior convictions before his guilty plea. See 7 F.3d 6, 10 (1st Cir. 1993). The court simply

stated:

          To be sure, Suveges did not object below to the imposition of the enhanced term
          of supervised release and he did not appeal his sentence in the first instance. The
          failure to raise this objection earlier constitutes a procedural default.

Id. The court then remanded the cases for a cause-and-prejudice analysis. See id. In concluding

that a jurisdictional claim could be procedurally defaulted, the court only cited to a previous

Eighth Circuit opinion, Ford v. United States, 983 F.2d 897 (8th Cir. 1983), which reached the

same conclusion without any analysis. We are not persuaded because a district court lacks the

power to entertain a § 851 enhancement if the government failed to comply with the procedural

requirement prior to plea or trial. And this jurisdictional defect is not waivable.

          In sum, on the facts of this case, the district court plainly lacked jurisdiction to impose

Harris’s enhanced sentence, and Harris need not show cause and prejudice to collaterally attack

the enhanced sentence because jurisdictional claims cannot be procedurally defaulted.

Accordingly, we REVERSE and REMAND for re-sentencing consistent with this opinion.




                                                    9
HILL, Senior Circuit Judge, specially concurring:

      Here a busy district court found Appellant Harris willing to plead guilty and,

by so doing, save it much trial time and effort. The government made it clear to

the court, and to Harris, that, on the basis of prior convictions, it intended to file

for an enhanced sentence. In order to document the plea and eliminate the trial, the

district court took the plea on the assurance that the government would make the

necessary filing. Harris was deprived of no information. Procedurally, no one was

misled. No one was prejudiced.




                                           10
      This being said, however, our circuit precedent is based upon jurisdictional

concepts and is binding upon this panel. See United States v. Olson, 716 F.2d 850

(11th Cir. 1983); United States v. Cevallos, 538 F.2d 1122 (5th Cir. 1976); United

States v. Noland, 495 F.2d 529 (5th Cir. 1974). In my opinion, it allows a

defendant cleverly to dangle the prospect of eliminating a lengthy and burdensome

trial before a busy trial judge (if the guilty plea can be immediately accepted before

the defendant changes his mind). Such jurisdictional leverage by a defendant can

undercut, as we have seen here, an otherwise properly enhanced sentence.

      I prefer a cause-and-prejudice analysis vis -à- vis one based upon

jurisdictional concepts. Nevertheless, I endorse the opinion of then Chief Judge

Godbold in Olson who stated that “even if these decisions [are] not to our tastes,

they are binding upon this court and the district courts of this circuit until altered

by this court en banc.” See Olson, 716 F.2d at 854. For this reason, I concur.




                                           11
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