Case Number: 18-30694

Judge: Edith H. Jones, Circuit Judge:

Court: United States Court of Appeals for the Fifth Circuit

Plaintiff's Attorney:

Defendant's Attorney:

Description: 0
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-yearold 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-yearold. 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
Case: 18-30694 Document: 00516862523 Page: 2 Date Filed: 08/17/2023
No. 18-30694
3
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
Case: 18-30694 Document: 00516862523 Page: 3 Date Filed: 08/17/2023
No. 18-30694
4
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 fiveyear-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
Case: 18-30694 Document: 00516862523 Page: 4 Date Filed: 08/17/2023
No. 18-30694
5
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.”
Case: 18-30694 Document: 00516862523 Page: 5 Date Filed: 08/17/2023
No. 18-30694
6
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
Case: 18-30694 Document: 00516862523 Page: 6 Date Filed: 08/17/2023
No. 18-30694
7
§ 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.
Case: 18-30694 Document: 00516862523 Page: 7 Date Filed: 08/17/2023
No. 18-30694
8
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.
Case: 18-30694 Document: 00516862523 Page: 8 Date Filed: 08/17/2023
No. 18-30694
9
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
Case: 18-30694 Document: 00516862523 Page: 9 Date Filed: 08/17/2023
No. 18-30694
10
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
Case: 18-30694 Document: 00516862523 Page: 10 Date Filed: 08/17/2023
No. 18-30694
11
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
Case: 18-30694 Document: 00516862523 Page: 11 Date Filed: 08/17/2023
No. 18-30694
12
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).

Outcome: 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.

Plaintiff's Experts:

Defendant's Experts:

Comments: