United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-6788.

                           Roy Anthony HARRIS, Petitioner-Appellee,

                                                  v.

                      UNITED STATES of America, Respondent-Appellant.

                                           Aug. 13, 1998.

Appeal from the United States District Court for the Middle District of Alabama. (Nos. CR-93-216-
N, CV-94-D-1023-N), Ira De Ment, Judge.

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



   1
    The government agreed to dismiss Count I.
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 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.




                                                    2
          We review the district court's conclusion of law de novo. See Macklin v. Singletary, 

, 1312-13 (11th Cir.1994), cert. denied, 

, 

, 

(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 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


   2
    During oral argument, Appellee pointed to United States v. Weaver, 

, 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 

(citing 

and 

),
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
        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.

, 853 (11th Cir.1983). In Olson, we explicitly reaffirmed the holdings of the former

Fifth Circuit in United States v. Cevallos, 

, 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, 

, 533 (5th Cir.1974) (holding that the 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 

. Congress could not have more



   3
    In Bonner v. Prichard, 

, 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
    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, 

, 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, 

, 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, 

, 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, 

, 882 (10th Cir.1991)
("Failure to file the information prior to trial deprives the district court of jurisdiction to impose
an enhanced sentence.").

                                                    4
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 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, 

, 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


   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
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, 

, 619-20, 

, 

(1960) (Sixth Amendment right to a public trial); Riner v. Owens, 

,

1256-57 (7th Cir.1985) (Sixth Amendment right be confronted with one's accusers), cert. denied,

, 

, 

(1986); United States v. Bascaro, 

,

1365(11th Cir.1984) (Fifth Amendment protection from double jeopardy), cert. denied sub nom.

Hobson v. United States, 

, 

, 

(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, 

, 1505-06 (11th

Cir.1995) (finding defendant failed to show cause excusing his procedural default of protection from

double jeopardy), cert. denied, 

, 

, 

(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, 

, 701, 

, 

(1982). We



   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, 

, 733,

, 

(1993) (quoting Johnson v. Zerbst, 

, 464, 

, 

(1938)). Rights that can be forfeited necessarily can be waived. Freytag v.
Commissioner, 

, 894 n. 2, 

, 

(1991) (Scalia, J.,
concurring in part and concurring in judgment). Some rights, however, can be waived but not
forfeited. See 

v. Zerbst, 

, 464, 

, 

(1938) (right to counsel); Patton v. United States, 

, 312, 

, 

(1930) (right to trial by jury), overruled on other grounds, Williams v. Florida, 

, 

, 

(1970)). The cause-and-prejudice standard applies only to collateral
attacks involving forfeited rights.

                                                  6
therefore cannot derive power to act from the actions of the parties before us. See 

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, 

,

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., 

, 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., 

, 1479 (11th

Cir.1989)); Fitzgerald v. Seaboard Sys. R.R., Inc., 

, 1250 (11th Cir.1985) ("It is a well

known fact that parties cannot confer jurisdiction upon the federal courts."); Love v. Turlington, 

, 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.,

, 1118 (11th Cir.1983) ("[I]t is well established that subject matter jurisdiction cannot

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., 

("[A] court ... will raise lack of subject-matter jurisdiction on its own motion.");

("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, 

, 

, 

(1975); City of Kenosha

v. Bruno, 

, 

, 

(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


                                                   7
Kelly v. United States, 

(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." 

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." 

        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

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

prior convictions before his guilty plea. See 

, 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.

then remanded the cases for a cause-and-prejudice analysis. See 

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

Circuit opinion, Ford v. United States, 

(8th Cir.1993), which reached the same

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




   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 U.S.App. (9th Cir.1992).

                                                    8
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.

       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.

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

binding upon this panel. See United States v. Olson, 

(11th Cir.1983); United States

v. Cevallos, 

(5th Cir.1976); United States v. Noland, 

(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


                                                  9
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 

. For this reason, I concur.




                                                   10