* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 15, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-50571

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JON THOMAS YOUNG, SR., also known as Jon Young,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-00-CV-344

USDC No. W-98-CR-102-ALL

--------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Jon Thomas Young Sr., Texas inmate # 82497-080, appeals the

denial of his 28 U.S.C. § 2255 motion following the grant of a

certificate of appealability on the issue whether the Government

breached the plea agreement. Young is currently serving a 210-

month sentence for a conviction obtained on his guilty plea to a
No. 01-50571

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charge of distribution of amphetamine. Young’s motion for leave

to file a reply brief out-of-time is GRANTED.

Young contends that the Government breached the plea

agreement because it did not recommend that he receive a threelevel credit for acceptance of responsibility and in fact, argued

at sentencing against Young’s receipt of such credit. Young

asserts that he pleaded based on the promise of a recommendation

of credit for acceptance of responsibility, that the Government

argued against the inducement for his plea, and that his guilty

plea is invalid. 

Relief under 28 U.S.C. § 2255 is reserved for transgressions

of constitutional rights and for a narrow range of injuries that

could not have been raised on direct appeal and would, if

condoned, result in a complete miscarriage of justice. United

States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). An

allegation of a breached plea agreement raises a constitutional

issue that may be cognizable in a 28 U.S.C. § 2255 motion. See

United States v. Cates, 952 F.2d 149, 151 (5th Cir. 1992). 

However, “a ‘collateral challenge may not do service for an

appeal.’” United States v. Shaid, 937 F.2d 228, 231 (5th Cir.

1991) (en banc). A defendant who raises a constitutional or

jurisdictional issue for the first time on collateral review must

show “both ‘cause’ for his procedural default, and ‘actual

prejudice’ resulting from the error.” Shaid, 937 F.2d at 232. 

The 28 U.S.C. § 2255 cause and actual prejudice standard presents
No. 01-50571

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a significantly higher hurdle than the plain error standard of

review that is applied on direct appeal. United States v.

Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992). The only exception

to the cause and prejudice test is the “extraordinary case . . .

in which a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” Id. Young has not

asserted actual innocence. 

The Government raised the procedural bar in the district

court. See United States v. Drobny, 955 F.2d 990, 995 (5th Cir.

1992). Young therefore was provided notice of the procedural bar

issue and a reasonable opportunity to argue against the bar in

the district court. See United States v. Willis, 273 F.3d 592,

597 (5th Cir. 2001). Young has not asserted cause and prejudice

for his procedural default and has not overcome the procedural

bar. Accordingly, the judgment of the district court is

AFFIRMED.

AFFIRMED; MOTION FOR LEAVE TO FILE REPLY BRIEF OUT-OF-TIME

GRANTED.
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