OCTOBER TERM, 1993
Syllabus
CUSTIS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 93-5209. Argued February 28, 1994-Decided May 23,1994
After the jury convicted petitioner Custis of possession of a
firearm by a felon and another federal crime, the Government relied
on his prior state-court convictions for robbery in Pennsylvania
and for burglary and attempted burglary in Maryland to support a
motion under the Armed Career Criminal Act of 1984,18 U. S. C. §
924(e)
(ACCA), which provides for enhancement of the
sentence of a convicted firearms possessor who "has three previous
convictions ... for a violent felony or a serious drug offense."
Custis challenged the use for this purpose of the two Maryland
convictions on the ground, among others, of ineffective assistance
of counsel during the state prosecutions, but the District Court
held that § 924(e)(I) provides no statutory right to challenge such
convictions and that the Constitution bars the use of a prior
conviction for enhancement only when there was a complete denial of
counsel in the prior proceeding. Custis was sentenced to an
enhanced term of 235 months in prison, and the Court of Appeals
affirmed.
Held:
1. With the sole exception of convictions obtained in violation
of the right to counsel, a defendant in a federal sentencing
proceeding has no right to collaterally attack the validity of
previous state convictions that are used to enhance his sentence
under the
ACCA. Pp. 490-497.
(a) Congress did not intend to permit collateral attacks on
prior convictions under § 924(e). The statute's language-which
applies to a defendant who has "three previous convictions" of the
type specifiedfocuses on the fact of the conviction, and nothing
therein suggests that the prior final conviction may be subject to
attack for potential constitutional errors before it may be
counted. That there is no implied right of collateral attack under
§ 924(e) is strongly supported by § 921(a)(20), which provides that
a court may not count a conviction "which has been ... set aside"
by the jurisdiction in which the proceedings were held, and thereby
creates a clear negative implication that courts
may count a
conviction that has not been so set aside; by the contrast between
§ 924(e) and other related statutes that expressly permit repeat
offenders to challenge prior convictions that are used for
enhancement purposes, see, e.
g., 21 U. S. C. § 851(c); and
by Lewis v. United States,
445 U. S. 55, in which
this Court held that one of the predecessors to the
486
Syllabus
current felon-in-possession-of-a-firearm statute did not allow
collateral attack on the predicate conviction. Pp. 490-493.
(b) The right, recognized in Burgett v. Texas,
389 U. S. 109, and United
States v. Tucker,
404
U. S. 443, to collaterally attack prior convictions used for
sentence enhancement purposes cannot be extended beyond the right,
established in Gideon v. Wainwright,
372 U. S. 335, to have
appointed counsel. Since Johnson v. Zerbst,
304 U. S. 458, and
running through Burgett and Tucker, there has been a theme that
failure to appoint counsel for an indigent defendant was a unique
constitutional defect. None of the constitutional violations
alleged by Custis, including the claimed denial of effective
assistance of counsel, rises to the level of a jurisdictional
defect resulting from the failure to appoint counsel at all. This
conclusion is supported by the interest in promoting the finality
of judgments and avoiding delay and protraction of the federal
sentencing process, and by the relative ease of administering a
claim of failure to appoint counsel, as opposed to other
constitutional challenges. Pp.493-497.
2. However, Custis, who was still "in custody" for purposes of
his state convictions at the time of his federal sentencing under §
924(e), may attack his state sentences in Maryland or through
federal habeas corpus review. See Maleng v. Cook,
490 U. S. 488, 492. If he
is successful in attacking these state sentences, he may then apply
for reopening of any federal sentence enhanced by the state
sentences. The Court expresses no opinion on the appropriate
disposition of such an application. P. 497.
988 F.2d
1355, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, THOMAS, and GINSBURG, JJ., joined.
SOUTER, J., filed a dissenting opinion, in which BLACKMUN and
STEVENS, JJ., joined, post, p. 498.
Mary M. French argued the cause for petitioner. With her on the
briefs were James K. Bredar and Beth M. Farber.
Deputy Solicitor General Bryson argued the cause for the United
States. With him on the brief were Solicitor General Days,
Assistant Attorney General Harris, John F. Manning, and Joseph C.
Wyderko.
*
*Briefs of amici curiae urging affirmance were filed for the
State of Ohio et al. by Lee Fisher, Attorney General of Ohio,
Richard A. Cordray, State Solicitor, Simon B. Karas, and Donald R.
Jilisky and Donald Gary
487
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e)
(ACCA), raises the penalty for possession of a firearm by a felon
from a maximum of 10 years in prison to a mandatory minimum
sentence of 15 years and a maximum of life in prison without parole
if the defendant "has three previous convictions ... for a violent
felony or a serious drug offense." We granted certiorari to
determine whether a defendant in a federal sentencing proceeding
may collaterally attack the validity of previous state convictions
that are used to enhance his sentence under the ACCA. We hold that
a defendant has no such right (with the sole exception of
convictions obtained in violation of the right to counsel) to
collaterally attack prior convictions.
Baltimore City Police arrested petitioner Darren J. Custis on
July 1, 1991. A federal grand jury indicted him on three counts:
(1) possession of cocaine with intent to distribute in violation of
21 U. S. C. § 841(a)(1); (2) use of a firearm in connection with a
drug trafficking offense in violation of 18 U. S. C. § 924(c); and
(3) possession of a firearm by a convicted felon in violation of 18
U. S. C. § 922(g)(1). Before trial in the United States District
Court for the District of Maryland, the Government notified Custis
that it would seek an enhanced penalty for the § 922(g)(1) offense
under § 924(e)(1). The notice charged that he had three prior
felony convic-
Keyser, Assistant Attorneys General, and by the Attorneys
General for their respective States as follows: Grant Woods of
Arizona, Winston Bryant of Arkansas, Larry EchoHawk of Idaho, Chris
Gorman of Kentucky, Scott Harshbarger of Massachusetts, Frank
J. Kelley of Michigan, Joseph P. Mazurek of Montana, Don
Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Frank DeVesa
of New Jersey, Heidi Heitkamp of North Dakota, Susan B. Loving of
Oklahoma, Theodore R. Kulongoski of Oregon, Ernest D. Preate, Jr.,
of Pennsylvania, T. Travis Medlock of South Carolina, Mark Barnett
of South Dakota, Jeffrey L. Amestoy of Vermont, Stephen D.
Rosenthal of Virginia, and Joseph B. Myer of Wyoming; and for the
Criminal Justice Legal Foundation by Kent S. Scheidegger.
488
tions: (1) a 1985 Pennsylvania state-court conviction for
robbery; (2) a 1985 Maryland state-court conviction for burglary;
and (3) a 1989 Maryland state-court conviction for attempted
burglary.
The jury found Custis not guilty of possession with intent to
distribute and not guilty of use of a firearm during a drug
offense, but convicted him of possession of a firearm and simple
cocaine possession, a lesser included offense in the charge of
possession with intent to distribute cocaine. At the sentencing
hearing, the Government moved to have Custis' sentence enhanced
under § 924(e)(1), based on the prior convictions included in the
notice of sentence enhancement.
Custis challenged the use of the two Maryland convictions for
sentence enhancement. He argued that his lawyer for his 1985
burglary conviction rendered unconstitutionally ineffective
assistance and that his guilty plea was not knowing and intelligent
as required by Boykin v. Alabama,
395 U. S. 238 (1969). He
claimed that his attorney had failed to advise him of the defense
of voluntary intoxication, and that he would have gone to trial,
rather than pleaded guilty, had he been aware of that defense. He
challenged his 1989 conviction on the ground that it had been based
upon a "stipulated facts" trial. He claimed that such a "stipulated
facts" trial was tantamount to a guilty plea and that his
conviction was fundamentally unfair because he had not been
adequately advised of his rights. Custis further asserts that he
had been denied effective assistance of counsel in that case
because the stipulated facts established only attempted breaking
and entering rather than attempted burglary under state law.
The District Court initially rejected Custis' collateral attacks
on his two Maryland state-court convictions. The District Court's
letter ruling determined that the performance of Custis' attorney
in the 1985 case did not fall below the standard of professional
competence required under Strickland v. Washington,
466 U. S. 668 (1984).
Order in
489
No. S 91-0334 (D. Md., Feb. 27, 1992), p. 1. It found that
counsel's recommendation of a guilty plea was not unreasonable
under the circumstances. Id., at 2. The District Court also
rejected Custis' claim that the 1989 "stipulated facts" trial was
the functional equivalent of a guilty plea. Id., at 2-3.
The District Court later reversed field and determined that it
could not entertain Custis' challenges to his prior convictions at
all. It noted that "[u]nlike the statutory scheme for enhancement
of sentences in drug cases, [§ 924(e)(1)] provides no statutory
right to challenge prior convictions relied upon by the Government
for enhancement." 786 F. Supp. 533, 535-536 (Md. 1992). The
District Court went on to state that the Constitution bars the use
of a prior conviction for sentence enhancement only when there was
a complete denial of counsel in the prior proceeding. Id., at 536,
citing Gideon v. Wainwright,
372 U. S. 335 (1963);
United States v. Tucker,
404 U. S. 443 (1972); and
Burgett v. Texas,
389
U. S. 109 (1967). Based on Custis' offense level of 33 and his
criminal history category of VI, the District Court imposed a
sentence of 235 months in prison.
The Court of Appeals affirmed.
988 F.2d
1355 (CA4 1993). It recognized the right of a defendant who had
been completely deprived of counsel to assert a collateral attack
on his prior convictions since such a defendant "has lost his
ability to assert all his other constitutional rights." Id., at
1360, citing Johnson v. Zerbst,
304 U. S. 458, 465
(1938). Citing the "substantial burden" on prosecutors and the
district courts, the Court of Appeals dismissed all of Custis'
challenges to his prior convictions as the "fact-intensive" type
that pose a risk of unduly delaying and protracting the entire
sentencing process. 988 F. 2d, at 1361. The prospect of such
fact-intensive inquiries led it to express great reluctance at
forcing district courts to overcome the" 'inadequacy or
unavailability of state court records and witnesses'" in trying to
determine the validity of prior sentences. Ibid.,
490
quoting United States v. Jones,
977 F.2d
105, 109 (CA4 1992). In addition to the practical hurdles, the
Court of Appeals specified concerns over comity and federalism as
other factors weighing against permitting collateral attacks.
"'Federal courts are not forums in which to relitigate state
trials.''' 988 F. 2d, at 1361, quoting Barefoot v. Estelle,
463 U. S. 880,
887 (1983). We granted certiorari, 510 U. S. 913 (1993), because
the Court of Appeals' decision conflicted with recent decisions
from other Courts of Appeals that permitted defendants to challenge
prior convictions that are used in sentencing under §
924(e)(1).l
Custis argues that the ACCA should be read to permit defendants
to challenge the constitutionality of convictions used for
sentencing purposes. Looking to the language of the statute, we do
not believe § 924(e) authorizes such collateral attacks. The ACCA
provides an enhanced sentence for any person who unlawfully
possesses a firearm in violation of 18 U. S. C. § 922(g) 2 and "has
three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug
offense ... ." Section 924(e) applies whenever a defendant is found
to have suffered "three previous convictions" of the type
specified. The stat-
1 See, e.
g., United States v. Paleo,
967 F.2d
7, 11 (CA1 1992); United States v. Merritt,
882 F.2d
916, 918 (CA5 1989); United States v. McGlocklin,
8 F.3d
1037 (CA6 1993) (en bane); United States v. Gallman,
907 F.2d
639, 642-645 (CA7 1990); United States v. Day,
949 F.2d
973,981-983 (CA8 1991); United States v. Clawson,
831 F.2d
909, 914-915 (CA9 1987); and United States v. Franklin,
972 F.2d
1253, 1257-1258 (CA111992).
2 Title 18 U. S. C. § 922 provides in pertinent part as follows:
"(g) It shall be unlawful for any person-
"(1) who has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year;
"to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce."
491
ute focuses on the fact of the conviction and nothing suggests
that the prior final conviction may be subject to collateral attack
for potential constitutional errors before it may be counted.
Absent specific statutory authorization, Custis contends that an
implied right to challenge the constitutionality of prior
convictions exists under § 924(e). Again we disagree. The Gun
Control Act of 1968, of which § 924(e) is a part, strongly
indicates that unchallenged prior convictions may be used for
purposes of § 924(e). At least for prior violent felonies, §
921(a)(20) describes the circumstances in which a prior conviction
may be counted for sentencing purposes under § 924(e):
"What constitutes a conviction of ... a crime shall be
determined in accordance with the law of the jurisdiction in which
the proceedings were held. Any conviction which has been expunged,
or set aside or for which a person has been pardoned or has had
civil rights restored shall not be considered a conviction for
purposes of this chapter [18 U. S. C. §§ 921-930]."
The provision that a court may not count a conviction "which has
been ... set aside" creates a clear negative implication that
courts
may count a conviction that has
not been set
aside.
Congress' passage of other related statutes that expressly
permit repeat offenders to challenge prior convictions that are
used for enhancement purposes supports this negative implication.
For example, 21 U. S. C. § 851(c), which Congress enacted as part
of the Comprehensive Drug Abuse Prevention and Control Act of 1970,
sets forth specific procedures allowing a defendant to challenge
the validity of a prior conviction used to enhance the sentence for
a federal drug offense. Section 851(c)(1) states that "[i]f the
person denies any allegation of the information of prior
conviction, or claims that any conviction alleged is invalid, he
shall file
492
a written response to the information." Section 851(c)(2) goes
on to provide:
"A person claiming that a conviction alleged in the information
was obtained in violation of the Constitution of the United States
shall set forth his claim, and the factual basis therefor, with
particularity in his response to the information. The person shall
have the burden of proof by a preponderance of the evidence on any
issue of fact raised by the response. Any challenge to a prior
conviction, not raised by response to the information before an
increased sentence is imposed in reliance thereon, shall be waived
unless good cause be shown for failure to make a timely
challenge."
The language of §851(c) shows that when Congress intended to
authorize collateral attacks on prior convictions at the time of
sentencing, it knew how to do so. Congress' omission of similar
language in § 924(e) indicates that it did not intend to give
defendants the right to challenge the validity of prior convictions
under this statute. Cf. Gozlon- Peretz v. United States,
498 U. S. 395, 404 (1991)
(" '[W]here Congress includes particular language in one section of
a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion' "), quoting Russello v.
United States,
464 U.
S. 16, 23 (1983) (internal quotation marks omitted).
Our decision in Lewis v. United States,
445 U. S. 55 (1980), also
supports the conclusion that prior convictions used for sentence
enhancement purposes under § 924(e) are not subject to collateral
attack in the sentence proceeding. Lewis interpreted 18 U. S. C.
App. § 1202(a)(1) (1982 ed.), one of the predecessors to the
current felon-in-possession-of-a-firearm statute. Section
1202(a)(1) was aimed at any person who "has been convicted by a
court of the United States or of a State ... of a felony." We
concluded that" '[n]othing on the
493
face of the statute suggests a congressional intent to limit its
coverage to persons [whose convictions are not subject to
collateral attack].'" 445 U. S., at 60, quoting United States v.
Culbert,
435 U. S.
371, 373 (1978). This lack of such intent in § 1202(a)(1) also
contrasted with other federal statutes that explicitly permitted a
defendant to challenge the validity or constitutionality of the
predicate felony. See, e.
g., 18 U. S. C. § 3575(e) (note
following ch. 227) (dangerous special offender) and 21 U. S. C.
§851(c)(2) (recidivism under the Comprehensive Drug Abuse
Prevention and Control Act of 1970). The absence of expressed
intent, and the contrast with other federal statutes, led us to
determine that "the firearms prosecution [under § 1202(a)(1)] does
not open the predicate conviction to a new form of collateral
attack." 445 U. S., at 67.
Similarly, § 924(e) lacks any indication that Congress intended
to permit collateral attacks on prior convictions used for sentence
enhancement purposes. The contrast between § 924(e) and statutes
that expressly provide avenues for collateral attacks, as well as
our decision in Lewis, supra, point strongly to the conclusion that
Congress did not intend to permit collateral attacks on prior
convictions under § 924(e).
Custis argues that regardless of whether § 924(e) permits
collateral challenges to prior convictions, the Constitution
requires that they be allowed. He relies upon our decisions in
Burgett v. Texas,
389
U. S. 109 (1967), and United States v. Tucker,
404 U. S. 443 (1972), in
support of this argument. Both of these decisions relied upon our
earlier decision in Gideon v. Wainwright,
372 U. S. 335 (1963),
holding that the Sixth Amendment of the United States Constitution
required that an indigent defendant in state-court proceedings have
counsel appointed for him. Gideon, in turn, overruled our earlier
decision in Betts v. Brady,
316 U. S. 455 (1942),
which had held that the Sixth Amendment right to counsel, long
applied in federal-court proceedings, was not itself made
applicable to the States by the Due Process Clause. The
494
Due Process Clause, Betts had held, required the appointment of
counsel for an indigent defendant in state courts only upon a
showing of special circumstances. Id., at 473.
But even before Betts v. Brady was decided, this Court had held
that the failure to appoint counsel for an indigent defendant in a
federal proceeding not only violated the Sixth Amendment, but was
subject to collateral attack in federal habeas corpus. Johnson v.
Zerbst,
304 U. S.
458 (1938). At a time when the underlying habeas statute was
construed to allow collateral attacks on final judgments of
conviction only where the rendering court lacked
"jurisdiction"-albeit a somewhat expansive notion of
"jurisdiction," see Moore v. Dempsey,
261 U. S. 86 (1923)-this
Court attributed a jurisdictional significance to the failure to
appoint counsel. The Court said:
"If the accused, however, is not represented by counsel and has
not competently and intelligently waived his constitutional right,
the Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence depriving him of his life or his liberty
.... The judgment of conviction pronounced by a court without
jurisdiction is void, and one imprisoned thereunder may obtain
release by habeas corpus." 304 U. S., at 468.
When the Court later expanded the availability of federal habeas
to other constitutional violations, it did so by frankly stating
that the federal habeas statute made such relief available for
them, without claiming that the denial of these constitutional
rights by the trial court would have denied it jurisdiction. See,
e. g., Waley v. Johnston,
316 U. S. 101, 104-105
(1942) (coerced confession); Brown v. Allen,
344 U. S. 443 (1953).
There is thus a historical basis in our jurisprudence of collateral
attacks for treating the right to have counsel appointed as unique,
perhaps because of our oftstated view that "[t]he right to be heard
would be, in many
495
cases, of little avail if it did not comprehend the right to be
heard by counsel." Powell v. Alabama,
287 U. S. 45, 68-69
(1932).
Following our decision in Gideon, the Court decided Burgett v.
Texas, supra. There the defendant was charged under a Texas
recidivist statute with having been the subject of four previous
felony convictions. 389 U. S., at 111. The prosecutor introduced
certified records of one of the defendant's earlier convictions in
Tennessee. Id., at 112. The defendant objected to the admission of
this conviction on the ground that he had not been represented by
counsel and had not waived his right to counsel, but his objection
was overruled by the trial court. Id., at 113. This Court reversed,
finding that the certified records of the Tennessee conviction on
their face raised a "presumption that petitioner was denied his
right to counsel ... , and therefore that his conviction was void."
Id., at 114. The Court held that the admission of a prior criminal
conviction that is constitutionally infirm under the standards of
Gideon is inherently prejudicial and to permit use of such a
tainted prior conviction for sentence enhancement would undermine
the principle of Gideon. 389 U. S., at 115.
A similar situation arose in Tucker, supra. The defendant had
been convicted of bank robbery in California in 1953. At
sentencing, the District Court conducted an inquiry into the
defendant's background, and, the record shows, gave explicit
attention to the three previous felony convictions that the
defendant had acknowledged at trial. The District Court sentenced
him to 25 years in prison-the stiffest term authorized by the
applicable federal statute, 18 U. S. C. § 2113(d). 404 U. S., at
444. Several years later, after having obtained a judicial
determination that two of his prior convictions were
constitutionally invalid, the defendant filed a writ of habeas
corpus in the District Court in which he had been convicted of bank
robbery. He challenged the use at
496
his 1953 bank robbery trial of his three previous felony
convictions. This Court sustained his challenge insofar as his
sentence was concerned, saying "Gideon ... established an
unequivocal rule 'making it unconstitutional to try a person for a
felony in a state court unless he had a lawyer or had validly
waived one.'" Id., at 449, quoting Burgett v. Texas, supra, at 114.
The Court held that "[e]rosion of the Gideon principle can be
prevented here only by affirming the judgment of the Court of
Appeals remanding this case to the trial court for reconsideration
of the [defendant's] sentence." 404 U. S., at 449.
Custis invites us to extend the right to attack collaterally
prior convictions used for sentence enhancement beyond the right to
have appointed counsel established in Gideon. We decline to do so.
We think that since the decision in Johnson v. Zerbst more than
half a century ago, and running through our decisions in Burgett
and Tucker, there has been a theme that failure to appoint counsel
for an indigent defendant was a unique constitutional defect.
Custis attacks his previous convictions claiming the denial of the
effective assistance of counsel, that his guilty plea was not
knowing and intelligent, and that he had not been adequately
advised of his rights in opting for a "stipulated facts" trial.
None of these alleged constitutional violations rises to the level
of a jurisdictional defect resulting from the failure to appoint
counsel at all. Johnson v. Zerbst, supra.
Ease of administration also supports the distinction. As
revealed in a number of the cases cited in this opinion, failure to
appoint counsel at all will generally appear from the judgment roll
itself, or from an accompanying minute order. But determination of
claims of ineffective assistance of counsel, and failure to assure
that a guilty plea was voluntary, would require sentencing courts
to rummage through frequently nonexistent or difficult to obtain
state-court transcripts or records that may date from another era,
and may come from anyone of the 50 States.
497
The interest in promoting the finality of judgments provides
additional support for our constitutional conclusion. As we have
explained, "[i]nroads on the concept of finality tend to undermine
confidence in the integrity of our procedures" and inevitably delay
and impair the orderly administration of justice. United States v.
Addonizio,
442 U. S.
178, 184, n. 11 (1979). We later noted in Parke v. Raley,
506 U. S. 20
(1992), that principles of finality associated with habeas corpus
actions apply with at least equal force when a defendant seeks to
attack a previous conviction used for sentencing. By challenging
the previous conviction, the defendant is asking a district court
"to deprive [the] [state-court judgment] of [its] normal force and
effect in a proceeding that ha[s] an independent purpose other than
to overturn the prior judgmen[t]." Id., at 30. These principles
bear extra weight in cases in which the prior convictions, such as
one challenged by Custis, are based on guilty pleas, because when a
guilty plea is at issue, "the concern with finality served by the
limitation on collateral attack has special force." United
States
We therefore hold that § 924(e) does not permit Custis to use
the federal sentencing forum to gain review of his state
convictions. Congress did not prescribe and the Constitution does
not require such delay and protraction of the federal sentencing
process. We recognize, however, as did the Court of Appeals, see
988 F. 2d, at 1363, that Custis, who was still "in custody" for
purposes of his state convictions at the time of his federal
sentencing under § 924(e), may attack his state sentences in
Maryland or through federal habeas review. See Maleng v. Cook,
490 U. S. 488,
492 (1989). If Custis is successful in attacking these state
sentences, he may then apply for reopening of any federal sentence
enhanced by the state sentences. We express no opinion on the
appropriate disposition of such an application.
The judgment of the Court of Appeals is accordingly
Affirmed.
498
JUSTICE SOUTER, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join, dissenting.
The Court answers a difficult constitutional question that I
believe the underlying statute does not pose. Because in my
judgment the Armed Career Criminal Act of 1984, 18 U. S. C. §
924(e) (ACCA), does not authorize sentence enhancement based on
prior convictions that a defendant can show at sentencing to have
been unlawfully obtained, I respectfully dissent.
I A
The ACCA mandatory minimum sentence applies to defendants with
"three previous convictions ... for a violent felony or a serious
drug offense." 18 U. S. C. § 924(e). The Court construes
"convictio[n]" to refer to the "fact of the conviction," ante, at
491 (emphasis in original), and concludes that "Congress did not
intend to permit collateral attacks [during sentencing] on prior
convictions under § 924(e)," ante, at 493.1 This interpretation of
the ACCA will come as a surprise to the Courts of Appeals, which
(with the one exception of the court below) have understood
"convictio[n]" in the ACCA to mean "lawful conviction," and have
permitted defendants to show at sentencing that a prior conviction
offered for enhancement was unconstitutionally obtained, whether as
violative of the right to have appointed counsel, see Gideon v.
Wainwright,
372 U. S.
335 (1963), the right to effective assistance of counsel, see
Strickland v. Washington,
466 U. S. 668 (1984), the
right against conviction based on an unknowing or involuntary
guilty plea, see Boykin v.
1 The Court's opinion makes clear that it uses the phrase
"collateral attack" to refer to an attack during sentencing. See,
e.
g., ante, at 487 ("We granted certiorari to determine
whether a defendant in a federal sentencing proceeding may
collaterally attack the validity of previous state convictions that
are used to enhance his sentence under the
ACCA").
499
Alabama,
395 U. S.
238 (1969), or other constitutional rights.2 The weight of
appellate authority, in my opinion, reflects the proper
construction of the ACCA.
The Court's contrary reading ignores the legal framework within
which Congress drafted the ACCA, a framework with which we presume
Congress was familiar. See, e. g., Cannon v. University of Chicago,
441 U. S. 677,
696-698 (1979). When the language that became the ACCA was first
proposed in 1982, when it was enacted in 1984 (codified at §
1202(a)(1)) and when it was reenacted in 1986 (codified at §
924(e)), this Court's decisions in Burgett v. Texas,
389 U. S. 109 (1967), and
United States v. Tucker,
404 U. S. 443 (1972),
were on the books. Even under the narrow reading the Court accords
those decisions today, they recognize at least a right to raise
during sentencing Gideon challenges to prior convictions used for
enhancement. See ante, at 495-496. Unless Congress intended to snub
that constitutional right (and we ordinarily indulge a "strong
presumption ... that Congress legislated in accordance with the
Constitution," Textile Workers v. Lincoln Mills of Ala.,
353 U. S. 448, 477 (1957)
(Frankfurter, J., dissenting)), "convictio[nJ" in § 924(e) simply
cannot refer to the mere fact of conviction, and the provision must
have been meant to allow during sentencing at least some challenges
to prior convictions offered for enhancement.
Nor is it likely that Congress's intent was informed by as
narrow a reading of Burgett and Tucker as the Court adopts
2 See United States v. Paleo,
967 F.2d
7, 11-13 (Breyer, C. J.), rehearing denied,
9 F.3d
988, 988-989 (CA1 1992) (containing additional discussion of
statutory issue); United States v. Preston,
910
F.2d 81, 87-89 (CA3 1990); United States v. Taylor,
882 F.2d
1018, 1031 (CA6 1989); United States v. Gallman,
907 F.2d
639, 642-643 (CA7 1990); United States v. Day,
949 F.2d
973, 981-984 (CA8 1991); United States v. Clawson,
831 F.2d
909, 914-915
(CA9 1987) (interpreting 18 U. S. C. §
1202(a)(1) (1982 ed.), the predecessor of § 924(e)); United States
v. Wicks,
995 F.2d
964, 974-979 (CAlO 1993); United States v. Ruo,
943 F.2d
1274, 1275-1277 (CAll 1991).
500
today. In the legal environment of the ACCA's enactment, Burgett
and Tucker were thought to stand for the broader proposition that
"[n]o consideration can be given [at sentencing] to a conviction
that was unconstitutionally obtained," 3 C. Wright, Federal
Practice and Procedure § 526, p. 102 (1982), and Courts of Appeals
consistently read the decisions as requiring courts to entertain
claims that prior convictions relied upon for enhancement were
unconstitutional for reasons other than Gideon violations.3 The
Congress that enacted the ACCA against this backdrop must be
presumed to have intended to permit defendants to attempt to show
at sentencing that prior convictions were "unconstitutionally
obtained."
That presumption is strongly bolstered by the fact that
Congress, despite the consistent interpretation of the ACCA as
permitting attacks on prior convictions during sentencing, and
despite amending the law several times since its enactment (see
note following 18 U. s. C. § 924 (1988 ed. and Supp. V) (listing
amendments)), left the language relevant here untouched. Congress's
failure to express legislative disagreement with the appellate
courts' reading of the ACCA cannot be disregarded, especially since
Congress has acted in this area in response to other Courts of
Appeals decisions that it thought revealed statutory flaws
requiring "correct[ion]." S. Rep. No. 98-583, p. 7, and n. 17
(1984); see
id., at 8, and n. 18, 14, and n. 31; see also
Herman & MacLean v. Huddleston,
459 U. S. 375, 385-386
(1983) ("In light of [a] well-established judicial interpretation
[of a statutory provision], Congress' decision to leave [the
provision] intact suggests that Congress
3 See, e.
g., United States v. Mancusi,
442 F.2d
561 (CA2 1971) (Confrontation Clause); Jefferson v. United
States,
488 F.2d
391, 393 (CA5 1974) (self-incrimination); United States v.
Martinez,
413 F.2d
61 (CA7 1969) (unknowing and involuntary guilty plea); Taylor
v. United States,
472 F.2d
1178, 1179-1180 (CA8 1973) (self-incrimination); Brown v.
United States,
610 F.2d
672, 674-675 (CA9 1980) (ineffective assistance of counsel);
Martinez v. United States,
464 F.2d
1289 (CAlO 1972) (self-incrimination).
501
ratified" the interpretation). Accordingly, absent clear
indication that Congress intended to preclude all challenges during
sentencing to prior convictions relied upon for enhancement, the
ACCA must be read as permitting such challenges.
B
The Court fails to identify any language in the ACCA
affirmatively precluding collateral attacks on prior convictions
during sentencing, as there is none. Instead, the Court hears a
clear message in the statutory silence, but I find none of its
arguments persuasive. The Court first invokes 18 U. s. C. §
921(a)(20), under which a conviction "which has been expunged, or
set aside or for which a person has been pardoned or has had civil
rights restored shall not be considered a conviction for purposes
of this chapter." According to the Court, this "exemption clause"
(as we have elsewhere called it, see Beecham v. United States,
ante, at 369, "creates a clear negative implication that courts
may count a conviction that has not been set aside," ante,
at 491. Expressio unius, in other words, est exclusio alterius.
Even if the premise of the Court's argument is correct,4 the
bridge the Court crosses to reach its conclusion is notoriously
unreliable and does not bear the weight here. While "often a
valuable servant," the maxim that the inclusion of something
negatively implies the exclusion of everything else (expressio
unius, etc.) is "a dangerous master to follow in the construction
of statutes." Ford v. United States,
273 U. S. 593, 612 (1927)
(internal quotation marks and citation omitted). It rests on the
assumption that all omissions in
4 Despite the Court's unstated assumption to the contrary, a
sentencing court that finds a prior conviction to have been
unconstitutionally obtained can be said to have "set aside" the
conviction for purposes of the sentencing, a reading that squares
better than the Court's with the evident purpose of the exemption
clause (as well as the statute that added it to § 921(a)(20), the
"Firearm Owner's Protection Act") of disregarding convictions that
do not fairly and reliably demonstrate a person's bad
character.
502
legislative drafting are deliberate, an assumption we know to be
false. See Posner, Statutory Interpretation-in the Classroom and in
the Courtroom, 50 U. Chi. L. Rev. 800, 813 (1983); Radin, Statutory
Interpretation, 43 Harv. L. Rev. 863, 873-874 (1930). As a result,
"[s]cholars have long savaged the expressio canon," Cheney R. Co.
v. ICC,
902 F.2d
66, 68 (CADC 1990) (Williams, J.), at least when it is made to
do the work of a conclusive presumption, and our decisions support
the proposition that "[s]ometimes [the canon] applies and sometimes
it does not, and whether it does or does not depends largely on
context." R. Dickerson, Interpretation and Application of Statutes
47 (1975); see also
id., at 234-235.
In this case, the "contemporary legal context," Cannon v.
University of Chicago, 441 U. S., at 699, in which Congress
drafted the ACCA requires rejecting the negative implication on
which the Court relies. That context, as I have described,
understood defendants to have a constitutional right to attack at
sentencing prior convictions that had not previously been
invalidated, and in that legal setting it would have been very odd
for Congress to have intended to establish a constitutionally
controversial rule by mere implication. See Lowe v. SEC,
472 U. S. 181, 206, n. 50
(1985) ("In areas where legislation might intrude on constitutional
guarantees, we believe that Congress, which has always sworn to
protect the Constitution, would err on the side of fundamental
constitutionalliberties when its legislation implicates those
liberties") (internal quotation marks and citation omitted). And in
fact the legislative history indicates that quite a different
intention informed the addition to § 921(a)(20) in 1986, two years
after the ACCA's enactment, of the exemption clause (and the
related "choice-of-Iaw clause," Beecham v. United States, ante, at
369. Congress simply intended to clarify that the law of the
convicting jurisdiction should be the principal reference point in
determining what counts as a "conviction" for purposes of the
federal "felon in posses-
503
sion" law, and to correct an oversight that had resulted in the
omission of exemption language from one of two parallel provisions.
See S. Rep. No. 98-583, supra, at 7; H. R. Rep. No. 99-495, p. 20
(1986). In amending § 921(a)(20), Congress was not addressing the
question of where, in the course of federal litigation, a
conviction could be challenged. Indeed, the legislative history of
the amendment reveals no hint of any intention at all with respect
to § 924(e)'s sentenceenhancement provision, but rather an
exclusive focus on the federal firearms disability in § 922. Cf.
Miles v. Illinois Central R. Co.,
315 U. S. 698, 714-715
(1942) (Frankfurter, J., dissenting) (relying on legislative
history to counter a negative implication from a statute's text).
As a result, the Court's argument by negative implication from §
921(a)(20)'s exemption clause must fail. The fact that Congress in
the exemption clause expressly precluded reliance upon
unconstitutional convictions that have been set aside simply does
not reveal an intent with respect to § 924(e) to require reliance
at sentencing on unconstitutional convictions that have not yet
been set aside.
The Court's second statutory argument also seeks to establish
congressional intent through negative implication, but is no more
successful. The Court observes that Congress in other statutes
expressly permitted challenges to prior convictions during
sentencing, see ante, at 491-493 (citing 21 U. S. C. § 851(c)(2)
and 18 U. S. C. § 3575(e)), which is said to show that "when
Congress intended to authorize collateral attacks on prior
convictions at the time of sentencing, it knew how to do so," ante,
at 492. But surely the Court does not believe that, if Congress
intended to preclude collateral attacks on prior convictions at the
time of sentencing, it did not know how to do that. And again, the
Court's effort to infer intent from the statutory silence runs
afoul of the context of the statute's enactment; within a legal
framework forbidding sentencing on the basis of prior convictions a
de-
504
fendant can show to be invalid, a Congress that intended to
require sentencing on the basis of such convictions can be expected
to have made its intention explicit.
Finally, the Court turns for support to Lewis v. United States,
445 U. S. 55
(1980), which held that the federal "felon in possession" law does
not permit a defendant, during his prosecution, to challenge the
constitutional validity of the predicate felony conviction. The
Court's reliance on Lewis, however, assumes an equivalence between
two different types of laws that Lewis itself disclaimed: between a
law disabling convicted felons from possessing firearms (at issue
in Lewis), and a law requiring sentence enhancement based on prior
convictions (at issue here, as well as in Burgett and Tucker).
Lewis explained that the "felon in possession" law is "a sweeping
prophylaxis" designed "to keep firearms away from potentially
dangerous persons," 445 U. S., at 63, 67, whereas a
sentence-enhancement law "depend[s] upon the reliability of a past
... conviction,"
id., at 67. While the unlawfulness of a
past conviction is irrelevant to the former, it is not to the
latter, or so the Lewis Court thought in expressly distinguishing
Burgett and Tucker: "[e]nforcement of [the federal gun disability]
does not 'support guilt or enhance punishment' ... on the basis of
a conviction that is unreliable." 445 U. S., at 67 (quoting
Burgett, 389 U. S., at 115).
Because of the material way in which a "felon in possession" law
differs from a sentence-enhancement law, Burgett and Tucker were
not part of the relevant legal backdrop against which Congress
enacted the law interpreted in Lewis, and the Lewis Court could
thus fairly presume that "conviction" in the statute before it was
used as shorthand for "the fact of a felony conviction." 445 U. S.,
at 60, 67. As Lewis itself recognized, however, Burgett and Tucker
are part of the backdrop against which sentence-enhancement laws
are enacted, and against that backdrop Congress must be presumed to
have used "conviction" in § 924(e) to mean "lawful conviction," and
to have permitted defendants to
505
show at sentencing that prior convictions offered for
enhancement were unconstitutionally obtained.
II A
Even if I thought the ACCA was ambiguous (the most the Court's
statutory arguments could establish), I would resolve the ambiguity
in petitioner's favor in accordance with the "'cardinal principle'"
of statutory construction that "'this Court will first ascertain
whether a construction of the statute is fairly possible by which
[a constitutional] question may be avoided.'" Ashwander v. TVA,
297 U. S. 288,
348 (1936) (Brandeis, J., concurring) (quoting Crowell v. Benson,
285 U. S. 22, 62
(1932)); see also Edward
J. DeBartolo Corp. v. Florida Gulf
Coast Building & Constr. Trades Council,
485 U. S. 568, 575
(1988); NLRB v. Catholic Bishop of Chicago,
440 U. S. 490, 499-501,
504 (1979); Blodgett v. Holden,
275 U. S. 142, 148 (1927)
(Holmes, J., concurring in result). The Ashwander principle, to be
sure, comes into play only when the constitutional question to be
avoided is a difficult one, but that designation easily fits the
question that the Court's reading of the ACCA requires it to
decide, the question whether the Constitution permits courts to
enhance a defendant's sentence on the basis of a prior conviction
the defendant can show was obtained in violation of his right to
effective assistance of counsel, see Strickland v. Washington,
466 U. S. 668
(1984), or that the defendant can show was based on an unknowing or
involuntary guilty plea, see Boykin v. Alabama,
395 U. S. 238 (1969).
This is a difficult question, for one thing, because the
language and logic of Burgett and Tucker are hard to limit to
claimed violations of the right, recognized in Gideon v.
Wainwright, to have a lawyer appointed if necessary. As indicated
by the uniformity of lower court decisions interpreting them, see
supra, at 500, and n. 3, Burgett and Tucker are easily (if not
best) read as announcing the broader principle
506
that a sentence may not be enhanced by a conviction the
defendant can show was obtained in violation of any "'specific
federal right'" (or, as Tucker put it, that a sentence may not be
"founded [even] in part upon misinformation of constitutional
magnitude," 404 U. S., at 447) because to do so would be to allow
the underlying right to be "denied anew" and to "suffer serious
erosion," Burgett, supra, at 116 (citation omitted); see also
Tucker, supra, at 449. The Court's references in both Burgett and
Tucker to the right discussed in Gideon is hardly surprising; that
was the "specific federal right" (and the record of the conviction
obtained in violation of it the "misinformation of constitutional
magnitude") that the defendants before it invoked. The opinions in
both cases, moreover, made it quite clear that the discussion of
Gideon was not meant to supply a limitation. Burgett described
Gideon not as unique but as "illustrative of the limitations which
the Constitution places on state criminal procedures," and it
recounted as supportive of its holding cases involving coerced
confessions, denials of the confrontation right, and illegal
searches and seizures, 389 U. S., at 114; and Tucker made it clear
that "the real question" before the Court was whether the
defendant's sentence might have been different if the sentencing
judge had known that the defendant's "previous convictions had been
unconstitutionally obtained," 404 U. S., at 448.5
5 The notion that Burgett and Tucker stand for the narrow
principle today's majority describes has escaped the Court twice
before. In Parke v. Raley,
506 U. S. 20, 31 (1992),
the Court rejected the argument that Burgett requires States to
place the burden on the government during sentencing to prove the
validity of prior convictions offered for enhancement. Though the
underlying claim in Raley was the same as one of the claims here
(that a prior conviction resulted from an invalid guilty plea), the
Court did not hold Burgett inapposite as involving a violation of
Gideon v. Wainwright, 372 U. S. 355 (1963), but rather accepted
Burgett's applicability and distinguished the case on different
grounds. See 506 U. S., at 31. And in Zant v. Stephens,
462 U. S. 862 (1983), the
Court described Tucker as holding that a "sentence must be set
aside if the trial court
507
Even if, consistently with principles of stare decisis, Burgett
and Tucker could be read as applying only to some class of cases
defined to exclude claimed violations of Strickland or Boykin, the
question whether to confine them so is not easily answered for
purposes of the Ashwander rule. Burgett and Tucker deal directly
with claimed violations of Gideon, and distinguishing for these
purposes between violations of Gideon and Strickland would describe
a very fine line. To establish a violation of the Sixth Amendment
under Strickland, a defendant must show that "counsel's performance
was deficient," and that "the deficient performance prejudiced the
defense" in that "counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable."
466 U. S., at 687. It is hard to see how such a defendant is any
better off than one who has been denied counsel altogether, and why
the conviction of such a defendant may be used for sentence
enhancement if the conviction of one who has been denied counsel
altogether may not. The Sixth Amendment guarantees no mere
formality of appointment, but the "assistance" of counsel, cf.
Strickland, supra, at 685, 686 ("That a person who happens to be a
lawyer is present at trial alongside the accused ... is not enough
to satisfy the [Sixth Amendment]" because "'the right to counsel is
the right to the effective assistance of counsel' "), and whether
the violation is of Gideon or Strickland, the defendant has been
denied that constitutional right.
It is also difficult to see why a sentencing court that must
entertain a defendant's claim that a prior conviction was obtained
in violation of the Sixth Amendment's right to counsel need not
entertain a defendant's claim that a prior conviction was based on
an unknowing or involuntary guilty plea.
relied at least in part on 'misinformation of constitutional
magnitude' such as prior uncounseled convictions that were
unconstitutionally imposed," 462 U. S., at 887, n. 23 (quoting
Tucker, 404 U. S., at 447), clearly indicating an understanding
that Tucker was not limited to Gideon violations.
508
That claim, if meritorious, would mean that the defendant was
convicted despite invalid waivers of at least one of two Sixth
Amendment rights (to trial by jury and to confront adverse
witnesses) or of a Fifth Amendment right (against compulsory
self-incrimination). See Boykin, 395 U. S., at 243. It is, to be
sure, no simple task to prove that a guilty plea was the result of
"[i]gnorance, incomprehension, coercion, terror, inducements, [or]
subtle or blatant threats,"
id., at 242-243, but it is
certainly at least a difficult question whether a defendant who can
make such a showing ought to receive less favorable treatment than
the defendants in Burgett and Tucker.
Though the Court offers a theory for drawing a line between the
right claimed to have been violated in Burgett and Tucker and the
rights claimed to have been violated here, the Court's theory is
itself fraught with difficulty. In the Court's view, the principle
of Burgett and Tucker reaches only "constitutional violations
ris[ing] to the level of a jurisdictional defect resulting from the
failure to appoint counsel at all." Ante, at 496 (citing Johnson v.
Zerbst,
304 U. S.
458 (1938)). But nowhere in Burgett or Tucker is a distinction
drawn between "jurisdictional" and "nonjurisdictional" rights, a
fact giving no cause for surprise since long before (in Waley v.
Johnston,
316 U. S.
101 (1942)) "the Court openly discarded the concept of
jurisdiction-by then more a fiction than anything else-as a
touchstone of the availability of federal habeas review."
Wainwright v. Sykes,
433 U. S. 72, 79 (1977).
Nor was Johnson v. Zerbst, on which the Court today places much
reliance, a ringing endorsement of a jurisdiction theory. For many
years prior to that case, "the concept of jurisdiction ... was
subjected to considerable strain," Fay v. Noia,
372 U. S. 391, 450 (1963)
(Harlan, J., dissenting), and Johnson v. Zerbst was actually the
very last case to mention the idea, offering just "token deference
to the old concept that the [habeas] writ could only reach
jurisdictional defects," Wechsler, Habeas Corpus and the
509
Supreme Court: Reconsidering the Reach of the Great Writ, 59 U.
Colo. L. Rev. 167, 174 (1988).
In reviving the "jurisdiction" theory, the Court skips over the
very difficulty that led to its abandonment, of devising a standard
to tell whether or not a flaw in the proceedings leading to a
conviction counts as a "jurisdictional defect." "Once the concept
of 'jurisdiction' is taken beyond the question of the court's
competence to deal with the class of offenses charged and the
person of the prisoner" (as it must be if the concept is to reach
Gideon violations) "it becomes a less than luminous beacon." Bator,
Finality in Criminal Law and Federal Habeas Corpus for State
Prisoners, 76 Harv. L. Rev. 441, 470 (1963). Thus, if being denied
appointed counsel is a "jurisdictional defect," why not being
denied effective counsel (treated as an equivalent in Strickland)?
If a conviction obtained in violation of the right to have
appointed counsel suffers from a "jurisdictional defect" because
the right's "purpose ... is to protect an accused from conviction
resulting from his own ignorance of his legal and constitutional
rights," Johnson v. Zerbst, supra, at 465, how distinguish a
conviction based on a guilty plea resulting from a defendant's own
ignorance of his legal and constitutional rights? 6 It was
precisely due to the futility of providing principled answers to
these questions that more than 50 years ago, and a quarter of a
century before Burgett and Tucker, "[t]he Court finally abandoned
the kissing of the jurisdictional book." P. Bator, D. Meltzer, P.
Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts
and the Federal System 1502 (3d ed. 1988). The Court nevertheless
finds itself compelled to reembrace the concept of "jurisdic-
6Judge Friendly suggested that a convicting court lacks
jurisdiction if "the criminal process itself has broken down [and]
the defendant has not had the kind of trial the Constitution
guarantees." Friendly, Is Innocence Irrelevant? Collateral Attack
on Criminal Judgments, 38 U. Chi. L. Rev. 142, 151 (1970). Would
not this definition easily cover the Strickland and Boykin claims
Custis sought to raise at sentencing?
510
tional defect," fraught as it is with difficulties, in order to
answer the constitutional question raised by its reading of the
ACCA. Because it is "fairly possible," Ashwander, 297 U. S., at
348, to construe the ACCA to avoid these difficulties and those
associated with the other constitutional questions I have
discussed, the Ashwander rule of restraint provides sufficient
reason to reject the Court's construction of the ACCA.
B
The rule of lenity, "which applies not only to interpretations
of the substantive ambit of criminal prohibitions, but also to the
penalties they impose," Albernaz v. United States,
450 U. S. 333, 342
(1981), drives me to the same conclusion. Though lenity is usually
invoked when there is doubt about whether a legislature has
criminalized particular conduct, "[the] policy of lenity [also]
means that the Court will not interpret a federal criminal statute
so as to increase the penalty that it places on an individual when
such an interpretation can be based on no more than a guess as to
what Congress intended." Ibid. (internal quotation marks and
citation omitted); cf. Bell v. United States,
349 U. S. 81, 83 (1955)
("It may fairly be said to be a presupposition of our law to
resolve doubts in the enforcement of a penal code against the
imposition of a harsher punishment"). Because I "cannot say with
assurance," United States v. Granderson, ante, at 53, that Congress
intended to require courts to enhance sentences on the basis of
prior convictions a defendant can show to be invalid, the rule of
lenity independently requires interpreting the ACCA to permit
defendants to present such challenges to the sentencing judge
before sentence is imposed.
C
The Court invokes "[e]ase of administration" to support its
constitutional holding. Ante, at 496. While I doubt that even a
powerful argument of administrative convenience
511
would suffice to displace the Ashwander rule, cf. Stanley v.
Illinois,
405 U. S.
645, 656 (1972), the burden argument here is not a strong one.
The burdens of allowing defendants to challenge prior convictions
at sentencing are not so severe, and are likely less severe than
those associated with the alternative avenues for raising the very
same claims.
For more than 20 years, as required by 21 U. S. C. §§ 851(c)(1)
and (2), federal courts have entertained claims during sentencing
under the drug laws that prior convictions offered for enhancement
are "invalid" or were "obtained in violation of the Constitution,"
the unamended statute reflecting a continuing congressional
judgment that any associated administrative burdens are justified
and tolerable. For almost a decade, federal courts have done the
same under the ACCA, see n. 2, supra, again without congressional
notice of any judicial burden thought to require relief. See also
Parke v. Raley, 506 U. S., at 32 ("In recent years state courts
have permitted various challenges to prior convictions" during
sentencing). As against this, the Court sees administrative burdens
arising because "sentencing courts [would be required] to rummage
through frequently nonexistent or difficult to obtain state-court
transcripts or records that may date from another era, and may come
from any of the 50 States." Ante, at 496. It would not be
sentencing courts that would have to do this rummaging, however,
but defendants seeking to avoid enhancement, for no one disagrees
that the burden of showing the invalidity of prior convictions
would rest on the defendants.
Whatever administrative benefits may flow from insulating
sentencing courts from challenges to prior convictions will likely
be offset by the administrative costs of the alternative means of
raising the same claims. The Court acknowledges that an individual
still in custody for a state conviction relied upon for enhancement
may attack that conviction through state or federal habeas review
and, if successful, "may ... apply for reopening any federal
sentence enhanced by the
512
state sentences." Ante, at 497. And the Court does not disturb
uniform appellate case law holding that an individual serving an
enhanced sentence may invoke federal habeas to reduce the sentence
to the extent it was lengthened by a prior unconstitutional
conviction. See J. Liebman & R. Hertz, Federal Habeas Corpus
Practice and Procedure § 8.2, pp. 62-64, and n. 13.2, and § 8.4, p.
89, n. 27 (1993 Supp.) (collecting cases).7 From the perspective of
administrability, it strikes me as entirely sensible to resolve any
challenges to the lawfulness of a predicate conviction in the
single sentencing proceeding, especially since defendants there
will normally be represented by counsel, who bring efficiency to
the litigation (as well as equitable benefits).
III
Because I cannot agree that Congress has required federal courts
to impose enhanced sentences on the basis of prior convictions a
defendant can show to be constitutionally invalid, I respectfully
dissent.
7 Maleng v. Cook,
490 U. S. 488 (1989),
holding that a federal habeas court has jurisdiction to entertain a
defendant's attack on a sentence to the extent it was enhanced by a
prior, allegedly unconstitutional conviction, "express[ed] no view
on the extent to which the [prior] conviction itself may be subject
to challenge in the attack upon the ... sentenc[e] which it was
used to enhance." Id., at 494 (citing 28 U. S. C. §2254 Rule 9(a)).
Court of Appeals decisions postdating Maleng have uniformly read it
as consistent with the view that federal habeas courts may review
prior convictions relied upon for sentence enhancement and grant
appropriate relief. See Collins v. Hesse,
957
F.2d 746, 748 (CAlO 1992) (discussing Maleng and citing cases).
In addition, depending on the circumstances, the writ of coram
nobis may be available to challenge a prior conviction relied upon
at sentencing, see United States v. Morgan,
346 U. S. 502 (1954);
Crank v. Duckworth,
905 F.2d
1090, 1091 (CA7 1990); Lewis v. United States,
902 F.2d
576,577 (CA7 1990), and, if successful, the defendant may
petition the sentencing court for reconsideration of the enhanced
sentence, see Restatement (Second) of Judgments § 16 (1982).
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