OCTOBER TERM, 2000
Syllabus
LACKAWANNA COUNTY DISTRICT ATTORNEY ET AL. V. COSS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 99-1884. Argued February 20, 200l-Decided April 25, 2001
In 1986, respondent Coss was convicted in Pennsylvania state
court of simple assault, institutional vandalism, and criminal
mischief. Coss filed a petition for state postconviction relief
with respect to these convictions, alleging ineffective assistance
of counsel, but the Pennsylvania courts have never ruled on the
petition. In 1990, after Coss had served the full sentences for his
1986 convictions, he was convicted in state court of aggravated
assault. He successfully challenged his 6 to 12 year sentence on
direct appeal. On remand, the court did not consider Coss' 1986
convictions in determining his eligible sentencing range. In
choosing a sentence within the applicable range, the court
considered several factors including Coss' extensive criminal
record, and reimposed a 6 to 12 year sentence. Coss filed a
petition for a writ of habeas corpus, claiming that his 1986
convictions were constitutionally invalid, and that he was "in
custody in violation of the Constitution or laws or treaties of the
United States." 28 U. S. C. § 2254(a). The Federal District Court
held that it could properly exercise § 2254 jurisdiction because,
in sentencing Coss for his 1990 conviction, the sentencing judge
made reference to the 1986 convictions. The District Court denied
the petition because Coss had not been prejudiced by his 1986
counsel's ineffectiveness. The Third Circuit remanded, agreeing
that the District Court had jurisdiction, but finding a "reasonable
probability" that but for his counsel's ineffectiveness, Coss would
not have been convicted in 1986.
Held: The judgment is reversed, and the case is remanded.
204 F.3d
453, reversed and remanded.
JUSTICE O'CONNOR delivered the opinion of the Court with respect
to Parts I, II, III-A, and IV, concluding that §2254 does not
provide a remedy when a state prisoner challenges a current
sentence on the ground that it was enhanced based on an allegedly
unconstitutional prior conviction for which the petitioner is no
longer in custody. Pp. 401-405,408.
(a) A § 2254 petitioner must first show that he is "in custody
pursuant to the judgment of a State court." § 2254(a). Because Coss
is no longer serving the sentences for his 1986 convictions, he
cannot bring a federal habeas action directed solely at those
convictions. However, his
395
§ 2254 petition can be (and has been) construed as asserting a
challenge to the 1990 sentence he is currently serving, as enhanced
by the allegedly invalid 1986 convictions. See
Maleng v.
Cook, 490 U.
S. 488, 493. Thus, he satisfies §2254's "in custody"
requirement. Pp.401-402.
(b) The more important question here is the one left unanswered
in
Maleng: the extent to which a prior expired conviction
may be subject to challenge in an attack upon a current sentence it
was used to enhance. In
Daniels v.
United States,
ante, p. 374, this Court held that a federal prisoner who has
failed to pursue available remedies to challenge a prior conviction
(or has done so unsuccessfully) may not collaterally attack that
conviction through a motion under 28 U. S. C. § 2255 directed at
the enhanced federal sentence. That holding is now extended to
cover § 2254 petitions directed at enhanced state sentences. The
considerations on which the
Daniels holding was
grounded-finality of convictions and ease of administration-are
equally present in the § 2254 context. See
Daniels, ante, at
379-380. Pp. 402-404.
(c) As in
Daniels, an exception exists to the general
rule for §2254 petitions that challenge an enhanced sentence on the
basis that the prior conviction used to enhance the sentence was
obtained where there was a failure to appoint counsel in violation
of the Sixth Amendment, as set forth in
Gideon v.
Wainwright, 372 U. S. 335. The
failure to appoint counsel is a unique constitutional defect,
rising to the level of a jurisdictional defect, which therefore
warrants special treatment among alleged constitutional violations.
Moreover, an exception for
Gideon claims does not implicate
this Court's concerns about administrative ease. As with any § 2254
petition, a petitioner making a
Gideon challenge must
satisfy the procedural prerequisites for relief, including
exhaustion of remedies. pp. 404-405.
O'CONNOR, J., delivered the opinion of the Court with respect to
Parts I, II, III-A, and IV, in which REHNQUIST, C. J., and SCALIA,
KENNEDY, and THOMAS, JJ., joined, an opinion with respect to Part
III-C, in which REHNQUIST, C. J., and KENNEDY and THOMAS, JJ.,
joined, and an opinion with respect to Part III-B, in which
REHNQUIST, C. J., and KENNEDY, J., joined. SOUTER, J., filed a
dissenting opinion, in which STEVENS and GINSBURG, JJ., joined,
post, p. 408. BREYER, J., filed a dissenting opinion,
post, p. 410.
William P. O'Malley argued the cause for petitioners.
With him on the brief were Eugene M. Talerico and Andrew J.
Jarbola III.
396
Robert M. Russel, Assistant Solicitor General of
Colorado, argued the cause for the State of Colorado et al. as
amici curiae urging reversal. With him on the brief were
Ken Salazar, Attorney General of Colorado,
Dan
Schweitzer, and the Attorneys General for their respective
States as follows:
Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark Pryor of
Arkansas, M. Jane Brady of Delaware, Carla J. Stovall of Kansas,
Tom Reilly of Massachusetts, Jennifer M. Granholm of Michigan,
Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue
Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Michael
F. Easley of North Carolina, Betty D. Montgomery of Ohio, W A. Drew
Edmondson of Oklahoma, Hardy Myers of Oregon, Jan Graham of Utah,
William H. Sorrell of Vermont, Mark L. Earley of Virginia, and
Christine O. Gregoire of Washington.
James v:
Wade argued the cause for respondent.
With him on the brief was
Daniel 1.
Siegel. *
JUSTICE O'CONNOR delivered the opinion of the Court, except as
to Parts III-B and III-C.t
For the second time this Term, we are faced with the question
whether federal postconviction relief is available when a prisoner
challenges a current sentence on the ground that it was enhanced
based on an allegedly unconstitutional prior conviction for which
the petitioner is no longer in custody. In
Daniels v.
United States, ante, p. 374, we held that such relief is
generally not available to a federal prisoner through a motion to
vacate the sentence under 28 U. S. C. § 2255 (1994 ed., Supp. V),
but left open the possibility that relief might be appropriate in
rare circumstances. We now hold that relief is similarly
unavailable to state prisoners through a peti-
*Edward M. Chikofsky and
David M. Porter filed a
brief for the National Association of Criminal Defense Lawyers as
amicus curiae urging affirmance.
tJUSTICE SCALIA joins all but Parts III-B and III-C of this
opinion.
JUSTICE THOMAS joins all but Part Ill-B.
397
tion for a writ of habeas corpus under 28 U. S. C. § 2254 (1994
ed. and Supp. V).
I
Respondent Edward R. Coss, Jr., has an extensive criminal
record. By the age of 16, he had been adjudged a juvenile
delinquent on five separate occasions for offenses including theft,
disorderly conduct, assault, and burglary. See Record Doc. No. 101
(PI. Exh. 5, pp. 4-6). By the time he turned 23, Coss had been
convicted in adult court of assault, institutional vandalism,
criminal mischief, disorderly conduct, and possession of a
controlled substance. See id., at 6-7. His record also reveals
arrests for assault, making terroristic threats, delivery of
controlled substances, reckless endangerment, disorderly conduct,
resisting arrest, retail theft, and criminal conspiracy, although
each of those charges was later dropped. See ibid. A report
generated by the Lackawanna County Adult Probation Office sums up
the "one consistent factor in this defendant's life: criminal
behavior, much of it being aggressive."
Id., at 8.
This case revolves around two of the many entries on Coss'
criminal record. In October 1986, Coss was convicted in
Pennsylvania state court of simple assault, institutional
vandalism, and criminal mischief. He was then sentenced to two
consecutive prison terms of six months to one year. He did not file
a direct appeal. See App. 54a; see also Tr. of Oral Arg. 28-29.
In June 1987, Coss filed a petition for relief from the 1986
convictions under the Pennsylvania Post Conviction Relief Act, 42
Pa. Cons. Stat. § 9541
et seq. (1998), alleging that his
trial attorney had been constitutionally ineffective. See App.
50a-53a. The Lackawanna County Court of Common Pleas promptly
appointed counsel for Coss, id., at 57a, and the district attorney
filed an answer to the petition, id., at 59a. The court, however,
took no further action on the petition for the remainder of Coss'
time in custody. Indeed, it appears that Coss' state postconviction
petition has now
398
been pending for almost 14 years, and has never been the subject
of a judicial ruling. Neither petitioners nor respondent is able to
explain this lapse. Tr. of Oral Arg. 4, 29.
In 1990, after he had served the full sentences for his 1986
convictions, Coss was again convicted in Pennsylvania state court,
this time of aggravated assault. He was sentenced to 6 to 12 years
in prison, but successfully challenged this sentence on direct
appeal because of a possible inaccuracy in the presentence report.
App. 62a.
On remand, the court's first task was to determine the range of
sentences for which Coss was eligible. In calculating Coss' "prior
record score"-one of two determinants of the applicable sentencing
range, see 42 Pa. Cons. Stat. § 9721 (1998) (reproducing 204 Pa.
Code § 303.9(a) (1998))-the new presentence report took account of
Coss' most serious juvenile adjudication and Coss' 1986 misdemeanor
convictions, counting the latter as separate offenses. See Record
Doc. No. 101 (PI. Exh. 3, at 10). Coss objected, claiming that his
1986 convictions should be counted as one misdemeanor offense
because they arose from the same transaction. See ibid. (PI. Exh.
5, at 3-4). The trial court sustained Coss' objection, finding that
the convictions should be "view[ed] ... as being one transaction,
one incident, one conviction."
Id., at 5. Under the
Pennsylvania Sentencing Guidelines, one prior misdemeanor does not
affect the prior record score. See id., at 10 (displaying grid for
calculating prior record score). Thus, the practical effect of the
court's decision was to eliminate the 1986 convictions from Coss'
prior record score entirely. See ibid.; see also
204 F.3d
453, 467-468 (CA3 2000) (en banc) (Nygaard, J., dissenting).
Consequently, Coss' 1986 convictions played no part in determining
the range of sentences to which Coss was exposed.
The court's next task was to choose a sentence within that
range. In doing so, the trial court considered a number of factors,
including "the seriousness and nature of the crime involved here,
the well being and protection of the people
399
who live in our community, your criminal disposition, your prior
criminal record, the possibility of your rehabilitation, and the
testimony that I've heard." Record Doc. No. 101 (PI. Exh. 3, at
26). The court concluded that "it's indicative that from your
actions that you will continue to break the law unless given a
period of incarceration."
Ibid. The court then reimposed a 6
to 12 year sentence. Because Coss' 1986 convictions are a part of
his prior criminal record, the Court of Appeals concluded that the
state court took those convictions "into consideration" in
sentencing Coss. See 204 F. 3d, at 459.
In September 1994, Coss filed a petition for a writ of habeas
corpus under 28 U. S. C. § 2254 in the United States District Court
for the Middle District of Pennsylvania. That provision, a
postconviction remedy in federal court for state prisoners,
provides that a writ of habeas corpus is available to "a person in
custody pursuant to the judgment of a State court" if that person
"is in custody in violation of the Constitution or laws or treaties
of the United States." § 2254(a). In his petition, Coss contended
that his 1986 assault conviction was the product of ineffective
assistance of counsel. App.73a-74a.
In answer to Coss' § 2254 petition, the Lackawanna County
District Attorney argued that the District Court could not review
the constitutionality of Coss' 1986 convictions because Coss was no
longer in custody on those convictions. Record Doc. No. 55, p. 2.
The district attorney, however, indicated his understanding that
the crux of Coss' claim was that his 1986 convictions "may have
impact
[sic] upon the sentences which have been imposed ...
upon [Coss] for criminal convictions rendered against him" for his
1990 convictions.
Ibid. See also Brief for Petitioners 4
("[R]espondent argues that the sentence for his 1990 conviction was
adversely and unconstitutionally affected by the 1986 simple
assault conviction").
400
The District Court stated that Coss was arguing "that his
current sentence [for the 1990 conviction] was adversely affected
by the 1986 convictions because the sentencing judge considered
these allegedly unconstitutional convictions in computing Coss's
present sentence." App. to Pet. for Cert. 105a-106a. Finding that
"the sentencing judge ... did make reference to the 1986
convictions in sentencing Coss," id., at 107a, the court held that
it could properly exercise jurisdiction under § 2254, id., at 108a;
see also Record Doc. No. 87, p. 3, n. 2. After an evidentiary
hearing, the court denied the petition, holding that Coss' 1986
trial counsel had been ineffective, but that Coss had not been
prejudiced by the ineffectiveness. App. to Pet. for Cert. 113a,
116a, 120a.
The Court of Appeals for the Third Circuit, sitting en banc,
agreed that "the sentencing court for the 1990 conviction took into
consideration [Coss' 1986] conviction[s]," and therefore that the
District Court had jurisdiction over Coss' § 2254 petition. 204 F.
3d, at 459. Citing Circuit precedent and our decisions in
Maleng v.
Cook, 490 U. S. 488 (1989)
(per curiam), and
United States v.
Tucker,
404 U. S. 443
(1972), the court concluded that § 2254 provided a remedy for "an
allegedly unconstitutional conviction, even if [the § 2254
petitioner] has served in entirety the sentence resulting from the
conviction, if that conviction had an effect on a present
sentence." 204 F. 3d, at 459-460.
The court then found that Coss had received ineffective
assistance during his 1986 trial, and that there was "a reasonable
probability" that but for the ineffective assistance, Coss "would
not have been found guilty of assau[lt]."
Id., at 462. The
court remanded the case to the District Court, ordering that the
Commonwealth be allowed either to retry Coss for the 1986 assault
or to resentence him for the 1990 assault without consideration of
the 1986 conviction.
Id., at 467.
We granted certiorari to consider the threshold question that
the District Court and Court of Appeals both resolved
401
in Coss' favor: whether § 2254 provides a remedy where a current
sentence was enhanced on the basis of an allegedly unconstitutional
prior conviction for which the sentence has fully expired. 531 U.
S. 923 (2000).
II A
The first showing a § 2254 petitioner must make is that he is
"in custody pursuant to the judgment of a State court." 28 U. S. C.
§ 2254(a). In
Maleng v.
Cook, supra, we considered a
situation quite similar to the one presented here. In that case,
the respondent had filed a § 2254 petition listing as the
"'conviction under attack'" a 1958 state conviction for which he
had already served the entirety of his sentence. 490 U. S., at
489-490. He also alleged that the 1958 conviction had been "used
illegally to enhance his 1978 state sentences" which he had not yet
begun to serve because he was at that time in federal custody on an
unrelated matter.
Ibid. We determined that the respondent
was "in custody" on his 1978 sentences because the State had lodged
a detainer against him with the federal authorities.
Id., at
493.
We held that the respondent was not "in custody" on his 1958
conviction merely because that conviction had been used to enhance
a subsequent sentence.
Id., at 492. We acknowledged,
however, that because his § 2254 petition "[could] be read as
asserting a challenge to the 1978 sentences, as enhanced by the
allegedly invalid prior conviction, ... respondent ... satisfied
the 'in custody' requirement for federal habeas jurisdiction."
Id., at 493-494.
Similarly, Coss is no longer serving the sentences imposed
pursuant to his 1986 convictions, and therefore cannot bring a
federal habeas petition directed solely at those convictions. Coss
is, however, currently serving the sentence for his 1990
conviction. Like the respondent in
Maleng, Coss' § 2254
petition can be (and has been) construed as "asserting a challenge
to the [1990] senten[ce], as enhanced by the alleg-
402
edly invalid prior [1986] conviction."
Id., at 493. See
also
supra, at 399-400. Accordingly, Coss satisfies § 2254's
"in custody" requirement. Cf.
Daniels, ante, at 383, 384, n.
2 (stating that the text of § 2255, which also contains an "in
custody" requirement, is broad enough to cover a claim that a
current sentence enhanced by an allegedly unconstitutional prior
conviction violates due process).
B
More important for our purposes here is the question we
explicitly left unanswered in
Maleng: "the extent to which
the [prior expired] conviction itself may be subject to challenge
in the attack upon the [current] senten[ce] which it was used to
enhance." 490 U. S., at 494. We encountered this same question in
the § 2255 context in
Daniels v.
United States, ante,
p. 374. We held there that "[i]f ... a prior conviction used to
enhance a federal sentence is no longer open to direct or
collateral attack in its own right because the defendant failed to
pursue those remedies while they were available (or because the
defendant did so unsuccessfully), then that defendant ... may not
collaterally attack his prior conviction through a motion under §
2255."
Ante, at 382. We now extend this holding to cover §
2254 petitions directed at enhanced state sentences.
We grounded our holding in
Daniels on considerations
relating to the need for finality of convictions and ease of
administration. Those concerns are equally present in the § 2254
context. The first and most compelling interest is in the finality
of convictions. Once a judgment of conviction is entered in state
court, it is subject to review in multiple forums. Specifically,
each State has created mechanisms for both direct appeal and state
postconviction review, see L. Yackle, Postconviction Remedies §§ 1,
13 (1981 and Supp. 2000), even though there is no constitutional
mandate that they do so, see
Pennsylvania v.
Finley,
481 U. S. 551,
557 (1987) (no constitutional right to state postconviction
403
review);
Abney v.
United States, 431 U. S. 651, 656 (1977)
(no constitutional right to direct appeal). Moreover, § 2254 makes
federal courts available to review state criminal proceedings for
compliance with federal constitutional mandates.
As we said in
Daniels, "[t]hese vehicles for review ...
are not available indefinitely and without limitation."
Ante, at 381. A defendant may choose not to seek review of
his conviction within the prescribed time. Or he may seek review
and not prevail, either because he did not comply with procedural
rules or because he failed to prove a constitutional violation. In
each of these situations, the defendant's conviction becomes final
and the State that secured the conviction obtains a strong interest
in preserving the integrity of the judgment. See
ante, at
379-380. Other jurisdictions acquire an interest as well, as they
may then use that conviction for their own recidivist sentencing
purposes, relying on "the 'presumption of regularity' that attaches
to final judgments."
Parke v.
Raley, 506 U. S. 20, 29 (1992);
see also
Daniels, ante, at 380.
An additional concern is ease of administration of challenges to
expired state convictions. Federal courts sitting in habeas
jurisdiction must consult state court records and transcripts to
ensure that challenged convictions were obtained in a manner
consistent with constitutional demands. As time passes, and
certainly once a state sentence has been served to completion, the
likelihood that trial records will be retained by the local courts
and will be accessible for review diminishes substantially. See
Daniels, ante, at 379.
Accordingly, as in
Daniels, we hold that once a state
conviction is no longer open to direct or collateral attack in its
own right because the defendant failed to pursue those remedies
while they were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as conclusively
valid. See
Daniels, ante, at 382. If that conviction is
later used to enhance a criminal sentence, the defendant
404
generally may not challenge the enhanced sentence through a
petition under § 2254 on the ground that the prior conviction was
unconstitutionally obtained.
III A
As in
Daniels, we recognize an exception to the general
rule for § 2254 petitions that challenge an enhanced sentence on
the basis that the prior conviction used to enhance the sentence
was obtained where there was a failure to appoint counsel in
violation of the Sixth Amendment, as set forth in
Gideon v.
Wainwright, 372 U. S. 335 (1963). The
special status of
Gideon claims in this context is well
established in our case law. See,
e. g., Custis v.
United
States, 511 U. S.
485, 496-497 (1994);
United States v.
Tucker, 404
U. S., at 449;
Burgett v.
Texas, 389 U. S. 109, 115
(1967). Cf.
Daniels, ante, at 382.
As we recognized in
Custis, the "failure to appoint
counsel for an indigent [is] a unique constitutional defect ...
ris[ing] to the level of a jurisdictional defect," which therefore
warrants special treatment among alleged constitutional violations.
See 511 U. S., at 496. Moreover, allowing an exception for
Gideon challenges does not implicate our concern about
administrative ease, as the "failure to appoint counsel ... will
generally appear from the judgment roll itself, or from an
accompanying minute order." 511 U. S., at 496.
As with any § 2254 petition, the petitioner must satisfy the
procedural prerequisites for relief including, for example,
exhaustion of remedies. See 28 U. S. C. § 2254(b) (1994 ed., Supp.
V). When an otherwise qualified § 2254 petitioner can demonstrate
that his current sentence was enhanced on the basis of a prior
conviction that was obtained where there was a failure to appoint
counsel in violation of the Sixth Amendment, the current sentence
cannot stand and habeas relief is appropriate. Cf.
United
States v.
Tucker, supra, at
405
449 (affirming vacatur of sentence that was based in part on
prior uncounseled state convictions).
B
We stated in
Daniels that another exception to the
general rule precluding habeas relief might be available, although
the circumstances of that case did not require us to resolve the
issue. See
ante, at 383-384. We note a similar situation
here.
The general rule we have adopted here and in
Daniels
reflects the notion that a defendant properly bears the
consequences of either forgoing otherwise available review of a
conviction or failing to successfully demonstrate constitutional
error. See
supra, at 403-404;
Daniels, ante, at
381383. It is not always the case, however, that a defendant can be
faulted for failing to obtain timely review of a constitutional
claim. For example, a state court may, without justification,
refuse to rule on a constitutional claim that has been properly
presented to it. Cf. 28 U. S. C. § 2244(d)(1)(B) (1994 ed., Supp.
V) (tolling i-year limitations period while petitioner is prevented
from filing application by an "impediment ... created by State
action in violation of the Constitution or laws of the United
States"). Alternatively, after the time for direct or collateral
review has expired, a defendant may obtain compelling evidence that
he is actually innocent of the crime for which he was convicted,
and which he could not have uncovered in a timely manner. Cf.
Brady v.
Maryland, 373 U. S. 83 (1963); 28 u.
S. C. § 2244(b)(2)(B) (1994 ed., Supp. V) (allowing a second or
successive habeas corpus application if "the factual predicate for
the claim could not have been discovered previously through the
exercise of due diligence; and ... the facts underlying the claim,
if proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense").
406
Opinion of O'CONNOR, J.
In such situations, a habeas petition directed at the enhanced
sentence may effectively be the first and only forum available for
review of the prior conviction. As in
Daniels, this case
does not require us to determine whether, or under what precise
circumstances, a petitioner might be able to use a § 2254 petition
in this manner.
Whatever such a petitioner must show to be eligible for review,
the challenged prior conviction must have adversely affected the
sentence that is the subject of the habeas petition. This question
was adequately raised and considered below. As the District Court
stated, Coss contended "that his current sentence [for the 1990
conviction] was
adversely affected by the 1986 convictions
because the sentencing judge considered these allegedly
unconstitutional convictions in computing Coss's present sentence."
App. to Pet. for Cert. 105a-106a (emphasis added). The District
Court and majority of the Court of Appeals agreed with Coss on this
point. See id., at 107a; 204 F. 3d, at 459. Judge Nygaard, joined
by Judge Roth, dissented to dispute the conclusion that the 1986
convictions had any effect whatsoever on Coss' sentence for the
1990 conviction.
Id., at 467-469.
C
After a careful examination of the record here, we are satisfied
that the findings of the lower courts on this threshold factual
point are clearly erroneous. Cf.
Neil v.
Biggers, 409
U. S. 188, 193, n. 3 (1972). We therefore conclude that respondent
Coss does not qualify to have his § 2254 petition reviewed, even
assuming the existence of a limited exception to the general rule
barring review of an expired prior conviction. Specifically, it is
clear that any "consideration" the trial court may have given to
Coss' 1986 convictions in reimposing sentence for his 1990
conviction did not actually affect that sentence.
As we explain above, see
supra, at 398-399, when Coss was
resentenced on his 1990 conviction, he objected to the
407
presentence report's calculation of his prior record score. The
court sustained that objection and, in effect, eliminated Coss'
1986 convictions from the prior record score entirely. Because the
prior record score is one of two determinants of the applicable
sentencing range, see 42 Pa. Cons. Stat. § 9721 (1998) (reproducing
204 Pa. Code § 303.9(a) (1998)), it is clear that Coss' 1986
convictions had no role in determining the range of sentences to
which Coss was exposed.
In choosing a sentence for Coss within that range, the trial
court considered several factors, including "the seriousness and
nature of the crime involved here, the well being and protection of
the people who live in our community, your criminal disposition,
your prior criminal record, the possibility of your rehabilitation,
and the testimony that I've heard." Record Doc. No. 101 (PI. Exh.
3, at 26). Coss' 1986 convictions are, of course, a portion of his
criminal record. Thus, it is technically correct to say that the
court "considered" those convictions before sentencing Coss. Cf.
204 F. 3d, at 459.
But it is a different thing entirely to say that the 1986
convictions actually increased the length of the sentence the court
ultimately imposed. As the sentencing court told Coss, "I think
that it's indicative that from your actions that you will continue
to break the law unless given a period of incarceration." Record
Doc. No. 101 (PI. Exh. 3, at 26). The "actions" to which the judge
referred were obviously not limited to Coss' criminal conduct in
1986, but Coss' extensive and violent criminal record as a whole.
We conclude, as Judge Nygaard did below, that the 1986 convictions
are "such a minor component of [Coss'] record that there is no
question that the sentencing court, given its concerns, would have
imposed exactly the same sentence" had those convictions been
omitted from Coss' record. 204 F. 3d, at 468 (dissenting
opinion).
We note that the record does not explain why Coss' ineffective
assistance claim did not receive a timely adjudication
408
SOUTER, J., dissenting
in the Pennsylvania courts. While the reason might have been
that Coss' petition "slipped through the cracks," due to no fault
of his own, Tr. of Oral Arg. 4, it might also have been that Coss
was responsible for "request[ing] that the matter be brought up for
a hearing," id., at 5. But even if Coss cannot be faulted for that
lapse, he would not qualify to have his current § 2254 petition
reviewed because the 1990 sentence he is challenging was not
actually affected by the 1986 convictions.
IV
The judgment of the United States Court of Appeals for the Third
Circuit is therefore reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, dissenting.
The error of
Daniels v.
United States, ante, p.
374, is repeated once more, and I respectfully dissent for reasons
set out in my dissenting opinion in that case. There is a further
reason to disagree with the majority here.
Although state law theoretically provided a procedure for
respondent Coss to challenge his 1986 convictions, the provision
has proven to be a mirage; Coss's challenge was filed and answered
by the district attorney, only to disappear in the state-court
system for almost 14 years, so far. This failure of state process
leads the plurality to qualify its general rule against attacking
predicates to enhanced sentences, by raising the possibility of
such a challenge when the opportunity for attack under provisions
of state law, timely invoked, has proven to be imaginary.
Ante, at 405. The plurality then goes on to deny Coss the
benefit of this exception on the ground that he cannot demonstrate
that "the challenged prior conviction ... adversely affected the
sentence that is
409
the subject of the habeas petition."
Ante, at 406. This
conclusion is premature.
The issue of adverse effect was by no means adequately raised
and considered by the Court of Appeals. The earlier convictions
could have affected the later sentence in either of two ways: by
subjecting Coss to a higher sentencing range or by being considered
as a reason to give him a higher sentence than he would otherwise
have received within a given range. It appears that the sentencing
court did not treat the convictions as subjecting Coss to a higher
range of potential sentence, but the District Court expressly found
that the sentencing court considered the challenged convictions in
sentencing Coss to the maximum sentence within the applicable
range. App. to Pet. for Cert. 107a ("The sentencing judge, however,
did make reference to the 1986 convictions in sentencing Coss to
the top of the standard range for his 1990 aggravated assault
conviction"). This finding was never challenged in the Court of
Appeals, * which appeared to accept the District Court's finding as
a matter of course.
Id., at lla ("We are satisfied that the
sentencing judge ... took into consideration [Coss's 1986
conviction]").
In holding the District Court's finding to be clearly erroneous,
the majority is thus ruling on a matter in the first instance in
derogation of this Court's proper role as a court of review.
E. g.,
Glover v.
United States, 531 U. S. 198 (2001);
*The district attorney made no mention of the causal connection
between the 1986 conviction and the 1990 sentence either in his
brief before the Third Circuit panel, or in his petition for
rehearing. That petition claimed only that the panel had improperly
applied the principle of
United States v.
Tucker,
404 U. S. 443
(1972), to the facts of this case.
Even the so-called "Epilogue" included in the district
attorney's brief before the en bane Court of Appeals argued only
that the 1986 conviction did not subject Coss to a higher
sentencing range in 1990. Supplemental Brief [on Rehearing] for
Appellee in No. 98-7416 (CA3), pp. 15-18. It did not challenge the
District Court's finding that the 1990 sentencing court considered
the challenged convictions in sentencing Coss to the maximum
sentence within the applicable range.
410
BREYER, J., dissenting
National Collegiate Athletic Assn. v.
Smith,
525 U. S. 459
(1999); United States v.
Bestfoods, 524 U. S. 51, 72-73
(1998). The only responsible course for the majority would be to
remand to the Court of Appeals, which could determine whether the
district attorney may challenge the District Court's finding of a
causal link between the unconstitutional convictions and the later,
maximum sentence, or whether this issue has already been
waived.
JUSTICE BREYER, dissenting.
Because the Commonwealth has failed to argue in this Court that
the trial court's consideration of respondent's 1986 convictions
was harmless, and consequently, the issue has not been briefed, I
would not overturn the Court of Appeals' finding that respondent's
sentence was enhanced based on the purportedly defective 1986
convictions. The Court of Appeals, however, operated under the
belief that the Constitution generally requires 28 U. S. C. § 2254
(1994 ed., Supp. V) petitioners to be able to attack prior
convictions that enhanced their sentences. It did not focus on
whether the § 2254 proceeding was "the first and only forum
available for review of [respondent's] prior conviction[s]."
Ante, at 406. Accordingly, I would vacate the decision below
and remand for consideration of that issue. As respondent has not
yet shown that he was denied a forum in which to raise his
ineffective-assistance-of-counsel claim, any discussion of a
constitutionally based exception is premature.
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