*1 v. UNITED STATES CUSTIS 28, 1994 23, 1994 February May Argued No. 93-5209. Decided *2 Rehnquist, Court, J., O’Con- opinion C. of the in which delivered Souter, Thomas, Ginsburg, JJ., J., nor, Scalia, Kennedy, joined. and JJ., Stevens, joined, dissenting in which Blackmun opinion, filed p. 498. post, With M. the cause for French petitioner.
Mary argued Farber. Bredar and Beth M. her on the briefs were James K. the cause Solicitor General argued Bryson Deputy him on the brief were Solicitor the United States. With Harris, F Assistant General John Days, Attorney General C. Manning, Joseph Wyderko* were filed urging
* Briefs amici curiae affirmance for the State of Fisher, Ohio, Lee Attorney et al. A Cordray, Ohio General Richard Solicitor, Karas, B. Jilisky State Simon and Donald R. and Donald Gary delivered opinion Rehnquist Chief Justice Court. 1984, 18 U. S. C. Act of
The Armed Career Criminal fire- of a 924(e) for possession raises the (ACCA), penalty years prison from a maximum a felon arm by a maximum of of 15 years minimum sentence mandatory “has three pre- if the defendant without life in parole prison or a serious drug violent felony for a vious convictions ... whether a de- to determine certiorari We granted offense.” collaterally federal sentencing proceeding fendant in a that are used state the validity previous attack that a hold the ACCA. We his sentence under to enhance *3 (with of con- the sole exception has no such right defendant counsel) to col- of the right in violation victions obtained convictions. laterally attack Darren J. Custis Police arrested petitioner Baltimore City him on three indicted jury A federal 1,1991. grand on July (1) intent to distribute of cocaine with counts: possession (2) a firearm con- § use of 841(a)(1); of 21 U. S. C. violation in violation of 18 offense with a drug trafficking nection (3) a convicted of a firearm 924(c); by § and possession U. S. C. Before trial § 922(g)(1). in violation of 18 U. S. C. felon for the District of Mary- District Court the United States it would seek an land, the Government notified Custis 924(e)(1). § for the offense 922(g)(1) enhanced penalty three convic- felony The notice that he had charged General, by Attorneys General for Keyser, Assistant Attorneys and Bry Arizona, rеspective States as follows: Grant Woods of Winston their Arkansas, Larry Idaho, Kentucky, ant of EchoHawk of Chris Gorman of Joseph Harshbarger Kelley Michigan, Frank J. Massachusetts, Scott of of Papa Stenberg P. Mazurek of Don Frankie Sue Del Montana, Nebraska, of Heitkamp Heidi Frank DeVesa of New Nevada, Jersey, of North Da of Loving Kulongoski B. Theodore R. kota, Oklahoma, Susan Oregon, of of Preate, Jr., Pennsylvania, T. Ernest D. Travis Medlock of of South Caro Jeffrey Amestoy L. Ste lina, Dakota, Vermont, Mark Barnett of South of phen Joseph Myer Wyoming; D. B. Rosenthal Virginia, and for Scheidegger. Kent S. Legal the Criminal Justice Foundation (1) Pennsylvania conviction for rob- state-court a 1985 tions: (2) burglary; Maryland bery; conviction for state-court a 1985 (3) Maryland for at- state-court conviction a burglary. tempted guilty possession jury intent with found Custis drug during guilty a a of use of firearm distribute and not possession a firearm and sim- him of
offense, but convicted charge ple possession, in the a lesser included offense cocaine possession the sen- to distribute cocaine. At with intent hearing, tencing moved to have Custis’ sen- the Government 924(e)(1), prior convic- based on the tence enhanced under in the notice of sentence enhancement. tions included Maryland challenged the use of the two Custis lawyer argued He that his for sentence enhancement. unconstitutionally burglary in- his 1985 conviction rendered knowing guilty plea his was not effective assistance and that by Boykin intelligent required Alabama, 395 S. as attorney his had failed to advise He claimed that voluntary intoxication, him and that he of the defense of gone pleaded guilty, trial, would have rather than had he challenged been aware of He his convic- that defense. ground upon “stipulated tion on the that it had been based “stipulated facts” He trial. claimed that such facts” trial guilty plea *4 was tantamount to and that his was a conviction fundamentally adequately he unfair because had been rights. advised of his further asserts that he had Custis been denied effective assistance of counsel in that case be- stipulated only attempted cause the facts established break- ing entering attempted burglary than rather under state law. initially rejected
The District Court
Custis’ collateral
Maryland
attacks on his two
state-court convictions. The
ruling
perform-
District Court’s letter
determined that the
attorney
ance of Custis’
in the 1985 case did not fall below
professional competence required
the standard of
(1984).
Washington,
Strickland v.
489 (D. It found that Md., 27, 1992), Feb. 1. p. No. S 91-0334 was not unreason- recommendation of a guilty plea counsel’s Id., at 2. The District Court able under the circumstances. claim that the 1989 facts” also Custis’ rejected “stipulated Id., a at trial was the functional equivalent guilty plea. 2-3.
The District
later
reversed field and determined
Court
that it could not entertain Custis’
to his
con-
challenges
prior
“[ujnlike
victions at all.
It noted that
scheme
statutory
924(e)(1)]
cases,
for enhancement of sentences in drug
pro-
[§
vides no
convictions reliеd
statutory right
challenge prior
for enhancement.”
Government
F.
upon by
Supp.
1992).
(Md.
District
533, 535-536
Court went on to
use of a
state that the Constitution bars the
prior
for sentence enhancement
when there was a
only
complete
Id.,
denial of counsel in the
prior proceeding.
citing
Gideon United States v.
(1963);
Wainwright,
U. S.
Tucker,
Texas,
Burgett (1972);
The Court of affirmed. 988 F. 2d Appeals 1993).. It of a defendant who had been recognized of counsel to assert a collateral attack completely deprived on his convictions since such defendant “has lost his prior Id., to assert all his other ability constitutional rights.” Zerbst, Johnson 458,465 citing Cit- the “substantial burden” on and the district ing prosecutors courts, dismissed all of Custis’ chal- Appeals to his convictions as the lenges “fact-intensive” type a risk of the entire pose unduly delaying protracting sentencing process. 2d, F. at 1361. The prospect such faсt-intensive it led reluc- inquiries express great “ tance at district courts to overcome the forcing 'inadequacy or of state court unavailability records and witnesses’” to determine the Ibid., trying sentences. validity *5 490 (CA4 1992). Jones, 105,109 2d 977 F. v. United States
quoting the hurdles, Appeals Court the to practical In addition fac- other federalism as comity over concerns specified “ ‘Fed- attacks. collateral permitting tors weighing against state which to relitigate forums in eral courts are ” Estelle, 463 1361, v. 2d, quoting F. trials.’ 988 Barefoot certiorari, S. 913 We 880, granted 887 S.U. with decision conflicted Appeals’ because Appeals permitted other Courts decisions from recent that are used convictions challenge prior defendants 924(e)(1).1 § should read permit ACCA argues Custis of convictions constitutionality challenge defendants to the Looking language for sentencing purposes. used 924(e) collat- authorizes such statute, we do not believe for an enhanced sentence provides eral attаcks. The ACCA in violation a firearm unlawfully possesses who any person three previous of 18 U. S. “has 922(g)2 C. for court to in this title 922(g)(1) referred section
by any a serious offense . . a violent or . .” Section felony drug 924(e) is found to have suffered whenever defendant applies The stat- “three convictions” of the previous type specified. 1 (CAl Paleo, 7, g., e. United See, 1992); United States v. F. 2d Merritt, (CA5 1989); States v. United States v. Me- 882 F. 2d 1993) (en Glocklin, Gallman, (CA6 8 F. States United banc); 3d 1037 v. (CA7 1990); Day, 639,642-645 United States 949 F. F. 2d 2d 981-983 Clawson, (CA8 1991); (CA9 1987); United States F. 2d 914-915 Franklin, (CA11 1992). United 1253,1257-1258 States F. 2d §922 provides pertinent part Title 18 S. C. as follows: “(g) any person— It shall for be unlawfiil
“(1) any of, punishable who has been convicted court a crime im- prisonment exceeding year; a term one ship commerce, “to or transport foreign in interstate or in or possess or ammunition; affecting commerce, any any firearm or or to receive firearm shipped transported or ammunition which has been or in interstate or foreign commerce.” *6 focuses on the of the conviction and
ute nothing suggests fact conviction be final to cоllateral prior may subject attack for constitutional errors before it be potential may counted.
Absent authorization, Custis contends specific statutory that an implied right challenge constitutionality 924(e). § convictions exists we prior Again under disagree. 924(e) § The Gun of 1968, Control Act of which is a part, indicates that strongly unchallenged prior may 924(e). be § used for At least for violent purposes prior §921(a)(20) felonies, describes the circumstances in which a prior may counted sentencing purposes 924(e): “What constitutes a conviction of ... a crime shall be determined in accordance with the law of the jurisdic- tion in which the were proceedings held. convic- Any tion which has been or set aside or for which expunged, has been or has had person civil re- pardoned rights stored shall not be considered a conviction for purposes of this U. S. C. chapter [18 §§921-930].” that a court provision not count a conviction may “which has been ... set aside” creates a clear negative implication that courts count a conviction that has not set been aside.
Congress’ of other related statutes passage that expressly permit offenders to repeat challenge convictions that prior are used for enhancement this purposes supports negative For implication. U. C. example, 851(c), S. which Con- enacted gress as part Abuse Comprehensive Drug Prevention and Control Act of sets forth specific proce- dures a defendant allowing of a challenge validity conviction used to enhance the sentence for a federal 851(c)(1) drug offense. Section states that “[i]f person denies any the information of allegation conviction, or claims that any conviction alleged invalid, he shall file 851(c)(2) Section the information.” response written on to provide: goes in the conviction alleged that a claiming
“A person violation the Constitution was obtained in information claim, his and the shall set forth States of the United therefor, with in his response basis particularity factual *7 The shall the burden have to the information. person the evidence on issue any of of aby proof preponderance to a Any challenge prior fact the by response. raised to the information conviction, not raised by response is in reliance an sentence imposed before increased thereon, waived unless cause be shown good shall be a timely challenge.” failure to make 851(c) when intended §of shows that language Congress The the attacks on convictions at prior to authorize collateral omis- it knew how to do so. Congress’ time sentencing, 924(e) § it not similar in indicates that did sion of language the to the validity intend defendants give challenge statute. Cf. Gozlon-Peretz this convictions under of prior States, (1991) (“ United 404 Congress ‘[W]here section of but includes one a statute particular language Act, it in same omits another section the it generally acts and intentionally Congress purposely presumed Russello exclusion’”), the inclusion or disparate quoting States, (internal (1983) United U. S. quotation omitted). marks States, decision in Lewis v. United
Our U. S. 55 also the conclusion that convictions used for supports 924(e) § sentence enhancement under are not sub- purposes Lewis to collateral attack the sentence ject proceeding. (1982 1202(a)(1) § ed.), U. S. C. one of the interpreted App. to the current predecessors felon-in-possession-of-a-firearm 1202(a)(1) statute. Section was aimed at who any person “has been convicted a court of the United or of a States “ of a State ... We concluded that felony.” on the ‘[njothing to limit intent congressional suggests face statute are subject [whose its coverage persons United States S., quoting 445 U. collateral attack].’” Culbert, intent This lack of such 371,373. S. 1202(a)(1) with other federal statutes contrasted §in also the valid- a defendant to challenge that explicitly permitted g., e. See, felony. predicatе or constitutionality ity 227) (note 3575(e) (dangerous special § ch. following C. U. S. 851(c)(2) (recidivism offender) § C. and 21 U. S. Act of Abuse Prevention Control Drug
Comprehensive contrast 1970). intent, expressed absence that “the statutes, led us to determine with other federal 1202(a)(1)] § does not open prosecution [under firearms new of collateral to a form attack.” predicate S., at 67. 924(e) in- indication that any lacks Similarly, convictions used attacks tended to collateral permit The contrast between for sentence enhancement purposes. 924(e) col- avenues for expressly provide statutes *8 supra, Lewis, our in point well as decision attacks, lateral as did intend to that not to the conclusion strongly 924(e). attacks collateral permit 924(e) whether permits Custis that regardless argues the convictions, Constitution to prior collateral challenges He relies our decisions upon be allowed. that requires they Burgett Texas, United States (1967), S. in 389 U. 109 v. Tucker, of this 443 in (1972), support argument. v. in our earlier decision Both of relied upon these decisions Wainwright, Gideon the (1963), 335 that holding S. re- of the United States Constitution Sixth Amendment in state-court that an defendant indigent proceedings quired Gideon, turn, for overruled have counsel him. appointed Brady, Betts our earlier U. S. 455 decision counsel, had Amendment which held that the Sixth was made in federal-court not itself proceedings, long applied Due Process The by to the States the Clause. applicable Clause, held, Betts had required appoint- Due Process for an defendant state courts only ment of counsel indigent Id., circumstances. at 473. showing a upon special decided, was this But even before Betts v. Court Brady the failure to counsel for an had held appoint indigent in federal defendant a violated Sixth proceeding only to collateral attack in Amendment, but was federal subject Zerbst, 304 habeas Johnson v. U. S. At corpus. a time when the habeas statute was construed to underlying allow collateral attacks on final оf conviction judgments only where the court lacked rendering “jurisdiction” —albeit somewhat notion of see Moore v. expansive “jurisdiction,” (1923) U. S. Court attributed Dempsey, juris- —this dictional to the failure to significance appoint counsel. The Court said:
“If accused, however, is not counsel represented by has not waived competently intelligently his constitutional the Sixth Amendment stands as a right, bar to a valid conviction and jurisdictional sentence de- him of his life or his priving liberty. . . . judgment of conviction a court without pronounced by jurisdiction void, and one thereunder obtain imprisoned re- lease habeas S.,U. at 468. corpus.” When the later expanded of federal availability habeas to other constitutional violations, it did so by frankly the federal stating habeas statute made such relief available them, without that the claiming denial of these constitutional the trial court rights by would have denied it jurisdiction. See, e. g., Johnston, Waley U. S. 101, *9 (1942) (coerced 104-105 confession); Allen, Brown v. 344 U. S. (1953). There is thus a historical bаsis in our jurispru- dence of collateral attacks the treating right have counsel as appointed because unique, of our oft- perhaps stated view that “[t]he to be heard right be, would in many to be if it did not the cases, comprehend right of little avail Alabama, Powell 68-69 counsel.” heard by Bur- Gideon, our decision in the Court decided Following Texas, There the defendant was charged supra. gett the subject recidivist statute with been having a Texas The S., at 111. convictions. U. felony of four previous of the defend- introduced certified records of one prosecutor Id., The de- in Tennessee. at 112. ant’s earlier convictions the of this conviction on to the admission fendant objected had had not been counsel and by that he represented ground but his was over- counsel, objection not waived his right Id., reversed, trial at This ruled court. 113. Court by that the certified records of the Tennessee conviction finding was de- petitioner on their face raised “presumption his convic- , nied his to counsel. . and therefore that . Id., held that the admis- tion was void.” 114. Court constitutionally sion of a criminal conviction that prior Gideon the standards of is inherently preju- infirm under use of such a tainted dicial to permit for sentence enhancement would undermine principle Gideon. S., at 115. U. Tucker, arose in supra.
A similar situation The defendant had been convicted of bank in California in 1953. robbery At the District conducted an into Court sentencing, inquiry shows, the defendant’s the record ex- background, and, gave attention to three convictions that plicit previous felony the defendant had The District trial. acknowledged sentenced him to 25 term Court stiffest years prison —the statute, authorized federal 18 U. S. C. applicable 2113(d). atS., later, 444. after hav- Several years obtained a determination that two of his ing judicial invalid, convictions were the defendant filed constitutionally a writ of habeas in the District in which he had corpus been convicted of bank He the use at robbery. challenged *10 his three cоn- felony his 1953 bank trial of previous robbery his insofar as his This Court sustained challenge victions. an concerned, was “Gideon . . . established sentence saying rule it unconstitutional try person unequivocal ‘making in unless he had a or had lawyer for a a state court felony Id., Texas, waived one.’” validly quoting Burgett The held that of the Gideon 114. supra, “[e]rosion here only judg- can be by affirming principle prevented of the this case to the trial remanding ment Court of Appeals sentence.” court reconsideration [defendant’s] S., at 449. Custis invites us to extend the to attack right collaterally convictions used for sentence enhancement beyond to have counsel established in We Gideon. appointed decline do so. We think that since the decision in John- son Zerbst more than half a and running century ago, our Tucker, decisions and there has been through Burgett a theme that failure to counsel for an de- appoint indigent fendant was a constitutional defect. Custis attacks unique his the denial the effective previous claiming assistance of counsel, that his was not guilty plea knowing he had. not intelligent, been advised adequately of his rights for a facts” opting trial. None “stipulated these constitutional alleged violations rises to the level of defect jurisdictional from the resulting failure to appoint Zerbst, counsel at all. Johnson v. supra.
Ease of administration also supports distinction. As revealed in a number of the cases cited in this failure opinion, counsel appoint at all will from generally appear the judg- ment itself, roll or from an minute accompanying order. But determination of claims of ineffective counsel, assistance of and failure to assure that a guilty was would plea voluntary, require courts to rummage through frequently nonexistent or difficult to obtain state-court or transcripts records that date from may era, another come from one of any the 50 States. pro- of judgments the finality interest promoting *11 conclusion. for our constitutional support
vides additional finality on the conсept explained, “[i]nroads As we have of our proce- in the integrity undermine confidence tend to adminis- orderly and impair inevitably delay dures” and Addonizio, 178, United States 442 U. S. v. tration of justice. Raley, in Parke S. noted We later 184, n. with habeas associated finality that principles force when a defend- least with at equal actions apply corpus for sentencing. used a ant seeks to attack previous is ask- conviction, the defendant the previous By challenging judgment] “to [the] [state-court court deprive district ing an in a that ha[s] and effect proceeding normal force of [its] judg- to overturn the prior other than purpose independent Id., at 30. These principles extra weight bear men[t].” such as one convictions, challenged in which cases because when guilty based on Custis, pleas, are guilty the limi- served by concern with issue, finality is at “the plea United States has force.” special on collateral attack tation omitted). Timmreck, (1979) (footnote 780, U. S. 924(e) doеs not Custis permit § hold that We therefore review of his state forum to gain the federal sentencing use and the Constitu- did not prescribe convictions. Congress the fed- such delay protraction tion does not require however, as did recognize, eral We sentencing process. who 2d, Custis, that see 988 F. of Appeals, Court convictions for of his state was still “in purposes custody” 924(e), attack may sentencing the time of his federal habeas or federal in Maryland through his state sentences Maleng Cook, (1989)., If review. See he sentences, state these is successful attacking Custis sentence en- federal any then apply reopening no opinion the state sentences. We express hanced by an of such application. the appropriate disposition is accordingly The of the Court Appeals judgment
Affirmed. Souter, with whom Justice Justice Blackmun Justice Stevens join, dissenting. answers a difficult constitutional question
I believe the statute does not Because in underlying pose. Armеd Career Criminal Act of my judgment 924(e) does not (ACCA), U. S. C. authorize sentence en- hancement based on a defendant can show at to have been obtained, I unlawfully dissent. respectfully
I
A
The ACCA
minimum sentence
mandatory
to de-
applies
*12
fendants with “three
convictions
previous
...
for a violent
924(e).
or a serious
felony
§
offense.”
18
drug
U. S. C.
The
Court construes
to refer
to the
“convictio[n]”
“fact
conviction,” ante, at 491
in
(emphasis
original),
concludes
did not intend
“Congress
to
collateral
permit
attacks
[during
§
convictions
sentencing]
prior
924(e),”
ante, at 493.1 This
interpretation
ACCA will come as
(with
to the
surprise
Courts of
which
Appeals,
the one
below)
of the court
exception
have understood “convictio[n]”
in the ACCA to mean “lawful conviction,” and have permit-
ted defendants to show at
that a
sentencing
conviction
prior
offered for enhancement was unconstitutionally
obtained,
whether as violative of the
to have
right
appointed counsel,
see Gideon v.
Wainwright,
372
U. S. 335 (1963), the
right
effective assistance of counsel, see Strickland v. Washing-
ton,
Nor Tucker as the Court narrow a Burgett adopts reading 2 Paleo, (Breyer, J.), rehearing See United States v. 7,11-13 C. 967 F. 2d (CA1 1992) denied, 988, (containing discussion 9 F 3d 988-989 additional (CA3 Preston, 81, United States v. statutory issue); 910 F 2d 87-89 (CA6 Taylor, United 1990); 1018, 1989); United States v. 882 F. 2d 1031 (CA7 1990); Gallman, States v. United States v. 639, 907 F. 2d 642-643 Clawson, (CA8 1991); States Day, 949 F 2d United 973, 981-984 v. 831 (CA9 1987) 1202(a)(1) (1982 § 909, (interpreting F 2d 914-915 18 U. S.C. Wicks, 924(e)); 964, United States v. ed.), predecessor 995 F. 2d Ruo, (CA10 United States v. 1993); 1274, 974-979 943 F. 2d 1275-1277 (CA111991). enactment, of the environment ACCA’s In the legal
today. Burgеtt and Tucker broader to stand for the were thought sentenc- can be [at consideration given that “[n]o proposition obtained,” 3 was unconstitutionally that to a conviction ing] §526, Procedure Practice and Federal p. C. Wright, read the decisions consistently and Courts Appeals that convictions claims courts to entertain as requiring for rea- unconstitutional were for enhancement relied upon than Gideon Congress violations.3 other sons be must this backdrop presumed ACCA enacted the against to show at defendants attempt intended to to have permit “unconstitutionally convictions were that prior obtained.” the fact that bolstered strongly
That presumption
of the ACCA
the consistent
interpretation
despite
Congress,
sentencing,
during
attacks
as permitting
times since its enact-
law several
and despite amending
(1988
ed. and
(see
C. 924
Supp.
note
ment
following
un-
relevant here
V)
amendments)),
left the language
(listing
failure to
legislative disagree-
touched.
express
Congrеss’s
cannot
courts’
ACCA
ment with
reading
appellate
has acted in this area in
since Congress
disregarded, especially
decisions that it
to other Courts
thought
Appeals
response
flaws
S.
“correction].”
revealed
Rep.
statutory
requiring
id.,
(1984);
8,
18, 14,
see
and n.
98-583,
7, and n.
No.
p.
Huddleston, also Herman & MacLean 31;
and n.
see
(1983) (“In
of well-established
385-386
375,
ju-
[a]
U. S.
light
de-
dicial
statutory provision], Congress’
[of
interpretation
intact
cision to leave
suggests
[the provision]
Mancusi,
(CA2 1971) (Confron-
See, e.
g., United States
The Court’s second also seeks to es- statutory argument tablish intent congressional through negative implication, but is no more successful. The Court observes that Con- in other gress statutes expressly permitted challenges ante, at 491-493 (cit- convictions see prior during sentencing, 851(c)(2) and 18 ing 3575(e)), S. C. U. S. C. which is said to show that “when intended Congress to authorize col- lateral attacks on convictions at the time of prior sentencing, so,” ante, it knew how to do at 492. But the Court surely does not if that, believe intended to Congress collat- preclude eral attacks on convictions at the time of it prior sentencing, did not know how to do that. And the Court’s effort again, to infér intent from the silence statutory runs afoul of the context of the enactment; statute’s within a framework legal forbidding on the sentencing basis convictions a de- intended to invalid, a show to be fendant can of such convictions can on the basis require its intention explicit. to have made expected Lewis United turns for support the Court Finally, held the federal “felon States, (1980), which U. S. 55 defendant, a his during law does permit in possession” the constitutional validity to challenge prosecution, Lewis, on reliance conviction. Court’s felony predicate two different between equivalence assumes an however, law laws that Lewis itself disclaimed: between a types (at issue from firearms convicted felons possessing disabling based Lewis), sentеnce enhancement law requiring (at Burgett here, issue as well as Tucker). Lewis “felon law that the explained possession” “to firearms away is “a designed keep sweeping prophylaxis” S., at 63, 67, persons,” from potentially dangerous law upon whereas a sentence-enhancement “depend[s] id., conviction,” at 67. While the . . . past reliability of a is irrelevant to the former, unlawfulness past Lewis or in ex- latter, thought it is not to the so the *17 and Tucker: Burgett pressly distinguishing “[enforcement or does not enhance gun disability] ‘support guilt federal [the that the basis of a conviction is unre- ... punishment’ 115). S., (quoting Burgett, S., liable.” 445 U. at 67 389 U. in which “felon in Because of the material way posses- Burgett law, sion” differs from a sentence-enhancement law and Tucker were not of the relevant legal part backdrop in which enacted law against interpreted Lewis, and the Lewis Court could thus that fairly presume “conviction” in the before it was used as shorthand statute S., for “the fact of a at 60, conviction.” 445 U. 67. felоny Lewis itself and Tucker are As Burgett however, recognized, of the which sentence-enhancement part against backdrop enacted, laws are that must against backdrop Congress 924(e) to have used in to mean presumed “conviction” “lawful and to conviction,” have defendants permitted
505 offered for en- that at show obtained. unconstitutionally were hancement II A (the most the if I the ACCA was ambiguous Even thought establish), I re- could would statutory arguments Court’s with favor accordance solve the ambiguity petitioner’s construction of statutory the “‘cardinal principle’” whether a construction of will first ascertain “‘this Court which ques- [a constitutional] the statute is fairly possible by TVA, Ashwander v. 297 288, U. S. tion be avoided.’” Crowell v. Ben- (1936) (Brandéis, J., 348 concurring) (quoting see also Edward J. DeBartolo son, (1932)); 62 Trades Building Florida Coast & Constr. Corp. Gulf NLRB v. Catholic Council, Bishop (1988); 575 S. Blodgett 490, 499-501, (1979); S. Chicago, (1927) (Holmes, J., Holden, concurring U. S. Ashwander result). to be comes into sure, principle, to be avoided is a when the constitutional only question play fits one, easily question difficult but that designation decide, it to requires the Court’s ACCA reading courts to enhance whether the permits Constitution question of a conviction the a defendant’s sentence on the basis in violation of his defendant can show was obtained see Strickland v. Washing- counsel, effective assistance of ton, that the defendant can show was U. S. 668 or see Boy- based on an or involuntary guilty plea, unknowing Alabama, kin U. S.
This ais difficult for one because the lan- thing, question, and Tucker are hard to limit to Burgett guage logic in Gideon v. Wain- claimed violations of the recognized right, *18 wright, to have if a As indi- lawyer appointed necessary. cated the of lower by court decisions uniformity interpreting and Tucker are them, see at 500, and n. supra, Burgett (if best) not read as the broader easily announcing principle a conviction the enhanced not be may a sentence that “ in violation any ‘spe- show was obtained can defendant ” as Tucker a it, that sentence (or, рut federal right’ cific consti- misinformation of upon be “founded part [even] 447) to do would because so S., at tutional magnitude,” to “denied anew” and be underlying right to allow the be Burgett, supra, at 116 (citation erosion,” “suffer serious to supra, Tucker, The Court’s refer- 449. omitted); see also Burgett Tucker discussed the both and ences Gideon the federal “specific that was hardly surprising; (and obtained in viola- record of the conviction the right” of constitutional magnitude”) of it “misinformation tion the in both it The opinions the before invoked. that defendants clear that the discussion moreover, made it cases, quite Burgett Gideon a de- meant limitation. was not supply scribed Gideon as limi- not as but “illustrative the unique on state criminal pro- which the Constitution places tations of its cases it recounted as cedures,” supportive holding and of the confrontation confessions, coerced denials involving S., 114; and seizures, and 389 U. searches illegal right, Tucker “the real before the made it clear that question” have the defendant’s sentence Court was whether might known the if the had that sentencing been different judge convictions had been unconstitution- defendant’s “previous at 448.5 obtained,” S.,U. ally Burgett Tucker stand for the narrow principle notion that In Parke today’s the twice majority escaped describes has Court before. Raley, (1992), rejected argument Court the 506 U. S. the Burgett requires place government during States to the burden prove validity offered enhance Raley Though underlying ment. claim in was the same as one (that guilty plea), claims here resulted an invalid a from Burgett of Gid inapposite involving did not hold as violation Wainwright, Burgett’s ap eon (1963), accepted but rather S., plicability distinguished grounds. the case on different 506 U. See Stephens, Zant at 31. And in S. the Court described Tucker as holding if “sentence must set aside the trial court *19 decisis, Bur- stare of with principles if, consistently
Even class gett to some only and Tucker read as applying could be Strickland of violations claimed to exclude dеfined cases of Boykin, so is them to confine whether the question or Bur- the Ashwander rule. of for purposes answered easily Gid- gett violations of and Tucker claimed with directly deal viola- between eon, for these purposes distinguishing fine and Strickland a very of Gideon would describe tions Amendment of the Sixth a violation establish line. To Strickland, a defendant “counsel’s perform- show that must “the deficient performance deficient,” and was ance so se- errors were in that “counsel’s defense” prejudiced a trial whose trial, a fair the defendant as to deprive rious how see It is hard‘to S., at 687. 466 U. is reliable.” result who has been off than one better is any such a defendant of such the conviction and why counsel altogether, denied if the enhancement sentence be used for may a defendant denied counsel altogether has been of one who conviction for- no mere Amendment guarantees The Sixth not. counsel, cf. “assistance” but mality appointment, supra, Striсkland, (“That who happens person at . . . the accused at trial alongside is to be a lawyer present because the [Sixth Amendment]” to satisfy not enough “ effective assistance to the is the right to counsel ‘the right violation is of Gideon or and whether counsel’”), Strickland, that constitu- has been denied the defendant right. tional that must court awhy difficult to see
It is also ob- conviction was claim that a prior defendant’s entertain a to counsel Amendment’s right in violation Sixth tained claim that a defendant’s need not entertain guilty plea. or involuntary an unknowing was based on magnitude’ such of constitutional part on ‘misinformation relied at least unconstitutionally imposed,” that were prior uncounseled convictions as Tucker, 447), clearly indicating S., S., (quoting n. 23 not limited to Gideon violations. understanding that Tucker was an would mean that the defendant meritorious, if claim, That invalid waivers of at least one two convicted was despite (to trial confront jury Amendment Sixth *20 rights witnesses) of a Fifth Amendment right (against or advеrse self-incrimination). S., 395 See U. Boykin, compulsory to that a sure, no task It to be is, prove guilty 243. simple coer- result of was the “[i]gnorance, incomprehension, plea threats,” inducements, id., subtle or blatant terror, [or] cion, at least a difficult 242-243, but it certainly question who can make such a ought defendant showing whether a than the defendants in treatment receive less favorable to Tucker. and Burgett be- offers a for a line the Court theory drawing
Though
and
have been violated
tween the
claimed
Burgett
here,
claimed
have been violated
and the
Tucker
rights
with
In the
is itself
the Court’s
fraught
difficulty.
theory
the
and Tucker reaches
view,
Court’s
Burgett
principle
to the level of a
“constitutional violations
juris-
ris[ing]
only
the failure to
counsel
from
dictional defect resulting
appoint
Zerbst,
Ante, at
Johnson v.
at all.”
496 (citing
(1938)).
or Tucker
is a distinc-
But nowhere
Burgett
drawn between
“nonjurisdictional”
tion
“jurisdictional”
for
before
a fact
no cause
since
giving
surprise
long
rights,
(1942))
(in
Johnston,
In the devising difficulty very a abandonment, to its that led proceedings not a flaw the to tell whether or standard “jurisdictional leading defect.” counts as beyond ques- concept ‘jurisdiction’ is taken “Once competence with the class of of- to deal tion of the court’s (as prisoner” charged person it must fenses violations) concept “it becomes if the is to reach Gideon Finality in Bator, beacon.” Criminal a less than luminous Corpus Prisoners, Federal Habeas State Law and being ap- Thus, if denied Harv. L. Rev. being why “jurisdictional pointed defect,” counsel is a (treated equivalent in as an Strick- denied effective counsel *21 land)? in violation of the to If a conviction obtained “jurisdictional appointed from a defect” have counsel suffers protect right’s “purpose... is an accused from the to because ignorance legal resulting his own of his from supra, rights,” Zerbst, 465, how constitutional Johnson guilty plea resulting distinguish from a conviction based on a ignorance legal of his and constitutional a defendant’s own futility rights?6 precisely providing It was due to the principled questions answers to these that more than 50 years century Burgett ago, quarter and a of a before finally kissing “[t]he Tucker, Court abandoned the jurisdictional Bator, Meltzer, Mishkin, book.” D. P. & D. P. Shapiro, Hart and The Federal and the Wechsler’s Courts (3d 1988). System Federal nevertheless ed. Court compelled concept “jurisdic- itself to reembrace the finds 6Judge jurisdiction if Friendly suggested convicting that a court lacks process “the criminal itself has down the defendant has not [and] broken guarantees.” Friendly, had the kind of trial the Is Innocence Constitution Judgments, Irrelevant? Collateral Attack on Criminal 38 U. Chi. L. Rev. 142,151 easily Would not this definition cover the Strickland and Boykin sought sentencing? claims Custis to raise at fraught defect,” as it is with difficulties, tional order to question reading constitutional raised answer the its possible,” “fairly the Because it is Ashwander, ACCA. to construe the these S., ACCA avoid difficulties questions the associated with other constitutional and those provides Ashwander rule of discussed, I have the restraint reject the reason to the Court’s construction of sufficient ACCA.
B applies only interpre- lenity, “which The rule of prohibitions, the ambit criminal tations of substantive they impose,” penalties Albernaz United but also to the same con- States, S. drives me to lenity usually Though is invoked when there clusion. legislature particular has criminalized doubt about whether lenity [also] “[the] policy that the means conduct, interpret criminal statute so as to increase a federal will not penalty places it on an individual when such an in- guess terpretation than a as to what can be on no more based Ibid, (internal quotation marks ci- intended.” omitted); States, v. United tation Bell cf.
(1955) (“It may fairly presupposition said to be a of our penal doubts in enforcement of code law resolve punishment”). imposition against a of harsher Because say assurance,” Granderson, I with United States v. “cannot *22 require ante, intended to courts to en- that prior a defendant hance sentences the basis convictions lenity independently re- rule of invalid, can show to be the pre- permit to quires interpreting to defendants the ACCA challenges sentencing judge sentence before to the sent such imposed.
C support “[e]ase to of administration” Court invokes holding. I at 496. doubt that Ante, its constitutional While powerful argument of administrative convenience even Stanley Ashwander rule, cf. suffice to the displace would Illinois, here (1972), the burden argument defendants to one. The burdens allowing is not a strong severe, convictions at are not so sentencing challenge prior than those associated with the al- and are less severe likely avenues for the same claims. raising very ternative than 20 For more as U. S. C. years, required by 851(c)(1) §§ federal courts have entertained claims under the laws that convictions prior during sentencing drug were “obtained in offered for enhancement are “invalid” or Constitution,” the unamended statute re- violation of the that associ- any flecting continuing congressional judgment burdens are and tolerable. For ated administrative justified federal courts have done the same under the decade, almost a supra, see n. without notice ACCA, congressional again burden to relief. See also any judicial thought require Raley, Parke (“In S., at 32 recent state courts years have various convictions” dur- challenges prior permitted this, As the Court sees administra- against ing sentencing). courts tive burdens because arising “sentencing [would nonexistent or dif- rummage through frequently required] or records ficult to obtain state-court transcripts may era, from another come from of the 50 may any date Ante, It would not be courts sentencing States.” 496. but however, that would have to do this defend- rummaging, enhancement, ants to avoid for no one seeking disagrees the burden of showing invalidity would rest on the defendants.
Whatever administrative benefits flow from may insulating courts from convictions will challenges be offset costs likely by administrative alternative means of the same claims. The Court raising acknowledges that an individual still in for a custody state conviction relied for enhancement attack that upon through state or federal habeas review if and, successful, . . “may . federal apply reopening any sentence enhanced *23 Ante, state sentences.” at 497. And the Court does not disturb uniform case law that an individual holding appellate an enhanced sentence invoke federal habeas may serving it to reduce the sentence to the extent was lengthened by a unconstitutional conviction. See J. Liebman & R. prior Hertz, 8.2, Federal Habeas Practice and Procedure Corpus (1993 §8.4, 89, 62-64, 13.2, and n. n. 27 pp. p. Supp.) cases).7 From the of administrabil- (collecting perspective it strikes me as sensible to resolve chal- ity, entirely any to the lawfulness of a the sin- lenges predicate since defendants there gle sentencing proceeding, especially counsel, will be who normally represented by bring efficiency (as benefits). to the well as litigation equitable
Ill I Because cannot has federal agree required courts to enhanced sentences on impose the basis of prior convictions a defendant can show to be in- cоnstitutionally valid, I respectfully dissent. Cook, Maleng v. holding S. 488 that a federal habeas jurisdiction
court has
to entertain a defendant’s attack on a sentence to the
extent
it was
prior, allegedly
enhanced
conviction,
unconstitutional
“expressed]
no view on the
[prior]
extent
to which the
conviction itself
may
subject
challenge
be
upon
in the attack
the ... sentencie] which it
Id.,
was used to
9(a)).
§2254
enhance.”
at 494 (citing 28 U. S. C.
Rule
postdating Maleng
Appeals
Court of
decisions
uniformly
have
read it as
consistent with the view
may
that federal
habeas courts
review
con-
upon
victions relied
grant
sentence
appropriate
enhancement and
re-
Hesse,
See Collins (CA10 1992)
lief.
957 F. 2d
(discussing Ma-
leng
cases).
citing
addition,
In
depending
circumstances,
on writ of comm nobis
may
challenge
available to
conviction relied
upon at sentencing,
Morgan,
see United States
(1954);