Lead Opinion
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
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 enhanсed 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,
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,
The District Court later reversed field and determined that it could not entertain Custis’ challenges to his prior convictions at all. It noted that “[ujnlike 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.”
The Court of Appeals affirmed.
Custis argues that the ACCA should be read to permit defendants to challenge the constitutionality of convictions used for sentencing purpоses. 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)
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 indiсates 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 conviсtions 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
“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,
Our decision in Lewis v. United States,
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 рrior convictions, the Constitution requires that they be allowed. He relies upon our decisions in Burgett v. Texas,
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,
“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 оf these constitutional rights by the trial court would have denied it jurisdiction. See, e. g., Waley v. Johnston,
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.
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).
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 а 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 any one of the 50 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
The judgment of the Court of Appeals is accordingly
Affirmed.
Notes
See, e. g., United States v. Paleo,
Title 18 U. S. C. §922 provides in pertinent part as follows:
“(g) It shall be unlawfiil 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.”
Dissenting Opinion
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 сan 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.
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,
Nor is it likely that Congress’s intent was informed by as narrow a reading of Burgett and Tucker as the Court adopts
That presumption is strongly bolstered by the fact that Congress, despite the consistent interpretation of the ACCA as permitting attacks on prior conviсtions 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 “correction].” 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,
B
The Cоurt 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,
In this case, the “contemporary legal context,” Cannon v. University of Chicago,
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 infér 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 convictiоns a de
Finally, the Court turns for support to Lewis v. United States,
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.”
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,
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
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.
Though the Court offers a theory for drаwing 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,
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 counsеl (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?
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,
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
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,
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
Ill
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.
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”).
See United States v. Paleo,
See, e. g., United States v. Mancusi,
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.
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,
Judge 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?
Maleng v. Cook,