Robert R. Cuppett v. Jack R. Duckworth, Superintendent, Indiana State Reformatory

law, claims federal the state-law claim later claims under he cannot question, into sentation lie.” deceived must reinstated. on or was relied that he v. Pension Trust Fund Local Teamsters Cir.1985). (7th 522, 530 F.2d Angelos, 762 v. & also, Corp. Ernst Whin Atari e.g., See (9th Cir.1992); 1025, 1030-31

ney, 981 F.2d Coal-X, Inc., 708 F.2d 1518-

Zobrist Cir.1983). Majeski (10th plaintiffs do risk disclosures that the contend indigestible; buried or

prospectus were they prominent and blunt. contrary, were CUPPETT, R. Petitioner- Robert Bankshares, Sandberg, Inc. Cf. Appellant, — —,—, 2760-61, Associated 115 L.Ed.2d Kubik, Stephens Griffin, & Randall Bank DUCKWORTH,* Superintendent, R. Jack (7th Cir.1993); Inc., 3 F.3d 208 Thompson, Reformatory, Indiana State Tenexco, Inc., 844 Propane, Inc. v. Acme Respondent-Appellee. (7th Cir.1988). 1317, 1322, 1325 Failure F.2d No. 89-1896. things supplemental important to disclose things those not fraud when literature Appeals, United States Court of prospectus. appear Seventh Circuit. Many of final observation. One Argued 1992. June predictions arise out of claims this case example, Reargued En Banc June pass. For not come that did allege that Balcor stated Majeski plaintiffs 8, 1993. Decided Oct. generate reve movies would presales of production half of the movies’ equal to nues

costs, is false. Yet this statement and that prediction nothing but a

the statement expect New World

about how much revenue Only movies. generate preselling

ed omissions of fact can be fraud

statements or Although are intentions and beliefs

ulent. purpose open when are for this “facts” verification, Sandberg, objective —, —,

inability the future does consti to foresee fraud, ap securities laws “[t]he

tute because

proach perspective”. from an ex ante matters DiLeo,

Pommer, F.2d at 623. See If those statements had

F.2d at 627-28. made, defendants basis when

reasonable Wielgos not commit fraud. v. Common

did Co., F.2d

wealth Edison

Cir.1989). vacated, judgments the cases proceedings for further consis-

are remanded opinion. As the district court

tent with this plaintiffs’ claims under state

dismissed the all of their

law because had dismissed Fed.R.App.P. Reformatory. prede- Indiana 43(c)(1). State *Jack R. Duckworth is substituted for cessor, Cohn, Superintendent, L. Edward

H33 Barry (argued), Levenstam Jerold S. Solo- vy, Block, Allen Schlinsog, C. Jenner & Chi- IL, cago, petitioner-appellant. for Schoening, Deputy Gen., Michael A. Atty. Oehrle, Uhl, Wayne Charles R. Deputy E. Atty. (argued), Gen. Litigation, Federal In- dianapolis, IN, respondent-appellee. POSNER, Before Judge, Chief CUMMINGS, BAUER, CUDAHY, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE and ROVNER, Judges. Circuit COFFEY, Judge. Circuit Robert petition Russell filed a corpus a writ of habeas in the district court challenging as unconstitutional the enhance- ment of his robbery Indiana sentence for a conviction. 28 U.S.C. 2254. The enhance- ment, which increased sentence forty years, from ten to was based on a finding that he was habitual offender under Cup- Indiana law. The district court denied pett’s petition. affirm. habeas We attacking him in to assist I. Virginia court denied The West conviction. felony offenses committed Cuppett has May stating Cuppett’s motion on September On states. three different final closed in “that this matter is in a were indicted others he and two to be Virginia of and to allow it West State breaking and for Virginia state court West finality nev- reopened would would mean stealing money and entering into jurisdic- in this a criminal action er attach to later, Cuppett pled days Three laundromat. tion.” entering charged “breaking as and guilty to one month Less than in ... the indictment.” 2, 1984, pro se May Cuppett filed a On later, of one-to-ten sentence he received in post-conviction relief Indiana petition for The imprisonment for this offense. years alia, Cuppett argued, inter state court. guilty-plea the reflects court record of counsel he received ineffective assistance “being and his codefendant hearing Cuppett attorney in the Indiana because his jail by brought of the custody, out were object use appeal did not court and on Bar the the placed and Sheriff before part Virginia of his 1962 West counsel, Court, did not without and were sentence enhance- of the habitual offender this Court to desire counsel post-conviction court The Indiana ment. added). In No represent (emphasis them.” explore Cup- evidentiary hearing an held vember, 1972, guilty in Cuppett was found contention, subsequently pett’s and denied aggravated battery and court of Illinois state finding that Cuppett’s petition, specifically 10, 1981, Cuppett robbery. was On June Cuppett had waived his counsel. again, robbery this time in once convicted upheld Appeals The Indiana Court of tavern, Indiana, drawing a entering a after unpublished opin- memorandum denial it, cocking holding shotgun, sawed-off Indiana, Cuppett v. 502 N.E.2d 503 ion. owner-manager, and of the tavern’s the head (Table). appel- (Ind.App.1986) Indiana over cash. The ordering him to turn his Indiana, gen- “[i]n late court stated that Cuppett ten sentenced state court Indiana alleged invalidity of a rule is that the eral robbery charge. years imprisonment on the felony may challenged not dur- predicate be prior felony Cuppett had convic Since two ing proceedings habitual when offender (in Illinois), Virginia and in tions West judgment prior regular final on its face. also be offender found habitual (1985), Ind., 479 Edwards v. State N.E.2d re Code 35-50-2-8 and under Indiana However, the op. 547.” Mem. at 3. of his of an an enhancement sentence ceived explained, permits a de- court “Indiana law years imprisonment thirty consec additional raise fendant to as a defense in habitual robbery Cup- ten-year his sentence. utive to invalidity proceeding alleged offender ap pett’s affirmed on direct conviction was if he that he those convictions can show Supreme Cup peal by the Indiana Court. represented (Ind.1983). State, pett N.E.2d intelligently representation waived such twenty-two Morgan March almost time these convictions. On conviction, (1982), Ind., years 1088.” after his West State N.E.2d added). (emphasis petitioned the Circuit Court of Mo- Id. The court held Cuppett County, Virginia to his court nongalia West vacate statement West that, “being in grounds judgment on when he roll order that 1962 conviction custody, jail pled brought his guilty, he had not been advised of out [was] placed or that his the Bar to assistance of counsel Sheriff before Court, later used to enhance his without did [was] conviction could appointed by thirty years. Court” indi- sentence desire counsel petition, court and also stat- cated that “was aware denied that, [by representation it. counsel]” ed accordance its waived added). transcript (emphasis “Consequently,” had been made of the Id. no concluded, hearing. regular guilty plea Cuppett then moved court “the record was face, objection appointment [by Cuppett’s court its and an attor-

H35 ney quite properly to the use of the 1962 would conviction] led to such a conclusion.' unavailing.” likely objection have been Id. The Indiana Nor is it any would Cuppett’s request denied have altered the outcome since the court 21,1987 July unpublished a transfer on in an likely would most have denied it.” order. Cuppett appeals the district court’s denial Having potential exhausted his state court petition, arguing of his that he received inef- remedies, Cuppett petition filed a for a writ fective assistance of counsel. corpus of habeas in Indiana federal district November, court in As in his state II. petitions, his central claim was that he Washington, Strickland v.

was denied effective assistance of counsel during appeal his Indiana trial and direct Supreme Court defined the bur attorney’s because of his failure to attack the carry den a defendant must in order to suc validity unpub- of his 1962 conviction. In an cessfully bring an ineffective assistance of January lished order issued the dis- counsel claim: Cuppett’s petition. trict court denied The “First, the began analysis by defendant must show that coun- stating district court its performance Cuppett’s sel’s was during that if “waiver of deficient. This re- counsel quires showing that counsel Virginia burglary hearing” his 1962West made errors so serious that functioning counsel was not valid “then the ineffective assistance of coun- guaranteed as the ‘counsel’ sel and unconstitutional enhancement defendant claims Second, easily Sixth Amendment. resolved” because attor- defendant must that neys incompetent could not show the deficient be deemed for performance prejudiced the failing challenge to defense. This conviction free of error. requires showing that Turning question, counsel’s errors to waiver the district were so deprive serious as to the defen- court stated that the West record trial, dant of a fair a trial Cuppett appeared whose result is reflected that “without reliable. Unless a defendant makes both and did not desire counsel showings, it cannot be said that the convic- represent” to him. Court The dis- ... tion resulted from a “appoint- trict court that the breakdown reasoned word adversary process that renders the result ed” carries with it unreliable.” specific referring judicial “a connotation assignment of cost free counsel to a crimi- Id. at at 2064. This court has Any nal defendant. other use the word held that establish that counsel’s con “[t]o inappropriate in would be the common lan- deficient, duct was the defendant must show record, guage procedure. of trial which, specific counsel’s acts or omissions therefore, indicates that the defendant had perspective viewed from the of counsel at the been informed of his to have an trial, time of fell below the standard of rea attorney notwithstanding inability his professional sonable assistance.” United

pay knowingly intelligently waived Payne, States v. Cir. right. that Thus his conviction was valid 1984) Strickland, (citing 466 U.S. at appropriately and was used to enhance the 2066). S.Ct. at Acts or omissions of counsel petitioner’s robbery sentence.” range professionally are outside the com petent represen assistance when “counsel’s The district court also ruled that the objective tation below an [falls] standard of (sic) appellant “fact that both trial and prevailing profes reasonableness ... under failed raise the invalid waiver Strickland, sional norms.” any professional issue lacks indication of 2064-65. ineffectiveness. The determination his that, cautioned attorneys that the 1962 trial court record attorney perfor- demonstrated valid waiver of counsel was fan1 “[a] assessment of requires every evidence of deficient conduct. Their mance effort be made familiarity language distorting with the of the law to eliminate the effects of hind- Cup- record reflects the West circumstances of

sight, to reconstruct conduct, his pett to evalu- waived challenged counsel’s since proceeding, and guilty plea perspective from counsel’s ate conduct questioning no basis for Cuppett has offered difficulties Because of the at the time. waiver, evaluation, validity his conviction of that making the a court inherent Indiana courts properly by the state strong used indulge presumption must sentence, per- his and his counsel’s enhance the wide conduct within counsel’s falls for ineffective cannot be considered reasonably formance range professional assis- tance; failing challenge its use.1 is, must over- that defendant that, under the cir- presumption come the accept- judge who The West cumstances, ‘might action challenged plea Cuppett’s guilty recounted ed strategy.’ sound trial be considered waived official record tempting a defendant to stat- pleading guilty, all too “[I]t is to counsel before second-guess counsel’s assistance after ing: sentence, and it is adverse all conviction or by the Prose- day “This came the State court, examining easy counsel’s

too defendants, Rob- cuting Attorney and unsuccessful, proved it has defense after Lee War- Russell Robert ert particular act or omission conclude that a nick, custody, brought out of were being unreasonable.” of counsel was by placed the jail and before the Sheriff Court, coun- and without Bar of the were omitted) (citation 689, at 2065 Id. 104 S.Ct. by sel, did not desire counsel added). Prejudice defen- (emphasis to the represent them.” this Court to dant, necessary ato find- second element the assistance, ing added). will found of ineffective (emphasis that, probability only if there is “a reasonable approach to chal Our Circuit’s errors, unprofessional for counsel’s but a con lenges by a defendant to raised proceeding have been result of the would by the viction is similar to the one used 694, Strickland, 104 different.” considering Cup appellate Indiana at 2068. S.Ct. petition. ac We pett’s post-conviction state “ ‘strong presumption’ a of constitution claim is cord Cuppett’s ineffectiveness judicial validity proceedings.” pled al [to] in his assertion that when grounded 862, Ferguson, F.2d 867 States v. 935 not know he had a United guilty 1962 he did — denied, —, (7th Cir.1991), U.S. cert. and therefore did not (cita (1992) 907, L.Ed.2d He 112 S.Ct. 116 807 intelligently right. that main waive omitted). presumption applies even appellate trial tion tains that both his and A transcript. Id. defen constitutionally they in the absence of a ineffective because were proving that prosecution’s bears burden of challenge the use of dant failed to by prior conviction was infected constitution charge plea and in the habitual guilty this Banks, F.2d 964 United States charge against him. hold that al error. offender We concurrence, Judge argues concluding that Judge joins Easterbrook Easterbrook us in Cuppett his habe- his to mount forfeited Cuppett showing meet burden of failed to his challenge. doubts The concurrence also invalid, Virginia was but that his West conviction permitted to have been whether should grounds affirming alternative also offers two to attack wait until his Indiana Cuppett's petition. As re- the denial of habeas conviction, suggests and West above, post-conviction the Indiana counted Sentencing provide a United Guidelines States rejected Cup- courts and the federal district court agree problem. approach We better pett’s challenge because concluded that reasons for sound alternative these well be provided any grounds had not cast Cuppett's affirming court’s the district denial validity doubt of his West convic- validity of the West petition, Virginia but because appropriateness Indiana’s use tion. The squarely presented conviction ques- is the important one which appeal, and is an the issue appeal prompted us this tion which to consider argued parties fully and and briefed banc, en was the focus of attention oral thoroughly the Indiana courts addressed court, argument. question presented we to address choose the federal district Cuppett's conviction. attack on his facts of the case. — (7th Cir.), denied, in prior cert. U.S. knowing conviction was and volun —, (1992); tary transcripts when guilty no plea Boyer, proceedings 931 F.2d United States had been petitioner made. The — (7th Cir.), denied, argument cert. 112 had based Boykin U.S. v. Ala (1991); bama, 238, 242, 116 L.Ed.2d 167 United U.S. Gallman, (7th States v. 907 F.2d 23 L.Ed.2d 274 where the Court denied, Cir.1990), cert. 111 found reversible error when a trial accepted guilty plea defendant’s without Brown, creating affirmatively States showing Cir. record 1990). legal presumptions, plea In the face of knowing voluntary, ambiguities against explicitly must be rights construed held that resulting waiver of party carrying proof. guilty plea the burden of from a presumed cannot be Cf. Chamberlain, Parke, Pennsylvania at—, R.R. v. a silent record. 333, 339, 77 L.Ed. S.Ct. at 523. petitioner’s The Court found (1933) (when supports Boykin evidence two reliance on misplaced inconsis because that inferences, “judgment, tent challenge as a matter of case involved a to a conviction on law, review, go against party upon must whom direct petitioner while Parke the necessity sustaining rests the challenging prior one of these was sepa conviction in a ”). ... inferences defendant can proceeding. “[A] over rate recidivism The Court ex government’s proof conviction, plained come the of a if he musters evidence of that con import Boykin’s presumption “[t]o of inval- Gallman, unconstitutionality.”

viction’s idity very into this different context [of F.2d at 643. would, view, challenges] collateral in our improperly ignore presumption another only recently ap Court has deeply jurisprudence: rooted in our the proved of this allocation of burdens. In ‘presumption — regularity’ of that attaches to U.S. —, Raley, Parke v. 113 S.Ct. judgments, final even question when the (1992), 121 L.Ed.2d 391 the Court considered rights." waiver constitutional Kentucky’s procedures of allowing criminal — challenge prior Parke, defendants to convictions U.S. at 113 S.Ct. at 523 against used “persistent felony added). them under a (emphasis In support pre of this at —, offender” statute. Id. 113 S.Ct. at sumption regularity, of the Court cited John law, Kentucky Zerbst, 519-20. Under when a defen son v. 304 U.S. 58 S.Ct. conviction, challenges previous dant a (1938), the L.Ed. 1461 which held that government judgment lightly “a cannot set aside prove judgment attack,

“must the existence of the corpus. collateral even on habeas rely. attacked, on which it to collaterally intends Once this is judgment When the done, attaches, presumption regularity of presumption court carries with it a of and the defendant, burden shifts to the regularity. defendant to without Where produce counsel, rights evidence that acquiesces his were in- resulting in a trial in fringed procedural irregularity or some oc- his conviction and later seeks release in proceeding. curred the earlier If extraordinary remedy the the of habeas cor- presumption regu- defendant refutes the pus, proof upon the burden of rests him to larity, gov- the burden shifts back to competently the that he establish did not affirmatively ernment intelligently right to show that the un- waive his constitutional derlying judgment in was entered a man- to assistance of Counsel.” did, fact, protect ner that the defen- 468-69, pre- at Id. 58 S.Ct. at 1025. This rights.” dant’s sumption regularity necessarily applies at —, Id. equal 113 S.Ct. at 520. The force to the waiver of counsel rejected argument petitioner the preceded Cuppett’s guilty plea; it that, in Parke proceeding, a recidivism respect a would make little sense to accord less place State could not guilty the initial on to a burden waiver counsel followed conviction, the guilty plea plea likely up defendant to establish that his which was backed overwhelming de- agree evidence that the We with the district court that by such “appointed” convinced that there was no this fendant was word carries with it connota it, challenging tion; than to a conviction point “appoint” attorneys courts do un not may have been gained after what classified paid public less A for from funds. jury aggressively contested trial. as an express defendant does not a “desire” not to after, “appointed” un have counsel until Johnson, pe Parke and Under less, been made that has a he has aware he State, bur Cuppett, not the has the titioner appointed to counsel if he so desires it. establishing that his waiver of counsel den of reason, Lane, 426 For this Smith v. F.2d 767 intelligently not 1962 conviction was his nom., Cir.), cert. sub Lash v. denied made, overcoming presumption thus Smith, 400 U.S. L.Ed.2d constitutionality judicial proceed of state (1970), Nevertheless, help petitioner. is of to no ings. “[pjresum true that Smith, challenged petitioner ing from a silent record is habeas waiver Texas, Burgett impermissible,” Indiana’s use a 1942 conviction his 1948 258, 262, 19 109, 114-15, habitual offender conviction. F.2d (1967), be guilty plea at least as convictions entered alleged Smith his Wainwright, fore Gideon was invalid because had been denied established S.Ct. entry counsel. Id. A from record indigent an defendant’s merely stated that Parke, at —, counsel.2 petitioner “if was asked he wanted an attor “[wjhen at 524. The dissent claims that cause, ney represent him in and the and the conviction occurred before Gideon said defendant stated that he did not want represented by defendant was attorney.” Id. held the service of an We regularity of con presuming then a state properly the district court could unwarranted, it is viction is not entry from record determine this brief Burgett, impermissible! [88 U.S. at 114 petitioner intelligently waived counsel. Burgett 261].” Dissent at 1152. entry, explained, we Id. at 769. record holding. Burgett no such stands contains petitioner “fails show that was advised presuming proposition waiver attorney, employ he was unable impermissible. record is a silent appoint would serve the court would one who 114-15, at 261-62. Nor expense petitioner.” Id. at 768 without exception pre-Gide- Parke create an for does added). (emphasis We continued that regularity presumption to cases the if he “[mjerely asking a defendant ‘wants’ prior discussing In to convictions. accorded attorney to him an is not sufficient inform carefully noted that Burgett, the Parke court any attorney. right a to that he has in record of involved a situation which “the proceeding the did not that the earlier show indigent accused must know “An right waived his to counsel.” defendant had by represented only right to of his Parke, at at 524. if he but must also know that the case at crucial distinction between through procure his own one could Burgett here the waiver bar and that appoint a law- the court would resources in the appears counsel on the face of record yer him.” for court clear statement in an official document. added). in (emphasis Our use Id. at 769 court record states that West especially in “appoint”, of the word by Smith Cuppett appointed “did not desire counsel quoted, just demonstrates excerpt the second represent” this him. The clear determining special significance in wheth- its language of the official court record creates at counsel er a had been offered defendant Cuppett presumption the that was informed expense. In the rec- government contrast right court-appointed had that he Smith, sentencing or- state, entry in paid by that he ord desire counsel right. that he “did not intelligently der records waived that Smith, retroactive, Cuppett had a constitution- and therefore fully Gideon is Kitchens right appointed in 1962. al 28 L.Ed.2d

H39 by appointed” Wainwright, the Court. That is more than nounced Gideon v. (1963) presumption give rise to a that

sufficient indigent right decision to he made the conscious waive his defendants have a to counsel public expense. Cuppett’s after he had been informed arguments to counsel entirely court-appointed speculative. counsel.3 Cuppett of his Neither nor attorney any have adduced evidence that pre All has done to overcome the Virginia in “appoint- West 1962 the word sumption by very language created clear in ed” meaning carried different than it does judgment scribed West today: attorney an named the court and deny roll is to that he was informed of his paid Cuppett.present- state. Nor has counsel; appointed provided he has any pre-Gideon ed Virgi- evidence that self-serving other than his no evidence affida nia courts indigent did not offer defendants support allegation. vit is not nor, representation public expense, more Banks, sufficient to meet his burden. See specifically, himself was not (“self-serving testimony” 964 F.2d at 693 Tellingly, offered counsel. Cup- findings prior does not overcome court’s pett requested evidentiary hearing never obtained); constitutionally conviction was might proved at which he his conten- Ferguson, (describing 935 F.2d at 867 Virginia’s tions about prac- custom and representing “pauci defendant’s affidavit short, petitioner tice in 1962. In ty” light presumption of evidence in made no effort to demonstrate that his asser- despite a valid conviction the fact there was supported tions about his 1962 conviction are transcript recording proceeding); no by anything allegations other than his Boyer, (transcript 931 F.2d at 1205 revealed nearly years mounted for the first time give “explicit” warnings, did not after the fact.4 enhancement still valid be cause evidence that was a “self- Cuppett apparently believes affidavit). serving” burden, enough his affidavit is to meet his but, arguing above, that he has met his repeatedly burden as noted we have held demonstrating self-serving that his conviction is constitu- statements a defendant tionally suspect, Cuppett constitutionally asserts that West that his conviction was infirm “appointed” may in 1962 the word presumption are insufficient to overcome the “paid public regularity not have meant funds” .accorded state convictions. that the of the West This rule makes sense. If a defendant could validity courts at time not have been to offer throw into doubt con indigent representation public by merely filing defendants self-serving viction docu expense. position alleging unconstitutionally He claims that his ment is bol- that it was obtained, guilty plea stered fact that his then the burden would effect be government’s validity entered before the Court an- to establish the States, F.Supp. entry supported by transcript Slaton record a of the not dissent, (N.D.Ill.1973), by readily cited the is also hearing preceded automatically which it is called Slaton, distinguishable. In record the reflected question. into ’ right “waive[d that the defendant had counsel” and to his] briefly argues The dissent also that the word pled guilty. F.Supp. at 1173. "appointed" “paid entry supporting Cuppett’s by Unlike the record does not mean the conviction, the record in Slaton did not any supporting state that state.” Without evidence the al- appointed the defendant was offered counsel. legation "appointed” something that meant dif- ferent in West in 1962 than what it is speculates 4. The dissent that the West commonly jurisdic- assumed to mean other "may” "appoint- not have the used word tions, Cuppett's or that unusual circumstances in accepting Cuppett's guilty plea, ed” when while "appointed" situation that as used demonstrate acknowledging that the court did use the word in special meaning, in his case some had the dis- recording guilty plea. its order the Dissent at argument speculative. sent’s is If these claims obligated rely judgment 1156. We are to any validity, Cuppett required had to submit by describing entered the court what was said. during support long evidence to them his trek any No record evidence casts doubt on the verac- through systems. the and federal court He ity judgment. approach of that The dissent’s apparently would lead to a situation in which a has not. government by proof the tire of on of and convictions. burden counsel prior waivers all chaos, guilty raising Boykin claim that his judicial merely very well create might void, voluntary and plea knowing and was not are considered criminal convictions all frequently they pointing missing that to a record would proves government until the Indiana, scenario, we, government like force the this not. To avoid on the defen- initial burden placed have the expense effort and expend “to considerable is that his conviction to dant demonstrate from to records attempting reconstruct not constitutionally suspect. Cuppett has un- procedures are far-flung States where burden; he not meet has only to this failed the unreliable. To and memories familiar it.5 attempted to meet even carry government that the fails extent staleness or unavaila- Supreme due to the regard in this is its burden Instructive ..., legitimate inter- bility its hypothetical of evidence in Parke of Court’s discussion of- differentially punishing repeat challenge a conviction from est defendant’s light In situations, compromised. fenders is In those jurisdiction. another may positions the defendant and of “the relative explained, defendant Court proceedings, we prosecution in present recidivism actually at the who was witness Parke, say fundamentally unfair that it is cannot proceeding.” earlier production of on a burden place least at 524. The Court reasoned place en- the defendant.” allowing the defendant that Miller, Judge, de- analysis now of "Honorable Lewis H. we find the dissent's 5. We that note ceased; Judge unpersua- invariable law in 1962 Miller followed an the state of quotes charged example, inquiring from Wade practice dissent of of defendants sive. For Skeen, repre- 85 S.E.2d 140 W.Va. were with felonies as to whether Boles, (1955), May by desired, State ex rel. overruled by, ... to which or counsel sented ignores S.E.2d 177 W.Va. replied negative; he inquiry petitioner in the following passage Wade: from distinctly Judge Miller then remembers right of the defendant in "The constitutional petitioner right to counsel advised of by represented case to be a criminal appoint Court to coun- asked if he desired the sel, by numer- considered this been advising petitioner specifically that he was right guaranteed not a ous is occasions. felonies, charged approximately twelve requirement every defendant in a criminal petitioner replied that he did not desire It is represented counsel. case be plead the services wanted demand counsel of a to call for or defendant thereafter, and, were guilty; the indictments pursuant to the call or and to have counsel act demand, Judge explained petitioner by Mil- read and whether the demand made before and, separate pleas upon petitioner's ler entry plea. of a That defendant or after the guilty, were the sentences shown the record may made clear decisions waive imposed.” courts, Court, including as well other of this as excerpts Wade and Boles undermine These It Court of the United States. that it knows what the dissent’s claim to has, course, clear also been made that such courts custom and made, intelligently but an intel- waiver must be to counsel. The dissent in 1962 as ligent imply does defendant waiver Judge exception, practice was the claims Miller's average, knowledge precise, must or even have assertion, however, fails to the rule. This legal question every factual unambiguous language explain the clear and must, however, arise in the case. He entry Cuppett's case. contained docket knowledge intellect and to understand sufficient entry light of the in the court record clerk's consequences appreciate his act Cuppett "did not desire counsel waiver." [him],'’ represent we are con- court to omitted) (citation (emphasis at 847 85 S.E.2d satisfy that he has failed to his burden vinced Thus, added). early appears that as proving invalidity of his conviction. years entry guilty plea seven before invalidity his 1962 con- failed to establish the question, Virginia the courts of the State of West entered before the Indiana court which viction Supreme and followed their own understood sentence, which af- or the Indiana courts his that a court’s mandate defendant's waiver of appeal, or the courts firmed it on direct Indiana right Moreover, intelligently to counsel "must be made.” Boles, post-conviction re- petition his which denied lief, in State ex rel. Post v. 147 W.Va. 26, 697, denied, 699, his the federal district court which denied cert. U.S. 124 S.E.2d 371 833, 57, petition. party A with burden habeas persuasion 83 S.Ct. L.Ed.2d the court loses to meet that burden. if he fails described the usual of a West above, attempt- judge advising Cuppett has not even trial criminal As we said defendants his their to counsel to 1962: ed to meet burden.

H41 — Parke, at —, merits, hearing after a on the fairly 113 S.Ct. 525. and are compromising “legiti Huch, supported by would be Indiana’s We the record.” Lewis differentially punishing (7th Cir.1992).6 670, mate interest re 964 F.2d pre- “This Cuppett peat offenders” were we to allow sumption applies to the factual findings of proof to the shift the burden state of appellate state courts as well as state trial by simply alleging, a scintilla Indiana without courts.” Id. We have held that evidence, supporting “ap the word “the knowing determination of intelli- pointed” appointed by did mean gent inquiry. waiver is a factual We public expense the court at in West findings therefore conclude that of a state pre- in 1962 and that West courts questions court on of whether a defendant not offer Gideon did counsel to rights understood or her indigent speculation defendants. Sheer such intelligently waived them are entitled by presented Cuppett is not sufficient 2254(d) § presumption.” grounds compelling the state of Indiana Director, Corrections, Department Perri investigation to launch an into the state (7th 448, Cir.), 817 F.2d cert. denied sub jurisdiction foreign years ago. the law in a nom., Lane, Perri v. 484 U.S. 108 S.Ct. person in position, the best and with the incentive, L.Ed.2d see also Cain inquiry best to undertake such an Peters, (7th Cir.), 972 F.2d cert. Cuppett. was This he has failed to do. We denied, emphasize in Cuppett this connection that (1992); Lewis, attempted L.Ed.2d 698 964 F.2d never to attack his West at 774- 75; Prison, collaterally after Gideon was de Sotelo v. Indiana State 850 F.2d (which (7th Cir.1988); barely cided five months after 1247 n. 6 Holleman v. Duckworth, pled guilty), right-to-counsel Cir.), but raised his cert. argument post-eonvic denied, for the first time his challenge

tion to his Indiana habitual offend above, As recounted Cuppett’s er conviction. conviction is found, now Indiana state courts as a factual mat thirty-years-old; point over at some ter, convic had waived his justice system tion must become final if the Virginia proceeding. counsel at the West operate in is to an efficient manner. We finding, That evidentiary made after an hear Cuppett’s repeated delays refuse to reward ing, “fairly supported”, 28 U.S.C. challenging by shifting his conviction 2254(d)(8), § by entry Cup- the record proof burden of to the state of Indiana to pett appointed” “did not desire counsel validity, establish its Thus, represent him. “the burden [rests] upon presumption [Cuppett] convincing A to establish operates against second 2254(d), § claim. evidence that the factual Under 28 U.S.C. determination findings pre- “factual of a the state court state court are was erroneous.” 28 U.S.C. 2254(d). § sumed to be correct in a federal habeas has failed to come for corpus proceeding, findings any are made ward with such evidence.7 2254(d) Mata, exceptions explained 6. Section lists several other in Sumner v. presumption correctness accorded state (1981), 2254(d) findings, Cuppett's but none is relevant to petition. "applies to cases in which a state court of competent jurisdiction made 'a determina- 2254(d) argues presump- hearing 7. The dissent that the tion after on the merits of a factual inapplicable tion is here because ''[t]o extent issue.’ It makes no distinction between the findings by waiver of a is tied to factual factual determinations of state trial court and court, appellate the state trial such deference is warranted those of a state court. Nor does it specify any procedural requirements because the trial was there to witness that must given 'hearing the waiver and to assess whether it was knowingly be satisfied for there to be issue,’ intelligently." Dissent at 1153 n. merits of a factual other than that the However, ignores applicant agent this assertion the fact that habeas and the State or its 2254(d) presumption applies equal parties proceeding force and that the state findings appellate to factual courts, made state-court determination be ‘a evidenced obviously finding, opinion, are not able to witness written written or other reli- Lewis, adequate waivers first-hand. 964 F.2d at 671. As able written indicia.’ Section 1142 rejected this court of first instance

III. state’s contention, reasonably ruling compe- that a pre- to overcome the Cuppett has failed accepted the force of lawyer tent would have regularity accorded convictions sumption conviction because grounds ques- no for has offered and thus in the record that “did not notation validity of his tioning the appointed by this Court”. desire counsel Virginia judgment The West conviction. Appeals The Indiana likewise to his waiver his valid documents competent could have that counsel concluded join post-conviction Indiana We counsel. Virgi- against challenging the West decided court in con- and the federal district courts conviction, “Cuppett’s explaining: nia Cuppett’s counsel not inef- cluding that was of his order indicates that he was aware challenge the failing 1962 con- to fective Consequently, the record representation. no indication that because there is viction objection face, its and an regular was suspect. constitutionally The conviction unavailing.” been v. would have Cuppett’s habeas court’s denial district (Table). State, (Ind.App.1986) 502 N.E.2d petition ÍS AFFIRMED. State, relied on The court Smith (Ind.1985), which 864-65 held N.E.2d EASTERBROOK, Judge, Circuit by a accompanied record concurring. op- an showing the defendant declined explains why Cup- persuasively The court portunity have aid be used counsel’s showing not burden of pett has carried his sentencing habitual support as an offend- Virginia conviction is invalid that the West lawyer scarcely er. in this Texas, Burgett under “cause” via the need show inef- mentions join assistance, and I L.Ed.2d understanding no fective doubt Cup- opinion. Although this means that its hope lies his client’s best chance corpus, pett is not entitled to a writ habeas o’erleap order to that we will this obstacle leading other routes same destina- interesting question. two legal Cur- resolve an exploring. are worth try, tion rent deserves credit for nice counsel subject exactly got state courts this right.

I imposed lawyer that his was Cuppett did the court To show not ask deficient, constitutionally Cuppett must es- to examine the validi sentence Indiana performed he well below the tablish that ty of the West conviction. competence profession, and sufficiency norm of appeal he raised on issue State, prejudice. caused Strickland v. Cuppett v. of the evidence. 668, 687, (Ind.1983). Washington, 466 forfeited N.E.2d 298 So (1984). Assis- 80 L.Ed.2d 674 any opportunity to contest his sentence as deficient, may be in the sense that he can tance habitual offender unless establish from, erred, constitutionally for, being without prejudice cause the default. lawyer slips up Even the best Wainwright Sykes, ineffective. (1977). time. the benefit hind- attempted He from time to With lawyer many a lawyer sight, judges see how could by arguing that his rendered to do so assistance, spot, constitutionally differently. inadequate a have acted On explore options, counsel must shortcoming that Mur limited time establishes “cause.” Carrier, Only can. “errors so do seri- ray the best functioning ous that the 91 L.Ed.2d Thus, 546-47, 2254(d) contrary by applies Id. 101 S.Ct at its thus to factual terms courts, 2254(d) assertions, § whether determinations made the court.... dissent’s does appellate court be court or an a trial actually wit- require that the fact finder recog- This interest federalism the waiver issue in order the stat- nessed 2254(d) Congress enacting § re- nized apply. We are presumption to bound ute's quires federal to factual deference courts 2254(d). interpretation of Supreme Court's determinations all state courts.”

H43 persuaded judge If counsel could have the defendant guaranteed the ‘counsel’ look behind the face of the West establish deficient Amendment” the Sixth judgment, he would have encountered the Ibid. performance. Cuppett in the record that “did not notation during Cuppett’s at hand The materials appointed this Court to desire have seemed sentencing in Indiana would not him. hard represent” That makes case mine. The vein for counsel to promising a seeking Burgett. than Because one er regular in all Virginia judgment was burden, judgment upset a bears competent court of a respects —rendered persuade have had to would meeting standards jurisdiction and Indiana’s judge that this notation did not connote an Anyone seeking to attack for enhancement. expense. “appoint Yet offer of counsel at no steep hill to climb. judgment a has a such suggests To ed” such offer. avoid Indeed, pos unclear whether it is it remains implication, have force of this counsel would challenge. Burgett to surmount sible to research the law and the had yes, later answer is but a suggests that the “ap Virginia, trying to ascertain what States, 55, 100 case, 445 U.S. Lewis v. United and, pointed” meant there in if this 1962— (1980), 915, holds that 63 L.Ed.2d 198 S.Ct. insolubly ambiguous, whether the word convic instances even uncounseled certain judge standing before whom the foundation for a may be used as tions appointed would have someone also Scott v. Illi recidivist conviction. See Brady, Cuppett’s Betts v. shoes. Under 1158, nois, 367, 59 L.Ed.2d 99 S.Ct. U.S. 455, 1252, (1942), 86 L.Ed. 1595 (counsel (1979) not essential for misde preceded the rules that which established Hamlin, convictions); Argersinger v. meanor 335, Wainwright, v. 372 U.S. Gideon S.Ct. 32 L.Ed.2d 530 407 U.S. S.Ct. 9 L.Ed.2d counsel had to be Nichols, United States the facts or law were too whenever (6th Cir.1992) (uncounseled mis 414-18 complex for the defendant to handle unassist may be used to enhance demeanor conviction lawyers Judges appoint did not automat ed. crime); States a for a later sentence ically, they leave all defen but neither could (5th Cir.1993) (same). Garcia, 995 F.2d 556 complex How to fend for themselves. dants Henry, 425 U.S. Cf. Middendorf charge against Cuppett? laid What was the (1976). But cf. 47 L.Ed.2d 556 done? a in West would Illinois, Baldosar after sentenc More than decade (1980). recently More 64 L.Ed.2d 169 Indiana, court are ing in members of this ques Supreme Court reserved still question. doing That debating that circumstances, whether, tion and under what elusive, so, speaks finding the answer recidivism defendants to “States must allow component of directly “performance” Raley, prior guilty pleas”. Parke v. challenge lawyer call a incom We do not Strickland. 517, 523, 121 spot failing petent for to address (1992). Cuppett’s 1962 convic L.Ed.2d pla judges with a subject perplexes plea. guilty based on a tion was pointing it worth of law clerks. And toon lawyer get anywhere, Cuppett’s would To again have no reason to out once that we persuade sentencing judge in have had to in 1962 West believe the kind of claim he seeks to Indiana that anything than “appointed” meant other word maintained, Cup- and that present public today: “at ex it means to us what Burgett than to pett’s is closer to situation litigant.” “at no cost to the pense”, or at least Lewis. It is hard to fault counsel direct- Eagan, 203- Duckworth v. Cf. energies do not as- ing elsewhere. We 2875, 2879-80, competence lawyers whether sess the good reason to believe Thus there is navigate seemingly op- they can between Cuppett the free Virginia offered that West posed Court and decisions requires. lawyer that Gideon question argue, successfully, for one side of component of “prejudice” Then there is the years later the Court identified as majority court believes A of this subject mulling over. Strickland. tough need of 1144 concerned, law. is Virginia conviction is invulner So far as the Constitution West

that the prior able, prejudice. be no Once the basis of two felo- there could enhancement on so however, not for trial again, we need decide the mer nies that consolidated and sen- were unfair”; “Prejudice” “fundamentally tencing conclusion. is is Deal not its to reach Indeed, demanding disposes cau any standard than but-for such contention. so more concerned, anof far as is states “The essence ineffective-assis the Constitution sation. may prior unprofessional that counsel’s conduct that claim is enhance sentences tance upset Suppose the adversarial balance be errors so did result in conviction. Indiana prosecution voluntary equiv- trial that the were to confession as tween defense treat unfair and verdict ren alent to a does not was rendered conviction. Voluntariness Morrison, lawyer. suspect.” depend presence Kimmelman v. Courts dered 2574, 2582, regularly 91 106 uncounseled confessions taken use (1986). stations; analysis focussing police guilty pleas in “[A]n solemn L.Ed.2d 305 determination, Cuppett open with solely on mere outcome court are more reliable. guilty plea to whether the result of the never that his was out attention contended indeed, proceeding fundamentally involuntary; unfair or has never he denied Fretwell, unreliable, is defective.” Lockhart that he committed the offense which S.—,—, pleaded guilty. is back So Indiana to three —U. (1993). felonies, prior securely ascertained.1 L.Ed.2d felony three Cuppett has at least convic Cuppett lawyer trial and had a sentenc- preceding the crime he committed ing procedure tions Indiana. The adver- (The three; proved prosecution sarial, we Indiana. none of counsel’s omissions “so more have been do not know whether- could upset de- adversarial balance between disregard the court adduced had decided prosecution fense and that the trial was ren- conviction.) Virginia Disregard the the West dered unfair and the verdict rendered sus- “fun Virginia conviction for now. Is it pect.” escape West Cuppett Thus cannot forfei- damentally give ture, sen unfair” to enhanced quest a writ of habeas prior with two felonies? validity tence to a criminal corpus regard to the fails without years, in Indiana is 30 but The enhancement the 1962 conviction. treat even federal laws defendants

some 924(c) harshly: up to 18 U.S.C. adds more II per prior conviction. Deal v. years See Cuppett preju- If cause and can establish — U.S.—, States, dice, question next is whether (1993). Indiana enhances complies Virginia conviction only if two of convictions sentence Cuppett is entitled to Gideon. It is whether occasions; Cup- if imposed were on different contest that a derivative collat- conviction pett out the knocks eral attack. two, imposed at time in other the same Illinois, purposes Cuppett After decided not suffice for Gideon was would of West corpus the writ of could have asked the courts law. Yet habeas Indiana sentence, E.g., which he was is to enforce state law. set aside his still not a device — Boles, serving. May Taylor, ex rel. See State Gilmore — (1964). — —, 2117-18, He did 124 L.Ed.2d W.Va. 139 S.E.2d McGuire, after his not. he waited until convic- Estelle v. Instead final to tion Indiana had become ask both Indiana and now federal “Prejudice” under Strickland means funda courts of unfairness, courts to Indiana sentence as deriv- not a violation of state treat the mental Ruffin, why prefer Cf. Iow. United States F.2d reason states convictions One (7th Cir.1993). easy prove; obtained with- the former Even convictions confessions is that right, serve out an offer of this no- is convictions be as why permits why Lewis tice is un- as confessions. Another reason function—which contestable special to be the basis felon-in- convictions as counseled convictions states treat penalties possession prosecutions. provide that increased will fol- notice

H45 dissent, invalid, length influ its 92 S.Ct. at 1025: “If atively because does, indeed, If Burgett conviction. plurali enced the West mean what the objected it, ty had opinion reads into we should overrule conviction, then use of the West delay. that decision without As Mr. Justice according Burgett the court would Harlan, himself, Black, for Mr. Justice and ap decide whether that conviction had to White, [dissenting Mr. Justice observed in pears comply Gideon. Notice the ], Burgett ‘We do not sit as a court of errors sentencing”; “appears to qualifications: “at eases_’ U.S., appeals and in state 389 timely comply.” Burgett dealt with a claim Burgett severely [88 264].” 120 S.Ct. at appeal, pursued on and it ad raised Lewis, limited in which held that an uncoun- only challenge to the face of the dressed a may prohibit seled conviction be used to now, get Cup- To relief former conviction. firearm, possession of a and therefore Burgett look pett must ask us to extend —to being in be basis of conviction for a felon judgment, beneath the surface of the possession of a firearm. Lewis means that attack once removed do this on collateral convictions said to invalid under be Gideon courts have rather than direct review. Other ju automatically improper are not bases for E.g., path. to follow such a United declined year dicial action. Within the last the Su (6th French, 687, 974 F.2d 701 States v. preme Rehnquist’s Court relied on Justice Cir.1992). deciding permit whether to 500-01, Loper, in 405 dissent U.S. attack, collateral we must con this derivative C.J., (joined by Burger, at 1027-28 direct col the difference between sider Powell, JJ.), ignoring plural Blackmun & review, increasing lateral a difference that is —Parke, at —, ity’s contrary view. U.S. juris ly important Supreme Court’s 113 S.Ct. at 524. While the — Abrahamson, E.g., prudence. Brecht v. retrenches, push we not forward. should U.S.—, 1710, 113 123 L.Ed.2d 353 S.Ct. Lane, 288, Teague judgments v. 109 in Indirect collateral review of (1989). 1060, L.Ed.2d 334 sentencing S.Ct. 103 for other crimes course creates substantial difficulties for the court. during period in Burgett was decided a prior conviction be The record of the will majority which a of the Justices believed elsewhere, often in another state that has no unending review is waiver —that defending judg continuing interest in its im continuing collateral attack is all but validity Inquiring ment. into the of such do) (only bypass” would possible “deliberate sentencing bogs the trial or convictions down judgments reexamine and that courts should might Delay at hand. and distractions necessary to that no resi whenever ensure prior con of the available evils lesser to remain. Those due of error is allowed only permissible basis for were the victions days gone, defining are and the decisions imposing But when punishment. enhanced E.g., that era have been overruled. Coleman — judges may consider acts that did sentence U.S. —, 2546, Thompson, v. S.Ct. E.g., a McMillan v. not lead to conviction. (1991), overruling Fay L.Ed.2d 640 v. 79, 106 2411, Pennsylvania, 477 S.Ct. U.S. Noia, 822, L.Ed.2d (1986). Sentencing Guide (1963); Keeney Tamayo-Reyes, rules about lines contain elaborate “relevant 118 L.Ed.2d 318 U.S. defendant; against the that counts conduct” Sain, (1992), overruling Townsend v. of this will be the sub almost none conduct 9 L.Ed.2d 770 U.S. Indeed, judge may ject of a conviction. Burgett came in The last extension of prior criminal conduct even take account of Beto, Loper in when four Justices defendant of though jury acquitted (1972), 473, 92 S.Ct. 31 L.Ed.2d 374 E.g., charges these crimes. United based on that a must decide whether a stated Masters, 978 F.2d 285-86 States complies per with Gideon before Fonner, Cir.1992); United States v. mitting impeaching its use in the defendant. (7th Cir.1990). Stationhouse opin 1332-34 Loper majority was decided without a (a of counsel judg without the assistance concurred in the confessions ion fifth Justice ment), to enhance a good grounds on which Burger wrote and Chief Justice judgment standing sentencing if a does sentence, though even confessions even —but conviction, sentencing we count support convictions. Once as a

alone do beyond a reasonable the conduct that led proved court is free to consider see that acts Tucker, trial a full-dress are not to the conviction. States doubt after enhancement, it looks grounds acceptable de- invest substantial resources A

very presaged approach. odd to district particular termining conviction of- whether judge had enhanced a sentence because the stan- indeed meets rendering fered Later the three convictions. developed litigation. full-dress dards courts vacated two of these convictions judgment of conviction based Why should a light of In Tucker the Court con- Gideon. (that is, plea on a guilty confession resentencing cluded order be- court) open legitimate, ground be less prior disap- had cause convictions enhancement, than a confes- stationhouse peared the Court did declare that —but sion? put resentencing judge was to on prior episodes out of mind. Instead criminal Sentencing ap- suggest Guidelines an explained must rethink the that the turning sentencing proach avoids into a prior knowledge that the sentence with con- convictions, prior on all collateral attack mass victions set aside. 404 U.S. at had been finality expedi- preserves and thus both 92 S.Ct. at 592. adjudication assuring while defendants tious protect rights: ample opportunity their ample challenge Defendants have reason judge may a conviction use to increase appeal, their or collater convictions on direct previous- sentence unless that conviction has ally serving while their sentences. The Sen ly Appli- held invalid. U.S.S.G. 4A1.2 been tencing relies approach Commission’s on this (amendment 353, No- cation Note 6 effective likely challenges incentive. Serious to be 1990). The note vember reads: resolved, brought, sentencing before the resulting from

Sentences convictions that for a later offense. Convicts who wait too nobis, have been reversed or vacated because of long try can which is available coram law, subsequently- errors of or because many states.2 This federal courts and exonerating discovered evidence the defen- happened is what in Tucker: defendant Also, dant, to be are not counted. sen- obtained nobis writs of error coram resulting from that a tences convictions convicted, courts he had been which previously to have defendant shows been justified resentencing on these writs the new constitutionally invalid ruled are not to be charge. Mississippi, See also Johnson Nonetheless, counted. criminal con- 578, 108 1981, 100 underlying any duct conviction that is not ample op has Any person convicted history counted in the criminal score portunities Requiring review. de to obtain (Ade- pursuant §to be considered 4A1.3 opportunities, fendants these rather to use History quacy Category). of Criminal tarry indirect than and then launch collateral words, sentencing In for some during a conviction attacks other other “counts” unless offense, It significant benefits. sends reversed or otherwise held invalid has interesting Cuppett began challenge question. Like this route to his 1962 done so is an courts, federal Virginia judgment. after his Virginia West West has abolished coram nobis sentence, 60(b); Indiana Monongalia he asked the Circuit Court of in civil See W.Va.RXiv.P. cf. Fed. cases. County, judg- which rendered the 60(b). Morgan, R.Civ.P. 502, UnitedStates ment, appoint for him so that he could 98 L.Ed. holds that Bypassing question challenge it. whether federal writ remains courts the available in public expense wage available at counsel is cases, criminal has but neither attack, collateral the circuit denied this subject rejected Morgan. The has embraced nor merits, remarking motion on the that "to allow reported up not come decision in a judgment] reopened [the to be would mean that during years. One district court has last 50 finality never attach to a would criminal action Morgan, will follow surmised that West appears jurisdiction.” in this to be an as- (N.D.W.Va. Boles, F.Supp. 49 see Miller v. sertion that West has the writ abolished 1965), never the state’s pursue of error coram nobis. did not way. opportunity decide either had happened the matter. What would have had he

H47 (8th Roman, Cir.1993); courts, United States v. rendering persons (11th Cir.1993) (in banc). Accord, whether F.2d 1117 necessary to determine records Isaacs, requires them It valid or not. States v. 1993 WL is a conviction neces- *2-7, the information promptly, U.S.App. while LEXIS at *5-20 act (and validity (1st 1993) is available sary (unpublished opin to determine Cir. June at least possible, reprosecution ion). while Lowery McCaugh- We observed flawed). simpli- It theory, if the conviction Cir.1992), try, 954 F.2d 423-24 It winnows sentencing process. fies supports clause the full faith and credit claims, excluding made because those Custis, Elliott, may require it. approach and hopes that the defendant Roman, background citing a note to than conviction rather judge will discard the Burgett may Application Note allow that determining its Validi- the labor of undertake require sentencing argu courts to entertain ty- Gideon, but all three courts ments based judgments that remain outstand Honoring Roman, strictly exception.3 E.g., limit the and col opportunity full for direct ing after that the kinds 989 F.2d at 1120: “We believe the constitu not dishonor lateral review does ‘pre cases that can be included in the wishes to make. the defendant tional claims category in num sumptively void’ are small presenting rules for simply It establishes perhaps limited to uncounseled ber and are court, in and claims to the these Tjoflat, Judge concur convictions.” Chief Respecting judgments is the timely fashion. Roman, 1126-29, in ring 989 F.2d conclud full legal culture: the faith norm in our longer Burgett exception is no ed that principles law credit clause and common necessary, adequate light of the alterna respect for judicata combine to make res tive means to set aside invalid convictions. During century judgments the rule. majority judgment in Roman reserved The readjudicate began to issues courts n. I position. Id. at 1120 5. find on this were, been, presented to the or could have compelling. Mangum, rendering E.g., Frank v. court. 309, 582, 59 L.Ed. 969 237 U.S. 35 S.Ct. loudly way. gone court has the other One Johnston, 101, (1915); Whaley Vea-Gonzales, v. 316 U.S. 62 321, 986 F.2d United States v. 964, (1942); v. 86 L.Ed. 1302 Brown (9th Cir.1993), Application Note 6 held 327 Allen, 443, 397, 97 L.Ed. 344 U.S. 73 S.Ct. unconstitutional, stating: “the Constitution (1953). development depends on a 469 given oppor requires that defendants be statute, right. not on constitutional federal collaterally prior convictions tunity to attack Bator, Finality Paul M. in Criminal See also against them at sentenc which will be used Corpus Law and Federal Habeas State requires Arti this? ing.” The Constitution Prisoners, 441, 76 Harv.L.Rev. 463-69 preserves § 2 cle I 9 cl. Constitution (1963). expressly authorizes the No statute “unless when Cases the Great Writ Cup- collateral attack that form derivative may public Safety or Invasion the Rebellion wage. pett wants to pre so require” suspension, but the writ eighteenth-centu the one known served is appeals have concluded Three courts of pre-trial ry England principally the contest limit on collateral chal that the Guidelines’ — person, the power to hold a to the custodian’s lenges during is consistent arbitrary detention prevents device statute and United States both Constitution. (4th Custis, 1355, parte Bollman & Swartw without trial. Ex v. 988 F.2d 1360-63 Cir. (1807); (4 Cranch) 75, Elliott, out, 1993); 2 L.Ed. 554 8 States v. 992 F.2d 853 United Cir.1992). (5th Sentencing Chairman of the appeals The 3. Three other courts of have concluded Commission, Application judicial capacity, Note 6 does not mean what it has disa- in his says, and that courts retain discretion to consider Byrd, greed opinions. United States v. with these on convictions that indirect collateral attacks Cir.1993) J.). (Wilkins, To- 995 F.2d 536 imposition were not held invalid depend under- day’s on the case does not Jakobetz, the new sentence. States v. 955 United standing Application which I refer Note Cir.1992); (2d F.2d 805 United States the source of a distinction Brown, (3d Cir.1993); F.2d 1165-66 991 power § under 2254. exercise of our inform the Canales, States v. 1315 Still, Wall.) (6 the model the McCardle, ceeding 2254. under 73 U.S. parte Ex has devised is Sentencing (1868); Royall, 117 U.S. Commission parte Ex L.Ed. (1886). competing inter- of the accommodation L.Ed. 868 sound alternative, Burgett af- expanding include the does not ests. power thus enshrined inspired overruling of the cases judgments rendered ter the ability reexamine scope of collateral jurisdiction. parte Burgett’s Ex outlook possessing courts Wheat.) in- (7 review, Cuppett had both unjustified. see Kearney, 20 U.S. challenge the Oaks, Corpus opportunity in the Habeas centive H. also Dallin 1776-1865, judgment 244- he committed before 32 U.Chi.L.Rev. States — Having bypassed his (1965). judgments his crime Indiana. review Collateral any enti- has forfeited by Congress, opportunities, he subject to control best accordingly is deploy obliged to their tlement to our review. judges are possible ex maximum existing power to the RIPPLE, concurring. Judge, Circuit Powell, 465, 96 Stone tent. See (1976). Brown L.Ed.2d opinion join judgment I suggest that Constitution did not v. Allen court. relitigate— force creates of its own object spe judicata, although the that res full faith and credit cial solicitude view, claim must fail my petitioner’s clause, govern basic charter of violates the for constitution- prong of the test on the first Williams, ment. Cf. Withrow by the ally inadequate counsel established (1993) 123 L.Ed.2d Washington, Supreme Court Strickland (a statutory judgment, not a prudential 2052, 2064, command, the vindica leads to constitutional Judge Easterbrook As L.Ed.2d review). on collateral tion of Miranda claims concurring part in the first of his has detailed requires a idea that the Constitution that defense simply The cannot said opinion, it be objec- courts’ sentencing judge to reexamine other below “an performance fell counsel’s ninth circuit judgments preposterous. The respect- is I reasonableness.” tive standard of Burgett, than which as support that, no other regard, cited in our dissent- fully suggest this not deal with collateral given I have stressed does heed ing colleagues have not sufficient Post-judgment at- of the sentence. that: review admonition Supreme Court’s statutory authority, is depends on tack performance scrutiny of counsel’s Judicial to attack the Cuppett wants hard to find. all too highly It is must be deferential. serving validity after his sen- of a conviction second-guess tempting a defendant to tence, only yet Congress authorizes review ad- after conviction or counsel’s assistance Maleng custody while the continues. sentence, easy for a and it is all too verse Cook, court, defense after examining counsel’s (1989). objecting to Someone L.Ed.2d unsuccessful, that a to conclude proved has by A of a conviction rendered the use state of counsel was particular act or omission B, by custody B’s convic- after on state unreasonable. ended, seeking a form of coram tion has 2065. 104 S.Ct. at Id. nobis, statutory law rather than a common remedy, to the court that and one confined Lowery judgment. rendered worthy of note this matter is One other (discussing the McCaughtry, 954 F.2d at 423 grant declined to The district court case. writ). custody that is history of that Current probable cause petitioner a certificate satis- longer because of the only appeal proceeded in this case. This § jurisdictional component of fies the granted the of this court because grant compel but it does not the court by the dis- initial denial after its certificate relief. judg- affirm the Although we trict court. merits, we the district court Sentencing ment of

Indiana is not bound only en banc after Guidelines, by a close vote pro- we in this do so and neither are

H49 consideration, alleging that he ineffective relief received procedure reserved attorneys of issues. the most troublesome assistance of counsel when his uncounseled, object to the use of the failed to grant a court to failure of the district pr conviction to enhance his sen- e-Gideon case is probable cause this certificate Today, majority tence. concludes with- tendency in growing symptomatic of the fact-finding out further coun- this circuit to district courts of some of the explicitly sel was not ineffective because has applications, either measure such high inappropriately prejudiced by an stan implicitly, failed to show that he was applying this standard a district representation. respectfully dard. I counsels’ dis- “ require ‘something more ought evidentiary sent and would remand for an ” frivolity,’ absence of than the hearing. Barefoot Estelle, 880, 893, 103 S.Ct. quoting Black 77 L.Ed.2d I. mun, Pauperis Ap of In Forma “Allowance outset, I am the innumer At the struck Cases,” Corpus § peals in 2255 And Habeas hoops Cuppett jumped through in able requisite F.R.D. “ obtain some consideration of his his effort to “good showing higher ‘a one than ” After his conviction and sentence claim. It re requirement of 1915.’ Id. faith” “ affirmed the Indiana were review be ‘de quires that the issue under ” (Ind. State, Court, Cuppett v. 448 N.E.2d 298 among jurists of reason’ and at batable 1983), Cuppett sought a writ of coram nobis in a that a court could resolve least one vacate the to set aside or Barefoot, 463 U.S. at 893 different manner. Virginia court 1962 conviction. The West 4, 103 quoting n. n. S.Ct. at 3395 Gordon relief, (N.D.Ga.1980). Willis, failing give any reason denied the F.Supp. Cuppett filed a motion for the for the denial. great pres- deal of All courts are under appeal perfect appointment of counsel their to remain control of dockets sure request, the court denied the of the issue but filings triage effectively the new devices to stating, “this matter is final and closed found. In the that overwhelm us must be it to and to allow State of West meantime, however, to a we must adhere finality mean that would nev reopened would existing principled application of standards jurisdic to a criminal action case-deciding, case-pro- er attach law and remain day, Cuppett filed another cessing institutions. tion.” That same appointment of counsel motion for CUDAHY, Judge, with whom Circuit the writ. The appeal the court’s denial of ROVNER, BAUER, Circuit FLAUM and Cuppett then sent an official letter join, dissenting. Judges, denying relief. with an enclosed order 10, 1962, in September the Circuit On quoted language of the order as letter Virginia, Monongalia County, “Therefore, finality and stated: concerns nineteen-years Cuppett, old Robert Russell as far Cuppett, proceeded Mr. the Court illiterate, pleaded guilty without the aid consideration possible and further as is breaking entering and felo- of counsel appropri your request is neither realistic nor niously stealing from a laundromat. $16.12 ate.” later, years of Indiana Nineteen the state seeking a West During the time he was support proof of this conviction to submitted pursuing remedy, Cuppett also finding Cuppett was an habitual of- Indiana, arguing that relief in post-conviction with this under Indiana law. Faced fender counsel assistance of he received ineffective uncounseled, pr conviction which e-Gideon failed to appellate when his trial and subsequent offense Cuppett’s sentence for a 1962 conviction at challenge the use of the by thirty years, Cuppett’s would be enhanced proceeding. This relief the habitual offender appellate counsel made no chal- trial and and he in 1985 on the merits was denied lenges this conviction. Subse- to the use of State, Cuppett v. No. 3CR-96- appealed. seeking post-conviction relief quently, after 1985). (Oct. 9, appeals The court of 584-360 and Indiana both West merits, noting court, for denied the relief Cuppett filed this action habeas 1150 the basis ciliary not constitute issues do challenge prior convictions can defendant Indiana, habeas action. his proceeding offender

an habitual challenge the failure to holding claim, there is no the ineffectiveness As to prejudicial conviction the 1962 use of sentence question that the enhanced convic entry of the 1962 the docket because custody” “in serving Cuppett is satisfies voluntarily coun waived reveals that tion Cook, Maleng 490 U.S. v. requirement, (Ind. State, N.E.2d 503 Cuppett 502 v. sel. 1926-27, 492-94, 104 L.Ed.2d (table). petition Cuppett filed a App.1986) Duckworth, (1989); v. Crank appeals which court of rehearing with the denied, (7th Cir.1990), 498 U.S. cert. requesting transfer petition His was denied. S.Ct. was denied on Supreme Court the Indiana Cir. Lowery Young, 887 F.2d Cup- 21,1987, unpublished order. July in an argument be 1989), this raised action this habeas pett then filed exhausted courts and the Indiana state fore Indiana. District of Southern remedies, Lundy, Rose his state (1982), 1198, 71 L.Ed.2d 379 negotiation of Notwithstanding Cuppett’s present to which he course, the last state court Judge East- procedural obstacle this the issue on claim resolved ed this federal suggests that we concurrence erbrook’s merits, Thompson, Coleman v. claim because not review his should 115 L.Ed.2d validity S.Ct. of his 1962 challenge the did not jurisdiction to re have habeas and that we appeal, and therefore has on direct conviction however, alleging inef Amendment claims view Sixth position, forfeited our review. This counsel, regardless of assistance of fective Cuppett’s claim. misapprehends error, underlying attorney Kimmelman that we should court is not claim federal 365, 383, Morrison, as vio- v. Virginia conviction set aside his West (1986) (federal Gideon; 91 L.Ed.2d claim that his nor is his lative of jurisdiction hear inef habeas courts enhancement vio- habitual offender Indiana claims, even of counsel alleg- fective assistance Burgett. Cuppett’s habeas claim lated otherwise involving claims which would those was unconstitutional es that his enhancement Powell, 428 precluded of be under Stone ineffective assistance because he received (1976)). 49 L.Ed.2d Amendment in violation of the Sixth Clearly, Cuppett has not “forfeited” Washington, 466 U.S. Strickland juris Accordingly, problems, I no claim. see otherwise, reviewing petit or dictional claim no doubt subsumes ineffectiveness ion.1 questions, but these an- Burgett and Gideon preclude Virginia's comity, interest in full faith

1. I cannot see how concerns of finality preclude re- would our habeas review. and credit and view, Indiana’s, pre-Gideon conviction. concurrence, moreover, Judge Easterbrook’s course, impor- principle comity, The of serves suggests Credit Clause that the Full Faith and recog- But we must tant interests of federalism. reviewing validity prohibits from Indiana comity is interest in the conviction nize that the (cit at 1147 conviction. Ante the West Indiana’s, Virginia's. Indiana must but West 422, ing Lowery McCaughtry, 423-24 v. 954 F.2d this to assert stand in the shoes of However, (7th Cir.1992)). nothing is there and, thus, comity interest at stake is interest requires a sister state’s Indiana to consider Virgi- only strong as the interest which West enhancing purposes a sentence conviction is, places upon The fact nia however, the conviction. -, Raley, its own. See Parke v. no real further that West has -, 517, 522, (1992) L.Ed.2d 391 113 S.Ct. 121 preserving Cuppett’s there. conviction interest in combatting (noting have in re discretion states Virginia judgment of conviction The West cidivism). Indiana chooses to If the state of against Cuppett, he served his time and enforced enhance its sentences for habitual offenders any judgment; further interest in the satisfied the only upon in accor convictions obtained based quite insubstantial. matter West is Constitution, of the dance with the mandates longer an interest When the state at issue no has compels it to consider conviction, what in the Constitution comity principle mis- is its 1273, Jordan, do not? even those convictions which placed. v. 979 F.2d See Mills sense, finality (7th Cir.1992). I am also mindful of the interests It makes little 1276-77 therefore, on a comity the desire to "close the books” of West and of to invoke on behalf 1151 rejects intelligently II. stands and offer expense. government counsel at See Carn assis- a claim of ineffective To establish Cochran, 506, 516, ley v. 369 U.S. 82 S.Ct. counsel, a defendant must show tance of 890, (1962); Lane, 884, 8 L.Ed.2d 70 Smith v. constitution- attorney’s performance was (7th Cir.), 767 cert. sub 426 F.2d denied deficient, deficiency preju- ally and that this nom., Smith, 874, Lash v. 400 U.S. 91 S.Ct. Strickland, trial. the outcome of the diced (1970). 103, impermissi 27 L.Ed.2d 109 It is 668, 2052; at United at 104 S.Ct. 466 U.S. ble to use a conviction obtained violation of Lane, 798, F.2d Barnard v. 819 ex rel. States to enhance the sentence for another Gideon Cir.1987). (7th performance is Deficient 802 Texas, 109, 115, Burgett v. offense. that falls below the level representation 258, 262, (1967); 88 S.Ct. under all the reasonably effective assistance Tucker, 443, 449, States v. 404 U.S. United professional prevailing circumstances and (1972). 589, 592, 30 L.Ed.2d 592 S.Ct. Strickland, at 466 U.S. norms. Prejudice only if will be found at 2065. S.Ct. majority that the failure to chal- holds that, probability “a reasonable there is lenge pr prej- conviction e-Gideon errors, the result unprofessional counsel’s Cuppett that conviction udicial to because have been differ- proceedings would of the majority’s centerpiece of the was valid. The In at 2068. Id. at 104 S.Ct. ent.” analysis is that bears the burden of evaluating assistance of a claim of ineffective invalidity prior proving the conviction strong presumption we entertain a carry failed to his burden. and that he has motivated counsel’s conduct was however, majority, misinterprets the al- strategy. trial Id. S.Ct. sound proof. location of the burden of require- of these 2065. I will address each ments, failure to beginning with whether the prosecution, the In an habitual offender prejudicial. challenge the conviction was proving prior consti state has the burden of Hope, States tutional convictions. United v. Prejudice A. (7th Cir.1990), denied, 254, 263 cert. 906 F.2d 1640, 113 L.Ed.2d case of v. Wain 499 U.S. In the seminal Gideon (7th (1991); Rees, 715 F.2d 9 L.Ed.2d Marks wright, 372 U.S. Cir.1983). prior of a con that in When the record Court held face, presumption regular on its prosecutions, the Four viction is all state criminal attaches, regularity and the burden then right of of guarantees the teenth Amendment accused, to show that indigent defen shifts to the defendant constitutionally infirm. government have a to counsel dants Cir.), Banks, A of this to States expense. valid waiver — U.S. —, 470, 121 denied, accused under- cert. occurs when the However, enhancing But once sentences. particular convictions for to counsel matter. impor- life into a dormant convic- uniformly the state breathes new considered of such been tion, only appropriate the defendant challenges seems to convictions on tance challenge opportunity to preclud- then have the ground excepted rules should have been Parks, validity. especially conviction’s It would ing 484, 495, review. collateral Saffle unjust deny basis that the defen- review on the 108 L.Ed.2d 415 288, 311, Lane, challenge on direct the conviction Teague dant did not court of a collateral action in the review or in mind, moreover, previously stated that finality two-way when we have my street. conviction doing necessary. Crovedi v. United was not the 1962 convic- so has served his time for Cir.1975) ("we States, 541, (7th 517 F.2d deems the tion and the state of West 1982, any require the cases that there of it is unclear will not "closed.” Prior to matter exhaustion, i.e., attack been an effort at have had to chal- what motivation would con- prior [The] conviction.... pr in the court of lenge validity the e-Gideon conviction. the of obtained, Mills, unconstitutionally is in- ... if But when the viction 979 F.2d at 1277 n. 3. Cf. state of incipiency.”). Given our assurance its the firm from Indiana reaches back for conviction collaterally challenge the that a defendant could attempts pass constitutional for and it off as enhancement, a validity to enhance subse- a conviction used the of purposes it seems to me that of sentence, manifestly state, unfair quent it would be reopening the Cuppett, mat- not is the one course, his claim. he has “forfeited" prior now that question the use of conclude I do not ter. Of Brown, had not presume that the defendant States Cir.1990). possess.” Id. at (7th a he did not waived 677, F.2d 113 S.Ct. at 524. — —, 113 Raley, In Parke is, general, Parke thus indicates upheld this bur 517, Supreme the challeng- require permissible to a defendant respect to a Ken den-shifting scheme enhance- ing prior conviction for the use of felony offender statute. tucky persistent invalidity purposes prove the ment may ultimately that the state The Court held on prior This rule obtains even conviction. invalidity of proving the place the burden of record. But Parke states the face of silent even upon the defendant prior convictions conviction at exception. a crucial When the transcripts convictions lacked prior when the the defen- and issue occurred before Gideon Concluding that proceedings. their of represented then dant was not “[tjhere suspend good the no reason [was] regularity a state conviction presuming the of regularity,” it noted that the presumption of unwarranted, impermissi- but it is is not Alabama, required Boykin v. colloquies 88 S.Ct. at Burgett, 389 U.S. ble! 23 L.Ed.2d 274 instances, Accordingly, in these which 261. (1969), alleged had not the defendant certainly today,2 the does rare burden are nearly a required for given, “have been been defendant, must but the state not shift no reason to quarter-century” and there was validity proving the bear the burden of the defendant was not advised presume that presumption without benefit of the conviction guilty rights pleaded of his when may satisfy its regularity. The state bur- Parke, charges in 1979 and 1981. particular conviction by showing that the den at —, at 523-24. complied with at issue Gideon jurisdiction practice and custom however, carefully holding, In its the Court conviction was question at the time of the Burgett. In deliberately distinguished States v. consistent with Gideon. United Court, relying Burgett, (7th Cir.1990). Dickerson, F.2d absolutely im- Camley, that it was had held sure, validity these now proving the To be of counsel permissible presume waiver challenging. rarely invoked convictions permit convic- record and to from a silent Nonetheless, un- to use an if a state elects support guilt or enhance tion so obtained to counseled, pr conviction to enhance e-Gideon punishment for another offense. The Court (in case, by thirty years) the sentence presuming waiver in Parke indicated that prepared to state must be show impermissible in record was from a silent mandates of complied with the conviction presumption of sort of case because the clearly been the law since Gideon. This has Burgett: “At regularity not attach in did (1967), has not resulted. Burgett and chaos Burgett at issue in prior time the conviction course, ease, the convic- entered, present In the criminal defendants’ fed- prior to tion occurred Gideon right to counsel had eral constitutional by counsel.3 Conse- represented was not yet recognized, and so it was reasonable been cases, chaos, repre were "judicial in all those the defendants majority's 2. The concern void, established that the counsel or it was are considered un- sented all criminal convictions not,” to free coun government proves defendant was informed of his til the intelligently waived the is blatant reducio rhetoric. This sel and he Ante at Moreover, my certainly right. convictions without basis in it seems that the alarmist claim is adopted by position challenged and, thus, the Court in Gideon or in the stance in those cases occurred after government makes clear that the courts Parke. Parke the custom validity prior prove question have to of all uniform. does not were constitutional and convictions, Gallman, pre- only those in which the United States v. specifi- denied, regularity Cir.1990), sumption does cert. attach — pr (1991), cally, convictions. the now rare e-Gideon involved a 1967 represent guilty plea the defendant was in which Boyer, F.2d by majority States v. upon for the ed counsel. United the cases relied denied,-U.S.-, (7th Cir.), cert. position that the defendant bears burden invalid, involved pre- 116 L.Ed.2d proving not recall testified that he could sumption regularity properly a defendant who attached because sel, claim, by not desire counsel contrary majority’s the did quently, them, Cup- showing that represent bears the burden this Court voluntarily knowingly and waived pett According majority, entry proves the this majority contends right to free counsel. right informed of his was CuPPett entry in Virginia court record that the West expense, public counsel at and that he know presumption that “creates the Cuppett’s case ingly voluntarily right.4 and waived this right that he had the Cuppett was informed by supported conclusion is not West This court, that he paid by the to counsel by Gideon Virginia practice prior to or Sev intelligently waived that knowingly and precedent directly point. enth Circuit right.” Ante at Waiver of counsel 1138. however, presumed pre-Gideon, cannot be majority’s My disagreement first To constitute waiv must be established. but interpretation conclusion rests on the of the show, er, must or there must be record “[t]he majority phrase “did not desire.” The states show, that allegation and evidence express does not a ‘de- “[a] defendant counsel but intelli was offered an accused ‘appointed’ to have counsel until sire’ rejected understanding^ the of gently and aware after and unless he has been made Carnley, Anything not waiver.” less is fer. right appointed counsel if he that he has a at 890. The West However, it.” Ante at 1138. so desires entry Cuppett’s conviction Virginia docket Cuppett expressed a entry does not state that states: counsel, simply states desire not to day the Prose- came State “did not desire counsel.” This defendants, cuting Attorney and the Rob- distinction, Virgi- is a crucial for under West Cuppett and Robert Lee War- ert Russell right had a nia law the defendant nick, custody, brought out of being in were all, counsel, only if such counsel was free placed jail by the before Sheriff Court, affirmatively requested the defendant. were without coun- Bar of the indigent, rights the defendant informed of his be sel if whether he had been prac- pleading guilty, waived that and that the custom and and due to the death of the fore question complied with transcript prepared. tice of the courts in con- reporter, no was Brown, counsel, requirements. 899 F.2d at represented by stitutional and failed defendant was steps prove was not informed to take that he rights, having reporter's 1154 465, However, [Gideon, 1962, light 62 Carn Brady, 316 U.S. of Betts In Maxwell, 202, Doughty 1252, ley and 1595 was still 86 L.Ed. (1964) (sum 702, 11 right to counsel in good law. The

considered marily reversing of ha- court’s denial Ohio yet convictions had not been criminal state ground had petitioner beas relief on the Four to defendants under guaranteed counsel) ], request failed assistance III, Article section 14 Amendment. teenth that a state we feel constrained to hold Virginia did en of West of the Constitution on conviction can not when founded stand counsel, right right to but such was sure guilty plea by a of his defendant unaware pur for the privilege.... mere inserted “a right to counsel or a record silent as to abrogating pose of the common-law counsel. the matter assistance of felony, prisoners, accused of under which Therefore, holdings to the extent that the right, and to restrain the denied such were prior precedent] in and statements [our denying from statute.” Legislature are inconsistent or in conflict with this Yoes, 546, 67 68 S.E. 181 W.Va. State opinion, holdings such are overruled and (1910). Virginia Supreme Court of The West disapproved. such statements are although holding that Appeals, never (defendant 177, (1964) with 139 S.E.2d required the clause state to furnish counsel seventh-grade charged grand education if the public expense, that even indicated larceny ultimately and to term of sentenced obliged, of counsel was provision state was so years prison any one to ten was not “in required affirmatively requested unless “ right manner” informed to assistance if clause the defendant: ‘Even said 1962). McKenzie, See also Call v. duty makes it the of the state to furnish (identi- (1975) 191, 159 W.Va. 220 S.E.2d 665 demanded, counsel when it does not follow fying specific questions judge should ask trial such action is to unless demand be taken guilty plea defendant to is know- determine therefor has been made....”’ Wade v. ing, intelligent voluntary). Skeen, 845, 565, 140 W.Va. 85 S.E.2d (1955) Kellison, (quoting State v. 56 W.Va. Virginia statutory concerning the law (1904)). 690, 47 right significantly S.E. See also State did to counsel not differ Boles, ex rel. Post W.Va. In from constitutional law. (the provided Virginia part: S.E.2d to counsel under West Code Virginia right of the West constitution “is the if he The accused shall be allowed counsel a defendant to call or demand defense, desire it to assist him in his pursuant to have counsel call act indictment, copy of the and of the list of denied, demand”), cert. or jurors for his selected or summoned (1962). L.Ed.2d him, trial ... shall be without furnished waived, fee, counsel could be “and the silence of request, upon any his time before accused, request jury impaneled. his failure counsel, assistance of a waiver such 1965). (1931) (repealed 62-3-1 W.Va.Code guaranty.” Briggs, constitutional State v. provision expressly repealed in 1965 W.Va. 52 S.E. part of an overhaul of the West procedure. heels of law of criminal On the Gideon, until Not after did West Code of Gideon precedent. overrule line of pres- Procedure amended to its Criminal Boles, May v. State ex rel. the West provides part: ent form and in relevant Appeals Court of stated: person indictment for a When under We are not unaware of the decisions plead crime indicates that he desires this Court which have held that a waiver of guilty, upon sign called presumed to counsel will be open acknowledging plea court a form counsel, request the failure to a record to the indictment or to such count request silent as to a or the designate. thereof as Be- counts he shall Kellison, entry guilty plea, [citing of a accepting plea guilty, fore Briggs, satisfy Yoes and by interrogation ] Wade itself shall

1155 my right provided to have counsel to assist defen- or his counsel defendant me. copy of the indictment has received dant charges. nature of the copy

and understands I have received a of the indictment counsel, without upon plead. being If the defendant before called It has fully him of his constitutional explained shall advise to me and I court been read or counsel before right charges to the assistance nature of the understand If the defen- indictment. pleading against-me, including penalties that the offer to indigent, the court shall may impose. is an dant plea him. The when appoint counsel for guilty hereby plead I to said indictment part shall become signed and witnessed thereof. and each count plea shall the case. ___ the record of Dated: substantially in the if it is be sufficient Witness: following form:

(Defendant) has waived counsel: If the defendant B. (Clerk) VIRGINIA OF WEST STATE (1992). comparison A W.Va.Code 62-3-la vs. illustrates that it was not of the two statutes No_ Indictment required to until 1965 that a trial express

make an offer of counsel to an indi- (Defendant) Virginia gent under the West defendant Code. my I advised of certify

I have been statutory law demon- The case law to the assistance of constitutional custom West counsel; money employ strate that have no that I must take the was that the defendant counsel; 1962 that I have been offered request counsel.5 Even assum- me; given up initiative and that I have no cost to 525, (1965); ex rel. Robison Virginia prior 142 S.E.2d 62 State right to counsel in West 5. That the (1965); Boles, 516, 142 S.E.2d 55 v. 149 W.Va. comply the mandates of to Gideon did not 359, Boles, Bryan 141 v. 149 W.Va. State ex rel. seriously questioned. that case cannot Boles, (1965); 149 ex rel. Cobb v. S.E.2d 81 State Gideon, years the West Su- after three 377, (1965); rel. 59 State ex W.Va. 141 S.E.2d Appeals no less than 40 preme found 324, Boles, Blankenship W.Va. 141 S.E.2d v. 149 sentences pre-Gideon and enhanced convictions Boles, (1965); Pettery W.Va. v. 149 State ex rel. 68 379, right to counsel. State the defendants’ violated (1965); Whytsell ex rel. 141 S.E.2d 80 State Boles, (1966); 213 v. 151 S.E.2d ex rel. Johnson 324, (1965); Boles, 70 W.Va. 141 S.E.2d v. 149 Boles, 150 S.E.2d 339 ex rel. Ponton v. State 297, Boles, Calloway v. 149 W.Va. ex rel. State Boles, (1966); Wright v. 146 S.E.2d ex rel. State (1965); Kelly v. State ex rel. S.E.2d 624 140 Boles, (1966); Widmyer v. 144 State ex rel. 524 (1965); 303, Boles, S.E.2d 622 149 W.Va. 140 (1965); Browning rel. v. State ex S.E.2d 322 306, Boles, W.Va. 140 Wadkins v. (1965); 149 State ex rel. Boles, (1965); 74 State ex rel. 144 S.E.2d Wolford Boles, v. State ex rel. S.E.2d 620 Stafford (1965); Boles, 73 State ex rel. v. 144 S.E.2d 309, (1965); ex 618 State 140 S.E.2d 149 W.Va. Boles, (1965); 824 State ex v. 143 S.E.2d Curtis 279, Boles, W.Va. 140 S.E.2d v. 149 rel. Jackson (1965); Boles, 821 v. 143 S.E.2d rel. Holstein Boles, (1965); 149 White v. ex rel. 619 State Boles, 820 v. 143 S.E.2d State ex rel. Truman (1965); State ex rel. S.E.2d 591 W.Va. 140 Boles, (1965); v. 143 S.E.2d 467 State ex rel. Hill Boles, Calloway 140 S.E.2d v. 149 W.Va. Boles, (1965); v. 143 S.E.2d State ex rel. Bullett Boles, (1965); Arbraugh 149 v. State ex rel. 463 (1965); King, Owens v. 142 133 State ex rel. (1964); ex rel. 370 State W.Va. 139 S.E.2d (1965); Stapleton v. ex rel. 880 State S.E.2d Boles, S.E.2d Browning W.Va. 139 v. 149 Boles, (1965); State ex rel. 142 S.E.2d 896 Boles, Koz (1964); 149 Stumbo v. ex rel. 263 State (1965); Boles, 769 State ex rel. dron v. 142 S.E.2d (1964); ex rel. 259 State 139 S.E.2d W.Va. Boles, (1965); ex 142 767 State Boles, Walls v. S.E.2d S.E.2d 182 W.Va. 139 Hicklin v. 149 Boles, (1965); Boles, State ex Reed v. S.E.2d (1964); rel. May 149 W.Va. v. State ex rel. (1965); Boles, Nonetheless, majori- S.E.2d 731 State rel. Carver v. 139 S.E.2d (1965); Boles, Dayton v. 142 S.E.2d of West ty ex rel. custom and asserts that the Boles, subject 149 W.Va. to debate because State ex rel. Gosnell in 1962 Boles, (1965); typically County Judge good ex rel. Hall Miller of Roane S.E.2d 465 State (1965); to counsel State ex rel. of their 142 S.E.2d 377 advised defendants W.Va. Boles, I do not share at 1140 n. 5. Lovejoy S.E.2d Ante 149 W.Va. Boles, Waugh W.Va. view State ex rel. attorney and the service of an not want re- Constitution the West ing that crime and the nature of the that he knew counsel to indi- furnish state to quired the thereof, he wanted to penalty and that duty no to make an judge had gents, the trial charge Tak- guilty of Vehicle plead If the defendant counsel. offer of affirmative charged in ing the affidavit. to counsel request failed to Thus, waived.6 was deemed explained that a defendant’s at 768. We Id. Cuppett “did not de- judge’s that assertion properly consid cannot be right to counsel that he was not establish counsel” does sire informed “if the accused was not waived ered and that right to free counsel informed of his though he can not right counsel even of his Rather, right. knowingly waived that 769; pay.” Id. at see also Slaton afford to in the context of state-funded (N.D.Ill. “desire” word States, F.Supp. 1172 Virginia quite in at this time West counsel 1973) (minute stating “Defendants and order not of his Cuppett that did possibly meant and enter right waive to counsel each of them “request” or free coun- own accord “demand” guilty,” found insufficient estab pleas of Thus, certainly not shown has sel. the state intelligent of coun knowing and waiver lish complies with Gideon. that the conviction conviction; thus 1950 conviction in 1950 sel be used to enhance sentence could not majority My disagreement with the second State, conviction); subsequent McDandal significance “ap- the term relates (1979) Ind.App. N.E.2d accept if Even I were to pointed counsel.” (citing approval v. Lane with re Smith show sentencing order as sufficient to versing a conviction which defendant explicitly declined an offer of Cuppett get merely if he “wish[ed] was asked adequate accept I it as an cannot lawyer”). understood he had a demonstration that he expense.7 case, In Smith right to counsel at court present In the the record does Lane, faced a 426 F.2d at this Court that he Cuppett was advised disclose petitioner very court-appointed similar facts. The at the case with entitled to was imprisonment indigent. under expense was sentenced to life if he was The ma- state’s statute, however, reasoning in jority, criminal based relies on the of the Indiana’s habitual court, following “appointed part equates an un- and coun- on a 1942 conviction district counsel”: guilty plea. This held that sel” with “free counseled Court entry following was insuffi- distinguishing state court principal characteristic The knowing intelligent cient to establish a the trial court’s use of the of this cause is waiver of counsel in 1942: “appointed.” legal jargon “ap- word specific refer- pointed” him has a connotation affidavit was read to

[T]he said judicial assignment free attorney, ring to of cost prosecuting and before he en- Any to a criminal defendant. oth- plea advised the State tered his he was inappropriate word be charged crime er use of the would of Indiana the nature of the thereof, language procedure. in the common of trial penalties and the and he wanted record, therefore, cause, indicates that attorney represent him in this The right informed of his that he did defendant had been and the said defendant stated decisions, including judge numerous Wade practice conscientious with the of one itself, light guilty pleas state that the silence of the accused the custom of sheds much standing Apparently Cuppett valid waiver of counsel. of 1962. was not is a the West sign intelligence pre-Gideon Judge County "dumb" was a before Miller. convicted in Roane Virginia. Judge practice Miller was West The fact that the mentioning today sug- even worth gests in 1956 stating 7. There is no affidavit record anomaly. practice If was an that such indigent at the time of the 1962 practice in 1962 the custom and in West However, affirmatively he does conviction. felony of their was to advise defendants brief, indigent original pro he was in his se claim expense pleading government before counsel at guilty, throughout arguments that he has made and the Judge would Miller then the proceedings and federal court habeas his state imply significance. not be of memorable indigent at the time. See that he was Kerner, Haines v. majority of the fact that the 6. The makes much (1972). The State of Indiana and Appeals stated intelligently both have assumed that the district court in Wade that “a waiver must made,” indigent. this statement but it does not reconcile today, notwithstanding it is far from clear from this fact attorney surrounding lar facts and circumstances Second, Cup- if informed even the case, including background, experience, the “appointed” there pett of his to of the accused.” and conduct United that, Cf. pre- to believe is no reason (7th Lowry, 971 F.2d 62 n. 6 States in carried period, “appointed” fact Gideon Cir.1992) (noting defendant’s extensive edu widely connotation that the same understood experience rejecting in cation and business of a uniform today. Given the lack does involuntary claim of waiver of conflict-free Gideon, differing before standard counsel). that at the The record indicates practices would have lent different conviction, Cuppett time of the 1962 was meanings to the term. nineteen-years by no old and illiterate. It is states, however, majority that “courts Cuppett’s po in means certain that someone ‘appoint’ attorneys unless are do not interpret “appointed” sition would to mean at I paid public funds.” Ante charge you poor.” “at no if It is more two situations when this can think of at least nineteen-year-old, per likely that a illiterate First, may may well not be the case. a court “appointed” in the son would not understand defendant, al- the appoint counsel when comfortably person as a familiar same terms immediately indigent, af- though not cannot Johnson, legal jargon. 659 F.2d at with See attorney. In pay for an ford (reversing conviction because defendant Johnson, States v. counsel construed court’s offer Cir.1981), example, the defendant was appointed by to mean counsel court for immediately afford coun- unable to deemed pay). the defendant must sel, pay install- with sufficient income to defray to the court to the cost evidence, ments other it is a far In the absence of appointed, and John- counsel. “Counsel judge’s descrip- leap to infer from the brief deposit the was ordered to son $250.00 pre-Gideon events that the nineteen- tion of pay court -within a week and $100.00 understood and year-old, illiterate defendant paid his [monthly] to the court until he had validly right to counsel. It is waived his attorney’s Id. fees.” decline to take. Con- leap that we should majority’s analysis, use of trary Second, may appoint counsel at a court sentencing in order “appointed” word expense when the defendant defendant’s Cuppett does not establish that may attorney. This be unable to obtain an right to free counsel. waived his un- particularly undesirable or the case securing popular is unsuccessful defendant knowing Cuppett alleges he did not make through his own efforts and the counsel intelligent of his to counsel. waiver provide in order to an appoint must counsel the defendant’s is not a ease which Fur- attorney represent defendant. by no more than his position supported ther, may appoint counsel order a court See, e.g., Fer self-serving own statements. particu- incompetent, immature or assist 867; Boyer, F.2d at at guson, 935 F.2d larly naive defendant. upon relied order 1205. The curt not establish event, by. term Indiana does if in 1962 the any In even intelligent waiver of his knowing meaning it con- made a “appointed” had the same to the likeli- appellate counsel government expense. his trial at the time of his convic a failure to meet the mandates Virginia law hood of thirty- prospect on the defendant of a Gideon. put looming the burden tion addition, of counsel. services request some further year enhancement demanded nineteen-years old and illiterate inquiry into what occurred West Virginia conviction. the West time of at the that this error in 1962. It strong pre with the together These facts calculating sprang from another error of constitutional against the waiver sumption prior con- Cuppett had more than one other Zerbst, Johnson see rights, viction.8 Virgi the West confirm that petitioner has Having concluded not have been admitted should nia conviction satisfy prejudice prong failed to Cuppett’s sentence. Without to enhance majority Strickland analysis, does conviction, prosecution prong. Judge performance address all the elements have established could not however, argues opinion, Easterbrook’s necessary offender enhance for an habitual constitutionally Cuppett’s counsel was not de- “prejudice” prong Cuppett meets the ment. unclear at the time ficient because it was of the Strickland test. collaterally at- whether counsel could B. to enhance a sen- tacked a conviction used Performance wholly unsupport- tence.9 contention discussed, Cuppett strong had a I have As may of the views able. Whatever be said argument under the Sixth meritorious and opinion of Judge in Easterbrook’s contained addition, merely In the date Amendment. proper scope of collateral review and the the Cuppett’s West con- (pre-Gideon) of Burgett light weight repre- to be accorded that he was not and the fact viction Burgett Supreme precedent,10 have alerted both recent Court counsel should sented States, 55, 915, object Virgi- 445 U.S. 63 L.Ed.2d to the West 8. Besides the failure (1980), conviction, expect cannot there information in the and that we therefore nia is other Cuppett's appel- suggesting put trial and much record that counsel at the time to have concurrence, gave attorneys en- According the habitual offender Burgett. late stock in to that They less attention than it deserved. hancement un- that "in certain instances even Lewis held respect substantial errors with made two other -may convictions be used as a founda- counseled felo- offender enhancement. Three the habitual a recidivist Ante at 1138. tion for conviction.” presented jury to the as a basis for the nies were held, however, simply in a that a defendant Lewis conviction: the West habitual offender being possession prosecution for felon But the and two Illinois convictions. conviction prior collaterally challenge the firearm part were of the same two Illinois convictions felony specifically conviction. The Court distin- they episode. Under Indiana law criminal guished Burgett ground the uncoun- that related, regarded so one of the convic- as being felony conviction in Lewis was seled as the basis for a habitual can be used tions subsequent but rath- used to enhance a sentence charge. appellate Neither his trial nor offender impose being a civil firearms er was used to objected to the use of the two Illinois counsel convictions, Lewis, 67, disability. at 100 S.Ct. at 445 U.S. appellate the Indiana court later and stated, ”[e]nforcement 922. And as the Court object proba- recognized the failure through essentially disability civil a criminal error, though supposedly bly since two harmless pun- 'support guilt or enhance sanction does not (including the valid convictions of a conviction that is ishment’ on the basis State, issue) Cuppett v. conviction at remained. Congress’ when broad unreliable one considers Also, (Ind.App.1986). inadver- 502 N.E.2d 503 keeping potentially purpose [of firearms tently the record of the West attached to (quoting Burgett, dangerous persons].’’ Id. jury presented were conviction that was to the 115, 262). absolutely There is U.S. at 88 S.Ct. at prison pertain- conduct records and documents Burgett has been under- no reason to believe that ing escape Nothing in these to an conviction. any way recent decisions. more mined charged in the informa- attached documents was tion, so should not have been before the State, 3CR-96-584-360, Judge opin- Easterbrook's 10.It seems to me that jury. Cuppett No. un- sentencing guide- over-much on the published findings ion relies of fact and conclusions of law 9, 1985). map present crimi- again for and future (Superior Once lines as a road at 2 Ct. Oct. course, objected. possible, attorney jurisprudence. It is neither nal guidelines provide a chart to the will such procedure. and Bur- criminal Gideon suggests course of Judge Easterbrook’s concurrence however, gett, the test of time have stood Burgett doubt Lewis v. United was thrown into

H59 1985, law, proce- the Indiana progeny are still and its recognized in specifically durally challenges predicate felony Supreme Court limited importantly to our Perhaps more Parke. proceedings. offender convictions habitual Btirgett line of cases were inquiry, proper challeng- It held that the avenue alleged ineffectiveness. of the law at the time ing in a direct attack these convictions was Loper v. Burgett, eases such as beyond Even through appeal post-conviction relief Beto, 31 L.Ed.2d State, the court of conviction. Edwards v. Duckworth, (1972), Prophet v. and (Ind.1985). 479 N.E.2d Nonethe- denied, Cir.1978), cert. F.2d less, court concluded that a defendant (1) may challenge predicate if uncounseled con held that an pre- record of the conviction raises the could under Gideon viction unconstitutional sumption that the conviction is constitutional- purposes, impeachment used for not be (2) ly infirmity infirm and the constitutional Tucker, reliability integrity undermines Crovedi, that an which held guilt. the determination of Id. As un conviction unconstitutional uneounseled criterion, second the court noted not be used for could der Gideon integrity of the would indeed determination clearly that the use of suggested purposes, “the defendant was not be undermined when and that impermissible such convictions was represented counsel or Burgett alive and well. principle of representation at intelligently waived such Lane, 426 F.2d at made And Smith felony time of the conviction.” Id. could col abundantly clear that a defendant hand, Boykin the other violations were On laterally challenge a conviction obtained integrity not deemed to undermine a conviction is when such violation Gideon Thus, guilt. Cup- even determination enhance his sentence. used to in an pett’s counsel were to raise the claim reason, if, it was And even for whatever today, permit would Indiana court the court such an at- questionable whether somehow challenge of his uncoun- Cuppett to the use court,11 it was available federal tack was seled, pre-Gideon at his habitual conviction time, today, and still is clear at the proceeding. offender to raise as a permits the defendant Indiana charge offender defense to an habitual expla- has offered no reasonable The state invalidity prior of the conviction why Cuppett’s counsel would fail to nation of predicate grounds that conviction object of the 1962 conviction to the admission In Hall v. in violation of Gideon. obtained trial, forego this why his counsel would State, decided near the time of case however, that appeal. possible, It is issue on ineffectiveness, alleged the Indiana attorneys legitimately some Cuppett’s had that, clear that a stated “it is also objecting to the 1962 strategic reason for not may the assert- raise as defense defendant conviction, though I I am unable to confess invalidity prior [in- of those convictions ed possibility is also the think of one. There guilty plea] he can cluding a 1965Arkansas attorneys actually his told adequately represented the he was not show intelligently his knowingly waived he intelligently knowingly and counsel or Because of these right in 1962. to counsel representation at the time of the such waived outright reverse but possibilities, I would not 507, 405 N.E.2d prior 273 Ind. conviction.” cause to the district remand this would (1980) (citing, among other state course, I evidentiary hearing. Of an State, cases, Morgan v. Burgett). See also attorneys may realize (habitual (Ind.1982) 440 N.E.2d specific conversations difficulty remembering may as defense the offender defendant raise case, they 12-year-old convictions) in this or research (citing invalidity explain their opportunity have an should Burgett). Hall and supra note 1. thirty years. 11. But see It remains to be seen whether guidelines will fare as well. incar journey from freedom to hand in the extent can in the case conduct ceration; right entitles Amendment Sixth it.

remember attorney plays the to an “who the defendant trial is necessary III. role ensure Strickland, 685, 104 S.Ct. 466 U.S. at fair.” ago, Supreme Court stat- Thirty years at 2063. re- reflection “[R]eason ed Gideon: adversary recognize that in our us to quire represented was not justice, any person haled criminal system of guilty to steal- attorney pleaded he when court, lawyer, poor to hire a who is too laundromat, into and the docket ing from a $16.12 a fair trial unless counsel be assured cannot not establish that entry of his conviction does to him.” 372 U.S. provided his intelligently waived he Alabama, Quoting from Powell at 796. Cuppett’s trial and counsel. In Court admonished: challenge the use appellate counsel failed be, many pre-Gideon right to be heard would of the uncounseled “The thirty years. Al- cases, compre- little avail if it did not enhance his sentence three though to counsel the last to be heard counsel. hend the layman place as is intelligent decades has earned as secure Even the and educated conceivable, apparently in the has not been se- and sometimes no skill has small crime, charged Cuppett. respectfully he I dis- law. If cured to Robert science of determining for incapable, generally, of sent. good or whether the indictment is himself unfamiliar with the rules of

bad. He is of counsel Left without the aid

evidence. proper put on trial without a upon incompetent

charge, and convicted

evidence, irrelevant to the is- or evidence He

sue or otherwise inadmissable. lacks knowledge adequately skill and both the SHERMAN, H. a minor and Richard defense, though prepare even he have a Sherman, I. his father and Robert guiding perfect requires one. He hand friend, Plaintiffs-Appellants, next proceedings every step it, though against him. Without he be guilty, danger he faces the of conviction CONSOLIDATED COMMUNITY how to establish because he does not know 21 OF WHEEL SCHOOL DISTRICT innocence.” Stein, TOWNSHIP, Helen Phil ING 344-45, (quoting 287 Id. at 83 S.Ct. at 797 Defendants-Appellees. Pritzker, al., et 45, 68-69, 77 L.Ed. 158 No. 93-1698. (1932)). Gideon, years since Appeals, United States Court recognized right to coun- primacy Circuit. Seventh rights system. sel our adversarial Of Argued Sept. 1993. entitled, to which a criminal defendant is consistently recognized that Court has 25, 1993. Decided Oct. thirty years ago guaranteed to counsel criminal paradigmatic Gideon is the rule of procedure ensuring fair- the “fundamental accuracy proceed- of the criminal

ness and

ing.” Saffle, 494 U.S. at

1264; Teague, Moreover, the Court has held that the having than to counsel means more

attorney at the side to hold his defendant’s such as notes of his testify suggests calling majority that this conclusion his trial counsel to 4. The also transcribed warnings. essentially finding by States a factual the Indiana whether he received his Cir.1991), accept Ferguson, we under F.2d state court which must ce - denied, -, view, however, 2254(d). my question rt. In challenge predominantly, if not to a context is involved waiver plea guilty entirely, question of law: in which defendant represented by counsel and the defendant entry significance of the docket What is the plea voluntarily. not made claimed that post- light pre-Gideon law and transcript pro plea In the absence of a the extent constitutional law? To Gideon federal death, ceedings reporter’s due to the the court findings by waiver is tied to factual the custom and of the court at relied on court, deference is warranted the state trial such guilty plea the time of the in order to show that to witness the trial was there because regular the 1977 conviction was and that the given whether it was the waiver and to assess knowingly text, proving defendant failed to rebut the burden of intelligently. present con- In the Banks, unconstitutionality. Finally, its course, judges re- the Indiana none of challenge guilty plea involved a to a present in viewing purported waiver were allegation based on the defendant’s that he was or, matter, have for that in 1962 represented and that he was not any expertise The state in West law. rights. of his The court informed found, constitutional special competence trial its claim of court loses however, that the state records on his underlying divorced from the when the court is guilty plea repre he was indeed indicated that upon give proceeding simply its and is called counsel, sented and that all was in "normal thirty-year-old opinion significance aof as to the customary proper order.” Thus, entry state’s conviction. docket of another opinions, accept by majority the state courts’ one case in which we need not cited en- challenged guilty whether the docket plea defendant made can review for ourselves waived his try the defendant the aid establishes that without the court noted that right to counsel. the defendant was informed of his to coun-

Notes

notes have an knowingly intelli- the defendant waived his inability pay right. right to counsel. Just because the gently waived that lawyer may have understood (S.D.Ind. Cohn, No. IP87-1184-C Cuppett v. significance “appointed,” term legal 1989). majority’s focus on filed Jan. understanding that is relevant hopelessly “appointed”-leads it as- the word majority’s reasoning to take here. The fails First, “appointed” tray. the word account the command of Johnson v. into informing used the court when have been Zerbst, 1019, 1023, of his to counsel. the defendant (1938): “[W]hether L.Ed. 1461 there summary entry represent a could docket intelligent to counsel been an waiver understanding of his interaction judge’s case, upon particu depend, must in each Cuppett.

Case Details

Case Name: Robert R. Cuppett v. Jack R. Duckworth, Superintendent, Indiana State Reformatory

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 8, 1993

Citation: 8 F.3d 1132

Docket Number: 89-1896

Court Abbreviation: 7th Cir.