No. 99-9136 

In the Supreme Court of the United States 

EARTHY D. DANIELS, JR., PETITIONER 

v. 

UNITED STATES OF AMERICA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

JAMES K. ROBINSON 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

KATHLEEN A. FELTON 

Attorney 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether a defendant whose sentence was enhanced 
under a federal recidivist provision because of his prior 
state convictions, and whose state convictions have not 
been set aside by any court, may challenge his federal 
sentence under 28 U.S.C. 2255 based on the claim that 
the prior state convictions are constitutionally invalid. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory provisions involved ..................................................... 
2 

Statement ........................................................................................ 3 

Summary of argument .................................................................. 
7 

Argument: 

A federal sentence enhanced by a prior conviction 

that has never been invalidated by any court may 

not be collaterally attacked under 28 U.S.C. 2255 

on grounds that the prior conviction was uncon- 
titutionally obtained .............................................................. 

10 

A. This Court’s decision in Custis established that, 

absent a claim of a Gideon violation, use of a 

facially valid prior conviction to enhance a 

sentence is not unconstitutional ................................. 

12 

B. Core principles governing collateral attack on 

criminal convictions demonstrate that punish- 
ment may be imposed based on a facially valid 

conviction ........................................................................ 16 

C. Important interests in ease of administration 

and promoting the finality of judgments also 

refute petitioner’s claim ............................................... 
19 

D. Petitioner’s other reasons for permitting his 

indirect collateral attack on his prior convic- 
tions are unpersuasive ................................................. 

25 

Conclusion ....................................................................................... 29 

Appendix ......................................................................................... 1a 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

Almendarez-Torres v. United States, 523 U.S. 224 

(1998) ........................................................................................ 18 

Arnold v. United States, 63 F.3d 708 (8th Cir. 

1995) ......................................................................................... 27 

Burgett v. Texas, 389 U.S. 109 (1967) ................................. 

13 

Calderon v. Thompson, 523 U.S. 538 (1998) ................. 

23, 25 

Clawson v. United States, 52 F.3d 806 (9th Cir.), 

cert. denied, 516 U.S. 897 (1995) .................................... 

6 

Contreras v. Schiltgen, 151 F.3d 906 (9th Cir. 

1998) ......................................................................................... 6 

Custis v. United States, 511 U.S. 485 (1994) ............... 

passim 

Edwards v. Carpenter, 120 S. Ct. 1587 (2000) .................. 

17 

Gideon v. Wainwright, 372 U.S. 335 (1963) ................. 

6, 8, 12 

Johnson v. Zerbst, 304 U.S. 458 (1938) .............................. 

14 

Loper v. Beto, 405 U.S. 473 (1972) ...................................... 

24 

Maleng v. Cook, 490 U.S. 488 (1989) .............................. 

27, 28 

McCleskey v. Zant, 499 U.S. 467 (1991) ............................ 

17 

Nichols v. United States, 511 U.S. 738 (1994) .................. 

18 

O’Sullivan v. Boerckel, 526 U.S. 838 (1999) ...................... 

17 

Parke v. Raley, 506 U.S. 20 (1992) .............. 

17, 20, 23, 24, 25 

Petite v. United States, 361 U.S. 529 (1960) ...................... 

4 

Reed v. Farley, 512 U.S. 339 (1994) .................................... 

11 

Ryan v. United States, 214 F.3d 877 (7th Cir. 

2000), petition for cert. pending, No. 00-6554 ......... 

13, 21, 28 

Skok v. Maryland, 760 A.2d 647 (Md. 2000) ..................... 

18 

Strickland v. Washington, 466 U.S. 668 (1984) ................ 

17 

Taylor v. United States, 495 U.S. 575 (1990) .................... 

5 

Teague v. Lane, 489 U.S. 288 (1989) ................................. 

17-18 

Turner v. United States, 183 F.3d 474 (6th Cir. 

1999), cert. denied, 120 S. Ct. 1255 (2000) ......................... 

27 

United States v. Addonizio, 442 U.S. 178 (1979) ......... 11, 16 

V 

Cases—Continued: Page 

United States v. Bacon, 94 F.3d 158 (4th Cir. 

1996) ......................................................................................... 25 

United States v. Clark, 203 F.3d 358 (5th Cir. 2000), 

petition for cert. pending, No. 00-122 ............................ 

24, 27 

United States v. Cox, 83 F.3d 336 (10th Cir. 1996) .......... 

25 

United States v. Frady, 456 U.S. 152 (1982) ................. 

16, 17 

United States v. LaValle, 175 F.3d 1106 (9th Cir. 

1999) ......................................................................................... 25 

United States v. Nichols, 30 F.3d 35 (5th Cir. 1994) ....... 

25 

United States v. Pettiford, 101 F.3d 199 (1st Cir. 

1996) ......................................................................................... 25 

United States v. Talley, 16 F.3d 972 (8th Cir. 1994) ....... 

22 

United States v. Timmreck, 441 U.S. 780 (1979) ............. 

23 

United States v. Tucker, 404 U.S. 443 (1972) ............... 

13, 14 

United States v. Walker, 198 F.3d 813 (11th Cir. 

1999) ......................................................................................... 25 

Constitution and statutes: 

U.S. Const.: 

Art. IV: 

§ 1 (Full Faith and Credit Clause) ................................. 

25 

Amend. IV .................................................................... 

6, 15, 20 

Armed Career Criminal Act of 1984: 

18 U.S.C. 924(e) ........................................................... 

3, 7, 10, 11 

18 U.S.C. 924(e)(1) ................................................................. 

2-3 

18 U.S.C. 922(g) ......................................................................... 

2, 5 

18 U.S.C. 922(g)(1) ............................................................ 

2, 3, 4, 5 

18 U.S.C. 924(a)(2) .................................................................... 

2 

28 U.S.C. 1738 ............................................................................ 

25 

28 U.S.C. 2244 ............................................................................ 

21 

28 U.S.C. 2244(d) ....................................................................... 

21 

28 U.S.C. 2244(d)(1)(B) (Supp. IV 1998) ............................... 

21 

28 U.S.C. 2244(d)(1)(C) (Supp. IV 1998) ............................... 

21 

28 U.S.C. 2244(d)(1)(D) (Supp. IV 1998) ............................... 

21 

28 U.S.C. 2244(d)(2) (Supp. IV 1998) ..................................... 

21 

28 U.S.C. 2254 .................................................. 9, 21, 22, 23, 25, 28 

VI 

Statutes—Continued: Page 

28 U.S.C. 2255 ...................................................................... 

passim 

28 U.S.C. 2255 (Supp. IV 1998) .......................................... 

18, 21 

Miscellaneous: 

Morgan Prickett, The Writ of Error Coram Nobis in 

California, 30 Santa Clara L. Rev. 1 (1990) .................... 

18 

United States Attorneys’ Manual (Sept. 1997) ................... 4 

In the Supreme Court of the United States 

No. 99-9136 

EARTHY D. DANIELS, JR., PETITIONER 

v. 

UNITED STATES OF AMERICA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

OPINIONS BELOW 

The opinion of the court of appeals affirming the 
district court’s denial of petitioner’s motion under 28 
U.S.C. 2255 (App., infra, 1a-5a1) is reported at 195 F.3d 
501. The opinion of the court of appeals affirming 
petitioner’s conviction is unpublished, but the decision 
is noted at 86 F.3d 1164 (Table). 

JURISDICTION 

The judgment of the court of appeals was entered on 
October 21, 1999. A petition for rehearing was denied 

1 The opinion of the court of appeals was not reprinted in the 
joint appendix. Accordingly, we have reprinted it as an appendix 
to this brief. 

(1) 

2 

on January 13, 2000. The petition for a writ of 
certiorari was filed on April 12, 2000, and was granted 
on September 8, 2000. The jurisdiction of this Court 
rests on 28 U.S.C. 1254(1). 

STATUTORY PROVISIONS INVOLVED 

18 U.S.C. 922 provides in pertinent part: 

(g) It shall be unlawful for any person — 

(1) who has been convicted in any court of, a 
crime punishable by imprisonment for a term 
exceeding one year; 

* * * * * 

to ship or transport in interstate or foreign com- 
merce, or possess in or affecting commerce, any fire- 
arm or ammunition; or to receive any firearm or am- 
munition which has been shipped or transported in 
interstate or foreign commerce. 

18 U.S.C. 924(a)(2) provides in pertinent part: 

Whoever knowingly violates subsection * * * 
(g) * * * of section 922 shall be fined as provided 
in this title, imprisoned not more than 10 years, or 
both. 

18 U.S.C. 924(e)(1) provides: 

In the case of a person who violates section 922(g) 
of this title and has three previous convictions by 
any court referred to in section 922(g)(1) of this title 
for a violent felony or a serious drug offense, or 
both, committed on occasions different from one 
another, such person shall be fined not more than 
$25,000 and imprisoned not less than fifteen years, 
and, notwithstanding any other provision of law, the 

3 

court shall not suspend the sentence of, or grant a 
probationary sentence to, such person with respect 
to the conviction under section 922(g). 

28 U.S.C. 2255 provides in relevant part: 

A prisoner in custody under sentence of a court 
established by Act of Congress claiming the right to 
be released upon the ground that the sentence was 
imposed in violation of the Constitution or laws of 
the United States, or that the court was without 
jurisdiction to impose such sentence, or that the 
sentence was in excess of the maximum authorized 
by law, or is otherwise subject to collateral attack, 
may move the court which imposed the sentence to 
vacate, set aside or correct the sentence. 

* * * * * 

STATEMENT 

Following a jury trial in the United States District 
Court for the Central District of California, petitioner 
was convicted on one count of possession of a 
firearm by a convicted felon, in violation of 18 U.S.C. 
922(g)(1). He was sentenced, pursuant to the Armed 
Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e), 
to 176 months’ imprisonment. The court of appeals 
affirmed, 86 F.3d 1164 (1996) (Table), and this Court 
denied review. 519 U.S. 1094 (1997). Petitioner then 
filed a motion under 28 U.S.C. 2255 to set aside his sen- 
tence, arguing that two of the four prior state convic- 
tions that were used to enhance his federal sentence 
were invalid. The district court denied the motion. The 
court of appeals affirmed. App., infra, 1a-5a. 

1. In the early morning hours of October 11, 1992, 
police officers approached an apartment building where 

4 

drug activity was known to be common. J.A. 2; Tr. 32- 
33, 44-45, 54. When two officers drove up to the front of 
the building, they saw several people standing there, 
one of whom fled as soon as the officers stopped and 
opened the doors of the car. Tr. 32-34. The officers 
pursued the fleeing man—later identified as petitioner 
Daniels—and called out “Stop. Police” several times. 
The man did not stop, but ran along the side of the 
building and ducked through a hole in a fence. Tr. 9-13, 
35-36. Two other officers were on the other side of the 
fence, in the alley behind the apartment building. In the 
light from flashlights they were holding, three of the 
officers saw the man as he came through the fence with 
a gun in his hand. Tr. 12-13, 49, 63-64. One officer called 
out to the man to stop and drop the gun. Petitioner 
dropped the gun, and the officers arrested him. Tr. 43- 

50. 
Petitioner pleaded guilty to a state charge of pos- 
session of a firearm by a convicted felon and was sen- 
tenced to 16 months’ imprisonment. State authorities 
referred the case to the United States Attorney’s Office 
because petitioner fit the criteria for a career offender 
under the ACCA.2 United States v. Daniels, No. 95- 
50044, 1996 WL 292231, at *1 (9th Cir. June 3, 1996) (86 
F.3d 1164 (Table)). A federal grand jury then charged 
petitioner with possession of a firearm by a convicted 
felon, in violation of 18 U.S.C. 922(g)(1). J.A. 2-3. The 
government sought an enhanced sentence pursuant to 

2 Federal prosecutors obtained a waiver of the Petite policy 
(see Petite v. United States, 361 U.S. 529 (1960)), under which the 
Department of Justice generally refrains from bringing a succes- 
sive prosecution after a state prosecution for substantially the 
same acts or transactions. See United States Attorneys’ Manual 
§ 9-2.031 (Sept. 1997). 

5 

the ACCA, which requires a fifteen-year mandatory 
minimum term of imprisonment for any person who 
violates 18 U.S.C. 922(g) and who has three previous 
convictions for a violent felony or serious drug offense 
or both. J.A. 4-5. 

In April 1994, a jury found petitioner guilty of 
violating Section 922(g)(1). J.A. 58. He was sentenced 
on January 11, 1995. The district court determined that 
petitioner was subject to sentencing under the ACCA 
because he had four qualifying predicate convictions 
from state courts in California: two for robbery and two 
for burglary. J.A. 13-18; Gov’t C.A. Br. 2-3. Petitioner 
appealed, arguing that his two California burglary 
convictions were not qualifying ACCA predicates. The 
court of appeals rejected that argument, holding that 
petitioner’s burglary convictions satisfied the test set 
forth in Taylor v. United States, 495 U.S. 575 (1990). 
Daniels, 1996 WL 292231, at *3-*4. On January 21, 
1997, this Court denied a petition for a writ of certio- 
rari. 519 U.S. 1094. 

2. On January 16, 1998, petitioner filed a motion 
under 28 U.S.C. 2255, in which he challenged his federal 
ACCA sentence. He claimed that the two California 
robbery convictions used to enhance his federal 
sentence were unconstitutionally obtained. J.A. 20-57. 
Petitioner’s motion did not state whether he had 
previously challenged the validity of either of those 
convictions in state court or on federal habeas corpus. 
Ibid. 

Petitioner alleged that the first robbery conviction, 
which dated from 1978, was unconstitutionally obtained 
because his guilty plea was not intelligent and 
voluntary. According to petitioner, the only basis for 
his liability was aiding and abetting the robbery, and he 
did not know at the time of his guilty plea that he could 

6 

be convicted as an aider and abetter only if he inten- 
tionally assisted the commission of the crime. J.A. 37- 

40. Petitioner’s counsel stated that the transcript of the 
proceeding at which petitioner pleaded guilty to the 
1978 robbery is not available. J.A. 38 n.3. 

Petitioner alleged that the second robbery conviction, 
which dated from 1981, was unconstitutionally obtained 
for two reasons. First, as with his 1978 conviction, 
petitioner claimed that his guilty plea was not 
intelligent and voluntary. Second, petitioner claimed 
that his counsel for the 1981 conviction rendered 
ineffective assistance by failing to move to suppress a 
statement made by petitioner following an arrest that 
allegedly violated the Fourth Amendment. J.A. 40-51. 
Petitioner did not tender the transcript of the proceed- 
ing at which petitioner pleaded guilty to the 1981 
robbery, and it is not in the record in this case. 

3. The district court denied petitioner’s motion 
under Section 2255 in a written opinion, holding that 
petitioner was precluded from collaterally attacking his 
expired state convictions in Section 2255 proceedings. 
J.A. 58-67. The district court relied on this Court’s 
decision in Custis v. United States, 511 U.S. 485 (1994), 
and on later Ninth Circuit decisions applying the ration- 
ale of Custis to Section 2255 motions. J.A. 60-66. 
Custis holds that a federal defendant may not bring a 
collateral attack at his ACCA sentencing to the validity 
of prior state convictions used to enhance the ACCA 
sentence, with the sole exception of a claim that his 
prior conviction was obtained in violation of his right to 
counsel under Gideon v. Wainwright, 372 U.S. 335 
(1963). As the district court noted, in Clawson v. 
United States, 52 F.3d 806, 809 (9th Cir.) (per curiam), 
cert. denied, 516 U.S. 897 (1995), and Contreras v. 
Schiltgen, 151 F.3d 906, 907 (9th Cir. 1998), the Ninth 

7 

Circuit applied Custis to preclude attacks on prior state 
convictions made through the vehicle of a Section 2255 
challenge to the federal ACCA sentence. J.A. 64-66. 

4. The court of appeals affirmed, reiterating its 
holdings in Clawson and Contreras that “[i]n § 2255 
proceedings, Custis bars federal habeas review of the 
validity of a prior conviction used for federal sentencing 
enhancement unless the petitioner raises a Gideon 
claim.” App., infra, 5a (internal quotation marks 
omitted). The court found that the rationale of Custis 
extends both to sentencing proceedings in general and 
to collateral challenges to recidivist sentences based on 
alleged defects in the prior conviction. Id. at 3a. 

SUMMARY OF ARGUMENT 

In Custis v. United States, 511 U.S. 485, 487 (1994), 
this Court held that “a defendant has no * * * right 
(with the sole exception of convictions obtained in 
violation of the right to counsel) to collaterally attack 
prior convictions” used to enhance a federal sentence. 
Custis involved a defendant’s attempt to challenge 
prior convictions at his federal sentencing proceeding. 
But the principles of Custis apply with equal force in 
this Section 2255 case, in which petitioner, like the 
defendant in Custis, seeks to collaterally attack his fed- 
eral sentence on the ground that prior convictions used 
to enhance that sentence were unconstitutionally ob- 
tained. 

Neither the statute under which petitioner was sen- 
tenced, 18 U.S.C. 924(e), nor any other federal statute 
or rule provides a basis for permitting the collateral 
attack he seeks to mount. Accordingly, petitioner may 
mount his challenge only if it would violate the Con- 
stitution to enhance a sentence based on a facially valid 
prior conviction that a defendant claims was uncon- 

8 

stitutionally obtained. But the Court in Custis ex- 
pressly rejected a similar claim by the defendant in that 
case that the Constitution required that the sentencing 
court permit his attack on his prior convictions. The 
Court in Custis did recognize a single exception from 
that rule—convictions assertedly obtained in violation 
of the right to counsel recognized in Gideon v. Wain- 
wright, 372 U.S. 335 (1963). But the Court explained 
that exception as based on the unique features of the 
Gideon rule. The exception is therefore of no use to 
petitioner, who (like the defendant in Custis) presents 
no Gideon claim. 

The Custis holding necessarily applies when a defen- 
dant attempts to make a post-conviction collateral 
attack on an enhanced sentence. If the Constitution 
prohibited enhancing a defendant’s sentence based on 
facially valid but assertedly unconstitutional prior 
convictions, it would do so not merely on collateral 
attack, but at sentencing as well. Indeed, there could 
be no reason to prohibit claims like petitioner’s at sen- 
tencing, but to require courts to adjudicate those claims 
a day—or even an hour—after the sentencing proceed- 
ings have been completed. Basic principles that have 
long governed federal collateral review of criminal 
convictions make clear that a defendant does not have 
greater rights to attack his conviction on collateral 
attack than he would have had on direct review. 

The concerns that supported this Court’s decision in 
Custis also fully apply in this case. The Court in Custis 
noted that permitting challenges to enhanced sentences 
based on the fact that the prior enhancing convictions 
were unconstitutionally obtained would require locating 
court records and witnesses from other jurisdictions 
regarding cases that had become final years—or even, 
as here, decades—earlier. Those difficulties are at least 

9 

as serious in a collateral attack (like petitioner’s) as in a 
challenge made at the sentencing proceeding itself (as 
in Custis). Indeed, permitting challenges like those 
petitioner attempts to bring threatens to provide a way 
for defendants to circumvent the statutory one-year 
limitations period that would apply to their prior 
convictions if they attempted to challenge them directly 
under Section 2254 or 2255. 

The Court in Custis also recognized that the defen- 
dant’s attack on the validity of facially valid prior 
convictions in a sentencing proceeding for a later crime 
implicated powerful interests in the finality of criminal 
convictions. Those same interests are implicated here, 
since petitioner, like the defendant in Custis, attempts 
to challenge convictions that had long since become 
final. Moreover, in both cases, the fact that the State 
whose convictions are at issue is not even a party to the 
federal proceedings makes fair adjudication of the claim 
particularly difficult, and it makes invalidation of the 
conviction a particular affront to finality interests. 

Finally, petitioner attempts to rely on appellate 
decisions that have permitted a Section 2255 challenge 
to an enhanced sentence when the defendant has al- 
ready obtained the invalidation of his prior convictions 
in state court proceedings or federal habeas. Those 
decisions, however, do not support petitioner’s claim 
here, because petitioner’s prior convictions remain 
facially valid. Petitioner also argues that he should be 
permitted to challenge the constitutionality of his prior 
convictions in his Section 2255 proceeding because he is 
no longer “in custody” on those convictions and it is 
therefore too late to mount a state or federal collateral 
attack on them. Petitioner’s argument once again chal- 
lenges the rationale of Custis. If petitioner’s argument 
were accepted, there would be no reason to prevent him 

10 

from mounting his challenge in the sentencing court; it 
would serve no purpose to require him to wait to attack 
his enhanced sentence in a Section 2255 motion. More 
fundamentally, petitioner may not obtain greater rights 
to challenge the validity of his prior convictions simply 
by letting a significant period of time pass and thereby 
losing the opportunity he once had, under state and 
federal habeas provisions, to mount such a challenge. 

ARGUMENT 

A FEDERAL SENTENCE ENHANCED BY A PRIOR 
CONVICTION THAT HAS NEVER BEEN INVALI- 
DATED BY ANY COURT MAY NOT BE COLLATER- 
ALLY ATTACKED UNDER 28 U.S.C. 2255 ON 
GROUNDS THAT THE PRIOR CONVICTION WAS 
UNCONSTITUTIONALLY OBTAINED 

In Custis v. United States, 511 U.S. 485 (1994), this 
Court held that 18 U.S.C. 924(e)—the statute under 
which petitioner was sentenced—authorizes enhance- 
ment of a defendant’s sentence on the basis of a facially 
valid prior conviction, even if the defendant claims that 
the prior conviction was unconstitutionally obtained. In 
Custis, the defendant argued that, as a matter of 
statutory construction, Section 924(e) “should be read 
to permit defendants to challenge the constitutionality 
of convictions used for sentencing purposes.” Id. at 490. 
The Court rejected that claim, noting that Section 
924(e) “applies whenever a defendant is found to have 
suffered ‘three previous convictions’ of the type 
specified.” Ibid. Section 924(e) therefore “focuses on 
the fact of the conviction and nothing suggests that the 
prior final conviction may be subject to collateral attack 
for potential constitutional errors before it may be 
counted” to enhance a defendant’s sentence. Id. at 491. 
See also id. at 492 (Congress “did not intend to give 

11 

defendants the right to challenge the validity of prior 
convictions under this statute.”). 

Petitioner accepts the Court’s conclusion in Custis 
that, as a matter of statutory construction, Section 
924(e) embodies Congress’s intent that prior con- 
victions that have not yet been invalidated may be used 
for sentence enhancement—even if the defendant 
claims that those prior convictions were unconstitu- 
tionally obtained. See Pet. Br. 13 (“As petitioner does 
not posit section 924(e) as the source of his right to 
challenge the constitutionality of the predicate priors, 
that part of Custis does not foreclose the argument.”). 
His basic claim in his Section 2255 motion is that 
enhancing his sentence under Section 924(e) based on 
facially valid convictions violates the Constitution, 
because of constitutional errors in those prior convic- 
tions. See J.A. 34 (petitioner’s “enhanced Armed Ca- 
reer Criminal Act sentence is constitutionally invalid 
because it is based on two constitutionally invalid prior 
convictions”). Petitioner concludes that, because his 
ACCA “sentence is * * * unconstitutional, * * * 
section 2255 by its express terms lies to remedy a 
sentence ‘imposed in violation of the Constitution.’ ” 
Pet. Br. 15-16.3 See also id. at 4 (“A motion under 28 

3 Petitioner also briefly refers (Br. 16) to the fact that Section 
2255 lies to remedy a sentence “otherwise subject to collateral 
attack.” Whatever scope that provision may have, it could not 
include petitioner’s claim in this case. This Court in United States 

v. Addonizio, 442 U.S. 178 (1979), held that a nonconstitutional 
error provides a basis for collateral attack only if the “error 
constituted a fundamental defect which inherently results in a 
complete miscarriage of justice.” Id. at 185 (internal quotation 
marks omitted); see also Reed v. Farley, 512 U.S. 339, 353-354 
(1994). If the use of a facially valid but assertedly unconstitutional 
prior conviction to enhance a sentence would create such a “funda- 

12 

U.S.C. § 2255 to vacate a sentence imposed in violation 
of the Constitution provides both an appropriate and 
necessary vehicle for litigating petitioner’s claim.”). 

Petitioner accordingly may prevail in this case only if 
he demonstrates that it violates the Constitution to 
enhance a sentence based on a prior conviction that 
a defendant alleges to have been unconstitutionally 
obtained. Our central contention is that, except where 
the defendant claims that the prior conviction resulted 
from Gideon error, the Constitution is not violated 
when a conviction that is facially valid is used to 
enhance a sentence for committing another crime. 

A. This Court’s Decision In Custis Established That, 

Absent A Claim Of A Gideon Violation, Use Of A 

Facially Valid Prior Conviction To Enhance A Sen- 
tence Is Not Unconstitutional 

This Court in Custis rejected the claim that the 
Constitution would be violated if a facially valid but 
assertedly unconstitutional conviction were used to 
enhance the defendant’s sentence. Accordingly, aside 
from the exception recognized in Custis for uncoun- 
seled prior convictions obtained in violation of Gideon v. 
Wainwright, 372 U.S. 335 (1963), it does not violate the 
Constitution to use facially valid prior convictions (such 
as petitioner’s) to enhance a later sentence, even if the 
defendant claims (as does petitioner) that the prior 
convictions are constitutionally defective. As the court 
below explained, “a § 2255 petition asserts that there 

mental defect,” the Court’s holding in Custis that the sentencing 
court must overlook that defect would be inexplicable. Thus, if 
petitioner’s ACCA sentence is authorized by statute and if his 
ACCA sentence is not unconstitutional, then there could be no 
other “fundamental defect” that could warrant collateral relief 
under Section 2255. 

13 

was some error at sentencing, which must be corrected, 
and we know from Custis that there could not have 
been any error whatsoever.” App., infra, 3a-4a; accord 
Ryan v. United States, 214 F.3d 877, 877-878 (7th Cir. 
2000) (“A sentence imposed following the approach of 
Custis is lawful and thus not subject to collateral attack 
under 28 U.S.C. § 2255 as long as the prior convictions 
remain undisturbed.”), petition for cert. pending, No. 
00-6554. 

1. The defendant in Custis, like petitioner here, 
argued that, “regardless of whether § 924(e) permits 
collateral challenges to prior convictions, the Consti- 
tution requires that they be allowed.” 511 U.S. at 493. 
Like petitioner here, the defendant in Custis argued 
that this Court’s decisions in Burgett v. Texas, 389 U.S. 
109 (1967), and United States v. Tucker, 404 U.S. 443 
(1972), established that principle. See Pet. Br. 8 (Bur- 
gett and Tucker “forbid the use of an unconstitutional 
prior conviction to enhance a sentence.”). 

This Court, however, squarely rejected that argu- 
ment in Custis. The Court acknowledged that, for pur- 
poses of applying a recidivist statute, Burgett and 
Tucker require the conclusion that “admission of a prior 
criminal conviction that is constitutionally infirm under 
the standards of Gideon is inherently prejudicial and 

* * * would undermine the principle of Gideon.” 
Custis, 511 U.S. at 495. But, after noting that the 
defendant “invite[d] [the Court] to extend the right to 
attack collaterally prior convictions used for sentence 
enhancement beyond the right to have appointed 
counsel established in Gideon,” the Court responded 
that it “decline[d] to do so.” Id. at 496. The Court’s 
holding was unequivocal: “We hold that a defendant 
has no * * * right (with the sole exception of con- 
victions obtained in violation of the right to counsel) to 

14 

collaterally attack prior convictions.” Id. at 487 (em- 
phasis added). 

The Court explained that “since the decision in 
Johnson v. Zerbst, [304 U.S. 458 (1938),] and running 
through our decisions in Burgett and Tucker, there has 
been a theme that failure to appoint counsel for an 
indigent defendant was a unique constitutional defect.” 
Custis, 511 U.S. at 496. See also id. at 494 (“There is 

* * * a historical basis in our jurisprudence of collat- 
eral attacks for treating the right to have counsel 
appointed as unique.”). Such a violation “rises to the 
level of a jurisdictional defect,” and accordingly triggers 
extraordinary measures. Id. at 496. But the claims 
advanced by the defendant in Custis—“denial of the 
effective assistance of counsel, that his guilty plea was 
not knowing and intelligent, and that he had not been 
adequately advised of his rights in opting for a 
‘stipulated facts’ trial,” ibid.—were not claims of Gideon 
violations. Accordingly, it did not violate the 
Constitution touse facially valid prior counseled 
convictions—as to which there was no claim of a Gideon 
violation—to enhance the defendant’s sentence.4 
The same conclusion follows here. Petitioner has 
alleged that two of his prior convictions are consti- 

4 Tucker fails to support petitioner’s argument for another 
reason as well. The defendant in Tucker, unlike petitioner, did not 
attempt to challenge the use of facially valid prior convictions to 
enhance his federal sentence. Instead, the defendant obtained 
invalidation of his prior convictions in a state court proceeding, see 
404 U.S. at 445, and only then, in a motion under Section 2255 in 
federal court, argued that his federal sentence was invalid because 
it was based on a prior state conviction that had already been held 
invalid by the State involved. Such a claim is distinct from the 
indirect collateral attack on his prior, facially valid convictions that 
petitioner seeks to bring here. See pp. 25-26, infra. 

15 

tutionally invalid. He alleges that his 1978 guilty plea 
to a robbery charge was not “intelligent and voluntary.” 
J.A. 37. He also alleges that his 1981 guilty plea to 
another robbery charge was tainted both because it was 
not “intelligent and voluntary,” J.A. 50, and because he 
received ineffective assistance from his counsel, who 
failed to file an allegedly meritorious Fourth Amend- 
ment suppression motion, ibid. Those grounds—lack of 
a knowing and voluntary guilty plea and ineffective 
assistance of counsel—are identical to two of the claims 
advanced by the defendant in Custis as the reasons for 
the invalidity of his prior convictions. See 511 U.S. at 
496. The Court held in Custis, however, that “[n]one of 
these alleged constitutional violations rises to the level 
of a jurisdictional defect resulting from the failure to 
appoint counsel at all.” Ibid. On that basis, the Court 
held that the Constitution did not prohibit the use of 
facially valid—though assertedly unconstitutional— 
prior convictions to enhance the defendant’s ACCA 
sentence. That holding disposes of petitioner’s claim 
that his sentence is unconstitutional and hence subject 
to attack on that basis under Section 2255. 

2. If a defendant who is concededly barred by Custis 
from using his federal sentencing proceeding to attack 
prior state convictions could nevertheless use Section 
2255 to accomplish that same objective, Custis would be 
reduced to a curiously futile gesture. A defendant could 
simply wait for his federal sentencing proceedings to be 
completed, and then—a day, or perhaps an hour, 
later—file a Section 2255 motion mounting the same 
attack on his prior convictions that he was precluded 
from mounting in his federal sentencing proceeding.5 

5 Petitioner argues (Br. 25) that “[f]ederal courts, conducting 
section 2255 proceedings, are well-suited for resolving the issues 

16 

There is no justification for insulating the sentencing 
court under Custis from adjudicating the validity of the 
prior state convictions, while requiring it to address the 
same attack as soon as the sentence has become final. 

B. Core Principles Governing Collateral Attack On 

Criminal Convictions Demonstrate That Punishment 

May Be Imposed Based On A Facially Valid 

Conviction 

1. Basic principles governing collateral review also 
establish that, aside from cases in which there is a claim 
of Gideon error, the Constitution does not preclude the 
use of a facially valid but assertedly unconstitutional 
prior conviction to enhance a sentence. This Court has 
“reaffirm[ed] the well-settled principle that to obtain 
collateral relief a prisoner must clear a significantly 
higher hurdle than would exist on direct appeal.” 
United States v. Frady, 456 U.S. 152, 166 (1982); see 
also United States v. Addonizio, 442 U.S. 178, 184 
(1979) (“[A]n error that may justify reversal on direct 
appeal will not necessarily support a collateral attack.”). 
Indeed, any defendant who contests a final judgment of 
conviction in a subsequent proceeding confronts the 
principle that when a defendant’s “chance to appeal has 
been waived or exhausted, [a court is] entitled to 

raised by these challenges.” Of necessity, federal courts adjudi- 
cating collateral attacks do resolve constitutional claims. But there 
is no basis for petitioner’s apparent belief that district courts are in 
a better position to resolve attacks on prior convictions on col- 
lateral review of a sentence than they would be in the sentencing 
proceeding itself. To the contrary, the district court’s focus in the 
sentencing proceeding on the defendant, his past criminal history, 
and a wide variety of other potentially relevant subjects makes the 
sentencing proceeding a far more appropriate time to raise all 
challenges, including constitutional challenges, to a sentence. 

17 

presume he stands fairly and finally convicted.” Frady, 
456 U.S. at 164. See also Strickland v. Washington, 466 
U.S. 668, 697 (1984) (“the presumption that a criminal 
judgment is final is at its strongest in collateral attacks 
on that judgment”). The presumption attaches, 
moreover, “even when a collateral attack on a final 
conviction rests on constitutional grounds.” Parke v. 
Raley, 506 U.S. 20, 31 (1992). 

Contrary to those principles, petitioner claims that a 
defendant in his position has significantly greater 
freedom to attack his sentence on collateral review than 
in the trial court or on direct appeal. Although Custis 
precludes a defendant sentenced as a recidivist from 
challenging a facially valid prior conviction on 
constitutional grounds (other than Gideon grounds) in 
the sentencing court or on direct appeal from his 
sentence, petitioner argues that the identical challenge 
may be mounted on collateral attack. That argument is 
inconsistent with the Frady principle. 

2. More generally, this Court has regularly recog- 
nized that there are circumstances in which defendants 
may suffer consequences from a facially valid final 
conviction notwithstanding a claim that the conviction 
was unconstitutionally obtained. For example, this 
Court has held in a wide variety of settings that 
defendants may lose the ability to challenge their 
sentences on constitutional grounds if they have not 
preserved their claims at trial, on appeal, or on state 
collateral attack, see Edwards v. Carpenter, 120 S. Ct. 
1587, 1591 (2000), if they have failed to properly 
exhaust their state remedies, see O’Sullivan v. 
Boerckel, 526 U.S. 838 (1999), if they have brought 
previous federal collateral attacks, see McCleskey v. 
Zant, 499 U.S. 467 (1991), or if their attack is based on a 
new rule of constitutional law, see Teague v. Lane, 489 

18 

U.S. 288 (1989) (plurality opinion). Congress too has 
imposed strict deadlines for collateral challenges to 
convictions and other limitations on the availability of 
federal collateral attack. See, e.g., 28 U.S.C. 2255 
(Supp. IV 1998) (one-year statute of limitations and 
limitations on second and successive Section 2255 
motions). 

Petitioner had ample opportunity to challenge his 
prior convictions on constitutional or other grounds at 
the time those convictions were entered, on appeal, or 
on federal or state collateral review while he was in 
custody on those convictions.6 

His failure to do so resulted in those convictions 
passing beyond the reach of judicial review.7 All that is 
left is an outstanding, facially valid judgment. The 

6 We have no reason to disagree with petitioner’s contention 
(Br. 16 n.8) that coram nobis does not lie in California for his parti- 
cular challenges to his prior convictions. Some States, however, do 
permit coram nobis in a variety of circumstances, thus permitting 
even defendants no longer in custody to bring their constitutional 
challenges to prior convictions. See generally Morgan Prickett, 
The Writ of Error Coram Nobis in California, 30 Santa Clara L. 
Rev. 1 (1990); Skok v. Maryland, 760 A.2d 647 (Md. 2000). 

7 Petitioner argues (Br. 21 n.12) that the ACCA itself was not 
enacted until after the dates of the prior convictions used to 
enhance his sentences. A defendant’s criminal history, however, is 
“as typical a sentencing factor as one might imagine,” Almendarez- 
Torres v. United States, 523 U.S. 224, 230 (1998), regardless of 
whether it is taken into account as a result of a statute, a sen- 
tencing guidelines system, or merely the court’s exercise of 
sentencing discretion. Accordingly, anyone convicted of a crime is 
on notice that the conviction may someday be used in a variety of 
ways to enhance a sentence for a future crime. See Nichols v. 
United States, 511 U.S. 738, 748 (1994) (noting that a warning to a 
defendant “that if he is brought back into court on another criminal 
charge, [he] will be treated more harshly * * * would merely tell 
him what he must surely already know”). 

19 

sentencing court was therefore entitled to take into 
account defendant’s prior facially valid convictions in 
imposing the ACCA sentence on petitioner. 

C. Important Interests In Ease Of Administration And 

Promoting The Finality Of Judgments Also Refute 

Petitioner’s Claim 

This Court in Custis referred to two important 
rationales—“[e]ase of administration” and “[t]he inter- 
est in promoting the finality of judgments”—that 
supported its conclusion that challenges (except for 
Gideon violations) to prior convictions used to enhance 
a federal sentence may not be brought when that 
sentence is imposed. 511 U.S. at 496-497. Those ration- 
ales provide even greater support for the conclusion 
that such challenges may not be brought on collateral 
review of an enhanced sentence. 

1. With respect to administrability, the Court ex- 
plained in Custis that “failure to appoint counsel at all 
will generally appear from the judgment roll itself, or 
from an accompanying minute order,” but, in contrast, 
the “determination of claims of ineffective assistance of 
counsel, and failure to assure that a guilty plea was 
voluntary, would require sentencing courts to rummage 
through frequently nonexistent or difficult to obtain 
state-court transcripts or records that may date from 
another era, and may come from any one of the 50 
States.” 511 U.S. at 496. Moreover, prosecutors, 
defense lawyers, and witnesses who could provide 
evidence crucial to the constitutional claims asserted 
may be deceased or difficult to locate in distant juris- 
dictions, and those who are available are likely to have 
only dim memories of events that may have occurred 
(as here) decades earlier. Those administrative difficul- 
ties will be at least as serious in a collateral attack on an 

20 

enhanced federal sentence (as here) as in an attack on 
an enhanced federal sentence at the time it is imposed 
(as in Custis). Petitioner’s claims themselves illustrate 
some of the difficulties. 

a. Petitioner has argued that the sentence he is 
currently serving should not have been enhanced on the 
basis of his 1978 robbery conviction, because his guilty 
plea to that robbery charge “was not intelligent and 
voluntary.” J.A. 37, 51. The logical starting place to 
evaluate that claim would be the transcript of his guilty 
plea colloquy from two decades ago, but his counsel has 
acknowledged that the transcript cannot be located. 
J.A. 38 n.3. That problem is likely to be a common one, 
since transcripts frequently are not prepared in cases 
(like many of those resolved by guilty pleas) in which no 
appeal is taken, and those transcripts that are prepared 
are likely to be difficult or impossible to locate decades 
after the event. See Parke, 506 U.S. at 30 (“The 
circumstance of a missing or nonexistent record is, we 
suspect, not atypical, particularly when the prior 
conviction is several years old.”). 

Petitioner has also argued that his 1981 robbery 
conviction is invalid both because his guilty plea was 
again allegedly “not intelligent and voluntary,” J.A. 50, 
and because his counsel allegedly rendered ineffective 
assistance in failing to move to suppress his confession 
on Fourth Amendment grounds, J.A. 44-50. Once 
again, petitioner has not tendered the transcript of his 
1981 guilty plea colloquy, and it is therefore not clear 
whether it is presently available. Petitioner’s ineffec- 
tive assistance claim is based on the assertion that his 
confession was suppressible as the fruit of an arrest 
without probable cause. Untangling the facts of that 
arrest many years later to determine whether a Fourth 
Amendment suppression motion would have been 

21 

meritorious—and whether there may have been 
strategic advantages to petitioner in accepting a plea 
bargain rather than litigating the admissibility of his 
confession—poses a daunting challenge. In short, 
petitioner’s claims present even more serious practical 
problems than did the defendant’s claims in Custis. 

b. The staleness of the claims presented is not an 
idiosyncratic feature of this particular case. Congress 
has provided for a one-year statute of limitations for 
both Section 2254 habeas petitions and Section 2255 
motions. See 28 U.S.C. 2244(d), 2255 (Supp. IV 1998). 
The one-year period generally runs from the date the 
conviction became final, with exceptions that would not 
be applicable to petitioner’s claims.8 That limitations 
period represents Congress’s judgment that those with 
meritorious grounds for collateral attack should act 
promptly, that claims that fall outside the limitations 
period are too stale to be fairly litigated, and that “long- 
deferred challenges that were never presented to the 
state courts are no longer appropriate grounds of 
federal relief.” Ryan, 214 F.3d at 882. 

8 A different starting date applies under Section 2244 to cases 
in which “the applicant was prevented from filing [a habeas 
petition] by * * * State action,” 28 U.S.C. 2244(d)(1)(B) (Supp. IV 
1998), cases in which the right asserted “has been newly rec- 
ognized by the Supreme Court and made retroactively applicable 
to cases on collateral review,” 28 U.S.C. 2244(d)(1)(C) (Supp. IV 
1998), cases in which there is a later date on which “the factual 
predicate of the claim or claims presented could have been 
discovered through the exercise of due diligence,” 28 U.S.C. 
2244(d)(1)(D) (Supp. IV 1998), and cases in which federal habeas 
was delayed during the pendency of state post-conviction or other 
collateral review, 28 U.S.C. 2244(d)(2) (Supp. IV 1998). With the 
exception of the last ground, Section 2255 provides for similar 
exceptions. 

22 

In cases in which a defendant seeks to collaterally 
challenge a sentence on the ground that it was en- 
hanced by prior facially valid but assertedly unconsti- 
tutional convictions, the prior convictions will ordinarily 
fall far outside the one-year limitations period. A prior 
conviction may be used to enhancea sentence under the 
ACCA only if it was entered before the commission of 
the felon-in-possession offense. United States v. Talley, 
16 F.3d 972, 977 (8th Cir. 1994). By the time the ACCA 
defendant has committed the felon-in-possession of- 
fense and been apprehended, convicted, and sentenced 
under the ACCA, any such prior conviction is almost 
certain to have been final for more than one year.9 
Petitioner’s claim, if accepted, would thus lead to the 
anomalous result that prior convictions that were far 
too stale to be subject to collateral attack under 
Sections 2254 and 2255, regardless of their claimed 
unconstitutionality, would routinely be subject to such 
attack in the guise of an attack on a federal sentence 
that used them for enhancement. Petitioner’s argu- 
ment entails that a defendant who is still in custody on 
a state conviction that has been final for more than a 
year is time-barred from attacking it, but a defendant 
who is no longer in custody on such a conviction may 

9 Consider petitioner’s own case. He committed the instant 
offense in October 1992. J.A. 2. He was convicted of the offense in 
April 1994, see J.A. 58, and he was sentenced in January 1995. See 
J.A. 7. His conviction became final when this Court denied certio- 
rari on January 21, 1997. 519 U.S. 1094. By that date in 1997, any 
prior conviction that was entered before his commission of the 
instant offense in 1992 (and therefore could have been used to 
enhance that sentence under ACCA) would be very likely to have 
been final for more than a year. Accordingly, any such conviction 
would be too stale to come within the one-year limitations period 
for collateral attacks under Sections 2254 and 2255. 

23 

attack it when it is used to enhance his sentence on 
another offense. That kind of circumvention of the time 
limits in Sections 2254 and 2255 should not be 
permitted. 

2. The Court in Custis also explained that the 
“interest in promoting the finality of judgments pro- 
vides additional support for our constitutional con- 
clusion.” 511 U.S. at 497. Indeed, “principles of finality 
associated with habeas corpus actions apply with at 
least equal force when a defendant seeks to attack a 
previous conviction used for sentencing.” Ibid. As the 
Court noted in Parke, 506 U.S. at 30, a successful 
challenge to a prior conviction used to enhance a 
conviction would “deprive [the state-court judgment] of 
[its] normal force and effect,” thus making inroads on 
the finality that attaches to expired prior convictions. 
And principles of finality “bear extra weight in cases in 
which the prior convictions * * * are based on guilty 
pleas, because when a guilty plea is at issue, ‘the 
concern with finality served by the limitation on 
collateral attack has special force.’ ” Custis, 511 U.S. at 
497 (quoting United States v. Timmreck, 441 U.S. 780, 
784 (1979)). 

The Court’s rationale in Custis applies with equal 
force in this case. Petitioner, who pleaded guilty to the 
two challenged convictions, has launched a collateral 
attack on his present sentence, rather than a direct 
attack as in Custis. That difference, however, does not 
mitigate the costs of reopening the validity of his old 
convictions. See Calderon v. Thompson, 523 U.S. 538, 
555 (1998). So long as petitioner’s prior convictions 
remain facially valid, sentencing courts are entitled to 
rely on them. 

Permitting challenges such as petitioner’s places the 
State in a particularly difficult position. A court 

24 

adjudicating petitioner’s underlying claims would have 
to pass on the validity of petitioner’s prior state 
convictions in a case in which neither the State whose 
conviction is at issue nor any state official is a party. 
The State is in the best position to marshal the factual 
and legal material necessary to defend its conviction. 
The absence of the State as a party to the federal 
proceeding will therefore further increase the risk of an 
erroneous judgment by federal courts. See Parke, 506 
U.S. at 31-32 (citing Loper v. Beto, 405 U.S. 473, 500-501 
(1972) (Rehnquist, J., dissenting)). Moreover, a defen- 
dant or prisoner who attacks a conviction on grounds 
like those advanced by petitioner—lack of a knowing 
and intelligent guilty plea, ineffective assistance of 
counsel—ordinarily would face a trial and the risk of 
conviction if the attack is successful; the constitutional 
error in the proceedings would not immunize the 
defendant from liability. In this setting, however, a 
prisoner who prevails on a collateral attack like that of 
petitioner would reap an undeserved windfall. The 
State would likely have little incentive to retry the 
defendant and, if it did, it would have to confront a 
double jeopardy challenge. Even if retrial were sought 
and were successful, it is not clear that there would be 
any means to reinstate the defendant’s enhanced 
ACCA sentence. 

10 

10 In United States v. Clark, 203 F.3d 358 (5th Cir. 2000), 
petition for cert. pending, No. 00-122, the Fifth Circuit noted “the 
apparent anomaly of determining the validity of one jurisdiction’s 
conviction later used for enhancement of another jurisdiction’s 
sentence, without a representative of the jurisdiction of the initial 
conviction being a party.” Id. at 365. The court stated, however 
that the anomaly “is ameliorated by the rule that the deter- 
mination does not bind the former jurisdiction.” Ibid. That 
solution, however, does not ameliorate the problem. In contrast to 

25 

D. Petitioner’s Other Reasons For Permitting His 

Indirect Collateral Attack On His Prior Convictions 

Are Unpersuasive 

1. Petitioner notes that a number of courts of ap- 
peals have held “that pursuant to federal habeas 
corpus, a district court may reopen and reduce a federal 
sentence, once a federal defendant has, in state court, 
successfully attacked a prior state conviction, previ- 
ously used in enhancing the federal sentence.” Pet. Br. 
15 (quoting United States v. Walker, 198 F.3d 811, 813 
(11th Cir. 1999)). 

11 This case, however, arises in a 
different setting. Petitioner has not alleged that he has 
already obtained a judgment from some other court 
invalidating the prior convictions used to enhance his 

habeas corpus litigation under 28 U.S.C. 2254, in which the State 
has an opportunity to be heard in defense of its judgment, in this 
setting the federal court would deprive the state court judgment of 
its usual significance without ever hearing from the State. Finding 
that the State has violated the Constitution without the partici- 
pation of the state representatives in the case is inconsistent with 
the respect for state court judgments that is a fundamental pre- 
mise of our federal system. Cf. U.S. Const. Art. IV, § 1 (Full Faith 
and Credit Clause); 28 U.S.C. 1738. See also Calderon, 523 U.S. at 
555-556. In addition, taking that course would still lead to anoma- 
lous situations in which a prior conviction may not be used to 
enhance a federal sentence (because it has been proven to be 
invalid in a Section 2255 proceeding) but it may be used to enhance 
a later state sentence (since it remains valid as against the State). 
It is unclear whether a defendant in that situation would be able to 
obtain relief in a still later Section 2254 attack on the subsequent 
enhanced state sentence. 

11 See also United States v. LaValle, 175 F.3d 1106, 1108 (9th 
Cir. 1999); United States v. Pettiford, 101 F.3d 199, 201-202 (1st 
Cir. 1996); United States v. Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 
1996); United States v. Cox, 83 F.3d 336, 339 (10th Cir. 1996); 
United States v. Nichols, 30 F.3d 35, 36 (5th Cir. 1994). 

26 

federal sentence. From all that appears in the record, 
petitioner either failed to employ the procedures avail- 
able to attack those convictions or failed to win relief. 
Instead, he seeks to employ Section 2255 itself to bring 
a collateral attack on his expired prior convictions. 
Custis holds that he could not bring that challenge 
during the federal sentencing proceedings. The logic of 
Custis dictates that he may not bring his collateral 
challenge to his prior convictions under Section 2255 
either. 

2. Petitioner argues (Br. 14) that Custis “did not bar 
challenges to [prior] convictions in forums other than 
the sentencing hearing.” Petitioner refers to the end of 
the Court’s opinion in Custis, where the Court stated 
that it “recognize[d] * * * that Custis, who was still 
‘in custody’ for purposes of his state convictions at the 
time of his federal sentencing under § 924(e), may 
attack his state sentences in [state court] or through 
federal habeas review.” 511 U.S. at 497. The Court 
also stated that “[i]f Custis is successful in attacking 
these state sentences, he may then apply for reopening 
of any federal sentence enhanced by the state sen- 
tences.” Ibid. The Court added, however: “We express 
no opinion on the appropriate disposition of such an 
application.” Ibid. 

The Court’s statements in Custis are not an en- 
dorsement of petitioner’s position. Pet. Br. 14. To the 
contrary, the Court’s careful language states only that, 
if the defendant could obtain invalidation of his prior 
convictions in another forum, he “may then apply for 
reopening of any federal sentence enhanced by the 
state sentences.” 511 U.S. at 497 (emphasis added). 
Far from deciding whether such an application could 
result in relief from the enhanced federal sentence, the 
Court “express[ed] no opinion on the appropriate 

27 

disposition of such an application.” Ibid. And in any 
event, because petitioner has not been “successful in 
attacking [his] state sentences,” resolution of the 
question reserved by the Court in Custis could not 
assist him. See Turner v. United States, 183 F.3d 474 
(6th Cir. 1999), cert. denied, 120 S. Ct. 1255 (2000); 
Arnold v. United States, 63 F.3d 708, 709-710 (8th Cir. 
1995). 

3. Petitioner argues (Br. 16) that “[w]here no other 
forum exists to litigate the constitutionality of the prior 
convictions,” such as where the defendant is no longer 
“in custody” on those convictions and thus may not 
attack them under Section 2254, see Maleng v. Cook, 
490 U.S. 488, 491-492 (1989) (per curiam), collateral 
challenges like his should be permitted. See United 
States v. Clark, 203 F.3d 358, 363 (5th Cir. 2000), 
petition for cert. pending, No. 00-122. 

Petitioner’s argument is inconsistent with Custis. 
Petitioner argues that the fact that an ACCA defen- 
dant is no longer “in custody” on prior enhancing 
convictions is sufficient to warrant permitting him to 
challenge those prior convictions through an attack on 
his ACCA sentence. If that is correct, however, then 
there would be no reason to require him to wait for a 
collateral attack on his ACCA sentence, rather than 
bringing the challenge at the time of sentencing. 
Accordingly, petitioner’s argument, if correct, would 
directly challenge this Court’s holding in Custis that 
such challenges cannot be brought at the time of sen- 
tencing. 

Petitioner errs (Br. 17) in stating that Maleng v. 
Cook, supra, “sanctioned the use of habeas corpus 

* * * to challenge the constitutionality of an expired 
prior conviction—on grounds other than the denial of 
counsel—to the extent it is used to enhance a current 

28 

sentence.” That is not the holding or implication of this 
Court’s decision in Maleng. The Court’s per curiam 
opinion in Maleng held that a state habeas petitioner’s 
constitutional challenge to prior state convictions on 
which the petitioner was no longer in custody “can be 
read as asserting a challenge to [later, still custodial] 
sentences, as enhanced by the allegedly invalid prior 
conviction.” 490 U.S. at 493. On that basis, the Court 
concluded that the habeas petitioner “has satisfied the 
‘in custody’ requirement for federal habeas jurisdic- 
tion.” Id. at 494. 

Petitioner, like the prisoner in Maleng, is “in 
custody” under his ACCA sentence. But the Court in 
Maleng pointedly stated that its “holding is limited to 
the narrow issue of ‘custody’ for subject-matter juris- 
diction of the habeas court.” 490 U.S. at 494. And the 
Court then expressly declined to rule on the question 
presented in this case, noting that it “express[ed] no 
view on the extent to which the [expired] conviction 
itself may be subject to challenge in the attack upon the 
[later] sentences,” ibid. Accordingly, Maleng provides 
no support for petitioner’s argument. 

More fundamentally, petitioner’s argument turns 
principles of collateral review on their head. Peti- 
tioner’s argument is that, because he is barred from one 
form of collateral relief (a Section 2254 attack on his 
prior state conviction), he should be permitted to obtain 
another form of collateral relief (an indirect attack on 
that conviction through a Section 2255 attack on his 
enhanced federal conviction) that would otherwise be 
unavailable. The purpose of the “in custody” require- 
ment of Section 2254, however, is in part to set forth an 
outer bound on the availability of federal collateral 
relief for a state criminal conviction. See Ryan, 214 
F.3d at 882 (“Honoring judgments that remain out- 

29 

standing after full opportunity for direct and collateral 
review does not dishonor the constitutional claims the 
defendant wishes to make. It simply establishes rules 
for presenting these claims to the right court, and in a 
timely fashion.”). A defendant’s failure to satisfy the 
“in custody” requirement accordingly means that Con- 
gress intended that his prior conviction has attained a 
degree of finality that puts it beyond the reach of 
federal collateral attack; it does not suggest that he 
should thereby be granted the right to challenge his 
prior conviction (which he could not challenge at 
sentencing) through a later collateral attack. 

CONCLUSION 

The judgment of the court of appeals should be 
affirmed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

JAMES K. ROBINSON 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

KATHLEEN A. FELTON 

Attorney 

NOVEMBER 2000 

APPENDIX 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 99-55097 

UNITED STATES OF AMERICA, 
PLAINTIFF-APPELLEE 

v. 

EARTHY D. DANIELS, JR., 

DEFENDANT-APPELLANT 

Argued and Submitted Sept. 30, 1999 
Decided Oct. 21, 1999 

Before: O’SCANNLAIN, FERNANDEZ, and T.G. NELSON, 

Circuit Judges 

FERNANDEZ, Circuit Judge: 

Earthy D. Daniels, Jr., appeals the denial of his 28 
U.S.C. § 2255 motion in which he sought to challenge 
the constitutionality of two state convictions, which 
were used in sentencing him under the Armed Career 
Criminal Act, 18 U.S.C. § 924(e) (ACCA). We affirm. 

(1a) 

2a 

BACKGROUND 

Daniels was convicted of being a felon in possession 
of a firearm in violation of 18 U.S.C. § 922(g)(1). The 
district court determined that Daniels, who had four 
prior convictions, was subject to the ACCA and 
sentenced him to imprisonment for 176 months. 
Daniels appealed to this court. He asserted that the 
district court’s conclusion that his two California bur- 
glary convictions constituted predicate offenses under 
the ACCA was incorrect. In an unpublished disposi- 
tion, we rejected that assertion. See United States v. 
Daniels, No. 95-50044, 86 F.3d 1164, 1996 WL 292231, 
at * 3-4 (9th Cir. June 3, 1996). 

Daniels then filed a § 2255 motion to set aside, vacate 
or correct his federal sentence, and collaterally attacked 
his two California robbery convictions, which were also 
used to enhance his sentence. Although he claimed that 
he had been unconstitutionally convicted, he did not 
contend that he was denied the right to counsel as 
guaranteed by Gideon v. Wainwright, 372 U.S. 335, 83 
S. Ct. 792, 9 L.Ed.2d 799 (1963), in either case. 

The district court denied his motion on the ground 
that he could not maintain that collateral attack under 
§ 2255. He then appealed. 

JURISDICTION AND STANDARD OF REVIEW 

We have jurisdiction pursuant to 22 U.S.C. § 2253(a). 
We review denials of petitions under 28 U.S.C. § 2255 
de novo. See Sanchez v. United States, 50 F.3d 1448, 
1451 (9th Cir. 1995). 

3a 

DISCUSSION 

In Custis v. United States, 511 U.S. 485, 114 S. Ct. 
1732, 128 L.Ed.2d 517 (1994), the Supreme Court de- 
clared that, except for Gideon1 challenges, a defendant 
may not collaterally attack prior state convictions in 
sentencing proceedings where the ACCA is being used 
to enhance the sentence. The statute does not permit 
it. See id. at 490, 114 S. Ct. at 1735. The Constitution 
does not require it. See id. at 497, 114 S. Ct. at 1739. 
Concomitantly, ease of administration and the interest 
in finality argue against it. See id. at 496-97, 114 S. Ct. 
at 1738-39. 

We have recognized the force of the Custis reasoning 
and have, therefore, expressly determined that it ap- 
plies to sentencing proceedings in general. See, e.g., 
United States v. Ricardo, 78 F.3d 1411, 1415 (9th Cir. 
1996); United States v. Price, 51 F.3d 175, 177 (9th Cir. 
1995); United States v. Alexander, 48 F.3d 1477, 1494-95 
(9th Cir. 1995); United States v. Burrows, 36 F.3d 875, 
885 (9th Cir. 1994). In the same vein, we have decided 
that, on other than Gideon grounds, a defendant may 
not collaterally challenge a state conviction through the 
medium of a motion seeking dismissal of his indictment. 
See United States v. Zarate-Martinez, 133 F.3d 1194, 
1199-1200 (9th Cir.), cert. denied, 525 U.S. 849, 119 S. 
Ct. 123, 142 L.Ed.2d 99 (1998). 

But, says Daniels, we have not yet decided that col- 
lateral attacks on state convictions cannot be brought 
under § 2255. If he were correct, we would doubt that 
they could be brought. Among other things, a § 2255 

1 See Gideon, 372 U.S. at 342-45, 83 S. Ct. at 795-97. 

4a 

petition asserts that there was some error at sen- 
tencing, which must be corrected, and we know from 
Custis that there could not have been any error what- 
soever. As it is, Daniels is not correct. 

In Clawson v. United States, 52 F.3d 806 (9th Cir. 
1995), a defendant brought a § 2255 motion and asserted 
that his federal sentence under the ACCA “was 
improperly enhanced through use of a state conviction 
that later became nonfinal when his appeal from the 
state judgment was reopened, and was unconstitution- 
ally obtained.” Id. at 807 (emphasis added). We 
responded: 

We hold that there is no finality requirement in the 
version of the ACCA under which Clawson was sen- 
tenced, and that under Custis, there is no constitu- 
tional right to collaterally attack the validity of a state 
conviction in a federal sentencing hearing on any basis 
other than denial of the right to counsel. . . . 

Id. (emphasis added). If that were not clear enough, we 
returned to the topic in a case which, though not a 
§ 2255 matter, called upon us to expatiate on Clawson. 
We explained that, in Clawson, “[w]e read Custis to bar 
federal habeas review of the validity of a prior convic- 
tion used for federal sentencing enhancement unless 
the petitioner raises a Gideon claim.” 

Contreras v . 
Schiltgen, 151 F.3d 906, 907 (9th Cir. 1998). 

We believe that we have spoken with a good deal of 
clarity, but because Daniels does not find it so, perhaps 
others are of the same mind as he. We hesitate to leave 

5a 

uncertainty hovering about an issue that is so quotid- 
ian. Therefore, we restate our position here.2 

CONCLUSION 

We return to the § 2255 locale in order to clear away 
any bosk that still obscures our position regarding 
collateral attacks on prior convictions. 

In § 2255 proceedings, Custis bars “federal habeas 
review of the validity of a prior conviction used for 
federal sentencing enhancement unless the petitioner 
raises a Gideon claim.” Contreras, 151 F.3d at 907. 

AFFIRMED. 

2 Incidentally, Daniels’s invocation of our decision in Brock v. 
Weston, 31 F.3d 887, 889-91 (9th Cir. 1994), does not alter the 
result. That case dealt with a 28 U.S.C. § 2254 petition, which can 
be a vehicle for challenging state convictions in proper circum- 
stances. See id. at 890-91 & nn. 6 & 7; see also Allen v. Oregon, 153 
F.3d 1046, 1049-50 (9th Cir. 1998); Gretzler v . Stewart, 112 F.3d 
992, 1004-05 (9th Cir. 1997), cert. denied, 522 U.S. 1081, 118 S. Ct. 
865, 139 L.Ed.2d 763 (1998); Price, 51 F.3d at 177. It is not rele- 
vant to this proceeding.