author: Chief Justice Rehnquist Justice Blackmun, Justice Souter,

text:
    DALTON, SECRETARY OF THE NAVY, et al. v. SPECTER et al.
    No. 93-289.
    Argued March 2, 1994
    Decided May 23, 1994

      Rehnquist, C. J., delivered the opinion of the Court, Part II of which was unanimous, and in the remainder of which O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 477. Souter, J., filed an opinion concurring in part and concurring in the judgment, in which Blackmun, Stevens, and Ginsburg, JJ., joined, post, p. 478.

      Solicitor General Days argued the cause for petitioners. With him on the briefs were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, John F Manning, and Douglas N. Letter.

      Senator Arlen Specter, pro se, argued the cause for respondents. With him on the brief were Bruce W. Kauff

      man, Mark J. Levin, Camille Spinello Andrews, and Thomas E. Groshens

        Robert J. Cynkar, John B. Rhinelander, Alexander W. Joel, Bernard Petrie, and Steven T. Walther filed a brief for Business Executives for National Security as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the State of New York by G. Oliver Koppell, Attorney General, Jerry Boone, Solicitor General, Peter H. Schiff, Deputy Solicitor General, and Alan S. Kaufman, Edward M. Scher, and Howard L. Zwickel, Assistant Attorneys General; and for Public Citizen by Patti A. Goldman, Alan B. Morrison, and Paul R. Q. Wolfson.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Respondents sought to enjoin the Secretary of Defense (Secretary) from carrying out a decision by the President to close the Philadelphia Naval Shipyard. This decision was made pursuant to the Defense Base Closure and Realignment Act of 1990 (1990 Act or Act), 104 Stat. 1808, as amended, note following 10 U. S. C. § 2687 (1988 ed., Supp. IV). The Court of Appeals held that judicial review of the decision was available to ensure that various participants in the selection process had complied with procedural mandates specified by Congress. We hold that such review is not available.

The decision to close the shipyard was the end result of an elaborate selection process prescribed by the 1990 Act. Designed “to provide a fair process that will result in the timely closure and realignment of military installations inside the United States,” § 2901(b), the Act provides for three successive rounds of base closings — in 1991, 1993, and 1995, § 2903(c)(1). For each round, the Secretary must prepare closure and realignment recommendations, based on selection criteria he establishes after notice and an opportunity for public comment. §§ 2903(b) and (c).

The Secretary submits his recommendations to Congress and to the Defense Base Closure and Realignment Commission (Commission), an independent body whose eight members are appointed by the President, with the advice and consent of the Senate. §§ 2903(c)(1); 2902(a) and (c)(1)(A). The Commission must then hold public hearings and prepare a report, containing both an assessment of the Secretary’s recommendations and the Commission’s own recommendations for base closures and realignments. §§ 2903(d)(1) and (2). Within roughly three months of receiving the Secretary’s recommendations, the Commission has to submit its report to the President. § 2903(d)(2)(A).

Within two weeks of receiving the Commission’s report, the President must decide whether to approve or disapprove, in their entirety, the Commission’s recommendations. §§ 2903(e)(l)-(3). If the President disapproves, the Commission has roughly one month to prepare a new report and submit it to the President. § 2903(e)(3). If the President again disapproves, no bases may be closed that year under the Act. § 2903(e)(5). If the President approves the initial or revised recommendations, the President must submit the recommendations, along with his certification of approval, to Congress. §§ 2903(e)(2) and (e)(4). Congress may, within 45 days of receiving the President’s certification (or by the date Congress adjourns for the session, whichever is earlier), enact a joint resolution of disapproval. §§ 2904(b); 2908. If such a resolution is passed, the Secretary may not carry out any closures pursuant to the Act; if such a resolution is not passed, the Secretary must close all military installations recommended for closure by the Commission. §§ 2904(a) and (b)(1).

In April 1991, the Secretary recommended the closure or realignment of a number of military installations, including the Philadelphia Naval Shipyard. After holding public hearings in Washington, D. C., and Philadelphia, the Commission recommended closure or realignment of 82 bases. The Commission did not concur in all of the Secretary’s recommendations, but it agreed that the Philadelphia Naval Shipyard should be closed. In July 1991, President Bush approved the Commission’s recommendations, and the House of Representatives rejected a proposed joint resolution of disapproval by a vote of 364 to 60.

Two days before the President submitted his certification of approval to Congress, respondents filed this action under the Administrative Procedure Act (APA), 5 U. S. C. §701 et seq., and the 1990 Act. Their complaint contained three counts, two of which remain at issue. Count I alleged that the Secretaries of Navy and Defense violated substantive and procedural requirements of the 1990 Act in recommending closure of the Philadelphia Naval Shipyard. Count II made similar allegations regarding the Commission’s recommendations to the President, asserting specifically that, inter alia, the Commission used improper criteria, failed to place certain information in the record until after the close of public hearings, and held closed meetings with the Navy.

The United States District Court for the Eastern District of Pennsylvania dismissed the complaint in its entirety, on the alternative grounds that the 1990 Act itself precluded judicial review and that the political question doctrine foreclosed judicial intervention. Specter v. Garrett, 777 F. Supp. 1226 (1991). A divided panel of the United States Court of Appeals for the Third Circuit affirmed in part and reversed in part. Specter v. Garrett, 971 F. 2d 936 (1992) (Specter I). The Court of Appeals first acknowledged that the actions challenged by respondents were not typical of the “agency actions” reviewed under the APA, because the 1990 Act contemplates joint decisionmaking among the Secretary, Commission, President, and Congress. Id., at 944-945. The Court of Appeals then reasoned that because respondents sought to enjoin the implementation of the President’s decision, respondents (who had not named the President as a defendant) were asking the Court of Appeals “to review a presidential decision.” Id., at 945. The Court of Appeals decided that there could be judicial review of the President’s decision because the “actions of the President have never been considered immune from judicial review solely because they were taken by the President.” Ibid. It held that certain procedural claims, such as respondents’ claim that the Secretary failed to transmit to the Commission all of the information he used in making his recommendations, and their claim that the Commission did not hold public hearings as required by the Act, were thus reviewable. Id., at 952-953. The dissenting judge took the view that the 1990 Act precluded judicial review of all statutory claims, procedural and substantive. Id., at 956-961.

Shortly after the Court of Appeals issued its opinion, we decided Franklin v. Massachusetts, 505 U. S. 788 (1992), in which we addressed the existence of “final agency action” in a suit seeking APA review of the decennial reapportionment of the House of Representatives. The Census Act requires the Secretary of Commerce to submit a census report to the President, who then certifies to Congress the number of Representatives to which each State is entitled pursuant to a statutory formula. We concluded both that the Secretary’s report was not “final agency action” reviewable under the APA, and that the APA does not apply to the President. Id., at 796-801. After we rendered our decision in Franklin, petitioners sought our review in this case. Because of the similarities between Franklin and this case, we granted the petition for certiorari, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of Franklin. O’Keefe v. Specter, 506 U. S. 969 (1992).

On remand, the same divided panel of the Court of Appeals adhered to its earlier decision, and held that Franklin did not affect the reviewability of respondents’ procedural claims. Specter v. Garrett, 995 F. 2d 404 (1993) (Specter II). Although apparently recognizing that APA review was unavailable, the Court of Appeals felt that adjudging the President’s actions for compliance with the 1990 Act was a “form of constitutional review,” and that Franklin sanctioned such review. 995 F. 2d, at 408-409. Petitioners again sought our review, and we granted certiorari. 510 U. S. 930 (1993). We now reverse.

I

We begin our analysis on common ground with the Court of Appeals. In Specter II, that court acknowledged, at least tacitly, that respondents’ claims are not reviewable under the APA. 995 F. 2d, at 406. A straightforward application of Franklin to this case demonstrates why this is so. Franklin involved a suit against the President, the Secretary of Commerce, and various public officials, challenging the manner in which seats in the House of Representatives had been apportioned among the States. 505 U. S., at 790. The plaintiffs challenged the method used by the Secretary of Commerce in preparing her census report, particularly the manner in which she counted federal employees working overseas. The plaintiffs raised claims under both the APA and the Constitution. In reviewing the former, we first sought to determine whether the Secretary’s action, in submitting a census report to the President, was “final” for purposes of APA review. (The APA provides for judicial review only of “final agency action.” 5 U. S. C. § 704 (emphasis added).) Because the President reviewed (and could revise) the Secretary’s report, made the apportionment calculations, and submitted the final apportionment report to Congress, we held that the Secretary’s report was “not final and therefore not subject to review.” 505 U. S., at 798.

We next held that the President’s actions were not reviewable under the APA, because the President is not an “agency” within the meaning of the APA. Id., at 801 (“As the APA does not expressly allow review of the President’s actions, we must presume that his actions are not subject to its requirements”). We thus concluded that the reapportionment determination was not reviewable under the standards of the APA. Ibid. In reaching our conclusion, we noted that the “President’s actions may still be reviewed for constitutionality.” Ibid, (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), and Panama Refining Co. v. Ryan, 293 U. S. 388 (1935)).

In this case, respondents brought suit under the APA, alleging that the Secretary and the Commission did not follow the procedural mandates of the 1990 Act. But here, as in Franklin, the prerequisite to review under the APA— “final agency action” — is lacking. The reports submitted by the Secretary and the Commission, like the report of the Secretary of Commerce in Franklin, “carr[y] no direct consequences” for base closings. 505 U. S., at 798. The action that “will directly affect” the military bases, id., at 797, is taken by the President, when he submits his certification of approval to Congress. Accordingly, the Secretary’s and Commission’s reports serve “more like a tentative recommendation than a final and binding determination.” Id., at 798. The reports are, “like the ruling of a subordinate official, not final and therefore not subject to review.” Ibid. (internal quotation marks and citation omitted). The actions of the President, in turn, are not reviewable under the APA because, as we concluded in Franklin, the President is not an “agency.” See id., at 800-801.

Respondents contend that the 1990 Act differs significantly from the Census Act at issue in Franklin, and that our decision in Franklin therefore does not control the question whether the Commission’s actions here are final. Respondents appear to argue that the President, under the 1990 Act, has little authority regarding the closure of bases. See Brief for Respondents 29 (pointing out that the 1990 Act does not allow “the President to ignore, revise or amend the Commission’s list of closures. He is only permitted to accept or reject the Commission’s closure package in its entirety”). Consequently, respondents continue, the Commission’s report must be regarded as final. This argument ignores the ratio decidendi of Franklin. See 505 U. S., at 800-801.

First, respondents underestimate the President’s authority under the Act, and the importance of his role in the base closure process. Without the President’s approval, no bases are closed under the Act, see § 2903(e)(5); the Act, in turn, does not by its terms circumscribe the President’s discretion to approve or disapprove the Commission’s report. Cf. id., at 799. Second, and more fundamentally, respondents’ argument ignores “[t]he core question” for determining finality: “whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Id., at 797. That the President cannot pick and choose among bases, and must accept or reject the entire package offered by the Commission, is immaterial. What is crucial is the fact that “[t]he President, not the [Commission], takes the final action that affects” the military installations. Id., at 799. Accordingly, we hold that the decisions made pursuant to the 1990 Act are not reviewable under the APA. Accord, Cohen v. Rice, 992 F. 2d 376 (CA1 1993).

Although respondents apparently sought review exclusively under the APA, the Court of Appeals nevertheless sought to determine whether non-APA review, based on either common law or constitutional principles, was available. It focused, moreover, on whether the President’s actions under the 1990 Act were reviewable, even though respondents did not name the President as a defendant. The Court of Appeals reasoned that because respondents sought to enjoin the implementation of the President’s decision, the legality of that decision would determine whether an injunction should issue. See Specter II, 995 F. 2d, at 407; Specter I, 971 F. 2d, at 936. In this rather curious fashion, the case was transmuted into one concerning the reviewability of Presidential decisions.

II

Seizing upon our statement in Franklin that Presidential decisions are reviewable for constitutionality, the Court of Appeals asserted that “there is a constitutional aspect to the exercise of judicial review in this case — an aspect grounded in the separation of powers doctrine.” Specter II, supra, at 408. It reasoned, relying primarily on Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), that whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-of-powers doctrine. Thus, judicial review must be available to determine whether the President has statutory authority “for whatever action” he takes. 995 F. 2d, at 409. In terms of this case, the Court of Appeals concluded that the President’s statutory authority to close and realign bases would be lacking if the Secretary and Commission violated the procedural requirements of the Act in formulating their recommendations. Ibid.

Accepting for purposes of decision here the propriety of examining the President’s actions, we nonetheless believe that the Court of Appeals’ analysis is flawed. Our cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution. On the contrary, we have often distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority. See, e. g., Wheel-din v. Wheeler, 373 U. S. 647, 650-652 (1963) (distinguishing between “rights which may arise under the Fourth Amendment” and “a cause of action for abuse of the [statutory] subpoena power by a federal officer”); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 396-397 (1971) (distinguishing between “actions contrary to [a] constitutional prohibition,” and those “merely said to be in excess of the authority delegated ... by the Congress”).

In Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 682, 691, n. 11 (1949), for example, we held that sovereign immunity would not shield an executive officer from suit if the officer acted either “unconstitutionally or beyond his statutory powers.” (Emphasis added.) If all executive actions in excess of statutory authority were ipso facto unconstitutional, as the Court of Appeals seemed to believe, there would have been little need in Larson for our specifying unconstitutional and ultra vires conduct as separate categories. See also Dugan v. Rank, 372 U. S. 609, 621-622 (1963); Harmon v. Brucker, 355 U. S. 579, 581 (1958) (“In keeping with our duty to avoid deciding constitutional questions presented unless essential to proper disposition of a case, we look first to petitioners’ non-constitutional claim that respondent [Secretary of the Army] acted in excess of powers granted him by Congress” (emphasis added)).

Our decision in Youngstown, supra, does not suggest a different conclusion. In Youngstown, the Government disclaimed any statutory authority for the President’s seizure of steel mills. See 343 U. S., at 585 (“[W]e do not understand the Government to rely on statutory authorization for this seizure”). The only basis of authority asserted was the President’s inherent constitutional power as the Executive and the Commander in Chief of the Armed Forces. Id., at 587. Because no statutory authority was claimed, the case necessarily turned on whether the Constitution authorized the President’s actions. Youngstown thus involved the conceded absence of any statutory authority, not a claim that the President acted in excess of such authority. The case cannot be read for the proposition that an action taken by the President in excess of his statutory authority necessarily violates the Constitution.

The decisions cited above establish that claims simply alleging that the President has exceeded his statutory authority are not “constitutional” claims, subject to judicial review under the exception recognized in Franklin. As this case demonstrates, if every claim alleging that the President exceeded his statutory authority were considered a constitutional claim, the exception identified in Franklin would be broadened beyond recognition. The distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other, is too well established to permit this sort of evisceration.

So the claim raised here is a statutory one: The President is said to have violated the terms of the 1990 Act by accepting procedurally flawed recommendations. The exception identified in Franklin for review of constitutional claims thus does not apply in this case. We may assume for the sake of argument that some claims that the President has violated a statutory mandate are judicially reviewable outside the framework of the APA. See Dames & Moore v. Regan, 453 U. S. 654, 667 (1981). But longstanding authority holds that such review is not available when the statute in question commits the decision to the discretion of the President.

As we stated in Dakota Central Telephone Co. v. South Dakota ex rel. Payne, 250 U. S. 163,184 (1919), where a claim

“concerns not a want of [Presidential] power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power. This must be since, as this court has often pointed out, the judicial may not invade the legislative or executive departments so as to correct alleged mistakes or wrongs arising from asserted abuse of discretion.”

In a case analogous to the present one, Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 (1948), an airline denied a certificate from the Civil Aeronautics Board to establish an international air route sought judicial review of the denial. Although the Civil Aeronautics Act, 49 U. S. C. § 646 (1946 ed.), generally allowed for judicial review of the Board’s decisions, and did not explicitly exclude judicial review of decisions involving international routes of domestic airlines, we nonetheless held that review was unavailable. 333 U. S., at 114.

In reasoning pertinent to this case, we first held that the Board’s certification was not reviewable because it was not final until approved by the President. See id,., at 112-114 (“[Ojrders of the Board as to certificates for overseas or foreign air transportation are not mature and are therefore not susceptible of judicial review at any time before they are finalized by Presidential approval”). We then concluded that the President’s decision to approve or disapprove the orders was not reviewable, because “the final orders embody Presidential discretion as to political matters beyond the competence of the courts to adjudicate.” See id., at 114. We fully recognized that the consequence of our decision was to foreclose judicial review:

“The dilemma faced by those who demand judicial review of the Board’s order is that before Presidential approval it is not a final determination . . . and after Presidential approval the whole order, both in what is approved without change as well as in amendments which he directs, derives its vitality from the exercise of unreviewable Presidential discretion.” Id., at 113 (emphasis added).

Although the President’s discretion in Waterman S. S. Corp. derived from the Constitution, we do not believe the result should be any different when the President’s discretion derives from a valid statute. See Dakota Central Telephone Co., supra, at 184; United States v. George S. Bush & Co., 310 U. S. 371, 380 (1940).

The 1990 Act does not at all limit the President’s discretion in approving or disapproving the Commission’s recommendations. See § 2903(e); see also Specter II, 995 F. 2d, at 413 (Alito, J., dissenting). The Third Circuit seemed to believe that the President’s authority to close bases depended on the Secretary’s and Commission’s compliance with statutory procedures. This view of the statute, however, incorrectly conflates the duties of the Secretary and Commission with the authority of the President. The President’s authority to act is not contingent on the Secretary’s and Commission’s fulfillment of all the procedural requirements imposed upon them by the 1990 Act. Nothing in § 2903(e) requires the President to determine whether the Secretary or Commission committed any procedural violations in making their recommendations, nor does § 2903(e) prohibit the President from approving recommendations that are procedurally flawed. Indeed, nothing in § 2903(e) prevents the President from approving or disapproving the recommendations for whatever reason he sees fit. See § 2903(e); Specter II, 995 F. 2d, at 413 (Alito, J., dissenting).

How the President chooses to exercise the discretion Congress has granted him is not a matter for our review. See Waterman S. S. Corp., supra; Dakota Central Telephone Co., supra, at 184. As we stated in George S. Bush & Co., supra, at 380, “[n]o question of law is raised when the exercise of [the President’s] discretion is challenged.”

III

In sum, we hold that the actions of the Secretary and the Commission cannot be reviewed under the APA because they are not “final agency actions.” The actions of the President cannot be reviewed under the APA because the President is not an “agency” under that Act. The claim that the President exceeded his authority under the 1990 Act is not a constitutional claim, but a statutory one. Where a statute, such as the 1990 Act, commits decisionmaking to the discretion of the President, judicial review of the President’s decision is not available.

Respondents tell us that failure to allow judicial review here would virtually repudiate Marbury v. Madison, 1 Cranch 137 (1803), and nearly two centuries of constitutional adjudication. But our conclusion that judicial review is not available for respondents’ claim follows from "our interpretation of an Act of Congress, by which we and all federal courts are bound. The judicial power of the United States conferred by Article III of the Constitution is upheld just as surely by withholding judicial relief where Congress has permissibly foreclosed it, as it is by granting such relief where authorized by the Constitution or by statute.

The judgment of the Court of Appeals is

Reversed.

Justice Blackmun,

concurring in part and concurring in the judgment.

I did not join the majority opinion in Franklin v. Massachusetts, 505 U. S. 788 (1992), and would not extend that unfortunate holding to the facts of this case. I nevertheless agree that the Defense Base Closure and Realignment Act of 1990 “precludes] judicial review of a base-closing decision,” post, at 484, and accordingly join Justice Souter’s opinion.

I write separately to underscore what I understand to be the limited reach of today’s decision. The majority and concurring opinions conclude that the President acts within his unreviewable discretion in accepting or rejecting a recommended base-closing list, and that an aggrieved party may not enjoin closure of a duly selected base as a result of alleged error in the decisionmaking process. This conclusion, however, does not foreclose judicial review of a claim, for example, that the President added a base to the Defense Base Closure and Realignment Commission’s (Commission’s) list in contravention of his statutory authority. Nor does either opinion suggest that judicial review would be unavailable for a timely claim seeking direct relief from a procedural violation, such as a suit claiming that a scheduled meeting of the Commission should be public, see § 2903(d), note following 10 U. S. C. § 2687 (1988 ed., Supp. IV), or that the Secretary of Defense should publish the proposed selection criteria and provide an opportunity for public comment, §§ 2903(b) and (c). Such a suit could be timely brought and adjudicated without interfering with Congress’ intent to preclude judicial “cherry picking]” or frustrating the statute’s expedited decisionmaking schedule. See post, at 481. I also do not understand the majority’s Franklin analysis to foreclose such a suit, since a decision to close the Commission’s hearing, for example, would “‘directly affect’” the rights of interested parties independent of any ultimate Presidential review. See ante, at 470; cf. FCC v. ITT World Communications, Inc., 466 U. S. 463 (1984).

With the understanding that neither a challenge to ultra vires exercise of the President’s statutory authority nor a timely procedural challenge is precluded, I join Justice SouTER’s concurrence and Part II of the opinion of the Court.

Justice Souter,

with whom Justice Blackmun, Justice Stevens, and Justice Ginsburg join,

concurring in part and concurring in the judgment.

I join Part II of the Court’s opinion because I think it is clear that the President acted wholly within the discretion afforded him by the Defense Base Closure and Realignment Act of 1990 (Act), and because respondents pleaded no constitutional claim against the President, indeed, no claim against the President at all. As the Court explains, the Act grants the President unfettered discretion to accept the Commission’s base-closing report or to reject it, for a good reason, a bad reason, or no reason. See ante, at 476.

It is not necessary to reach the question the Court answers in Part I, whether the Defense Base Closure and Realignment Commission’s (Commission’s) report is final agency action, because the text, structure, and purpose of the Act compel the conclusion that judicial review of the Commission’s or the Secretary’s compliance with it is precluded. There is, to be sure, a “strong presumption that Congress did not mean to prohibit all judicial review.” Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 672 (1986) (internal quotation marks and citation omitted). But although no one feature of the Act, taken alone, is enough to overcome that strong presumption, I believe that the combination present in this unusual legislative scheme suffices.

In adopting the Act, Congress was intimately familiar with repeated, unsuccessful, efforts to close military bases in a rational and timely manner. See generally Defense Base Closure and Realignment Commission, Report to the President 1991. That history of frustration is reflected in the Act’s text and intricate structure, which plainly express congressional intent that action on a base-closing package be quick and final, or no action be taken at all.

At the heart of the distinctive statutory regime, Congress placed a series of tight and rigid deadlines on administrative review and Presidential action, embodied in provisions for three biennial rounds of base closings, in 1991,1993, and 1995 (the “base-closing years”), §§ 2903(b) and (c), note following 10 U. S. C. §2687 (1988 ed., Supp. IV), with unbending deadlines prescribed for each round. The Secretary is obliged to forward base-closing recommendations to the Commission, no later, respectively, than April 15, 1991, March 15, 1993, and March 15, 1995. § 2903(c). The Comptroller General must submit a report to Congress and the Commission evaluating the Secretary’s recommendations by April 15 of each base-closing year. § 2903(d)(5). The Commission must then transmit a report to the President setting out its own recommendations by July 1 of each of those years. § 2903(d)(2). And in each such year, the President must, no later than July 15, either approve or disapprove the Commission’s recommendations. § 2903(e)(1). If the President disapproves the Commission’s report, the Commission must send the President a revised list of recommended base closings, no later than August 15. § 2903(e)(3). In that event, the President will have until September 1 to approve the Commission’s revised report; if the President fails to approve the report by that date, then no bases will be closed that year. § 2903(e)(5). If, however, the President approves a Commission report within either of the times allowed, the report becomes effective unless Congress disapproves the President’s decision by joint resolution (passed according to provisions for expedited and circumscribed internal procedures) within 45 days. §§ 2904(b)(1)(A), 2908.

The Act requires that a decision about a base-closing package, once made, be implemented promptly. Once Congress has declined to disapprove the President’s base-closing decision, the Secretary of Defense “shall . . . close all military installations recommended for closure.” §2904(a). The Secretary is given just two years after the President’s transmittal to Congress to begin the complicated process of closing the listed bases and must complete each base-closing round within six years of the President’s transmittal. See §§2904, 2905.

It is unlikely that Congress would have insisted on such a timetable for decision and implementation if the base-closing package would be subject to litigation during the periods allowed, in which case steps toward closing would either have to be delayed in deference to the litigation, or the litigation might be rendered moot by completion of the closing process. That unlikelihood is underscored by the provision for disbanding the Commission at the end of each base-closing decision round, and for terminating it automatically at the end of 1995, whether or not any bases have been selected to be closed. If Congress intended judicial review of individual base-closing decisions, it would be odd indeed to disband biennially, and at the end of three rounds to terminate, the only entity authorized to provide further review and recommendations.

The point that judicial review was probably not intended emerges again upon considering the linchpin of this unusual statutory scheme, which is its all-or-nothing feature. The President and Congress must accept or reject the biennial base-closing recommendations as a single package. See §§ 2903(e)(2), (e)(3), (e)(4) (as to the President); §§ 2908(a)(2) and (d)(2) (as to Congress). Neither the President nor Congress may add a base to the list or “cherry pick” one from it. This mandate for prompt acceptance or rejection of the entire package of base closings can only represent a considered allocation of authority between the Executive and Legislative Branches to enable each to reach important, but politically difficult, objectives. Indeed, the wisdom-and ultimate political acceptability of a decision to close any one base depends on the other closure decisions joined with it in a given package, and the decisions made in the second and third rounds just as surely depend (or will depend) on the particular content of the package or packages of closings that will have preceded them. If judicial review could eliminate one base from a package, the political resolution embodied in that package would be destroyed; if such review could eliminate an entire package, or leave its validity in doubt when a succeeding one had to be devised, the political resolution necessary to agree on the succeeding package would be rendered the more difficult, if not impossible. The very reasons that led Congress by this enactment to bind its hands from untying a package, once assembled, go far to persuade me that Congress did not mean the courts to have any such power through judicial review.

When combined with these strict timetables for decision, the temporary nature of the Commission, the requirement for prompt implementation, and the all-or-nothing base-closing requirement at the core of the Act, two secondary features of the legislation tend to reinforce my conclusion that judicial review was not intended. First, the Act provides nonjudicial opportunities to assess any procedural (or other) irregularities. The Commission and the Comptroller General review the Secretary’s recommendations, see §§ 2903(d)(5), 2903(d)(3), and each can determine whether the Secretary has provided adequate information for reviewing the soundness of his recommendations. The President may, of course, also take procedural irregularities into account in deciding whether to seek new recommendations from the Commission, or in deciding not to approve the Commission’s recommendations altogether. And, ultimately, Congress may decide during its 45-day review period whether procedural failings call the Presidentially approved recommendations so far into question as to justify their substantive rejection.

Second, the Act does make express provision for judicial review, but only of objections under the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, as amended, 42 U. S. C. § 4321 et seq., to implementation plans for a base closing, and only after the process of selecting a package of bases for closure is complete. Because NEPA review during the base-closing decision process had stymied or delayed earlier efforts, the Act, unlike prior legislation addressed to base closing, provides that NEPA has no application at all until after the President has submitted his decision to Congress and the process of selecting bases for closure has been completed. See § 2905(c)(1). NEPA then applies only to claims arising out of actual disposal or relocation of base property, not to the prior decision to choose one base or another for closing. § 2905(c)(2). The Act by its terms allows for “judicial review, with respect to any requirement of [NEPA]” made applicable to the Act by §2905(c)(2), but requires the action to be initiated within 60 days of the Defense Department’s act or omission as to the closing of a base. § 2905(c)(3). This express provision for judicial review of certain NEPA claims within a narrow time frame supports the conclusion that the Act precludes judicial review of other matters, not simply because the Act fails to provide expressly for such review, but because Congress surely would have prescribed similar time limits to preserve its considered schedules if review of other claims had been intended.

In sum, the text, structure, and purpose of the Act clearly manifest congressional intent to confine the base-closing selection process within a narrow time frame before inevitable political opposition to an individual base closing could become overwhelming, to ensure that the decisions be implemented promptly, and to limit acceptance or rejection to a package of base closings as a whole, for the sake of political feasibility. While no one aspect of the Act, standing alone, would suffice to overcome the strong presumption in favor of judicial review, this structure (combined with the Act’s provision for Executive and congressional review, and its requirement of time-constrained judicial review of implementation under NEPA) can be understood no other way than as precluding judicial review of a base-closing decision under the scheme that Congress, out of its doleful experience, chose to enact. I conclude accordingly that the Act forecloses such judicial review.

I thus join in Part II of the opinion of the Court, and in its judgment.

       Respondents are shipyard employees and their unions; Members of Congress from Pennsylvania and New Jersey; the States of Pennsylvania, New Jersey, and Délaware, and officials of those States; and the city of Philadelphia. Petitioners are the Secretary of Defense; the Secretary of the Navy; and the Defense Base Closure and Realignment Commission and its members.

       For ease of reference, all citations to the 1990 Act are to the relevant sections of the Act as it appears in note following 10 U. S. C. § 2687 (1988 ed., Supp. IV).

       Respondents’ third count alleged that petitioners had violated the due process rights of respondent shipyard employees and respondent unions. In its initial decision, the United States Court of Appeals for the Third Circuit held that the shipyard employees and unions had no protectible property interest in the shipyard’s continued operation and thus had failed to state a claim under the Due Process Clause. Specter v. Garrett, 971 F. 2d 936, 956-966 (1992). Respondents did not seek further review of that ruling, and it is not at issue here.

       See Specter v. Garrett, 995 F. 2d 404, 412 (1993) (Alito, J., dissenting); see also Specter v. Garrett, 777 F. Supp. 1226,1227 (ED Pa. 1991) (respondents “have asserted that their right to judicial review... arises under the Administrative Procedure Act”).

        Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), the other case (along with Youngstown) cited in Franklin v. Massachusetts, 505 U. S. 788 (1992), as an example of when we have reviewed the constitutionality of the President’s actions, likewise did not involve a claim that the President acted in excess of his statutory authority. Panama Refining involved the National Industrial Recovery Act, which delegated to the President the authority to ban interstate transportation of oil produced in violation of state production and marketing limits. See 293 U. S., at 406. We struck down an Executive Order promulgated under that Act not because the President had acted beyond his statutory authority, but rather because the Act unconstitutionally delegated Congress’ authority to the President. See id., at 430. As the Court pointed out, we were “not dealing with action which, appropriately belonging to the executive province, is not the subject of judicial review, or with the presumptions attaching to executive action. To repeat, we are concerned with the question of the delegation of legislative power.” Id., at 432 (footnote omitted). Respondents have not alleged that the 1990 Act in itself amounts to an unconstitutional delegation of authority to the President.

       As one commentator has observed, in cases in which the President concedes, either implicitly or explicitly, that the only source of his authority is statutory, no “constitutional question whatever” is raised. J. Choper, Judicial Review and the National Political Process 316 (1980). Rather, “the cases concern only issues of statutory interpretation.” Ibid.

       See also H. R. Coni Rep. No. 101-923, p. 705 (1990) (Earlier base closures had “take[n] a considerable period of time and involve[d] numerous opportunities for challenges in court”); id., at 707 (Act “would considerably enhance the ability of the Department of Defense ... promptly [to] implement proposals for base closures and realignment”); H. R. Rep. No. 101-665, p. 384 (1990) (“Expedited procedures ... are essential to make the base closure process work”).

       To enable Congress to perform this prompt review, the Act requires the Secretary, the Comptroller General, and the Commission to provide Congress with information prior to the completion of Executive Branch review. See §§ 2903(a)(1), (b)(2), (c)(1), and (d)(3).

       Petitioners represent, indeed, that as to the round in question, the Comptroller General reported to Congress on procedural irregularities (as well as substantive differences of opinion) and requested additional information from the Secretary (which was provided). See Reply Brief for Petitioners 16, n. 12.

       In approving the base closings for 1991, Congress was apparently well aware of claims of procedural shortcomings, but nonetheless chose not to disapprove the list. See Department of Defense Appropriations Act, 1992, Pub. L. 102-172, §8131, 105 Stat. 1208.

       See, e. g., H. R. Conf. Rep. No. 100-1071, p. 23 (1988).


source: Caselaw Access Project

author:
      Chief Justice Rehnquist
      Justice Souter,

license: Public Domain

text:
    CUSTIS v. UNITED STATES
    No. 93-5209.
    Argued February 28, 1994
    Decided May 23, 1994

      Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scalia, Kennedy, Thomas, and Ginsburg, JJ., joined. Souter, J., filed a dissenting opinion, in which Blackmun and Stevens, JJ., joined, post, p. 498.

      Mary M. French argued the cause for petitioner. With her on the briefs were James K. Bredar and Beth M. Farber.

      Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, John F Manning, and Joseph C. Wyderko

       Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Richard A Cordray, State Solicitor, Simon B. Karas, and Donald R. Jilisky and Donald Gary

        Keyser, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Winston Bryant of Arkansas, Larry EchoHawk of Idaho, Chris Gorman of Kentucky, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Frank DeVesa of New Jersey, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, Theodore R. Kulongoski of Oregon, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Jeffrey L. Amestoy of Vermont, Stephen D. Rosenthal of Virginia, and Joseph B. Myer of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.

   Chief Justice Rehnquist

delivered the opinion of the Court.

The Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e) (ACCA), raises the penalty for possession of a firearm by a felon from a maximum of 10 years in prison to a mandatory minimum sentence of 15 years and a maximum of life in prison without parole if the defendant “has three previous convictions ... for a violent felony or a serious drug offense.” We granted certiorari to determine whether a defendant in a federal sentencing proceeding may collaterally attack the validity of previous state convictions that are used to enhance his sentence under the ACCA. We hold that a defendant has no such right (with the sole exception of convictions obtained in violation of the right to counsel) to collaterally attack prior convictions.

Baltimore City Police arrested petitioner Darren J. Custis on July 1,1991. A federal grand jury indicted him on three counts: (1) possession of cocaine with intent to distribute in violation of 21 U. S. C. § 841(a)(1); (2) use of a firearm in connection with a drug trafficking offense in violation of 18 U. S. C. § 924(c); and (3) possession of a firearm by a convicted felon in violation of 18 U. S. C. § 922(g)(1). Before trial in the United States District Court for the District of Maryland, the Government notified Custis that it would seek an enhanced penalty for the § 922(g)(1) offense under § 924(e)(1). The notice charged that he had three prior felony convictions: (1) a 1985 Pennsylvania state-court conviction for robbery; (2) a 1985 Maryland state-court conviction for burglary; and (3) a 1989 Maryland state-court conviction for attempted burglary.

The jury found Custis not guilty of possession with intent to distribute and not guilty of use of a firearm during a drug offense, but convicted him of possession of a firearm and simple cocaine possession, a lesser included offense in the charge of possession with intent to distribute cocaine. At the sentencing hearing, the Government moved to have Custis’ sentence enhanced under § 924(e)(1), based on the prior convictions included in the notice of sentence enhancement.

Custis challenged the use of the two Maryland convictions for sentence enhancement. He argued that his lawyer for his 1985 burglary conviction rendered unconstitutionally ineffective assistance and that his guilty plea was not knowing and intelligent as required by Boykin v. Alabama, 395 U. S. 238 (1969). He claimed that his attorney had failed to advise him of the defense of voluntary intoxication, and that he would have gone to trial, rather than pleaded guilty, had he been aware of that defense. He challenged his 1989 conviction on the ground that it had been based upon a “stipulated facts” trial. He claimed that such a “stipulated facts” trial was tantamount to a guilty plea and that his conviction was fundamentally unfair because he had not been adequately advised of his rights. Custis further asserts that he had been denied effective assistance of counsel in that case because the stipulated facts established only attempted breaking and entering rather than attempted burglary under state law.

The District Court initially rejected Custis’ collateral attacks on his two Maryland state-court convictions. The District Court’s letter ruling determined that the performance of Custis’ attorney in the 1985 case did not fall below the standard of professional competence required under Strickland v. Washington, 466 U. S. 668 (1984). Order in No. S 91-0334 (D. Md., Feb. 27, 1992), p. 1. It found that counsel’s recommendation of a guilty plea was not unreasonable under the circumstances. Id., at 2. The District Court also rejected Custis’ claim that the 1989 “stipulated facts” trial was the functional equivalent of a guilty plea. Id., at 2-3.

The District Court later reversed field and determined that it could not entertain Custis’ challenges to his prior convictions at all. It noted that “[ujnlike the statutory scheme for enhancement of sentences in drug cases, [§ 924(e)(1)] provides no statutory right to challenge prior convictions relied upon by the Government for enhancement.” 786 F. Supp. 533, 535-536 (Md. 1992). The District Court went on to state that the Constitution bars the use of a prior conviction for sentence enhancement only when there was a complete denial of counsel in the prior proceeding. Id., at 536, citing Gideon v. Wainwright, 372 U. S. 335 (1963); United States v. Tucker, 404 U. S. 443 (1972); and Burgett v. Texas, 389 U. S. 109 (1967). Based on Custis’ offense level of 33 and his criminal history category of VI, the District Court imposed a sentence of 235 months in prison.

The Court of Appeals affirmed. 988 F. 2d 1355 (CA4 1993).. It recognized the right of a defendant who had been completely deprived of counsel to assert a collateral attack on his prior convictions since such a defendant “has lost his ability to assert all his other constitutional rights.” Id., at 1360, citing Johnson v. Zerbst, 304 U. S. 458,465 (1938). Citing the “substantial burden” on prosecutors and the district courts, the Court of Appeals dismissed all of Custis’ challenges to his prior convictions as the “fact-intensive” type that pose a risk of unduly delaying and protracting the entire sentencing process. 988 F. 2d, at 1361. The prospect of such fact-intensive inquiries led it to express great reluctance at forcing district courts to overcome the “ 'inadequacy or unavailability of state court records and witnesses’” in trying to determine the validity of prior sentences. Ibid., quoting United States v. Jones, 977 F. 2d 105,109 (CA4 1992). In addition to the practical hurdles, the Court of Appeals specified concerns over comity and federalism as other factors weighing against permitting collateral attacks. “ ‘Federal courts are not forums in which to relitigate state trials.’ ” 988 F. 2d, at 1361, quoting Barefoot v. Estelle, 463 U. S. 880, 887 (1983). We granted certiorari, 510 U. S. 913 (1993), because the Court of Appeals’ decision conflicted with recent decisions from other Courts of Appeals that permitted defendants to challenge prior convictions that are used in sentencing under § 924(e)(1).

Custis argues that the ACCA should be read to permit defendants to challenge the constitutionality of convictions used for sentencing purposes. Looking to the language of the statute, we do not believe § 924(e) authorizes such collateral attacks. The ACCA provides an enhanced sentence for any person who unlawfully possesses a firearm in violation of 18 U. S. C. § 922(g) 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 . . . .” Section 924(e) applies whenever a defendant is found to have suffered “three previous convictions” of the type specified. The statute 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.

Absent specific statutory authorization, Custis contends that an implied right to challenge the constitutionality of prior convictions exists under § 924(e). Again we disagree. The Gun Control Act of 1968, of which § 924(e) is a part, strongly indicates that unchallenged prior convictions may be used for purposes of § 924(e). At least for prior violent felonies, §921(a)(20) describes the circumstances in which a prior conviction may be counted for sentencing purposes under § 924(e):

“What constitutes a conviction of ... a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter [18 U. S. C. §§921-930].”

The provision that a court may not count a conviction “which has been ... set aside” creates a clear negative implication that courts may count a conviction that has not been set aside.

Congress’ passage of other related statutes that expressly permit repeat offenders to challenge prior convictions that are used for enhancement purposes supports this negative implication. For example, 21 U. S. C. § 851(c), which Congress enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, sets forth specific procedures allowing a defendant to challenge the validity of a prior conviction used to enhance the sentence for a federal drug offense. Section 851(c)(1) states that “[i]f the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information.” Section 851(c)(2) goes on to provide:

“A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response. Any challenge to a prior conviction, not raised by response to the information before an increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge.”

The language of § 851(c) shows that when Congress intended to authorize collateral attacks on prior convictions at the time of sentencing, it knew how to do so. Congress’ omission of similar language in § 924(e) indicates that it did not intend to give defendants the right to challenge the validity of prior convictions under this statute. Cf. Gozlon-Peretz v. United States, 498 U. S. 395, 404 (1991) (“ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’”), quoting Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted).

Our decision in Lewis v. United States, 445 U. S. 55 (1980), also supports the conclusion that prior convictions used for sentence enhancement purposes under § 924(e) are not subject to collateral attack in the sentence proceeding. Lewis interpreted 18 U. S. C. App. § 1202(a)(1) (1982 ed.), one of the predecessors to the current felon-in-possession-of-a-firearm statute. Section 1202(a)(1) was aimed at any person who “has been convicted by a court of the United States or of a State ... of a felony.” We concluded that “ ‘[njothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack].’” 445 U. S., at 60, quoting United States v. Culbert, 435 U. S. 371,373. (1978). This lack of such intent in § 1202(a)(1) also contrasted with other federal statutes that explicitly permitted a defendant to challenge the validity or constitutionality of the predicate felony. See, e. g., 18 U. S. C. § 3575(e) (note following ch. 227) (dangerous special offender) and 21 U. S. C. § 851(c)(2) (recidivism under the Comprehensive Drug Abuse Prevention and Control Act of 1970). The absence of expressed intent, and the contrast with other federal statutes, led us to determine that “the firearms prosecution [under § 1202(a)(1)] does not open the predicate conviction to a new form of collateral attack.” 445 U. S., at 67.

Similarly, § 924(e) lacks any indication that Congress intended to permit collateral attacks on prior convictions used for sentence enhancement purposes. The contrast between § 924(e) and statutes that expressly provide avenues for collateral attacks, as well as our decision in Lewis, supra, point strongly to the conclusion that Congress did not intend to permit collateral attacks on prior convictions under § 924(e).

Custis argues that regardless of whether § 924(e) permits collateral challenges to prior convictions, the Constitution requires that they be allowed. He relies upon our decisions in Burgett v. Texas, 389 U. S. 109 (1967), and United States v. Tucker, 404 U. S. 443 (1972), in support of this argument. Both of these decisions relied upon our earlier decision in Gideon v. Wainwright, 372 U. S. 335 (1963), holding that the Sixth Amendment of the United States Constitution required that an indigent defendant in state-court proceedings have counsel appointed for him. Gideon, in turn, overruled our earlier decision in Betts v. Brady, 316 U. S. 455 (1942), which had held that the Sixth Amendment right to counsel, long applied in federal-court proceedings, was not itself made applicable to the States by the Due Process Clause. The Due Process Clause, Betts had held, required the appointment of counsel for an indigent defendant in state courts only upon a showing of special circumstances. Id., at 473.

But even before Betts v. Brady was decided, this Court had held that the failure to appoint counsel for an indigent defendant in a federal proceeding not only violated the Sixth Amendment, but was subject to collateral attack in federal habeas corpus. Johnson v. Zerbst, 304 U. S. 458 (1938). At a time when the underlying habeas statute was construed to allow collateral attacks on final judgments of conviction only where the rendering court lacked “jurisdiction” — albeit a somewhat expansive notion of “jurisdiction,” see Moore v. Dempsey, 261 U. S. 86 (1923) — this Court attributed a jurisdictional significance to the failure to appoint counsel. The Court said:

“If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. . . . The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.” 304 U. S., at 468.

When the Court later expanded the availability of federal habeas to other constitutional violations, it did so by frankly stating that the federal habeas statute made such relief available for them, without claiming that the denial of these constitutional rights by the trial court would have denied it jurisdiction. See, e. g., Waley v. Johnston, 316 U. S. 101, 104-105 (1942) (coerced confession); Brown v. Allen, 344 U. S. 443 (1953). There is thus a historical basis in our jurisprudence of collateral attacks for treating the right to have counsel appointed as unique, perhaps because of our oft-stated view that “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Powell v. Alabama, 287 U. S. 45, 68-69 (1932).

Following our decision in Gideon, the Court decided Burgett v. Texas, supra. There the defendant was charged under a Texas recidivist statute with having been the subject of four previous felony convictions. 389 U. S., at 111. The prosecutor introduced certified records of one of the defendant’s earlier convictions in Tennessee. Id., at 112. The defendant objected to the admission of this conviction on the ground that he had not been represented by counsel and had not waived his right to counsel, but his objection was overruled by the trial court. Id., at 113. This Court reversed, finding that the certified records of the Tennessee conviction on their face raised a “presumption that petitioner was denied his right to counsel. . . , and therefore that his conviction was void.” Id., at 114. The Court held that the admission of a prior criminal conviction that is constitutionally infirm under the standards of Gideon is inherently prejudicial and to permit use of such a tainted prior conviction for sentence enhancement would undermine the principle of Gideon. 389 U. S., at 115.

A similar situation arose in Tucker, supra. The defendant had been convicted of bank robbery in California in 1953. At sentencing, the District Court conducted an inquiry into the defendant’s background, and, the record shows, gave explicit attention to the three previous felony convictions that the defendant had acknowledged at trial. The District Court sentenced him to 25 years in prison — the stiffest term authorized by the applicable federal statute, 18 U. S. C. § 2113(d). 404 U. S., at 444. Several years later, after having obtained a judicial determination that two of his prior convictions were constitutionally invalid, the defendant filed a writ of habeas corpus in the District Court in which he had been convicted of bank robbery. He challenged the use at his 1953 bank robbery trial of his three previous felony convictions. This Court sustained his challenge insofar as his sentence was concerned, saying “Gideon . . . established an unequivocal rule ‘making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.’” Id., at 449, quoting Burgett v. Texas, supra, at 114. The Court held that “[e]rosion of the Gideon principle can be prevented here only by affirming the judgment of the Court of Appeals remanding this case to the trial court for reconsideration of the [defendant’s] sentence.” 404 U. S., at 449.

Custis invites us to extend the right to attack collaterally prior convictions used for sentence enhancement beyond the right to have appointed counsel established in Gideon. We decline to do so. We think that since the decision in Johnson v. Zerbst more than half a century ago, and running through our decisions in Burgett and Tucker, there has been a theme that failure to appoint counsel for an indigent defendant was a unique constitutional defect. Custis attacks his previous convictions claiming the denial of the effective assistance of counsel, that his guilty plea was not knowing and intelligent, and that he had. not been adequately advised of his rights in opting for a “stipulated facts” trial. None of these alleged constitutional violations rises to the level of a jurisdictional defect resulting from the failure to appoint counsel at all. Johnson v. Zerbst, supra.

Ease of administration also supports the distinction. As revealed in a number of the cases cited in this opinion, failure to appoint counsel at all will generally appear from the judgment roll itself, or from an accompanying minute order. But determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state-court transcripts or records that may date from another era, and may come from any one of the 50 States.

The interest in promoting the finality of judgments provides additional support for our constitutional conclusion. As we have explained, “[i]nroads on the concept of finality tend to undermine confidence in the integrity of our procedures” and inevitably delay and impair the orderly administration of justice. United States v. Addonizio, 442 U. S. 178, 184, n. 11 (1979). We later noted in Parke v. Raley, 506 U. S. 20 (1992), that 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. By challenging the previous conviction, the defendant is asking a district court “to deprive [the] [state-court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmen[t].” Id., at 30. These principles bear extra weight in cases in which the prior convictions, such as one challenged by Custis, 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.” United States v. Timmreck, 441 U. S. 780, 784 (1979) (footnote omitted).

We therefore hold that § 924(e) does not permit Custis to use the federal sentencing forum to gain review of his state convictions. Congress did not prescribe and the Constitution does not require such delay and protraction of the federal sentencing process. We recognize, however, as did the Court of Appeals, see 988 F. 2d, at 1363, 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 Maryland or through federal habeas review. See Maleng v. Cook, 490 U. S. 488, 492 (1989)., If Custis is successful in attacking these state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentences. We express no opinion on the appropriate disposition of such an application.

The judgment of the Court of Appeals is accordingly

Affirmed.

Justice Souter,

with whom Justice Blackmun and Justice Stevens join,

dissenting.

The Court answers a difficult constitutional question that I believe the underlying statute does not pose. Because in my judgment the Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e) (ACCA), does not authorize sentence enhancement based on prior convictions that a defendant can show at sentencing to have been unlawfully obtained, I respectfully dissent.

I

A

The ACCA mandatory minimum sentence applies to defendants with “three previous convictions ... for a violent felony or a serious drug offense.” 18 U. S. C. § 924(e). The Court construes “convictio[n]” to refer to the “fact of the conviction,” ante, at 491 (emphasis in original), and concludes that “Congress did not intend to permit collateral attacks [during sentencing] on prior convictions under § 924(e),” ante, at 493. This interpretation of the ACCA will come as a surprise to the Courts of Appeals, which (with the one exception of the court below) have understood “convictio[n]” in the ACCA to mean “lawful conviction,” and have permitted defendants to show at sentencing that a prior conviction offered for enhancement was unconstitutionally obtained, whether as violative of the right to have appointed counsel, see Gideon v. Wainwright, 372 U. S. 335 (1963), the right to effective assistance of counsel, see Strickland v. Washington, 466 U. S. 668 (1984), the right against conviction based on an unknowing or involuntary guilty plea, see Boykin v. Alabama, 395 U. S. 238 (1969), or other constitutional rights. The weight of appellate authority, in my opinion, reflects the proper construction of the ACCA.

The Court’s contrary reading ignores the legal framework within which Congress drafted the ACCA, a framework with which we presume Congress was familiar. See, e. g., Cannon v. University of Chicago, 441 U. S. 677, 696-698 (1979). When the language that became the ACCA was first proposed in 1982, when it was enacted in 1984 (codified at § 1202(a)(1)) and when it was reenacted in 1986 (codified at § 924(e)), this Court’s decisions in Burgett v. Texas, 389 U. S. 109 (1967), and United States v. Tucker, 404 U. S. 443 (1972), were on the books. Even under the narrow reading the Court accords those decisions today, they recognize at least a right to raise during sentencing Gideon challenges to prior convictions used for enhancement. See ante, at 495-496. Unless Congress intended to snub that constitutional right (and we ordinarily indulge a “strong presumption . . . that Congress legislated in accordance with the Constitution,” Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 477 (1957) (Frankfurter, J., dissenting)), “convictio[n]” in § 924(e) simply cannot refer to the mere fact of conviction, and the provision must have been meant to allow during sentencing at least some challenges to prior convictions offered for enhancement.

Nor is it likely that Congress’s intent was informed by as narrow a reading of Burgett and Tucker as the Court adopts today. In the legal environment of the ACCA’s enactment, Burgett and Tucker were thought to stand for the broader proposition that “[n]o consideration can be given [at sentencing] to a conviction that was unconstitutionally obtained,” 3 C. Wright, Federal Practice and Procedure §526, p. 102 (1982), and Courts of Appeals consistently read the decisions as requiring courts to entertain claims that prior convictions relied upon for enhancement were unconstitutional for reasons other than Gideon violations. The Congress that enacted the ACCA against this backdrop must be presumed to have intended to permit defendants to attempt to show at sentencing that prior convictions were “unconstitutionally obtained.”

That presumption is strongly bolstered by the fact that Congress, despite the consistent interpretation of the ACCA as permitting attacks on prior convictions during sentencing, and despite amending the law several times since its enactment (see note following 18 U. S. C. § 924 (1988 ed. and Supp. V) (listing amendments)), left the language relevant here untouched. Congress’s failure to express legislative disagreement with the appellate courts’ reading of the ACCA cannot be disregarded, especially since Congress has acted in this area in response to other Courts of Appeals decisions that it thought revealed statutory flaws requiring “correction].” S. Rep. No. 98-583, p. 7, and n. 17 (1984); see id., at 8, and n. 18, 14, and n. 31; see also Herman & MacLean v. Huddleston, 459 U. S. 375, 385-386 (1983) (“In light of [a] well-established judicial interpretation [of a statutory provision], Congress’ decision to leave [the provision] intact suggests that Congress ratified” the interpretation). Accordingly, absent clear indication that Congress intended to preclude all challenges during sentencing to prior convictions relied upon for enhancement, the ACCA must be read as permitting such challenges.

B

The Court fails to identify any language in the ACCA affirmatively precluding collateral attacks on prior convictions during sentencing, as there is none. Instead, the Court hears a clear message in the statutory silence, but I find none of its arguments persuasive. The Court first invokes 18 U. S. C. § 921(a)(20), under which a conviction “which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter.” According to the Court, this “exemption clause” (as we have elsewhere called it, see Beecham v. United States, ante, at 369, “creates a clear negative implication that courts may count a conviction that has not been set aside,” ante, at 491. Expressio unius, in other words, est exclusio alterius.

Even if the premise of the Court’s argument is correct, the bridge the Court crosses to reach its conclusion is notoriously unreliable and does not bear the weight here. While “often a valuable servant,” the maxim that the inclusion of something negatively implies the exclusion of everything else {expressio unius, etc.) is “a dangerous master to follow in the construction of statutes.” Ford v. United States, 273 U. S. 593, 612 (1927) (internal quotation marks and citation omitted). It rests on the assumption that all omissions in legislative drafting are deliberate, an assumption we know to be false. See Posner, Statutory Interpretation — in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 813 (1983); Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 873-874 (1930). As a result, “[sjcholars have long savaged the expressio canon,” Cheney R. Co. v. ICC, 902 F. 2d 66, 68 (CADC 1990) (Williams, J.), at least when it is made to do the work of a conclusive presumption, and our decisions support the proposition that “[sjometimes [the canon] applies and sometimes it does not, and whether it does or does not depends largely on context.” R. Dickerson, Interpretation and Application of Statutes 47 (1975); see also id., at 234-235.

In this case, the “contemporary legal context,” Cannon v. University of Chicago, 441 U. S., at 699, in which Congress drafted the ACC A requires rejecting the negative implication on which the Court relies. That context, as I have described, understood defendants to have a constitutional right to attack at sentencing prior convictions that had not previously been invalidated, and in that legal setting it would have been very odd for Congress to have intended to establish a constitutionally controversial rule by mere implication. See Lowe v. SEC, 472 U. S. 181, 206, n. 50 (1985) (“In areas where legislation might intrude on constitutional guarantees, we believe that Congress, which has always sworn to protect the Constitution, would err on the side of fundamental constitutional liberties when its legislation implicates those liberties”) (internal quotation marks and citation omitted). And in fact the legislative history indicates that quite a different intention informed the addition to §921(a)(20) in 1986, two years after the ACCA’s enactment, of the exemption clause (and the related “choice-of-law clause,” Beecham v. United States, ante, at 369. Congress simply intended to clarify that the law of the convicting jurisdiction should be the principal reference point in determining what counts as a “conviction” for purposes of the federal “felon in possession” law, and to correct an oversight that had resulted in the omission of exemption language from one of two parallel provisions. See S. Rep. No. 98-583, supra, at 7; H. R. Rep. No. 99-495, p. 20 (1986). In amending § 921(a)(20), Congress was not addressing the question of where, in the course of federal litigation, a conviction could be challenged. Indeed, the legislative history of the amendment reveals no hint of any intention at all with respect to § 924(e)’s sentence-enhancement provision, but rather an exclusive focus on the federal firearms disability in §922. Cf. Miles v. Illinois Central R. Co., 315 U. S. 698, 714-715 (1942) (Frankfurter, J., dissenting) (relying on legislative history to counter a negative implication from a statute’s text). As a result, the Court’s argument by negative implication from § 921(a)(20)’s exemption clause must fail. The fact that Congress in the exemption clause expressly precluded reliance upon unconstitutional convictions that have been set aside simply does not reveal an intent with respect to § 924(e) to require reliance at sentencing on unconstitutional convictions that have not yet been set aside.

The Court’s second statutory argument also seeks to establish congressional intent through negative implication, but is no more successful. The Court observes that Congress in other statutes expressly permitted challenges to prior convictions during sentencing, see ante, at 491-493 (citing 21 U. S. C. § 851(c)(2) and 18 U. S. C. § 3575(e)), which is said to show that “when Congress intended to authorize collateral attacks on prior convictions at the time of sentencing, it knew how to do so,” ante, at 492. But surely the Court does not believe that, if Congress intended to preclude collateral attacks on prior convictions at the time of sentencing, it did not know how to do that. And again, the Court’s effort to infér intent from the statutory silence runs afoul of the context of the statute’s enactment; within a legal framework forbidding sentencing on the basis of prior convictions a defendant can show to be invalid, a Congress that intended to require sentencing on the basis of such convictions can be expected to have made its intention explicit.

Finally, the Court turns for support to Lewis v. United States, 445 U. S. 55 (1980), which held that the federal “felon in possession” law does not permit a defendant, during his prosecution, to challenge the constitutional validity of the predicate felony conviction. The Court’s reliance on Lewis, however, assumes an equivalence between two different types of laws that Lewis itself disclaimed: between a law disabling convicted felons from possessing firearms (at issue in Lewis), and a law requiring sentence enhancement based on prior convictions (at issue here, as well as in Burgett and Tucker). Lewis explained that the “felon in possession” law is “a sweeping prophylaxis” designed “to keep firearms away from potentially dangerous persons,” 445 U. S., at 63, 67, whereas a sentence-enhancement law “depend[s] upon the reliability of a past . . . conviction,” id., at 67. While the unlawfulness of a past conviction is irrelevant to the former, it is not to the latter, or so the Lewis Court thought in expressly distinguishing Burgett and Tucker: “[enforcement of [the federal gun disability] does not ‘support guilt or enhance punishment’ ... on the basis of a conviction that is unreliable.” 445 U. S., at 67 (quoting Burgett, 389 U. S., at 115).

Because of the material way in which a “felon in possession” law differs from a sentence-enhancement law, Burgett and Tucker were not part of the relevant legal backdrop against which Congress enacted the law interpreted in Lewis, and the Lewis Court could thus fairly presume that “conviction” in the statute before it was used as shorthand for “the fact of a felony conviction.” 445 U. S., at 60, 67. As Lewis itself recognized, however, Burgett and Tucker are part of the backdrop against which sentence-enhancement laws are enacted, and against that backdrop Congress must be presumed to have used “conviction” in § 924(e) to mean “lawful conviction,” and to have permitted defendants to show at sentencing that prior convictions offered for enhancement were unconstitutionally obtained.

II

A

Even if I thought the ACCA was ambiguous (the most the Court’s statutory arguments could establish), I would resolve the ambiguity in petitioner’s favor in accordance with the “‘cardinal principle’” of statutory construction that “‘this Court will first ascertain whether a construction of the statute is fairly possible by which [a constitutional] question may be avoided.’” Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandéis, J., concurring) (quoting Crowell v. Benson, 285 U. S. 22, 62 (1932)); see also Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 499-501, 504 (1979); Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring in result). The Ashwander principle, to be sure, comes into play only when the constitutional question to be avoided is a difficult one, but that designation easily fits the question that the Court’s reading of the ACCA requires it to decide, the question whether the Constitution permits courts to enhance a defendant’s sentence on the basis of a prior conviction the defendant can show was obtained in violation of his right to effective assistance of counsel, see Strickland v. Washington, 466 U. S. 668 (1984), or that the defendant can show was based on an unknowing or involuntary guilty plea, see Boy-kin v. Alabama, 395 U. S. 238 (1969).

This is a difficult question, for one thing, because the language and logic of Burgett and Tucker are hard to limit to claimed violations of the right, recognized in Gideon v. Wainwright, to have a lawyer appointed if necessary. As indicated by the uniformity of lower court decisions interpreting them, see supra, at 500, and n. 3, Burgett and Tucker are easily (if not best) read as announcing the broader principle that a sentence may not be enhanced by a conviction the defendant can show was obtained in violation of any “ ‘specific federal right’ ” (or, as Tucker put it, that a sentence may not be “founded [even] in part upon misinformation of constitutional magnitude,” 404 U. S., at 447) because to do so would be to allow the underlying right to be “denied anew” and to “suffer serious erosion,” Burgett, supra, at 116 (citation omitted); see also Tucker, supra, at 449. The Court’s references in both Burgett and Tucker to the right discussed in Gideon is hardly surprising; that was the “specific federal right” (and the record of the conviction obtained in violation of it the “misinformation of constitutional magnitude”) that the defendants before it invoked. The opinions in both cases, moreover, made it quite clear that the discussion of Gideon was not meant to supply a limitation. Burgett described Gideon not as unique but as “illustrative of the limitations which the Constitution places on state criminal procedures,” and it recounted as supportive of its holding cases involving coerced confessions, denials of the confrontation right, and illegal searches and seizures, 389 U. S., at 114; and Tucker made it clear that “the real question” before the Court was whether the defendant’s sentence might have been different if the sentencing judge had known that the defendant’s “previous convictions had been unconstitutionally obtained,” 404 U. S., at 448.

Even if, consistently with principles of stare decisis, Burgett and Tucker could be read as applying only to some class of cases defined to exclude claimed violations of Strickland or Boykin, the question whether to confine them so is not easily answered for purposes of the Ashwander rule. Burgett and Tucker deal directly with claimed violations of Gideon, and distinguishing for these purposes between violations of Gideon and Strickland would describe a very fine line. To establish a violation of the Sixth Amendment under Strickland, a defendant must show that “counsel’s performance was deficient,” and that “the deficient performance prejudiced the defense” in that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U. S., at 687. It is hard‘to see how such a defendant is any better off than one who has been denied counsel altogether, and why the conviction of such a defendant may be used for sentence enhancement if the conviction of one who has been denied counsel altogether may not. The Sixth Amendment guarantees no mere formality of appointment, but the “assistance” of counsel, cf. Strickland, supra, at 685, 686 (“That a person who happens to be a lawyer is present at trial alongside the accused . . . is not enough to satisfy the [Sixth Amendment]” because “ ‘the right to counsel is the right to the effective assistance of counsel’”), and whether the violation is of Gideon or Strickland, the defendant has been denied that constitutional right.

It is also difficult to see why a sentencing court that must entertain a defendant’s claim that a prior conviction was obtained in violation of the Sixth Amendment’s right to counsel need not entertain a defendant’s claim that a prior conviction was based on an unknowing or involuntary guilty plea. That claim, if meritorious, would mean that the defendant was convicted despite invalid waivers of at least one of two Sixth Amendment rights (to trial by jury and to confront adverse witnesses) or of a Fifth Amendment right (against compulsory self-incrimination). See Boykin, 395 U. S., at 243. It is, to be sure, no simple task to prove that a guilty plea was the result of “[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats,” id., at 242-243, but it is certainly at least a difficult question whether a defendant who can make such a showing ought to receive less favorable treatment than the defendants in Burgett and Tucker.

Though the Court offers a theory for drawing a line between the right claimed to have been violated in Burgett and Tucker and the rights claimed to have been violated here, the Court’s theory is itself fraught with difficulty. In the Court’s view, the principle of Burgett and Tucker reaches only “constitutional violations ris[ing] to the level of a jurisdictional defect resulting from the failure to appoint counsel at all.” Ante, at 496 (citing Johnson v. Zerbst, 304 U. S. 458 (1938)). But nowhere in Burgett or Tucker is a distinction drawn between “jurisdictional” and “nonjurisdictional” rights, a fact giving no cause for surprise since long before (in Waley v. Johnston, 316 U. S. 101 (1942)) “the Court openly discarded the concept of jurisdiction — by then more a fiction than anything else — as a touchstone of the availability of federal habeas review.” Wainwright v. Sykes, 433 U. S. 72, 79 (1977). Nor was Johnson v. Zerbst, on which the Court today places much reliance, a ringing endorsement of a jurisdiction theory. For many years prior to that case, “the concept of jurisdiction ... was subjected to considerable strain,” Fay v. Noia, 372 U. S. 391, 450 (1963) (Harlan, J., dissenting), and Johnson v. Zerbst was actually the very last case to mention the idea, offering just “token deference to the old concept that the [habeas] writ could only reach jurisdictional defects,” Wechsler, Habeas Corpus and the Supreme Court: Reconsidering the Reach of the Great Writ, 59 U. Colo. L. Rev. 167,174 (1988).

In reviving the “jurisdiction” theory, the Court skips over the very difficulty that led to its abandonment, of devising a standard to tell whether or not a flaw in the proceedings leading to a conviction counts as a “jurisdictional defect.” “Once the concept of ‘jurisdiction’ is taken beyond the question of the court’s competence to deal with the class of offenses charged and the person of the prisoner” (as it must be if the concept is to reach Gideon violations) “it becomes a less than luminous beacon.” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 470 (1963). Thus, if being denied appointed counsel is a “jurisdictional defect,” why not being denied effective counsel (treated as an equivalent in Strickland)? If a conviction obtained in violation of the right to have appointed counsel suffers from a “jurisdictional defect” because the right’s “purpose... is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights,” Johnson v. Zerbst, supra, at 465, how distinguish a conviction based on a guilty plea resulting from a defendant’s own ignorance of his legal and constitutional rights? It was precisely due to the futility of providing principled answers to these questions that more than 50 years ago, and a quarter of a century before Burgett and Tucker, “[t]he Court finally abandoned the kissing of the jurisdictional book.” P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1502 (3d ed. 1988). The Court nevertheless finds itself compelled to reembrace the concept of “jurisdictional defect,” fraught as it is with difficulties, in order to answer the constitutional question raised by its reading of the ACCA. Because it is “fairly possible,” Ashwander, 297 U. S., at 348, to construe the ACCA to avoid these difficulties and those associated with the other constitutional questions I have discussed, the Ashwander rule of restraint provides sufficient reason to reject the Court’s construction of the ACCA.

B

The rule of lenity, “which applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose,” Albernaz v. United States, 450 U. S. 333, 342 (1981), drives me to the same conclusion. Though lenity is usually invoked when there is doubt about whether a legislature has criminalized particular conduct, “[the] policy of lenity [also] means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Ibid, (internal quotation marks and citation omitted); cf. Bell v. United States, 349 U. S. 81, 83 (1955) (“It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment”). Because I “cannot say with assurance,” United States v. Granderson, ante, at 53, that Congress intended to require courts to enhance sentences on the basis of prior convictions a defendant can show to be invalid, the rule of lenity independently requires interpreting the ACCA to permit defendants to present such challenges to the sentencing judge before sentence is imposed.

C

The Court invokes “[e]ase of administration” to support its constitutional holding. Ante, at 496. While I doubt that even a powerful argument of administrative convenience would suffice to displace the Ashwander rule, cf. Stanley v. Illinois, 405 U. S. 645, 656 (1972), the burden argument here is not a strong one. The burdens of allowing defendants to challenge prior convictions at sentencing are not so severe, and are likely less severe than those associated with the alternative avenues for raising the very same claims.

For more than 20 years, as required by 21 U. S. C. §§ 851(c)(1) and (2), federal courts have entertained claims during sentencing under the drug laws that prior convictions offered for enhancement are “invalid” or were “obtained in violation of the Constitution,” the unamended statute reflecting a continuing congressional judgment that any associated administrative burdens are justified and tolerable. For almost a decade, federal courts have done the same under the ACCA, see n. 2, supra, again without congressional notice of any judicial burden thought to require relief. See also Parke v. Raley, 506 U. S., at 32 (“In recent years state courts have permitted various challenges to prior convictions” during sentencing). As against this, the Court sees administrative burdens arising because “sentencing courts [would be required] 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 of the 50 States.” Ante, at 496. It would not be sentencing courts that would have to do this rummaging, however, but defendants seeking to avoid enhancement, for no one disagrees that the burden of showing the invalidity of prior convictions would rest on the defendants.

Whatever administrative benefits may flow from insulating sentencing courts from challenges to prior convictions will likely be offset by the administrative costs of the alternative means of raising the same claims. The Court acknowledges that an individual still in custody for a state conviction relied upon for enhancement may attack that conviction through state or federal habeas review and, if successful, “may . . . apply for reopening any federal sentence enhanced by the state sentences.” Ante, at 497. And the Court does not disturb uniform appellate case law holding that an individual serving an enhanced sentence may invoke federal habeas to reduce the sentence to the extent it was lengthened by a prior unconstitutional conviction. See J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 8.2, pp. 62-64, and n. 13.2, and §8.4, p. 89, n. 27 (1993 Supp.) (collecting cases). From the perspective of administrability, it strikes me as entirely sensible to resolve any challenges to the lawfulness of a predicate conviction in the single sentencing proceeding, especially since defendants there will normally be represented by counsel, who bring efficiency to the litigation (as well as equitable benefits).

Ill

Because I cannot agree that Congress has required federal courts to impose enhanced sentences on the basis of prior convictions a defendant can show to be constitutionally invalid, I respectfully dissent.

       See, e. g., United States v. Paleo, 967 F. 2d 7, 11 (CAl 1992); United States v. Merritt, 882 F. 2d 916, 918 (CA5 1989); United States v. MeGlocklin, 8 F. 3d 1037 (CA6 1993) (en banc); United States v. Gallman, 907 F. 2d 639,642-645 (CA7 1990); United States v. Day, 949 F. 2d 973, 981-983 (CA8 1991); United States v. Clawson, 831 F. 2d 909, 914-915 (CA9 1987); and United States v. Franklin, 972 F. 2d 1253,1257-1258 (CA11 1992).

       Title 18 U. S. C. §922 provides in pertinent part as follows:
      “(g) It shall be unlawfiil for any person—
      “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
      “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

       The Court’s opinion makes clear that it uses the phrase “collateral attack” to refer to an attack during sentencing. See, e. g., ante, at 487 (“We granted certiorari to determine whether a defendant in a federal sentencing proceeding may collaterally attack the validity of previous state convictions that are used to enhance his sentence under the ACCA”).

       See United States v. Paleo, 967 F. 2d 7,11-13 (Breyer, C. J.), rehearing denied, 9 F 3d 988, 988-989 (CA1 1992) (containing additional discussion of statutory issue); United States v. Preston, 910 F 2d 81, 87-89 (CA3 1990); United States v. Taylor, 882 F. 2d 1018, 1031 (CA6 1989); United States v. Gallman, 907 F. 2d 639, 642-643 (CA7 1990); United States v. Day, 949 F 2d 973, 981-984 (CA8 1991); United States v. Clawson, 831 F 2d 909, 914-915 (CA9 1987) (interpreting 18 U. S.C. § 1202(a)(1) (1982 ed.), the predecessor of § 924(e)); United States v. Wicks, 995 F. 2d 964, 974-979 (CA10 1993); United States v. Ruo, 943 F. 2d 1274, 1275-1277 (CA111991).

       See, e. g., United States v. Mancusi, 442 F. 2d 561 (CA2 1971) (Confrontation Clause); Jefferson v. United States, 488 F. 2d 391, 393 (CA5 1974) (self-incrimination); United States v. Martinez, 413 F. 2d 61 (CA7 1969) (unknowing and involuntary guilty plea); Taylor v. United States, 472 F. 2d 1178, 1179-1180 (CA8 1973) (self-incrimination); Brown v. United States, 610 F. 2d 672, 674-675 (CA9 1980) (ineffective assistance of counsel); Martinez v. United States, 464 F. 2d 1289 (CA10 1972) (self-incrimination).

       Despite the Court’s unstated assumption to the contrary, a sentencing court that finds a prior conviction to have been unconstitutionally obtained can be said to have “set aside” the conviction for purposes of the sentencing, a reading that squares better than the Court’s with the evident purpose of the exemption clause (as well as the statute that added it to § 921(a)(20), the “Firearm Owner’s Protection Act”) of disregarding convictions that do not fairly and reliably demonstrate a person’s bad character.

       The notion that Burgett and Tucker stand for the narrow principle today’s majority describes has escaped the Court twice before. In Parke v. Raley, 506 U. S. 20, 31 (1992), the Court rejected the argument that Burgett requires States to place the burden on the government during sentencing to prove the validity of prior convictions offered for enhancement. Though the underlying claim in Raley was the same as one of the claims here (that a prior conviction resulted from an invalid guilty plea), the Court did not hold Burgett inapposite as involving a violation of Gideon v. Wainwright, 372 U. S. 355 (1963), but rather accepted Burgett’s applicability and distinguished the case on different grounds. See 506 U. S., at 31. And in Zant v. Stephens, 462 U. S. 862 (1983), the Court described Tucker as holding that a “sentence must be set aside if the trial court relied at least in part on ‘misinformation of constitutional magnitude’ such as prior uncounseled convictions that were unconstitutionally imposed,” 462 U. S., at 887, n. 23 (quoting Tucker, 404 U. S., at 447), clearly indicating an understanding that Tucker was not limited to Gideon violations.

       Judge Friendly suggested that a convicting court lacks jurisdiction if “the criminal process itself has broken down [and] the defendant has not had the kind of trial the Constitution guarantees.” Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,151 (1970). Would not this definition easily cover the Strickland and Boykin claims Custis sought to raise at sentencing?

         Maleng v. Cook, 490 U. S. 488 (1989), holding that a federal habeas court has jurisdiction to entertain a defendant’s attack on a sentence to the extent it was enhanced by a prior, allegedly unconstitutional conviction, “expressed] no view on the extent to which the [prior] conviction itself may be subject to challenge in the attack upon the ... sentencie] which it was used to enhance.” Id., at 494 (citing 28 U. S. C. §2254 Rule 9(a)). Court of Appeals decisions postdating Maleng have uniformly read it as consistent with the view that federal habeas courts may review prior convictions relied upon for sentence enhancement and grant appropriate relief. See Collins v. Hesse, 957 F. 2d 746, 748 (CA10 1992) (discussing Maleng and citing cases). In addition, depending on the circumstances, the writ of comm nobis may be available to challenge a prior conviction relied upon at sentencing, see United States v. Morgan, 346 U. S. 502 (1954); Crank v. Duckworth, 905 F. 2d 1090, 1091 (CA7 1990); Lewis v. United States, 902 F. 2d 576, 577 (CA7 1990), and, if successful, the defendant may petition the sentencing court for reconsideration of the enhanced sentence, see Restatement (Second) of Judgments § 16 (1982).