author:
Justice O’Connor
      Justice Scalia, Justice Souter,
      Justice Breyer,

text:
    DANIELS v. UNITED STATES
    No. 99-9136.
    Argued January 8, 2001
    Decided April 25, 2001

      G. Michael Tanaka argued the cause for petitioner. With him on the briefs was Maria E. Stratton.

      Deputy Solicitor General Dreeben argued the cause for the United States.' With him on the brief were Solicitor

      General Waxman, Assistant Attorney General Robinson, James A. Feldman, and Kathleen A. Felton.

        Kent S. Sckeidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court in part.

In Custis v. United States, 511 U.S. 485 (1994), we addressed whether a defendant sentenced under the Armed Career Criminal Act of 1984 (ACCA), 18 U. S. C. § 924(e), could collaterally attack the validity of previous state convictions used to enhance his federal sentence. We held that, with the sole exception of convictions obtained in violation of the right to counsel, a defendant has no right to bring such a challenge in his federal sentencing proceeding. 511 U.S., at 487. We now consider whether, after the sentencing proceeding has concluded, the individual who was sentenced may challenge his federal sentence through a motion under 28 U. S. C. §2255 (1994 ed., Supp. V) on the ground that his prior convictions were unconstitutionally obtained. We hold that, as a general rule, he may not. There may be rare circumstances in which §2255 would be available, but we need not address the issue here.

I

In 1994, petitioner Earthy D. Daniels, Jr., was tried and convicted of being a felon in possession of a firearm in violation of 18 U. S. C. § 922(g)(1). The Government then sought to enhance his sentence under the ACCA. App. 4-5. The ACCA imposes a mandatory minimum 15-year sentence on anyone who violates § 922(g)(1) and who has three previous convictions for a violent felony or a serious drug offense. § 924(e)(1). Petitioner had been convicted in California in 1978 and 1981 for robbery, and in 1977 and 1979 for first degree burglary. Id., at 14. The District Court found petitioner to be an armed career criminal within the meaning of the ACCA and, after granting a downward departure, the District Court sentenced petitioner to 176 months. Id., at 14, 18. Had petitioner not been adjudged an armed career criminal, he would have received at most a 120-month sentence. 18 U. S. C. § 924(a)(2). On direct appeal, petitioner argued unsuccessfully that his two burglary convictions did not qualify as predicate offenses under the ACCA. See 86 F. 3d 1164 (CA9 1996) (table).

Petitioner then filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U. S. C. §2255 in the United States District Court for the Central District of California. Section 2255, a posteonviction remedy for federal prisoners, permits "[a] prisoner in custody under sentence of a [federal] court” to “move the court which imposed the sentence to vacate, set aside or correct the sentence” upon the ground that “the sentence was imposed in violation of the Constitution or laws of the United States.” Petitioner asserted that his current federal sentence was imposed in violation of the Constitution because it was based in part on his 1978 and 1981 robbery convictions. Those prior convictions, he alleged, were themselves unconstitutional because they both were based on guilty pleas that were not knowing and voluntary, and because the 1981 conviction was also the product of ineffective assistance of counsel. App. 51-52. He did not contend that §2255 relief was appropriate because his current sentence was imposed in violation of the ACCA. Cf. Brief for Petitioner 13.

The District Court denied the §2255 motion, App. 58-67, and a panel of the Ninth Circuit Court of Appeals affirmed, 195 F. 3d 501 (1999). The court held that our decision in Custis “bar[s] federal habeas review of the validity of a prior conviction used for federal sentencing enhancement unless the petitioner raises a . . . claim [under Gideon v. Wainwright, 372 U. S. 335 (1963)].” 195 F. 3d, at 503 (internal quotation marks and citation omitted). Because the Courts of Appeals are divided as to whether Custis bars relief under §2255 as well as in federal sentencing proceedings, we granted certiorari. 530 U. S. 1299 (2000).

HH H-=H

The petitioner in Custis attempted, during his federal sentencing proceeding, to attack prior state convictions used to enhance his sentence under the ACCA. Like petitioner here, Custis challenged his prior convictions as the product of allegedly faulty guilty pleas and ineffective assistance of counsel. 511 U. S., at 488. We held that with the sole exception of convictions obtained in violation of the right to counsel, Custis had no right under the ACCA or the Constitution “to collaterally attack prior convictions” in the course of his federal sentencing proceeding. Id., at 490-497. While the “failure to appoint counsel for an indigent defendant was a unique constitutional defect” that justified the exception for challenges concerning Gideon v. Wainwright, 872 U.S. 835 (1963), 511 U.S., at 496, challenges of the type Custis sought to bring did not “ris[e] to the level of a jurisdictional defect,” ibid.

Two considerations supported our constitutional conclusion in Custis: ease of administration and the interest in promoting the finality of judgments. With respect to the former, we noted that resolving non-Gideon-type constitutional attacks on prior convictions “would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state-court transcripts or records.” 511 U. S., at 496. With respect to the latter, we observed that allowing collateral attacks would “inevitably delay and impair the orderly administration of justice” and “deprive the state-court judgment of its normal force and effect.” Id., at 497 (internal quotation marks and brackets omitted).

A

Petitioner contends that the Custis rule should not extend to §2255 proceedings because the concerns we articulated in Gustis are not present in the §2255 context. Brief for Petitioner 22-26. We disagree. First, a district court evaluating a §2255 motion is as unlikely as a district court engaged in sentencing to have the documents necessary to evaluate claims arising from long-past proceedings in a different jurisdiction. While petitioner is quite right that federal district courts are capable of evaluating fact-intensive constitutional claims raised by way of a habeas petition, id., at 22-23, institutional competence does not make decades-old state court records and transcripts any easier to locate.

The facts of this case only reinforce our concern. For example, petitioner contends that he entered his 1978 and 1981 guilty pleas without a full understanding of the essential elements of the crimes with which he was charged, and therefore the resulting convictions violated due process. App. 40-42, 50-51. These claims by their nature require close scrutiny of the record below. Yet petitioner has not placed the transcript from either plea colloquy in the record. In fact, he has admitted that the 1978 transcript is missing from the state court file. Cf. id., at 38, n. 3. Under these circumstances, it would be an almost Mile exercise for a district court to attempt to determine accurately what was communicated to petitioner more than two decades ago.

With respeet to the concern for finality, petitioner argues that because he has served the complete sentences for his 1978 and 1981 convictions, the State would suffer little, if any, prejudice if those convictions were invalidated through a collateral challenge under §2255. Brief for Petitioner 24-26. To the contrary, even after a defendant has served the full measure of his sentence, a State retains a strong interest in preserving the convictions it has obtained. States impose a wide range of disabilities on those who have been convicted of crimes, even after their release. For example, in California, where petitioner committed his crimes, persons convicted of a felony may be disqualified from holding public office, subjected to restrictions on professional licensing, and barred from possessing firearms. See U. S. Dept, of Justice, Office of the Pardon Attorney, Civil Disabilities of Convicted Felons: A State-By-State Survey 29-32 (Oct. 1996). Further, each of the 50 States has a statute authorizing enhanced sentences for recidivist offenders. E. g., Cal. Penal Code Ann. § 667 (West 1999). See also Parke v. Raley, 506 U.S. 20, 26-27 (1992).

At oral argument, petitioner suggested that invalidating a prior conviction on constitutional grounds for purposes of its use under the ACCA would have no effect beyond the federal proceeding. Tr. of Oral Arg. 8-10. Although that question is not squarely presented here, if a state conviction were determined to be sufficiently unreliable that it could not be used to enhance a federal sentence, the State’s ability to use that judgment subsequently for its own purposes would be, at the very least, greatly undermined. Thus, the State does have a real and continuing interest in the integrity of its judgments.

B

On the most fundamental level, petitioner attempts to distinguish Custis as a decision only about the appropriate forum in which a defendant may challenge prior convictions used to enhance a federal sentence. The issue in Custis, according to petitioner, was “'where, not whether, the defendant could attack a prior conviction for constitutional infirmity.’” Brief for Petitioner 14 (quoting Nichols v. United States, 511 U.S. 738, 765 (1994) (Ginsburg, J., dissenting) (original emphasis deleted)). The appropriate forum for such a challenge, petitioner argues, at least where no other forum is available, is a federal proceeding under §2255. Brief for Petitioner 16.

The premise underlying petitioner’s argument — that defendants may challenge their convictions for constitutional infirmity — is quite correct. It is beyond dispute that convictions must be obtained in a manner that comports with the Federal Constitution. But it does not necessarily follow that a §2255 motion is an appropriate vehicle for determining whether a conviction later used to enhance a federal sentence was unconstitutionally obtained.

Our system affords a defendant convicted in state court numerous opportunities to challenge the constitutionality of his conviction. He may raise constitutional claims on direct appeal, in postconvietion proceedings available under state law, and in a petition for a writ of habeas corpus brought pursuant to 28 U. S. C. §2254 (1994 ed. and Supp. V). See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 5.1.a (3d ed. 1998). These vehicles for review, however, are not available indefinitely and without limitation. Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim. See, e. g., United States v. Olano, 507 U.S. 725, 731 (1993) (“ 'No procedural principle is more familiar to this Court than that a constitutional right... may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it’” (quoting Yakus v. United States, 321U. S. 414,444 (1944))). One of the principles vindicated by these limitations is a "presumption deeply rooted in our jurisprudence: the 'presumption of regularity* that attaches to final judgments, even when the question is waiver of constitutional rights.” Parke, supra, at 29.

Thus, we have held that if, by the time of sentencing under the ACCA, a prior conviction has not been set aside on direct or collateral review, that conviction is presumptively valid and may be used to enhance the federal sentence. See Cus-tis, 511 U. S., at 497. This rule is subject to only one exception: If an enhanced federal sentence will be based in part on a prior conviction obtained in violation of the right to counsel, the defendant may challenge the validity of his prior conviction during his federal sentencing proceedings. Id., at 496. No other constitutional challenge to a prior conviction may be raised in the sentencing forum. Id., at 497.

After an enhanced federal sentence has been imposed pursuant to the ACCA, the person sentenced may pursue any channels of direct or collateral review still available to challenge his prior conviction. In Custis, we noted the possibility that the petitioner there, who was still in custody on his prior convictions, could “attack his state sentences [in state court] or through federal habeas review.” Ibid. If any such challenge to the underlying conviction is successful, the defendant may then apply for reopening of his federal sentence. As in Custis, we express no opinion on the appropriate disposition of such an application. Cf. ibid.

If, however, a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse. The presumption of validity that attached to the prior conviction at the time of sentencing is conclusive, and the defendant may not collaterally attack his prior conviction through a motion under § 2255. A defendant may challenge a prior conviction as the product of a Gideon violation in a §2255 motion, but generally only if he raised that claim at his federal sentencing proceeding. See United States v. Frady, 456 U.S. 152, 167-168 (1982) (holding that procedural default rules developed in the habeas corpus context apply in §2255 eases); see also Reed v. Farley, 512 U. S. 339, 354-355 (1994).

Justice Souter says that our holding here “rul[es] out the application of §2255 when the choice is relief under §2255 or no relief at all.” Post, at 390 (dissenting opinion). This all-or-nothing characterization of the problem misses the point. As we have said, a defendant generally has ample opportunity to obtain constitutional review of a state conviction. Supra, at 381. But once the “door” to such review “has been closed,” post, at 388, by the defendant himself— either because he failed to pursue otherwise available remedies or because he failed to prove a constitutional violation— the conviction becomes final and the defendant is not entitled to another bite at the apple simply because that conviction is later used to enhance another sentence.

To be sure, the text of §2255 is broad enough to cover a claim that an enhanced federal sentence violates due process. See ibid. See also n. 2, infra. But when such a due process claim is predicated on the consideration at sentencing of a fully expired prior conviction, we think that the goals of easy administration and finality have ample “horsepower” to justify foreclosing relief under §2255. Were we to allow defendants sentenced under the ACCA to collaterally attack prior convictions through a §2255 motion, we would effectively permit challenges far too stale to be brought in their own right, and sanction an end run around statutes of limitations and other procedural barriers that would preclude the movant from attacking the prior conviction directly. Nothing in the Constitution or our precedent requires such a result.

C

We recognize that there may be rare cases in which no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault of his own. The circumstances of this ease do not require us to determine whether a defendant could use a motion under § 2255 to chai-lenge a federal sentence based on such a conviction. C£, e. g., 28 U. S. C. §2255 (1994 ed., Supp. V) (allowing a second or successive §2255 motion if there is "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense”); ibid, (tolling 1-year limitation period while movant is prevented from making a §2255 motion by an “impediment... created by governmental action in violation of the Constitution or laws of the United States”).

Ill

No such claim is made here. The sole basis on which petitioner Daniels challenges his current federal sentence is that two of his prior state convictions were the products of inadequate guilty pleas and ineffective assistance of counsel. Petitioner could have pursued his claims while he was in custody on those convictions. As his counsel conceded at oral argument, there is no indication that petitioner did so or that he was prevented from doing so by some external force. Tr. of Oral Arg. 3-4, 6.

Petitioner’s federal sentence was properly enhanced pursuant to the ACCA based on his four facially valid prior state convictions. Because petitioner failed to pursue remedies that were otherwise available to him to challenge his 1978 and 1981 convictions, he may not now use a §2255 motion to collaterally attack those convictions. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore affirmed.

It is so ordered.

Justice Scalia,

concurring in part.

I agree with the Court that 28 U. S. C. §2255 (1994 ed., Supp. V) does not (with the Gideon exception, see Gideon v. Wainwright, 372 U.S. 335 (1963)) permit inquiry into whether a conviction later used to enhance a federal sentence was unconstitutionally obtained, and I agree with the Court’s reasoning so far as it goes. I have another reason for reaching that result, however, and one that prevents me from joining that portion of the Court’s opinion which speculates that “[tjhere may be rare circumstances in which §2255 would be available,” such as when “no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault of his own,” ante, at 376, 383. Simply put, “the text of §2255 is” not “broad enough to cover a claim that an enhanced federal sentence violates due process,” ante, at 383, if the enhancement is based on prior convictions.

In addition to the practical reasons Justice O’Connor identifies as counseling against petitioner’s interpretation of §2255, there stands the very text of that provision. “[W]e have long recognized that ‘the power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law,”’ Felker v. Turpin, 518 U.S. 651, 664 (1996), quoting Ex parte Bollman, 4 Cranch 75, 94 (1807). Section 2255 authorizes a challenge by “[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States.” (Emphases added.) We have already determined, in Custis v. United States, 511 U.S. 485 (1994), that a sentencing court does not violate the Due Process Clause by imposing a sentence enhanced by prior, purportedly tainted, convictions, unless the taint is the result of a Gideon violation. It follows ineluctably that §2255 does not establish any right to challenge federal sentences based on their enhancement by stale, non-Gideon-tainted, convictions.

This conclusion is reinforced (if reinforcement is possible) by comparing the text of §2255 with that of §2254. The latter, governing habeas challenges to state convictions, provides that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral postconvietion proceedings shall not be a ground for relief in a proceeding arising under §2254.” 28 U. S. C. §2254(i) (1994 ed., Supp. V). There is no conceivable reason why this bar would be placed upon challenges to state convictions under §2254, but not upon challenges to state convictions under §2255. Congress did not expect challenges to state convictions (used to enhance federal convictions) to be brought under §2255.

Perhaps precepts of fundamental fairness inherent in “due process” suggest that a forum to litigate challenges like petitioner’s must be made available somewhere for the odd case in which the challenge could not have been brought earlier. But it would not follow from this that federal sentencing must provide the remedy; much less that federal sentencing need not provide the remedy but §2255 (which is entirely dependent upon the impropriety of prior federal sentencing) must do so. Fundamental fairness could be achieved just as well — -indeed, better — by holding that the rendering jurisdiction must provide a means for challenge when enhancement is threatened or has been imposed. Such a constitutional rule, combined with a rule that any sentence already imposed must be adjusted accordingly, would prevent sentencing hearings from being routinely complicated by inquiries into prior convictions, and would locate those inquiries where they can best be conducted: in the rendering jurisdiction. It would also avoid a possible gap in protection that would result from using §2255 (and in state-court cases, §2254) for this inappropriate purpose — arising from the fact that, as discussed above, §2254 cannot be used to remedy ineffective assistance of postconviction counsel. (We have left open the question whether such ineffective assistance can establish a constitutional violation, see Coleman v. Thompson, 501 U.S. 722, 755 (1991).) But § 2255 cannot possibly be the means of relief.

For these reasons, I join the opinion of the Court only in part.

Justice Souter,

with whom Justice Stevens and Justice Ginsburg join,

dissenting.

In Custis v. United States, 511 U.S. 485 (1994), we held that a federal defendant facing an enhanced sentence on the basis of prior state convictions under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S. C. § 924(e), could not, with one exception, challenge the constitutionality of the underlying state convictions at his federal sentencing proceeding. Custis was thus a precursor of the case before us now; Custis is not, however, compelling authority for today’s disposition. Although the Court’s opinion in Custis struck me as portending more than it strietly held, a reading of the case free of portent was in fact the understanding of one Member of the Custis majority: "Custis presented a forum question. The issue was where, not whether, the defendant could attack a prior conviction for constitutional infirmity.” Nichols v. United States, 511 U.S. 738, 765 (1994) (Ginsburg, J., dissenting) (emphasis in original). The door in Custis remained open to an attack on the prior state convictions, through a state or federal habeas challenge to the underlying convictions themselves. See Custis, supra, at 497 (Custis ‘Vas still fin custody’ for purposes of his state convictions at the time of his federal sentencing under § 924(e),” and could thus “attack his state sentences in Maryland or through federal habeas review”). This case presents the distinct question of what happens when that door has been closed.

The Court’s reasons for reading 28 U. S. C. §2255 (1994 ed., Supp. V) as restrietively as it read the ACCA sentencing provisions have nothing to do either with the text of §2255 or with any extension of rules governing habeas review of state convictions under 28 U. S. C. §2254 (1994 ed. and Supp. V). The language of §2255 providing a federal prisoner with the right to relief because a sentence “was imposed in violation of the Constitution or laws of the United States” is obviously broad enough to include a claim that a prior conviction used anew to mandate sentence enhancement under the ACCA was obtained unconstitutionally, so that the new sentence itself violates the terms of the ACCA or the Constitution. Nor does the Court rest its exclusion of such claims from §2255 review on the theory that a §2255 petitioner who challenges underlying state convictions should be required, like a § 2254 petitioner, to exhaust state remedies and to comply with state procedural rules. Cf. 28 U. S. C. §§ 2254(b)-(c) (1994 ed. and Supp. V); Rose v. Lundy, 455 U.S. 509 (1982); Coleman v. Thompson, 501 U.S. 722 (1991). It is not clear, after all, that such requirements, premised largely on comity concerns and the State’s interest in the finality of its own judgments, see, e. g., id., at 731-732, 750, should be imported into this context of a federal sentence imposed when a petitioner who has completed his state sentence seeks only to avoid a sentence enhancement under federal law. In any event, the Court does not purport to apply these specific requirements (which in the §2254 setting can be waived by the State, see 28 U. S. C. § 2254(b)(3) (1994 ed., Supp. V); Gray v. Netherland, 518 U.S. 152, 165-166 (1996), and which are subject to explicit exceptions). Instead it imposes a flat ban on §2255 relief (subject, maybe, to narrow exceptions).

Having no textual basis or related precedent in habeas law, the Court rules out challenges to ACCA sentencing predicates under §2255 on the same grounds invoked earlier to bar such challenges under the sentencing provisions of the ACCA itself: the ACCA ought to be easy to administer and state convictions ought to carry finality, ante, at 378-380. But whatever force these reasons might have if alternative avenues of challenge were open, they do not even come close to the horsepower needed to rule out the application of §2255 when the choice is relief under §2255 or no relief at all. Why should it be easy to subject a person to a higher sentencing range and commit him for nearly nine extra years (as here) when the prisoner has a colorable claim that the extended commitment rests on a conviction the Constitution would condemn? If the answer is the value of finality in state convictions, why is finality valuable when state law itself does not demand it, and why is finality a one-way street? Why should a prisoner like Daniels suddenly be barred from returning to challenge the validity of a conviction, when the Government is free to reach back to it to impose extended imprisonment under a sentence enhancement law unheard of at the time of the earlier convictions (1978 and 1981 in this case)? Daniels could not have been expected in 1978 to anticipate the federal enhancement statute enacted in 1984; and even if he had been blessed with statutory clairvoyance, the practice in 1978 would have told him he could challenge the convictions when and if the Government sought to rely on them under the future enhancement statute. The ACCA was enacted against the backdrop of a pervasive federal practice of entertaining constitutional challenges to prior convictions when used anew for sentence enhancement, a practice on which Congress threw no cold water when it enacted the ACCA. See Custis, 511 U.S., at 499-501 (SOUTER, J., dissenting). Indeed, even the Court seems to find something disquieting in the historical practice, as it shows by recognizing a textually untethered exception to its own rule, one allowing for collateral attacks on prior convictions if based on violations of the right to counsel under Gideon v. Wakmright, 372 U. S. 335 (1963). See ante, at 382. I suppose I should not begrudge the Court’s concession, but the Gideon exception, first announced in Custis, is inexplicable here. One might have argued in Custis that a Gideon violation was egregious enough to excuse the defendant’s failure to resort to other forums still open; but there is no excuse for picking and choosing among constitutional violations here, when other forums are closed. The need to address Gideon is no reason to ignore Moore v. Dempsey, 261 U.S. 86 (1923), or Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam), or Brown v. Mississippi, 297 U.S. 278 (1936), or Strickland v. Washington, 466 U.S. 668 (1984), or Miranda v. Arizona, 384 U.S. 436 (1966), or Brady v. Maryland, 373 U.S. 83 (1963), or any other recognized violations of the Constitution.

None of this is to say that the Court is wrong to recognize that collateral review of old state convictions can be very cumbersome. See ante, at 379. But that is not the only practical consideration in the real world we confront (or ought to confront) here. A defendant under the ACCA has generally paid whatever penalty the old conviction entailed; he may well have forgone direct challenge because the penalty was not practically worth challenging, and may well have passed up collateral attack because he had no counsel to speak for him. But when faced with the ACCA’s 15-year mandatory minimum the old conviction is suddenly well worth challenging and counsel may be available under 18 U. S. C. § 3006A(a)(2)(B). In denying him any right to attack convictions later when attacks are worth the trouble, the Court adopts a policy of promoting challenges earlier when they may not justify the effort and perhaps never will. That is a very odd incentive for a court to create, and the eccentricity is hardly softened by the likelihood that most defendants will not notice before it is too late.

Today’s decision is devoid of support in either statutory language or congressional intention. I respectfully dissent.

Justice Breyer,

dissenting.

I believe that Congress intended courts to read the silences in federal sentencing statutes as permitting defendants to challenge the validity of an earlier sentence-enhancing conviction at the time of sentencing. See United States v. Paleo, 967 P. 2d 7, 11-13 (CA1 1992), implicitly overruled by Custis v. United States, 511 U.S. 485 (1994). That was the practice typically followed in the lower courts before Custis. See id., at 498-499, and n. 2, 511 (Souter, J., dissenting). The courts now follow a comparable practice in respect to other sentence-enhancing factors. See, e. g., United States v. Dunnigan, 507 U.S. 87, 95-97 (1993) (perjured testimony enhancement). And, given appropriate burden of proof rules, see, e. g., United States v. Gilbert, 20 P. 3d 94, 100 (CA3 1994); United States v. Wicks, 995 P. 2d 964, 978 (CA10), cert. denied, 510 U.S. 982 (1993); Paleo, supra, at 13 (citing United States v. Henry, 933 P. 2d 553, 559 (CA7 1991), cert. denied, 503 U.S. 997 (1992); United States v. Gallman, 907 P. 2d 639, 643 (CA7 1990), cert. denied, 499 U.S. 908 (1991); and United States v. Taylor, 882 P. 2d 1018, 1031 (CA6 1989), cert. denied, 496 U.S. 907 (1990)), that practice need not prove unusually burdensome, see Custis, supra, at 511 (Souter, J., dissenting).

Having rejected that procedural approach in Custis, supra, at 496-497, the Court now must face the alternative— a later challenge to the earlier convictions in a collateral proceeding that attacks the present conviction or sentence. To resolve that challenge the plurality has devised a broad rule immunizing the earlier conviction with a possible exception for "rare” circumstances. See ante, at 383. The rule may well prove unduly “restrictive],” ante, at 388 (Souter, J., dissenting). Or, through exceptions, it may well bring about additional delay, still greater litigation complexity, and (insofar as the plurality ties Congress’ hands by resting its exception upon constitutional grounds) legal inflexibility. And, given the restrictions Custis placed on sentencing courts, the inclination to grant a 28 U. S. C. §2255 (1994 ed., Supp. V) hearing in the rare circumstances hypothesized by the majority is subject to Justice Scalia’s criticism that §2255 may be an inappropriate forum for such a challenge. See ante, at 387 (opinion concurring in part).

The legal problem lies at the source. While we do not often overturn a recently decided case, in this instance the Court’s earlier decision will lead to ever-increasing complexity, for it blocks the simpler procedural approach that Congress intended.

Consequently, I believe this is one of those rare instances in which the Court should reconsider an earlier case, namely, Custis, and adopt the dissenters’ views. For that reason, I dissent.

       Justice Souter is concerned that a defendant may forgo “direct challenge because the penalty was not practically worth challenging, and... collateral attack because he had no counsel to speak for him.” Post, at 391 (dissenting opinion). Whatever incentives may exist at the time of conviction, the fact remains that avenues of redress are generally available if sought in a timely manner. If a person chooses not to pursue those remedies, he does so with the knowledge that the conviction will stay on his record. This knowledge should serve as an incentive not to commit a subsequent crime and risk having the sentence for that crime enhanced under a recidivist sentencing statute.

       After comparing the text of §§2254 and 2255, Justice Scaiia concludes that “Congress did not expect challenges to state convictions (used to enhance federal convictions) to be brought under §2255.” Post, at 386 (opinion concurring in part). This is, of course, true. But it is also beside the point, as the subject of the §2255 motion in this circumstance is the enhanced federal sentence, not the prior state conviction.

      JusnCE SOUTER asserts that Custis “merely held (with [the] exception [of Gideon violations]) that neither the ACGA nor the Constitution provides a forum at the sentencing hearing for challenges to the underlying conviction,” Post, at 388, n. 1 (dissenting opinion). But the Constitution would “provide a forum” at the sentencing hearing if it were unconstitutional to sentence on the basis of invalid but nonetheless outstanding prior convictions. (Assuredly the Constitution does not permit unconstitutional acts.) Custis necessarily held, therefore, that it is not unconstitutional (with the Gideon exception) to sentence on the basis of invalid but nonetheless outstanding prior convictions. Justice Souter apparently understood this at the time Custis was decided. His dissent began: “The Court answers a difficult constitutional question that I believe the underlying statute does not pose,” 511 U.S., at 498, which question turns out to be “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,” id., at 505.

       The Government argues, citing Custis v. United States, 511 U.S. 485 (1994), that 28 U. S. C. § 2255 (1994 ed., Supp. V) does not provide a remedy here because “the Constitution is not violated when a conviction that is facially valid is used to enhance a sentence for committing another crime.” Brief for United States 12. This misstates the holding of Custis, which merely held (with one exception discussed below) that neither the ACCA nor the Constitution provides a forum at the sentencing hearing for challenges to the underlying conviction. 511U. S., at 487. The constitutional holding was necessarily limited to the statutory scheme considered. And, in any event, §2255 provides an explicit remedy for a sentence that violates federal law, not solely the Constitution. C£ Hill v. United States, 368 U.S. 424, 428 (1962) (describing types of fundamental errors that are cognizable under §2255). Neither the Custis Court nor today’s Court takes the position that the ACCA properly applies, as a statutory matter, to underlying sentences that are in fact invalid. See Custis, supra, at 497; ante, at 382. The language of §2255 invites a petitioner to establish such a statutory violation.

       The Court continues to leave the door open (but with no promises) to a motion to revise an ACCA sentence if a defendant has first obtained an order vacating the predicate conviction through a state collateral proceeding or federal habeas review of the state judgment under 28 U. S. C. § 2254 (1994 ed. and Supp. V). See ante, at 382; Custis, supra, at 497. The plurality adds the possibility of an exception to today’s rule if a petitioner can show newly discovered evidence or legal disability during the period of state custody. See ante, at 383-384. These exceptions will not eclipse the rule.


source: Caselaw Access Project

author: Justice O’Connor Justice Souter, Justice Breyer,

license: Public Domain

text:
    LACKAWANNA COUNTY DISTRICT ATTORNEY et al. v. COSS
    No. 99-1884.
    Argued February 20, 2001
    Decided April 25, 2001

      William P. O’Malley argued the cause for petitioners. With him on the brief were Eugene M. Talerico and Andrew I Jarbola III

      Robert M. Russel, Assistant Solicitor General of Colorado, argued the cause for the State of Colorado et al. as amici curiae urging reversal. With him on the brief were Ken Salazar, Attorney General of Colorado, Dan Schweitzer, and the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelko of Alaska, Mark Pryor of Arkansas, M. Jane Brady of Delaware, Carla J. Stovall of Kansas, Tom Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T McLaughlin of New Hampshire, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Jan Graham of Utah, William H. Sorrell of Vermont, Mark L. Earley of Virginia, and Christine 0. Gregoire of Washington.

      James V. Wade argued the cause for respondent. With him on the brief was Daniel I. Siegel

        Edward M. Chikofsky and David M. Porter filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court, except as to Parts III-B and III-C.

For the second time this Term, we are faced with the question whether federal posteonviction relief is available when a prisoner challenges a current sentence on the ground that it was enhanced based'on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody. In Daniels v. United States, ante, p. 374, we held that such relief is generally not available to a federal prisoner through a motion to vacate the sentence under 28 U.S. C. §2255 (1994 ed., Supp. V), but left open the possibility that relief might be appropriate in rare circumstances. We now hold that relief is similarly unavailable to state prisoners through a petition for a writ of habeas corpus under 28 U. S. C. §2254 (1994 ed. and Supp. V).

I

Respondent Edward R. Coss, Jr., has an extensive criminal record. By the age of 16, he had been adjudged a juvenile delinquent on five separate occasions for offenses including theft, disorderly conduct, assault, and burglary. See Record Doc. No. 101 (PI. Exh. 5, pp. 4-6). By the time he turned 23, Coss had been convicted in adult court of assault, institutional vandalism, criminal mischief, disorderly conduct, and possession of a controlled substance. See id., at 6-7. His record also reveals arrests for assault, making terroristic threats, delivery of controlled substances, reckless endangerment, disorderly conduct, resisting arrest, retail theft, and criminal conspiracy, although each of those charges was later dropped. See ibid. A report generated by the Lacka-wanna County Adult Probation Office sums up the “one consistent factor in this defendant’s life: criminal behavior, much of it being aggressive.” Id., at 8.

This case revolves around two of the many entries on Coss’ criminal record. In October 1986, Coss was convicted in Pennsylvania state court of simple assault, institutional vandalism, and criminal mischief. He was then sentenced to two consecutive prison terms of six months to one year. He did not file a direct appeal. See App. 54a; see also Tr. of Oral Arg. 28-29.

In June 1987, Coss filed a petition for relief from the 1986 convictions under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9541 et seq. (1998), alleging that his trial attorney had been constitutionally ineffective. See App. 50a-53a. The Lackawanna County Court of Common Pleas promptly appointed counsel for Coss, id., at 57a, and the district attorney filed an answer to the petition, id., at 59a. The court, however, took no further action on the petition for the remainder of Coss’ time in custody. Indeed, it appears that Coss’ state postconviction petition has now been pending for almost 14 years, and has never been the subject of a judicial ruling. Neither petitioners nor respondent is able to explain this lapse. Tr. of Oral Arg. 4,29.

In 1990, after he had served the full sentences for his 1986 convictions, Coss was again convicted in Pennsylvania state court, this time of aggravated assault. He was sentenced to 6 to 12 years in prison, but successfully challenged this sentence on direct appeal because of a possible inaccuracy in the presentence report. App. 62a.

On remand, the court’s first task was to determine the range of sentences for which Coss was eligible. In calculating Coss’ “prior record score” — one of two determinants of the applicable sentencing range, see 42 Pa. Cons. Stat. § 9721 (1998) (reproducing 204 Pa. Code § 803.9(a) (1998)) — the new presentence report took account of Coss’ most serious juvenile adjudication and Coss’ 1986 misdemeanor convictions, counting the latter as separate offenses. See Record Doc. No. 101 (PI. Exh. 3, at 10). Coss objected, claiming that his 1986 convictions should be counted as one misdemeanor offense because they arose from the same transaction. See ibid. (PI. Exh. 5, at 3-4). The trial court sustained Coss’ objection, finding that the convictions should be “viewfed]... as being one transaction, one incident, one conviction.” Id., at 5. Under the Pennsylvania Sentencing Guidelines, one prior misdemeanor does not affect the prior record score. See id., at 10 (displaying grid for calculating prior record score). Thus, the practical effect of the court’s decision was to eliminate the 1986 convictions from Coss’ prior record score entirely. See ibid.; see also 204 F. 3d 453, 467-468 (CA3 2000) (en banc) (Nygaard, J., dissenting). Consequently, Coss’ 1986 convictions played no part in determining the range of sentences to which Coss was exposed.

The court’s next task was to choose a sentence within that range. In doing so, the trial court considered a number of factors, including “the seriousness and nature of the crime involved here, the well being and protection of the people who live in our community, your criminal disposition, your prior criminal record, the possibility of your rehabilitation, and the testimony that I’ve heard.” Record Doc. No. 101 (PI. Exh. 3, at 26). The court concluded that “it’s indicative that from your actions that you will continue to break the law unless given a period of incarceration.” Ibid. The court then reimposed a 6 to 12 year sentence. Because Coss’ 1986 convictions are a part of his prior criminal record, the Court of Appeals concluded that the state court took those convictions “into consideration” in sentencing Coss. See 204 P. 3d, at 459.

In September 1994, Coss filed a petition for a writ of ha-beas corpus under 28 U. S. C. § 2254 in the United States District Court for the Middle District of Pennsylvania. That provision, a postconviction remedy in federal court for state prisoners, provides that a writ of habeas corpus is available to “a person in custody pursuant to the judgment of a State court” if that person “is in custody in violation of the Constitution or laws or treaties of the United States.” § 2254(a). In his petition, Coss contended that his 1986 assault conviction was the product of ineffective assistance of counsel. App. 73a-74a.

In answer to Coss’ §2254 petition, the Lackawanna County District Attorney argued that the District Court could not review the constitutionality of Coss’ 1986 convictions because Coss was no longer in custody on those convictions. Record Doe. No. 55, p. 2. The district attorney, however, indicated his understanding that the crux of Coss’ claim was that his 1986 convictions “may have impact [sic] upon the sentences which have been imposed... upon [Coss] for criminal convictions rendered against him” for his 1990 convictions. Ibid. See also Brief for Petitioners 4 (“[Respondent argues that the sentence for his 1990 conviction was adversely and unconstitutionally affected by the 1986 simple assault conviction”).

The District Court stated that Coss was arguing “that his current sentence [for the 1990 conviction] was adversely affected by the 1986 convictions because the sentencing judge considered these allegedly unconstitutional convictions in computing Goss’s present sentence.” App. to Pet. for Cert. 105a-106a. Finding that “the sentencing judge... did make reference to the 1986 convictions in sentencing Coss,” id., at 107a, the court held that it could properly exercise jurisdiction under §2264, id., at 108a; see also Record Doc. No. 87, p. 3, n. 2. After an evidentiary hearing, the court denied the petition, holding that Coss’ 1986 trial counsel had been ineffective, but that Coss had not been prejudiced by the ineffectiveness. App. to Pet. for Cert. 113a, 116a, 120a.

The Court of Appeals for the Third Circuit, sitting en bane, agreed that “the sentencing court for the 1990 conviction took into consideration [Coss’ 1986] eonviction[s],” and therefore that the District Court had jurisdiction over Coss’ § 2254 petition. 204 F. 3d, at 459. Citing Circuit precedent and our decisions in Maleng v. Cook, 490 U.S. 488 (1989) (per curiam), and United States v. Tucker, 404 U.S. 443 (1972), the court concluded that §2254 provided a remedy for “an allegedly unconstitutional conviction, even if [the § 2254 petitioner] has served in entirety the sentence resulting from the conviction, if that conviction had an effect on a present sentence.” 204 F. 3d, at 459-460.

The court then found that Coss had received ineffective assistance during his 1986 trial, and that there was “a reasonable probability” that but for the ineffective assistance, Coss “would not have been found guilty of assau[lt].” Id., at 462. The court remanded the case to the District Court, ordering that the Commonwealth be allowed either to retry Coss for the 1986 assault or to resentence him for the 1990 assault without consideration of the 1986 conviction. Id., at 467.

We granted certiorari to consider the threshold question that the District Court and Court of Appeals both resolved in Coss’ favor: whether §2254 provides a remedy where a current sentence was enhanced on the basis of an allegedly unconstitutional prior conviction for which the sentence has fully expired. 531 U. S. 923 (2000).

HH t — (

A

The first showing a § 2254 petitioner must make is that he is “in custody pursuant to the judgment of a State court.” 28 U. S. C. § 2254(a). In Maleng v. Cook, supra, we considered a situation quite similar to the one presented here. In that case, the respondent had filed a § 2254 petition listing as the “‘conviction under attack’” a 1958 state conviction for which he had already served the entirety of his sentence. 490 U. S., at 489-490. He also alleged that the 1958 conviction had been “used illegally to enhance his 1978 state sentences” which he had not yet begun to serve because he was at that time in federal custody on an unrelated matter. Ibid. We determined that the respondent was “in custody” on his 1978 sentences because the State had lodged a detainer against him with the federal authorities. Id., at 493.

We held that the respondent was not “in custody” on his 1958 conviction merely because that conviction had been used to enhance a subsequent sentence. Id., at 492. We acknowledged, however, that because his §2254 petition “[could] be read as asserting a challenge to the 1978 sentences, as enhanced by the allegedly invalid prior conviction, ... respondent... satisfied the ‘in custody' requirement for federal habeas jurisdiction.” Id., at 493-494.

Similarly, Coss is no longer serving the sentences imposed pursuant to his 1986 convictions, and therefore cannot bring a federal habeas petition directed solely at those convictions. Coss is, however, currently serving the sentence for his 1990 conviction. Like the respondent in Maleng, Coss’ §2254 petition can be (and has been) construed as “asserting a challenge to the [1990] sentence], as enhanced by the allegedly invalid prior [1986] conviction.” Id., at 493. See also supra, at 399-400. Accordingly, Goss satisfies §2254’s “in custody” requirement. Cf. Daniels, ante, at 383, 384, n. 2 (stating that the text of §2255, which also contains an “in custody” requirement, is broad enough to cover a claim that a current sentence enhanced by an allegedly unconstitutional prior conviction violates due process).

B

More important for our purposes here is the question we explicitly left unanswered in Maleng: “the extent to which the [prior expired] conviction itself may be subject to challenge in the attack upon the [current] sentence] which it was used to enhance.” 490 U. S., at 494. We encountered this same question in the §2255 context in Daniels v. United States, ante, p. 374. We held there that “[i]f ... a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant... may not collaterally attack his prior conviction through a motion under §2255.” Ante, at 382. We now extend this holding to cover §2254 petitions directed at enhanced state sentences.

We grounded our holding in Daniels on considerations relating to the need for finality of convictions and ease of administration. Those concerns are equally present in the §2254 context. The first and most compelling interest is in the finality of convictions. Once a judgment of conviction is entered in state court, it is subject to review in multiple forums. Specifically, each State has created mechanisms for both direct appeal and state posteonvietion review, see L. Yackle, Posteonvietion Remedies §§1, 13 (1981 and Supp. 2000), even though there is no constitutional mandate that they do so, see Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (no constitutional right to state posteonvietion review); Abney v. United States, 431 U.S. 651, 656 (1977) (no constitutional right to direct appeal). Moreover, §2254 makes federal courts available to review state criminal proceedings for compliance with federal constitutional mandates.

As we said in Daniels, “[t]hese vehicles for review... are not available indefinitely and without limitation.” Ante, at 381. A defendant may choose not to seek review of his conviction within the prescribed time. Or he may seek review and not prevail, either because he did not comply with procedural rules or because he failed to prove a constitutional violation. In each of these situations, the defendant’s conviction becomes final and the State that secured the conviction obtains a strong interest in preserving the integrity of the judgment. See ante, at 379-380. Other jurisdictions acquire an interest as well, as they may then use that conviction for their own recidivist sentencing purposes, relying on “the ‘presumption of regularity' that attaches to final judgments.” Parke v. Raley, 506 U.S. 20, 29 (1992); see also Daniels, ante, at 380.

An additional concern is ease of administration of challenges to expired state convictions. Federal courts sitting in habeas jurisdiction must consult state court records and transcripts to ensure that challenged convictions were obtained in a manner consistent with constitutional demands. As time passes, and certainly once a state sentence has been served to completion, the likelihood that trial records will be retained by the local courts and will be accessible for review diminishes substantially. See Daniels, ante, at 379.

Accordingly, as in Daniels, we hold that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. See Daniels, ante, at 382. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under §2254 on the ground that the prior conviction was unconstitutionally obtained.

H-i HH

A

As in Daniels, we recognize an exception to the general rule for §2254 petitions that challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335 (1963). The special status of Gideon claims in this context is well established in our case law. See, e. g., Custis v. United States, 511 U.S. 485, 496-497 (1994); United States v. Tucker, 404 U.S., at 449; Burgett v. Texas, 389 U.S. 109, 115 (1967). Cf. Daniels, ante, at 382.

As we recognized in Custis, the “failure to appoint counsel for an indigent [is] a unique constitutional defect... ris[ing] to the level of a jurisdictional defect,” which therefore warrants special treatment among alleged constitutional violations. See 511 XJ. S., at 496. Moreover, allowing an exception for Gideon challenges does not implicate our concern about administrative ease, as the “failure to appoint counsel . . . will generally appear from the judgment roll itself, or from an accompanying minute order.” 511 U.S., at 496.

As with any §2254 petition, the petitioner must satisfy the procedural prerequisites for relief including, for example, exhaustion of remedies. See 28 U. S. C. § 2254(b) (1994 ed., Supp. V). When an otherwise qualified § 2254 petitioner can demonstrate that his current sentence was enhanced on the basis of a prior conviction that was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, the current sentence cannot stand and habeas relief is appropriate. Cf. United States v. Tucker, supra, at 449 (affirming vacatur of sentence that was based in part on prior uneounseled state convictions).

B

We stated in Daniels that another exception to the general rule precluding habeas relief might be available, although the circumstances of that case did not require us to resolve the issue. See ante, at 383-384. We note a similar situation here.

The general rule we have adopted here and in Daniels reflects the notion that a defendant properly bears the consequences of either forgoing otherwise available review of a conviction or failing to successfully demonstrate constitutional error. See supra, at 403-404; Daniels, ante, at 381-383. It is not always the ease, however, that a defendant can be faulted for failing to obtain timely review of a constitutional claim. For example, a state court may, without justification, refuse to rule on a constitutional claim that has been properly presented to it. Cf. 28 U. S. C. § 2244(d)(1)(B) (1994 ed., Supp. V) (tolling 1-year limitations period while petitioner is prevented from filing application by an “impediment ... created by State action in violation of the Constitution or laws of the United States”). Alternatively, after the time for direct or collateral review has expired, a defendant may obtain compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely maimer. Cf. Brady v. Maryland, 373 U.S. 83 (1963); 28 U. S. C. § 2244(b)(2)(B) (1994 ed., Supp. V) (allowing a second or successive habeas corpus application if “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and . . . the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”).

In such situations, a habeas petition directed at the enhanced sentence may effectively be the first and only forum available for review of the prior conviction. As in Daniels, this case does not require us to determine whether, or under what precise circumstances, a petitioner might be able to use a §2254 petition in this manner.

Whatever such a petitioner must show to be eligible for review, the challenged prior conviction must have adversely affected the sentence that is the subject of the habeas petition. This question was adequately raised and considered below. As the District Court stated, Coss contended “that his current sentence [for the 1990 conviction] was adversely affected by the 1986 convictions because the sentencing judge considered these allegedly unconstitutional convictions in computing Coss’s present sentence.” App. to Pet. for Cert. 105a-106a (emphasis added). The District Court and majority of the Court of Appeals agreed with Coss on this point. See id., at 107a; 204 F. 3d, at 459. Judge Nygaard, joined by Judge Roth, dissented to dispute the conclusion that the 1986 convictions had any effect whatsoever on Coss’ sentence for the 1990 conviction. Id., at 467-469.

C

After a careful examination of the record here, we are satisfied that the findings of the lower courts on this threshold factual point are clearly erroneous. Cf. Neil v. Biggers, 409 U.S. 188, 193, n. 3 (1972). We therefore conclude that respondent Coss does not qualify to have his §2254 petition reviewed, even assuming the existence of a limited exception to the general rule barring review of an expired prior conviction. Specifically, it is clear that any “consideration” the trial court may have given to Coss’ 1986 convictions in reimposing sentence for his 1990 conviction did not actually affect that sentence.

As we explain above, see supra, at 398-399, when Coss was resentenced on his 1990 conviction, he objected to the presentence report’s calculation of his prior record score. The court sustained that objection and, in effect, eliminated Coss’ 1986 convictions from the prior record seore entirely. Because the prior record score is one of two determinants of the applicable sentencing range, see 42 Pa. Cons. Stat. §9721 (1998) (reproducing 204 Pa. Code § 303.9(a) (1998)), it is clear that Coss’ 1986 convictions had no role in determining the range of sentences to which Coss was exposed.

In choosing a sentence for Coss within that range, the trial court considered several factors, including “the seriousness and nature of the crime involved here, the well being and protection of the people who live in our community, your criminal disposition, your prior criminal record, the possibility of your rehabilitation, and the testimony that I’ve heard.” Record Doc. No. 101 (PI. Exh. 3, at 26). Coss’ 1986 convictions are, of course, a portion of his criminal record. Thus, it is technically correct to say that the court “considered” those, convictions before sentencing Coss. Cf. 204 F. 3d, at 459.

But it is a different thing entirely to say that the 1986 convictions actually increased the length of the sentence the court ultimately imposed. As the sentencing court told Coss, “I think that it’s indicative that from your actions that you will continue to break the law unless given a period of incarceration.” Record Doc. No. 101 (PI. Exh. 3, at 26). The “actions” to which the judge referred were obviously not limited to Coss’ criminal conduct in 1986, but Coss’ extensive and violent criminal record as a whole. We conclude, as Judge Nygaard did below, that the 1986 convictions are “such a minor component of [Coss’] record that there is no question that the sentencing court, given its concerns, would have imposed exactly the same sentence” had those convictions been omitted from Coss’ record. 204 F. 3d, at 468 (dissenting opinion).

We note that the record does not explain why Coss’ ineffective assistance claim did not receive a timely adjudication in the Pennsylvania courts. While the reason might have been that Goss’ petition "slipped through the cracks,” due to no fault of his own, Tr. of Oral Arg. 4, it might also have been that Coss was responsible for “request[ing] that the matter be brought up for a hearing,” id., at 5. But even if Coss cannot be faulted for that lapse, he would not qualify to have his current §2254 petition reviewed because the 1990 sentence he is challenging was not actually affected by the 1986 convictions.

IV

The judgment of the United States Court of Appeals for the Third Circuit is therefore reversed, and the ease is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Souter,

with whom Justice Stevens and Justice Ginsburg join,

dissenting.

The error of Daniels v. United States, ante, p. 374, is repeated once more, and I respectfully dissent for reasons set out in my dissenting opinion in that case. There is a further reason to disagree with the majority here.

Although state law theoretically provided a procedure for respondent Coss to challenge his 1986 convictions, the provision has proven to be a mirage; Coss’s challenge was filed and answered by the district attorney, only to disappear in the state-court system for almost 14 years, so far. This failure of state process leads the plurality to qualify its general rule against attacking predicates to enhanced sentences, by raising the possibility of such a challenge when the opportunity for attack under provisions of state law, timely invoked, has proven to be imaginary. Ante, at 405. The plurality then goes on to deny Coss the benefit of this exception on the ground that he cannot demonstrate that “the challenged prior conviction . .. adversely affected the sentence that is the subject of the habeas petition.” Ante, at 406. This conclusion is premature.

The issue of adverse effect was by no means adequately raised and considered by the Court of Appeals. The earlier convictions could have affected the later sentence in either of two ways: by subjecting Coss to a higher sentencing range or by being considered as a reason to give him a higher sentence than he would otherwise have received within a given range. It appears that the sentencing court did not treat the convictions as subjecting Coss to a higher range of potential sentence, but the District Court expressly found that the sentencing court considered the challenged convictions in sentencing Coss to the maximum sentence within the applicable range. App. to Pet. for Cert. 107a (“The sentencing judge, however, did make reference to the 1986 convictions in sentencing Coss to the top of the standard range for his 1990 aggravated assault conviction”). This finding was never challenged in the Court of Appeals, which appeared to accept the District Court’s finding as a matter of course. Id., at 11a (“We are satisfied that the sentencing judge . .. took into consideration [Coss’s 1986 conviction]”).

In holding the District Court’s finding to be clearly erroneous, the majority is thus ruling on a matter in the first instance in derogation of this Court’s proper role as a court of review. E. g., Glover v. United States, 581 U.S. 198 (2001); National Collegiate Athletic Assn. v. Smith, 525 U.S. 459 (1999); United States v. Bestfoods, 524 U.S. 51, 72-73 (1998). The only responsible course for the majority would be to remand to the Court of Appeals, which could determine whether the district attorney may challenge the District Court’s finding of a causal link between the unconstitutional convictions and the later, maximum sentence, or whether this issue has already been waived.

Justice Breyer,

dissenting.

Because the Commonwealth has failed to argue in this Court that the trial court’s consideration of respondent’s 1986 convictions was harmless, and consequently, the issue has not been briefed, I would not overturn the Court of Appeals’ finding that respondent’s sentence was enhanced based on the purportedly defective 1986 convictions. The Court of Appeals, however, operated under the belief that the Constitution generally requires 28 U. S. C. §2254 (1994 ed., Supp. V) petitioners to be able to attack prior convictions that enhanced their sentences. It did not focus on whether the § 2254 proceeding was “the first and only forum available for review of [respondent’s] prior conviction[s].” Ante, at 406. Accordingly, I would vacate the decision below and remand for consideration of that issue. As respondent has not yet shown that he was denied a forum in which to raise his ineffective-assistance-of-counsel claim, any discussion of a constitutionally based exception is premature.

      JXJSTiCE ScALXA joins all but Parts III-B and III-C of this opinion. Justice Thomas joins all but Part III-B.

      The district attorney made no mention of the causal connection between the 1986 conviction and the 1990 sentence either in his brief before the Third Circuit panel, or in his petition for rehearing. That petition claimed only that the panel had improperly applied the principle of United States v. Tucker, 404 U.S. 443 (1972), to the facts of this case.
      Even the so-called “Epilogue” included in the district attorney’s brief before the en banc Court of Appeals argued only that the 1986 conviction did not subject Coss to a higher sentencing range in 1990. Supplemental Brief [on Rehearing] for Appellee in No. 98-7416 (CA3), pp. 15-18. It did not challenge the District Court’s finding that the 1990 sentencing court considered the challenged convictions in sentencing Coss to the maximum sentence within the applicable range.


author: Justice Ginsburg

text:
    C & L ENTERPRISES, INC. v. CITIZEN BAND POTAWATOMI INDIAN TRIBE OF OKLAHOMA
    No. 00-292.
    Argued March 19, 2001
    Decided April 30, 2001

      John D. Mashburn argued the cause for petitioner. With him on the briefs was Jewries W. Carlton, Jr.

      Gregory S. Coleman, Solicitor General of Texas, argued the cause for the State of Texas et al. as amici curiae urging reversal. With him on the brief were John Comyn, Attorney General, Andy Taylor, First Assistant Attorney General, Rick Thompson, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Mark Pryor of Arkansas, Carla J. Stovall of Kansas, Mike Moore of Mississippi, Don Stenberg of Nebraska, and Mark Barnett of South Dakota.

      Michael Minnis argued the cause for respondent. With him on the brief were David McCullough and David J. Bederman.

      Gregory G. Garre argued the cause for the United States as amicus curiae in support of respondent. With him on the brief were Solicitor General Waxman, Assistant Attorney General Schiffer, and Deputy Solicitor General Kneedler.

   Justice Ginsburg

delivered the opinion of the Court.

In Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751 (1998), this Court held that an Indian tribe is not subject to suit in a state court — even for breach of contract involving off-reservation commercial conduct — unless “Congress has authorized the suit or the tribe has waived its immunity.” Id., at 754. This case concerns the impact of an arbitration agreement on a tribe’s plea of suit immunity. The document on which the case centers is a standard form construction contract signed by the parties to govern the installation of a foam roof on a building, the First Oklahoma Bank, in Shawnee, Oklahoma. The building and land are owned by an Indian Tribe, the Citizen Potawatomi Nation (Tribe). The building is commercial, and the land is off-reservation, nontrust property. The form contract, which was proposed by the Tribe and accepted by the contractor, C & L Enterprises, Inc. (C & L), contains an arbitration clause.

The question presented is whether the Tribe waived its immunity from suit in state court when it expressly agreed to arbitrate disputes with C & L relating to the contract, to the governance of Oklahoma law, and to the enforcement of arbitral awards “in any court having jurisdiction thereof.” We hold that, by the clear import of the arbitration clause, the Tribe is amenable to a state-court suit to enforce an arbi-tral award in favor of contractor C & L.

I

Respondent Citizen Potawatomi Nation is a federally recognized Indian Tribe. In 1998, it entered into a contract with petitioner C & L for the installation of a roof on a Shawnee, Oklahoma, building owned by the Tribe. The building, which housed the First Oklahoma Bank, is not on the Tribe’s reservation or on land held by the Federal Government in trust for the Tribe.

The contract at issue is a standard form agreement copyrighted by the American Institute of Architects. The Tribe proposed the contract; details not set out in the form were inserted by the Tribe and its architect. Two provisions of the contract are key to this case. First, the contract contains an arbitration clause:

“All claims or disputes between the Contractor [C.& L] and the Owner [the Tribe] arising out of or relating to the Contract, or the breach thereof, shall be decided by arbitration in accordance with the Construction [Ijndustry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise.... The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.” App. to Pet. for Cert. 46. '

The American Arbitration Association Rules to which the clause refers provide: “Parties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.” American Arbitration Association, Construction Industry Dispute Resolution Procedures, R-48(c) (Sept. 1, 2000).

Second, the contract includes a choice-of-law clause that reads: “The contract shall be governed by the law of the place where the Project is located.” App. to Pet. for Cert. 56. Oklahoma has adopted a Uniform Arbitration Act, which instructs that “[t]he making of an agreement... providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this act and to enter judgment on an award thereunder.” OMa. Stat., Tit. 15, §802.B (1998). The Act defines “court” as “any court of competent jurisdiction of this state.” Ibid.

After execution of the contract but before C & L commenced performance, the Tribe decided to ehange the roofing material from foam (the material specified in the contract) to rubber guard. The Tribe solicited new bids and retained another company to install the roof. C & L, claiming that the Tribe had dishonored the contract, submitted an arbitration demand. The Tribe asserted sovereign immunity and declined to participate in the arbitration proceeding. It notified the arbitrator, however, that it had several substantive defenses to C & L’s claim. On consideration of C & lis evidence, the arbitrator rendered an award in favor of C & L for $25,400 in damages (close to 80% of the contract price), plus attorney’s fees and costs.

Several weeks later, C & L filed suit to enforce the arbitration award in the District Court of Oklahoma County, a state court of general, first instance, jurisdiction. The Tribe appeared specially for the limited purpose of moving to dismiss the action on the ground that the Tribe was immune from suit. The District Court denied the motion and entered a judgment confirming the award.

The Oklahoma Court of Civil Appeals affirmed, holding that the Tribe lacked immunity because the contract giving rise to the suit was “between an Indian tribe and a non-Indian” and was “executed outside of Indian Country.” App. to Pet. for Cert. 14 (citation omitted). The Oklahoma Supreme Court denied review, and the Tribe petitioned for certiorari in this Court.

While the Tribe’s petition was pending here, the Court decided Kiowa, holding: “Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.” 523 U. S., at 760. Kiowa reconfirmed: “[A]n Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Id., at 754. Thereafter, we granted the Tribe’s petition in this case, vacated the judgment of the Court of Civil Appeals, and remanded for reconsideration in light of Kioioa. 524 U. S. 901 (1998).

On remand, the Court of Civil Appeals changed, course. It held that, under Kiowa, the Tribe here was immune from suit on its contract with C & L, despite the contract’s off-reservation subject matter. App. to Pet. for Cert. 4-5. The court then addressed whether the Tribe had waived its immunity. “The agreement of [the] Tribe to arbitration, and the contract language regarding enforcement in courts having jurisdiction,” the court observed, “seem to indicate a willingness on [the] Tribe’s part to expose itself to suit on the contract.” Id., at 7. But, the court quickly added, “the leap from that willingness to a waiver of immunity is one based on implication, not an unequivocal expression.” Ibid. Concluding that the Tribe had not waived its suit immunity with the requisite clarity, the appeals court instructed the trial court to dismiss the case. The Oklahoma Supreme Court denied C & L’s petition for review.

Conflicting with the Oklahoma Court of Civil Appeals’ current decision, several state and federal courts have held that an arbitration clause, kin to the one now before us, expressly waives tribal immunity from a suit arising out of the contract. See Sokaogon Gaming Enterprise Corp. v. Tushie-Montgomery Associates, Inc., 86 F. 3d 656, 661 (CA7 1996) (clause requiring arbitration of contractual disputes and authorizing entry of judgment upon arbitral award “in any court having jurisdiction thereof” expressly waived Tribe’s immunity); Native Village of Eyak v. GC Contractors, 658 P. 2d 756 (Alaska 1983) (same); Val/Del, Inc. v. Superior Court, 145 Ariz. 558, 703 P. 2d 502 (Ct. App. 1985) (same). But ef. Pan American Co. v. Sycuan Band of Mission Indians, 884 F. 2d 416 (CA9 1989) (clause requiring arbitration of contractual disputes did not expressly waive Tribe’s immunity). We granted certiorari to resolve this conflict, 531 U. S. 956 (2000), and now reverse.

II

Kiowa, in which we reaffirmed the doctrine of tribal immunity, involved an off-reservation, commercial agreement (a stock purchase) by a federally recognized Tribe. The Tribe signed a promissory note agreeing to pay the seller $285,000 plus interest. The note recited: “Nothing in this Note subjects or limits the sovereign rights of the Kiowa Tribe of Oklahoma.” 523 U. S., at 753-754. The Tribe defaulted, the seller sued on the note in state court, and the Tribe asserted sovereign immunity. We upheld the plea. Tribal immunity, we ruled in Kiowa, extends to suits on off-reservation commercial contracts. Id., at 754-760. The Kiowa Tribe was immune from suit for defaulting on the promissory note, we held, because “Congress ha[d] not abrogated [the Tribe’s] immunity, nor ha[d] petitioner waived it.” Id., at 760.

Like Kiowa, this case arises out of the breach of a commercial, off-reservation contract by a federally recognized Indian Tribe. The petitioning contractor, C & L, does not contend that Congress has abrogated tribal immunity in this setting. The question presented is whether the Tribe has waived its immunity.

To abrogate tribal immunity, Congress must “unequivocally” express that purpose. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (citing United States v. Testan, 424 U. S. 392, 399 (1976)). Similarly, to relinquish its immunity, a tribe’s waiver must be “clear.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U. S. 505, 509 (1991). We are satisfied that the Tribe in this case has waived, with the requisite clarity, immunity from the suit C & L brought to enforce its arbitration award.

The construction contract’s provision for arbitration and related prescriptions lead us to this conclusion. The arbitration clause requires resolution of all contract-related disputes between C & L and the Tribe by binding arbitration; ensuing arbitral awards may be reduced to judgment “in accordance with applicable law in any court having jurisdiction thereof.” App. to Pet. for Cert. 46. For governance, of ar-bitral proceedings, the arbitration clause specifies American Arbitration Association Rules for the construction industry, ibid., and under those Rules, “the arbitration award may be entered in any federal or state court having jurisdiction thereof,” American Arbitration Association, Construction Industry Dispute Resolution Procedures, R-48(c) (Sept. 1, 2000).

The contract’s choice-of-law clause makes it plain enough that a “court having jurisdiction” to enforce the award in question is the Oklahoma state court in which C & L filed suit. By selecting Oklahoma law (“the law of the place where the Project is located”) to govern the contract, App. to Pet. for Cert. 56, the parties have effectively consented to confirmation of the award “in accordance with” the Oklahoma Uniform Arbitration Act, id., at 46 (“judgment may be entered upon [the arbitration award] in accordance with applicable law”); Okla. Stat., Tit. 15, §802. A (1993) (“This act shall apply to ... a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties.”).

The Uniform Act in force in Oklahoma prescribes that, when “an agreement . . . provides] for arbitration in this state,” i. e., in Oklahoma, jurisdiction to enforce the agreement vests in “any court of competent jurisdiction of this state.” §802.B. On any sensible reading of the Act, the District Court of Oklahoma County, a local court of general jurisdiction, fits that statutory description.

In sum, the Tribe agreed, by express contract, to adhere to certain dispute resolution procedures. In fact, the Tribe itself tendered the contract calling for those procedures. The regime to which the Tribe subscribed includes entry of judgment upon an arbitration award in accordance with the Oklahoma Uniform Arbitration Act. That Act concerns arbitration in Oklahoma and correspondingly designates as enforcement forums “courfc[s] of competent jurisdiction of [Oklahoma].” Ibid. G&L selected for its enforcement suit just such a forum. In a case involving an arbitration clause essentially indistinguishable from the one to which the Tribe and C & L agreed, the Seventh Circuit stated:

"There is nothing ambiguous about th[e] language [of the arbitration clause]. The tribe agrees to submit disputes arising under the contract to arbitration, to be bound by the arbitration award, and to have its submission and the award enforced in a court of law.
... "The [tribal immunity] waiver... is implicit rather than explicit only if a waiver of sovereign immunity, to be deemed explicit, must use the words ‘sovereign immunity.’ No case has ever held that.” Sokaogon, 86 F. 3d, at 659-660.

That cogent observation holds as well for the case we confront.

The Tribe strenuously urges, however, that an arbitration clause simply “is not a waiver of immunity from suit.” Brief for Respondent 13. The phrase in the clause providing for enforcement of arbitration awards “in any court having jurisdiction thereof,” the Tribe maintains, “begs the question of what court has jurisdiction.” Id., at 22. As counsel for the Tribe clarified at oral argument, the Tribe’s answer is “no court,” on earth or even on the moon. Tr. of Oral Arg. 32-33. No court — federal, state, or even tribal — has jurisdiction over G & L’s suit, the Tribe insists, because it has not expressly waived its sovereign immunity in any judicial forum. Ibid.; cf. Sokaogon, 86 F. 3d, at 660 (facing a similar argument, Seventh Circuit gleaned that counsel meant only a statement to this effect will do: “The tribe will not assert the defense of sovereign immunity if sued for breach of contract.”).

Instead of waiving suit immunity in any court, the Tribe argues, the arbitration clause waives simply and only the parties' rights to a court trial of contractual disputes; under the clause, the Tribe recognizes, the parties must instead arbitrate. Brief for Respondent 21 ("An arbitration clause is what it is: a clause submitting contractual disputes to arbitration."). The clause no doubt memorializes the Tribe’s commitment to adhere to the contract’s dispute resolution regime. That regime has a real world objective; it is not designed for regulation of a game lacking practical consequences. And to the real world end, the contract specifically authorizes judicial enforcement of the resolution arrived at through arbitration. See Eyak, 658 P. 2d, at 760 ("[W]e believe it is clear that any dispute arising from a contract cannot be resolved by arbitration, as specified in the contract, if one of the parties intends to assert the defense of sovereign immunity.... The arbitration clause ... would be meaningless if it did not constitute a waiver of whatever immunity [the Tribe] possessed.”); VallDel, 145 Ariz., at 565, 703 P. 2d, at 509 (because the Tribe has "agree[d] that any dispute would be arbitrated and the result entered as a judgment in a court of competent jurisdiction, we find that there was an express waiver of the tribe’s sovereign immunity”); cf. Rosebud Sioux Tribe v. Val-U Constr. Co., 50 P. 3d 560, 562 (CA8 1995) (agreement to arbitrate contractual disputes did not contain provision for court enforcement; court nonetheless observed that "disputes could not be resolved by arbitration if one party intended to assert sovereign immunity as a defense”).

The Tribe also asserts that a form contract, designed principally for private parties who have no immunity to waive, cannot establish a clear waiver of tribal suit immunity. Brief for Respondent 20; TV. of Oral Arg. 27-28. In appropriate cases, we apply “the common-law rule of contract interpretation that a court should construe ambiguous language against the interest of the party that drafted it.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995) (construing form contract containing arbitration clause). That rule, however, is inapposite here. The contract, as we have explained, is not ambiguous. Nor did the Tribe find itself holding the short end of an adhesion contract stick: The Tribe proposed and prepared the contract; C & L foisted no form on a quiescent Tribe. Cf. United States v. Bankers Ins. Co., 245 F. 3d 315, 319-320 (CA4 2001) (where federal agency prepared agreement, including its arbitration provision, sovereign immunity does not shield the agency from engaging in the arbitration process).

* * *

For the reasons stated, we conclude that under the agreement the Tribe proposed and signed, the Tribe clearly consented to arbitration and to the enforcement of arbitral awards in Oklahoma state court; the Tribe thereby waived its sovereign immunity from C & L’s suit. The judgment of the Oklahoma Court of Civil Appeals is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       The United States, as amicus supporting the Tribe, urges us to remain within the “four comers of the contract” and refrain from reliance on “secondary sources.” Brief for United States as Amicus Curiae 19, and n. 7. The American Arbitration Association Rules and the Uniform Arbitration Act, however, are not secondary interpretive aides that supplement our reading of the contract; they are prescriptions incorporated by the express terms of the agreement itself

       The United States argues that the Oklahoma Uniform Arbitration Act is inapplicable in this case because it does not reach all arbitrations properly held in Oklahoma, but only those in which the agreement explicitly “provide[s] for arbitration in [Oklahoma].” Tr. of Oral Arg. 47-48 (referring to § 802.B). No Oklahoma authority is cited for this constricted reading of an Act that expressly “applies] to ... a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties." §802A.. We decline to attribute to the Oklahoma lawmakers and interpreters a construction that so severely shrinks the Act's domain.

       Instructive here is the law governing waivers of immunity by foreign sovereigns. Cf Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 759 (1998) (“In considering Congress’ role in reforming tribal immunity, we find instructive the problems of sovereign immunity for foreign countries.”). “Under the law of the United States . . . an agreement to arbitrate is a waiver of immunity from jurisdiction in ... an action to enforce an arbitral award rendered pursuant to the agreement....” Restatement (Third) of the Foreign Relations Law of the United States §456(2)(b)(ii) (1987).

       Relying on our state sovereign immunity jurisprudence, the United States maintains that “courts must be especially reluctant to construe ambiguous expressions as consent by a Tribe to be sued in state court.” Brief for United States as Amicus Curiae 23; see also id., at 25 (arguing that a State’s generalized consent to suit, without an express selection of the forum in which suit may proceed, “should be construed narrowly as the State’s consent to be sued in its own courts of competent jurisdiction, and not its consent to be subjected to suits in another sovereign’s courts”) (citing, e. g., Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573 (1946) (State statute authorizing suits against State in “any court of competent jurisdiction” did not waive State’s immunity from suit in federal court)). But in this case, as we explained supra, at 419-420, the Tribe has plainly consented to suit in Oklahoma state court. We therefore have no occasion to decide whether parallel principles govern state and tribal waivers of immunity.

       The Tribe’s apparent concession — that the arbitration clause embodies the parties’ agreement to resolve disputes through arbitration — is not altogether consistent with the Tribe’s refusal to participate in the arbitration proceedings.

       The Tribe alternatively urges affirmance on the grounds that the contract is void under 25 U. S. C. §81 and that the members of the Tribe who executed the contract lacked the authority to do so on the Tribe’s behalf These issues were not aired in the Oklahoma courts and are not within the scope of the questions on which we granted review. We therefore decline to address them.