The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_5209/93_5209.zd

Text File | 1994-05-22 | 26.6 KB | 527 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 93-5209
--------
DARREN J. CUSTIS, PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court
of appeals for the fourth circuit
[May 23, 1994]

  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 unlaw-
fully 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 5 (emphasis in
original), and concludes that -Congress did not intend to
permit collateral attacks [during sentencing] on prior
convictions under 924(e),- ante, at 8.  This interpreta-
tion 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. Wainright, 372 U. S. 335 (1963), the right to
effective assistance of counsel, see Strickland v. Wash-
ington, 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 author-
ity, in my opinion, reflects the proper construction of the
ACCA.
  The Court's contrary reading ignores the legal frame-
work 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 enhance-
ment.  See ante, at 10.  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) (Frank-
furter, 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 sen-
tencing 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 unconsti-
tutionally 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. A.
924 (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 Court of
Appeals decisions that it thought revealed statutory
flaws requiring -correct[ion].-  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], Con-
gress' 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, 511 U. S. __ (1994) (slip op.,
at 1) -creates a clear negative implication that courts
may count a conviction that has not been set aside.-
Ante, at 5.  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 legisla-
tive 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, -[s]cho-
lars 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 -[s]ometimes [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 ACCA requires rejecting the nega-
tive implication on which the Court relies.  That context,
as I have described, understood defendants to have a
constitutional right to attack at sentencing prior convic-
tions 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,
supra, __ (slip op., at 1).  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 inten-
tion at all with respect to 924(e)'s sentence-enhance-
ment 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) (Frank-
furter, 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 pre-
cluded 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 implica-
tion, but is no more successful.  The Court observes that
Congress in other statutes expressly permitted challenges
to prior convictions during sentencing, see ante, at 6-7
(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 6.
But surely the Court does not believe that, if Congress
intended to preclude collateral attacks on prior convic-
tions at the time of sentencing, it did not know how to
do that.  And again, the Court's effort to infer 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 convic-
tions (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: -[e]nforcement 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 convic-
tion.-  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 construc-
tion of the statute is fairly possible by which [a constitu-
tional] question may be avoided.'-  Ashwander v. TVA,
297 U. S. 288, 348 (1936) (Brandeis, J., concurring)
(quoting Crowell v. Benson, 285 U. S. 22, 62 (1932)); see
also Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Construction 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 unknow-
ing or involuntary guilty plea, see Boykin 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. Wainright, to have a lawyer appointed if
necessary.  As indicated by the uniformity of lower court
decisions interpreting them, see p. 3 and n. 3, supra,
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 constitu-
tional 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, 389 U. S.,
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 proce-
dures,- 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 defend-
ant's sentence might have been different if the sentenc-
ing judge had known that the defendant's -previous
convictions had been unconstitutionally obtained.-
Tucker, supra, 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 Strick-
land 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 a 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 Amend-
ment 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 coun-
sel-), and whether the violation is of Gideon or Strick-
land, 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 convic-
tion 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 ques-
tion 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 11
(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 Johson 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 jurisdic-
tion . . . 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 -jurisdic-
tional 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 bea-
con.-  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 Court and the Federal System
1502 (3d ed. 1988).  The Court nevertheless finds itself
compelled to re-embrace 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 constitu-
tional 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 interpre-
tations 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 harsher punishment-).
Because I -cannot say with assurance,- United States v.
Granderson, 511 U. S. __, __ (1994) (slip op., at 14), 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 11.  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 alterna-
tive 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 unamend-
ed 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 __ (slip op., at 11) (-In recent years state
courts have permitted various challenges to prior convic-
tions- during sentencing).  As against this, the Court
sees administrative burdens arising because -sentencing
courts [would be required] to rummage through fre-
quently 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 11.
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 enhance-
ment may attack that conviction through state or federal
habeas review and, if successful, -may . . . apply for
reopening any federal sentence enhanced by the state
sentence.-  Ante, at 12.  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 Proce-
dure, 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).

                     III
  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 consti-
tutionally invalid, I respectfully dissent.