Ryan, John v. United States ( 2000 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 98-1736
    John Ryan,
    Petitioner-Appellant,
    v.
    United States of America,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 97 C 2765--Marvin E. Aspen, Chief Judge.
    Argued January 18, 2000--Decided June 5, 2000
    Before Easterbrook, Kanne, and Diane P. Wood, Circuit
    Judges.
    Easterbrook, Circuit Judge. Custis v. United
    States, 
    511 U.S. 485
    , 487 (1994), considered
    "whether a defendant in a federal sentencing
    proceeding may collaterally attack the validity
    of previous state convictions that are used to
    enhance his sentence" and held that "a defendant
    has no such right (with the sole exception of
    convictions obtained in violation of the right to
    counsel)". We must decide whether Custis means
    only that the time for the attack on the state
    conviction is postponed to a collateral attack on
    the federal sentence. Our answer is no. A
    sentence imposed following the approach of Custis
    is lawful and thus not subject to collateral
    attack under 28 U.S.C. sec.2255 as long as the
    prior convictions remain undisturbed. Accord,
    Moore v. Roberts, 
    83 F.3d 699
    , 702-03 (5th Cir.
    1996); Turner v. United States, 
    183 F.3d 474
    , 477
    (6th Cir. 1999); Charlton v. Morris, 
    53 F.3d 929
    (8th Cir. 1995); Clawson v. United States, 
    52 F.3d 806
    (9th Cir. 1995), reiterated by United
    States v. Daniels, 
    195 F.3d 501
    (9th Cir. 1999).
    Contra, Young v. Vaughn, 
    83 F.3d 72
    (3d Cir.
    1996); United States v. Clark, 
    203 F.3d 358
    (5th
    Cir. 2000) (agreeing with Young and disapproving
    Charlton, but without mentioning the circuit’s
    earlier decision in Moore).
    John Ryan was sentenced to 185 months’
    imprisonment as a career offender under U.S.S.G.
    sec.4B1.1 following his guilty plea to multiple
    drug crimes. Career-offender enhancement is
    mandatory for an adult who commits a drug felony
    and has at least two prior felony convictions for
    drug offenses or crimes of violence. Ryan
    concedes that his criminal record contains two
    convictions meeting that description but insists
    that one of them--a 1980 conviction in Illinois
    for armed robbery--is invalid. Ryan did not
    appeal that conviction or subject it to
    collateral attack while he was in custody under
    it. At the sentencing for his federal drug
    offenses, however, he asked the district judge to
    inquire into its validity. Ryan contended that
    his 1980 plea had been involuntary because the
    panel from which his jury would have been
    selected heard the judge sentence another
    defendant and make comments deploring the high
    incidence of crime. Ryan’s lawyer asked the judge
    to secure a new pool of jurors; when the judge
    refused, Ryan pleaded guilty. The judge in the
    federal case remarked that Ryan could have gone
    to trial and appealed (if he had been convicted)
    to present his claim of error; the federal judge
    did not see any possibility that simply by
    denying Ryan’s motion the state judge rendered
    his plea involuntary. Ryan repeated his argument
    on appeal to this court but received a different
    kind of response: that Custis precludes an
    indirect collateral attack on the state sentence,
    and that the 1980 conviction therefore counts for
    career-offender purposes whether Ryan’s plea was
    voluntary or not. 1996 U.S. App. Lexis 3836 (7th
    Cir. Feb. 29, 1996). Under Custis, we held, only
    the lack of counsel permits such an indirect
    collateral attack.
    A few days before the statutes of limitations
    in 28 U.S.C. sec.sec. 2244(d) and 2255 para.6
    expired, Ryan launched two collateral attacks--
    one on the 1980 state conviction, the other on
    the 1995 federal sentence. The challenge to the
    state conviction was assigned to District Judge
    Bucklo, who dismissed it with the observation
    that Ryan was no longer "in custody" under the
    1980 conviction and therefore could not use
    sec.2254 to contest its validity. See Maleng v.
    Cook, 
    490 U.S. 488
    , 492-93 (1989). Both Judge
    Bucklo and this court denied Ryan’s application
    for a certificate of appealability to review that
    decision. The challenge to the federal sentence
    was assigned to Chief Judge Aspen, who rejected
    it on the ground that Custis is as applicable to
    a petition under sec.2255 as it is to sentencing
    and direct appeal. 
    986 F. Supp. 509
    (N.D. Ill.
    1997). Ryan offered a new theory of
    involuntariness: that his lawyer compelled him to
    plead guilty by refusing to go forward with the
    trial unless paid $2,000. If Ryan did not tell
    this to the state judge when entering his plea,
    it is difficult to see how the subject can be
    raised 20 years later. See United States v.
    Stewart, 
    198 F.3d 984
    (7th Cir. 1999). But the
    record does not contain a transcript of the plea,
    so Judge Aspen assumed, as shall we, that Ryan
    not only could establish that his lawyer made
    this demand but also did not know that an
    indigent defendant is entitled to court-appointed
    counsel. Still, Judge Aspen observed, Ryan had
    the assistance of counsel at the time of his
    plea, and no more is required by Custis.
    On this, Ryan’s second appeal, the United
    States leads off with the argument that our 1996
    decision is the law of the case, which Ryan
    cannot avoid just by changing his theory about
    why the plea was involuntary. Even if an indirect
    collateral challenge to a conviction used to
    enhance a federal sentence is, like a claim of
    ineffective assistance, the sort of contention
    that ordinarily may be deferred until a motion
    under sec.2255, the fact remains that Ryan did
    object at sentencing, and on direct appeal, to
    the consideration of the 1980 state conviction.
    A defendant who complains on direct appeal about
    the quality of his lawyer can’t try again on
    collateral attack unless there has been an
    intervening change of law, United States v.
    Taglia, 
    922 F.2d 413
    , 417-18 (7th Cir. 1991), and
    Ryan does not make such an argument. What he does
    say, however, is that our 1996 decision should be
    disregarded for the same reason Ryan thinks that
    Custis is irrelevant: that all Custis does (and,
    by implication, all we did in 1996) is postpone
    decision to a collateral attack under sec.2255.
    It is not possible to disentangle the argument
    based on law of the case from the arguments about
    the effect of Custis, so we turn directly to that
    subject.
    Custis gave several reasons why a prior
    conviction is conclusive for purposes of
    recidivist sentencing. First, the Armed Career
    Criminal Act, 18 U.S.C. sec.924(e), the statute
    involved in Custis, "focuses on the fact of the
    conviction and nothing [in sec.924] suggests that
    the prior final conviction may be subject to
    collateral attack for potential constitutional
    errors before it may be 
    counted." 511 U.S. at 491
    (emphasis in original). Lewis v. United States,
    
    445 U.S. 55
    (1980), holds that a person with a
    felony conviction who possesses a firearm cannot
    defend by insisting that he shouldn’t have been
    convicted; that he was convicted is sufficient,
    the Court concluded. Custis holds that sec.924(e)
    should be treated like the felon-in-possession
    
    statute. 511 U.S. at 491-93
    . Although the Court
    recognized that prior decisions had permitted an
    indirect collateral challenge when a prior
    conviction was uncounseled, it declined to extend
    these cases. 
    Id. at 493-96.
    At the conclusion of
    this discussion the Court remarked:
    Ease of administration also supports the
    distinction. As revealed in a number of
    the cases cited in this opinion, failure
    to appoint counsel at all will generally
    appear from the judgment roll itself, or
    from an accompanying minute order. But
    determination of claims of ineffective
    assistance of counsel, and failure to
    assure that a guilty plea was voluntary,
    would require sentencing courts to rummage
    through frequently nonexistent or difficult
    to obtain state-court transcripts or
    records that may date from another era,
    and may come from any one of the 50
    
    States. 511 U.S. at 496
    . Finally, the Court observed that
    "principles of finality associated with habeas
    corpus actions apply with at least equal force
    when a defendant seeks to attack a previous
    conviction used for sentencing. By challenging
    the previous conviction, the defendant is asking
    a district court ’to deprive [the] [state-court
    judgment] of [its] normal force and effect in a
    proceeding that ha[s] an independent purpose
    other than to overturn the prior judgment.’
    [Parke v. Raley, 
    506 U.S. 20
    (1992)] at 30. These
    principles bear extra weight in cases in which
    the prior convictions, such as one challenged by
    Custis, are based on guilty pleas, because when
    a guilty plea is at issue, ’the concern with
    finality served by the limitation on collateral
    attack has special force.’ United States v.
    Timmreck, 
    441 U.S. 780
    , 784 (1979) (footnote
    
    omitted)." 511 U.S. at 497
    (full citation to
    Parke added; other brackets and parentheses in
    the original).
    What the Court said about sec.924(e) is equally
    applicable to the career-offender guideline.
    United States v. Killion, 
    30 F.3d 844
    , 846 (7th
    Cir. 1994); United States v. Arango-Montoya, 
    61 F.3d 1331
    , 1336 (7th Cir. 1995). The Sentencing
    Commission instructed courts to use the fact of
    prior convictions as conclusive when calculating
    criminal history. U.S.S.G. sec.4A1.2 Application
    Note 6. The Commission recognized, as did the
    Court in Custis, that some recidivist statutes
    expressly permit contest to the validity of prior
    convictions. E.g., 21 U.S.C. sec.851(c)(1). But
    in the absence of such an independent right of
    review, the Commission stated, all outstanding
    convictions must be counted.
    Ryan wants us to disregard not only the
    language in Custis (and the Guidelines)
    emphasizing that the fact of prior conviction is
    dispositive but also the Court’s reminder that
    collateral attacks on prior convictions are
    incompatible with principles of finality--
    especially, Custis said, when the defendant
    pleaded guilty, as Ryan did. Instead Ryan plays
    up the Court’s observation about ease of
    administration (the language in the block quote
    above). Now that sentencing has been completed,
    Ryan contends, it is as easy to go back and
    determine the validity of the 1980 conviction as
    it is to resolve any other collateral attack.
    That may be true, but it does not justify
    disregarding the other strands of the Court’s
    reasoning. Custis concluded that it is proper to
    count the prior conviction. Ryan could have
    challenged his 1980 conviction by appeal or by
    collateral attack when he was still in custody.
    He did not do so, the time to do it is long gone,
    and "principles of finality associated with
    habeas corpus actions apply with at least equal
    force when a defendant seeks to attack a previous
    conviction used for sentencing." 
    Custis, 511 U.S. at 497
    .
    The linchpin of Ryan’s argument is a belief
    that only a valid conviction can justify an
    increase in one’s sentence. Not so. Ryan argues
    as if he were in custody once again for the armed
    robbery, but he isn’t. Recidivist sentencing is
    not a second or deferred punishment for the prior
    offense. It is a way to determine the appropriate
    punishment for the latest crime. Witte v. United
    States, 
    515 U.S. 389
    (1995). And there is no
    doubt that Ryan’s 1995 convictions for drug
    offenses are valid and supply adequate grounds
    for his current incarceration. (The maximum
    punishment Ryan faced in 1995 was 40 years’
    imprisonment. 21 U.S.C. sec.841(b)(1)(B)(vii).)
    When imposing sentence judges may consider acts
    that did not lead to a conviction. E.g., McMillan
    v. Pennsylvania, 
    477 U.S. 79
    (1986). The
    Sentencing Guidelines contain elaborate rules
    about "relevant conduct" that counts against the
    defendant whether or not it has been the subject
    of a conviction. Edwards v. United States, 
    523 U.S. 511
    (1998). Indeed, a judge may take account
    of prior criminal conduct even though a jury has
    acquitted the defendant of charges based on the
    events. United States v. Watts, 
    519 U.S. 148
    (1997). And the Court added in Nichols v. United
    States, 
    511 U.S. 738
    (1994), that even an
    uncounseled conviction may be the basis for
    recidivist sentencing under the Guidelines, when
    the sixth amendment did not require counsel
    (because the original crime was a misdemeanor
    that did not lead to incarceration).
    Many events that have been determined only by a
    preponderance of the evidence, and without the
    safeguards of a criminal trial, lead to higher
    sentences. Cases such as Edwards, Watts, Witte,
    and Nichols just instantiate this more general
    proposition. Consider a few more examples. (1)
    Stationhouse confessions are good grounds on
    which to enhance a sentence, even though
    confessions standing alone do not support
    convictions. (2) A person deported after informal
    proceedings faces a higher sentence for entering
    the United States improperly than does a person
    who has never been deported. (3) A person who
    cuts someone else’s hair without a license may be
    punished as a criminal, even though it is
    possible to deny a license application without
    proof beyond a reasonable doubt. Once we see that
    acts proved beyond a reasonable doubt after a
    full-dress criminal trial are not the only
    acceptable grounds for enhancement, it looks very
    odd to invest substantial resources determining
    whether a particular conviction offered in
    sentencing indeed meets the standards developed
    for full-dress litigation. Why should a judgment
    of conviction based on a guilty plea (that is, on
    a confession in open court) be less legitimate,
    as a ground for enhancement, than a stationhouse
    confession? No one would suppose that a lawyer’s
    demand for a fee puts a stationhouse confession
    off limits for sentencing purposes; should the
    confession in open court to armed robbery be the
    less usable when ascertaining the appropriate
    sentence for Ryan’s drug crimes? Both a
    stationhouse confession to armed robbery and the
    1980 guilty plea show that Ryan is incorrigible--
    15 years after committing an armed robbery, and
    despite serving time for that offense, Ryan is
    still an active criminal. That knowledge
    justifies a more severe sentence to achieve both
    deterrence and incapacitation.
    Custis left open the question whether a person
    who has his conviction set aside by the rendering
    court--say, by a writ of error coram nobis--is
    entitled to reconsideration of a federal
    recidivist 
    sentence. 511 U.S. at 497
    . Several
    courts have held or assumed that the answer is
    yes. E.g., United States v. Pettiford, 
    101 F.3d 199
    (1st Cir. 1996); United States v. Bacon, 
    94 F.3d 158
    , 162 n.3 (4th Cir. 1996); Turner v.
    United States, 
    183 F.3d 474
    (6th Cir. 1999). We
    need not address that question, however, because
    Ryan has not persuaded Illinois to annul his
    conviction for armed robbery. He had ample chance
    but did not pursue his avenues. Today is too
    late. Even had Judge Bucklo concluded that Ryan’s
    federal custody authorizes a collateral challenge
    to the state conviction under sec.2254 this would
    not have done Ryan any good. A person seeking
    federal relief against a state conviction must
    fairly present his contentions to state court.
    O’Sullivan v. Boerckel, 
    526 U.S. 838
    (1999). Ryan
    never did, and Illinois would deem untimely any
    effort to do so at this remove. 725 ILCS 5/122-
    1(c). Like Custis itself, our decision in Tredway
    v. Farley, 
    35 F.3d 288
    (7th Cir. 1994), which
    treated the state’s timeliness rules as defects
    in state remedial processes that entitle a
    federal court to disregard a person’s failure to
    present the claims to the state, was rendered
    when federal law did not impose time limits on
    collateral attacks. That changed in 1996, with
    the Antiterrorism and Effective Death Penalty
    Act. Now federal law includes a one-year period
    of limitations, for collateral attacks against
    both state and federal convictions. It is no
    longer possible to conclude, as Tredway did in
    1994, that time limits under state law excuse
    convicted persons from the duty to present their
    claims to state court. See Edwards v. Carpenter,
    
    120 S. Ct. 1587
    (2000) (failure to present a
    claim to a state court within the state’s
    timeliness rules is a default that precludes
    collateral review in federal court unless both
    cause and prejudice are established). By
    disdaining the Illinois courts when he had the
    chance, Ryan lost any entitlement to obtain a
    federal declaration that his 1980 conviction is
    invalid, for he does not argue that any "cause"
    (which is to say, an impediment created by the
    state) excuses the delay. See also, e.g., Freeman
    v. Page, 
    208 F.3d 572
    (7th Cir. 2000).
    Defendants have ample reason to challenge their
    convictions on direct appeal, or collaterally
    while serving their sentences. The Sentencing
    Commission’s approach, like that of the Armed
    Career Criminal Act, relies on this incentive.
    Serious challenges are likely to be brought, and
    resolved, before the sentencing for a later
    offense. Convicts who wait too long can try coram
    nobis, which is available in many states. This is
    what happened in United States v. Tucker, 
    404 U.S. 443
    (1972): the defendant obtained writs of
    error coram nobis, which justified resentencing
    on the current conviction. See also Johnson v.
    Mississippi, 
    486 U.S. 578
    (1988). Any convicted
    person has ample opportunities to obtain review.
    Requiring defendants to use these opportunities,
    rather than tarry and then launch indirect
    collateral attacks during or after sentencing for
    some other offense, has significant benefits. It
    sends persons to the rendering courts, which have
    the records necessary to determine whether a
    conviction is valid or not. It requires them to
    act promptly, while the information necessary to
    determine validity is available (and while
    reprosecution is possible, at least in theory, if
    the conviction is flawed).
    Honoring judgments that remain outstanding after
    full opportunity for direct and collateral review
    does not dis-honor the constitutional claims the
    defendant wishes to make. It simply establishes
    rules for presenting these claims to the right
    court, and in a timely fashion. Respecting
    judgments is the norm in our legal culture: the
    full faith and credit clause and common law
    principles of res judicata combine to make
    respect for judgments the rule. During this
    century courts began to readjudicate issues that
    were, or could have been, presented to the
    rendering court. E.g., Frank v. Mangum, 
    237 U.S. 309
    (1915); Waley v. Johnston, 
    316 U.S. 101
    (1942); Brown v. Allen, 
    344 U.S. 443
    (1953). This
    development depends on a federal statute, not on
    constitutional right. See Lindh v. Murphy, 
    96 F.3d 856
    , 871-74 (7th Cir. 1996) (en banc),
    reversed on other grounds, 
    521 U.S. 320
    (1997).
    See also Williams v. Taylor, 
    120 S. Ct. 1495
    (2000). No statute expressly authorizes the form
    of derivative collateral attack that Ryan wants
    to wage, and the changes made by the AEDPA show
    that long-deferred challenges that were never
    presented to the state courts are no longer
    appropriate grounds of federal relief. Whether
    some avenue remains open to Ryan in Illinois is
    a question we pretermit, along with the question
    (the one reserved at the end of Custis) whether
    a writ of error coram nobis would justify relief
    under sec.2255. Because Ryan’s 1980 conviction
    remains on the books to this day, it is not
    possible to conclude, in the language of sec.2255
    para.1, that his federal sentence "was in excess
    of the maximum authorized by law, or is otherwise
    subject to collateral attack". The sentence is
    within the statutory limit, was altogether proper
    under Custis, and therefore may not now be upset.
    Affirmed
    DIANE P. WOOD, Circuit Judge, dissenting. Once
    again, we are called upon to unravel the
    complexities of collateral attacks on federal
    sentences. That task, which is hard enough when
    the question is what kinds of defects in the
    original proceeding are serious enough to entitle
    a prisoner to have a conviction or sentence set
    aside, becomes even more difficult when the
    attack indirectly calls into question the results
    of earlier proceedings. Our case is such a case.
    We must decide here whether there is any way at
    all that a federal prisoner can challenge a
    federal sentence that was based in part on a
    void, unconstitutional prior state conviction.
    The majority concludes that there is nothing such
    a prisoner can do, even in a state like Illinois
    that affords absolutely no way for an individual
    who has finished serving the unconstitutional
    prior sentence to erase it from the books. I
    disagree, and I therefore respectfully dissent.
    John Ryan pleaded guilty in 1980 to state
    charges of armed robbery before the Circuit Court
    of Cook County, Illinois. He was sentenced to six
    years’ imprisonment for that offense. He took no
    appeal, nor did he file a state post-conviction
    petition; instead, he served out the sentence to
    its completion. Only later did it turn out that
    his guilty plea may have been procured through
    the most serious form of attorney misconduct.
    Ryan claims that on the day of trial, his lawyer
    demanded a payment of $2,000 as the price of
    going forward. Ryan didn’t have the money, and so
    he pleaded guilty instead. The lawyer in question
    was later disbarred by the Illinois Supreme
    Court. In 1987, the court accepted a voluntary
    disbarment based on six pending proceedings in
    which he was charged with unethical conduct
    toward clients other than Ryan. The charges
    included lying to a client by telling him that
    the appellate court had affirmed his conviction,
    when the lawyer had never appealed the case at
    all; lying to another pair of clients by telling
    them he had incorporated their business when he
    had not done so, and the lie eventually forced
    them into bankruptcy; and using client escrow
    accounts to hide personal funds from the Internal
    Revenue Service. Ryan claims that the lawyer’s
    effort to shake him down on the morning of the
    trial was one more item on this inglorious list.
    If Ryan’s allegation proves to be true, then it
    would be compelling evidence that he had received
    constitutionally ineffective counsel in
    conjunction with his 1980 conviction.
    Years later, Ryan was foolish enough to commit
    another offense, this time the federal controlled
    substance crime to which he pleaded guilty on
    September 20, 1993, in United States v. Ryan, No.
    93-CR-419-1, N.D. Illinois. For that crime, Ryan
    received a sentence of 185 months plus five
    years’ supervised release. He started with an
    offense level of 26 and a criminal history
    category of VI. Six levels were then added
    pursuant to the career offender provision,
    U.S.S.G. sec. 4B1.1, based on the 1980 Illinois
    conviction just described and one other
    conviction that he does not challenge. Last, two
    levels were deducted for acceptance of
    responsibility, see sec. 3E1.1(b), giving a final
    offense level of 30 and a range of 168 to 210
    months. Had it not been for the 1980 Illinois
    conviction, the career offender enhancement would
    not have been proper; and without those extra 6
    levels, the final offense level would have been
    24 and the range 100 to 125 months. It is
    therefore obvious that Ryan and anyone similarly
    situated has a substantial stake in being able to
    correct the kind of problem he had in the 1980
    conviction, in some court, at some time.
    The majority holds that Ryan is out of luck,
    unless the state offers a way to vacate an
    unconstitutional prior conviction for which the
    entire sentence has been served. It believes that
    its result is compelled by Custis v. United
    States, 
    511 U.S. 485
    (1994). But the Court had no
    such problem before it in Custis. We must decide
    now whether the principles underlying Custis
    apply to this significantly different fact
    pattern.
    The first question is whether Ryan should be
    proceeding under 28 U.S.C. sec. 2254, the statute
    normally used to attack state convictions and
    sentences, or 28 U.S.C. sec. 2255, the
    counterpart statute for federal convictions and
    sentences. I agree with the district court that
    the correct vehicle was sec. 2255. This follows
    from Maleng v. Cook, 
    490 U.S. 488
    (1989), in
    which the Court held that when a state prisoner
    seeks to challenge a prior state conviction via
    sec. 2254, the custody that matters is the
    current one, not any custody that resulted from
    the prior conviction: "[T]he habeas petitioner
    [is] ’in custody’ under the conviction or
    sentence under attack at the time his petition is
    filed." 
    Id. at 490-91
    (emphasis added), citing
    Carafas v. LaVallee, 
    391 U.S. 234
    , 238 (1968).
    See also Crank v. Duckworth, 
    905 F.2d 1090
    , 1091
    (7th Cir. 1990) ("Maleng holds that when sentence
    A has expired but has been used to augment
    sentence B, the prisoner is ’in custody’ only on
    sentence B."). Although neither the Supreme Court
    nor this court has explicitly ruled on this point
    before, Maleng makes clear that the district
    court did not have jurisdiction to consider the
    validity of Ryan’s expired Illinois sentence
    under sec. 2254. Ryan has not been "in custody"
    of the State of Illinois under that sentence for
    many years. Neither is he under "present
    restraint" pursuant to that conviction. 
    Maleng, 490 U.S. at 492
    . Therefore, he does not meet the
    statutory requirements to seek review of that
    sentence under sec. 2254. This is the first
    important contrast with the situation facing the
    Court in Custis, where the Court found that the
    petitioner could attack the prior state
    conviction through sec. 2254 because he was still
    in state custody at the time of his federal
    sentencing. The Custis Court had no occasion to
    consider what might happen if neither sec. 2254
    nor any other remedy was still available.
    Following Maleng, we have held that when a
    sentence has been enhanced based on an allegedly
    unlawful or factually erroneous conviction, a
    prisoner may bring a habeas corpus petition in
    the court with jurisdiction to grant release from
    the enhanced sentence, or reduction of that
    sentence. Lowery v. Young, 
    887 F.2d 1309
    , 1312-13
    (7th Cir. 1989). Lowery involved a different
    permutation of today’s problem, where a state
    prisoner in custody under one state sentence
    claimed that the sentence had been
    unconstitutionally enhanced by prior, unlawful
    convictions of another state. We concluded that
    the district court had jurisdiction to consider
    his claims, even though the prisoner was in
    custody only of the state which had imposed the
    enhanced sentence. Indeed, the only court with
    jurisdiction to grant his requested relief--an
    earlier release from his current custodian--was
    the court with jurisdiction over that 
    custodian. 887 F.2d at 1312-13
    . See also 
    Crank, 905 F.2d at 1091
    .
    The same logic applies here. Ryan is a federal
    prisoner "in custody" under a federal sentence.
    His complaint pertains to the length of that
    sentence, which means that the statute he can and
    must use is sec. 2255. Maleng rules out sec.
    2254, and the fact that the attack relates to the
    sentence rules out 28 U.S.C. sec. 2241. This
    conclusion follows from a number of our prior
    decisions. See, e.g., Tredway v. Farley, 
    35 F.3d 288
    , 292 (7th Cir. 1994) ("Because a person
    currently serving a sentence that was enhanced on
    the basis of a prior conviction is still in
    custody, he may challenge the enhancing
    conviction as constitutionally invalid even
    though the prior conviction’s original custodial
    term has expired."), quoting Smith v. Farley, 
    25 F.3d 1363
    , 1365-66 (7th Cir. 1994); 
    Crank, 905 F.2d at 1091
    ("Whether the federal court with
    jurisdiction over the custodian holding the
    prisoner on [the enhanced] sentence B may inquire
    into the validity of [the prior] sentence A is a
    matter of comity and the rules of preclusion, not
    of ’custody’."). See also United States v.
    Tucker, 
    404 U.S. 443
    (1972) (granting relief
    under sec. 2255 to petitioner whose federal
    sentence was enhanced based on prior,
    unconstitutional state conviction); United States
    v. Clark, 
    203 F.3d 358
    , 364 (5th Cir. 2000)
    (collecting cases).
    Custis itself implies that the "in custody"
    requirement of sec. 2255 is met where a federal
    sentence has been enhanced by a prior state
    conviction. In stating that "[i]f Custis is
    successful in attacking these state sentences, he
    may then apply for reopening of any federal
    sentence enhanced by the state 
    sentence," 511 U.S. at 497
    , the Court acknowledged that the
    proper vehicle to attack the enhanced sentence is
    sec. 2255. Several circuits have likewise held
    that a federal prisoner may bring a sec. 2255
    motion after successfully attacking a prior state
    conviction. See Turner v. United States, 
    183 F.3d 474
    , 477 (6th Cir. 1999); United States v. Bacon,
    
    94 F.3d 158
    , 161-62 & n.3 (4th Cir. 1996); United
    States v. Cox, 
    83 F.3d 336
    , 339 (10th Cir. 1996);
    United States v. Nichols, 
    30 F.3d 35
    , 38 (5th
    Cir. 1994). The only wrinkle presented by this
    case is whether the federal prisoner is entitled
    to seek correction of his federal sentence if he
    has not, for whatever reason, already launched a
    successful collateral attack on his state
    conviction.
    The majority’s principal reason for concluding
    that no such entitlement exists is the fact that
    Ryan’s 1980 conviction was literally on the books
    at the time of his federal sentencing. It argues
    that because there was a conviction, the decision
    to enhance his federal sentence under sec. 4B1.1
    was automatically "correct" and the sentence is
    therefore immune from challenge under sec. 2255.
    Custis, however, did not take such a strict
    approach. Nothing in Custis implied that the
    earlier state conviction used to enhance Custis’s
    sentence was legally correct. Nor did the Court
    suggest that the possibility that Custis’s prior
    conviction was tainted with constitutional error
    was irrelevant. Instead, the Court focused on the
    language of the Armed Career Criminal Act
    ("ACCA") to resolve the narrow question whether
    that statute provided persons sentenced under it
    an opportunity to attack the validity of their
    prior convictions during sentencing under that
    statute. The Court explained: "The [ACCA] focuses
    on the fact of the conviction and nothing
    suggests that the prior final conviction may be
    subject to collateral attack for potential
    constitutional errors before it may be counted
    [for 
    sentencing]." 511 U.S. at 490-91
    . The Court
    came to a similar conclusion in Lewis v. United
    States, 
    445 U.S. 55
    (1980). Construing a
    predecessor to the current felon-in-possession-
    of-a-firearm statute, 18 U.S.C.A. sec. 1202(a)(1)
    (Supp. 1982), the Court held that the statute was
    not limited to felons whose convictions were
    subject to possible collateral attack but rather
    applied to all persons with a felony conviction
    on the 
    books. 445 U.S. at 60-65
    .
    What the Court focused on in both of these
    cases was whether the applicable recidivist
    statute provided an opportunity for persons
    subject to the statute to expunge their past in
    the same sentencing proceeding in which the trial
    court was to determine whether the individual was
    subject to additional sanctions and penalties
    based on those past convictions. Some statutes
    allow people with a criminal history to attack
    the validity of their prior convictions before
    being subjected to higher penalties, see 18
    U.S.C. sec. 3575(e) (dangerous special offender),
    21 U.S.C. sec. 851(c)(2) (recidivism under the
    Comprehensive Drug Abuse Prevention and Control
    Act of 1970), while others do not, see 18 U.S.C.
    sec. 924(e) (sentencing for felons in possession
    of a firearm).
    My colleagues construe the criminal history
    provisions of the Sentencing Guidelines, U.S.S.G.
    sec. 4A1.2, in the same manner as the Supreme
    Court construed the ACCA in Custis, to mean that
    convictions that have not yet been expunged or
    vacated may be used to enhance a sentence without
    providing the person being sentenced with an
    opportunity to attack the validity of those
    convictions during the original sentencing
    proceedings. Given the language of the criminal
    history Guideline, this much of its
    interpretation makes sense. Naturally, this
    language also implies (consistently with Custis)
    that a conviction that has previously been
    expunged or vacated may not be counted.
    The question of use in the original sentencing
    proceeding is analytically different from the
    question of the permissible scope of a collateral
    attack. The Guidelines speak indirectly to the
    question of collateral attacks, and what they say
    is more open to the possibility of such an attack
    on an earlier, allegedly invalid, sentence than
    the majority’s opinion admits. Section 4A1.2,
    Application Note 6, expressly states that, "with
    respect to the current sentencing proceedings,"
    the Guidelines do not "confer any right to attack
    collaterally a prior conviction or sentence
    beyond any such rights otherwise recognized in
    law." (Emphasis added). The majority reads this
    language as if the sentence ended just before the
    phrase I have highlighted. (Obviously the U.S.
    Sentencing Guidelines are not enacting laws for
    the states, and so the possibility that a state
    might provide an avenue for a challenge does not
    change matters. Such an avenue would not be
    something "conferred" by the Guidelines.) There
    is no hint in that passage that if the conviction
    is on the books at the time of sentencing, any
    sentence enhancement based on it is thereafter
    immune from challenge. The Sentencing Commission
    was saying only that the Guidelines themselves
    were not a source of law for possible collateral
    attack--hardly a controversial proposition.
    The question then is what kind of collateral
    attack on a prior state sentence used for
    enhancing purposes under the Guidelines is
    "otherwise recognized in law". In my opinion, the
    answer for a federal prisoner is the procedure
    established in sec. 2255. This conclusion does
    not take away with the left hand what the Supreme
    Court gave the district courts with the right
    hand in Custis: the freedom not to explore prior
    convictions. That would be true only if exactly
    the same grounds, under exactly the same
    procedures, applied to sec. 2255 cases as apply
    to original sentencing proceedings, and that is
    plainly not the case. Even if a defendant may not
    collaterally attack her prior sentence in the
    original sentencing proceeding (except on narrow
    grounds not available to Ryan), it does not
    necessarily follow that such a prior sentence is
    immune from all attack, on any ground, at any
    time. That is the key point at which I part
    company with the majority.
    Both the Supreme Court and the Sentencing
    Commission have concluded that there is much to
    be lost and little to be gained by clogging up
    the federal district courts with collateral
    attacks on prior convictions during sentencing.
    One could imagine an array of complaints ranging
    from the sufficiency of indictments, to
    evidentiary errors at the state proceeding, to
    sentencing complaints. Such attacks would bog
    down the sentencing process, slowing down the
    operation of the courts and clogging their
    already crowded dockets. (In fact, this was part
    of the Custis Court’s rationale for allowing a
    collateral attack during sentencing proceedings
    for violations of the right to counsel recognized
    in Gideon v. Wainwright, 
    372 U.S. 335
    (1963):
    lack of counsel is one of the few constitutional
    errors which will be readily apparent and can be
    discovered without poring over the record of the
    earlier proceedings. 
    See 511 U.S. at 496
    .)
    Collateral attacks, in contrast, are available
    only on grounds far narrower than those that can
    be raised in the original case (either at
    sentencing or on appeal). Well established
    principles governing sec. 2255 proceedings would
    leave the door open to that far smaller universe
    of complaints: those that assert substantial
    federal constitutional flaws with the original
    state conviction. The majority overlooks this
    fact when it presumes that the two stages would
    be identical.
    If sentencing hearings were the last word,
    always, then there would be no occasion ever to
    use sec. 2255 to attack a sentence. But that is
    not the system we have. To the contrary,
    countless cases hold that a petitioner can attack
    a federal sentence for constitutional error. See,
    e.g., United States v. Addonizio, 
    442 U.S. 178
    ,
    185 (1979); Waley v. Johnston, 
    316 U.S. 101
    , 104-
    05 (1942). And a subset of those cases involve
    challenges to prior sentences that were used to
    enhance the federal sentence once a prior
    (invalid) conviction has been expunged, reversed,
    or invalidated. See, e.g., 
    Tucker, supra
    ; 
    Clark, supra
    . Applying the same rule to a previously
    unexamined, and presently unexaminable, prior
    sentence would be no different and no more
    disruptive than holding a hearing to re-examine
    the conviction for which the prisoner is serving
    time--an activity that is routine for the federal
    courts. Complaints about ineffective assistance
    of counsel are regularly thrown over to
    collateral attack proceedings, precisely because
    the original trial record almost never contains
    the necessary information to evaluate the claim.
    See, e.g., United States v. Cooke, 
    110 F.3d 1288
    ,
    1299 (7th Cir. 1997). The fact that a new point
    can be raised on collateral attack that was
    unavailable at the original proceeding in no way
    undermines the significance or importance of the
    original proceeding, nor would it do so in the
    present context.
    The Sentencing Commission itself was concerned
    with the lawfulness of prior convictions used for
    enhancement purposes. The Sentencing Commission
    did not say that any conviction--constitutionally
    infirm, factually erroneous, or not--can count
    for sentencing purposes. Instead, it carved out
    an exception for convictions vacated because of
    errors of law or fact or invalidated because of
    constitutional error. The majority claims that
    the Commission meant to exclude only those
    convictions invalidated prior to federal
    sentencing; the result, according to the
    majority’s view, is that if the sentencing court
    took into account any conviction not yet
    invalidated at the time the federal sentence was
    imposed, the sentence is presumptively lawful and
    immune from collateral attack under sec. 2255.
    That conclusion, however, simply restates the
    question, which is what to do in cases like
    Ryan’s, where collateral attack is not possible
    either before the federal sentencing or at the
    time of the sec. 2255 petition. In hindsight, one
    assumes, Ryan probably now wishes that he had
    been more litigious after he pleaded guilty to
    the 1980 state charges, but he was not. It is now
    too late for him to raise any challenge in the
    Illinois courts to that plea. See 725 ILCS 5/122-
    1 (providing petition for post-conviction relief
    must be filed within three years from the date of
    conviction, at the latest). The majority holds
    out hope for Ryan and those in his position by
    speculating that some form of post-hoc relief may
    be available through a writ of error coram nobis.
    I am not nearly so sanguine. The common law writ
    was abolished in Illinois in 1871 by the Illinois
    legislature. See Ill. Rev. Stat. Ch. 83, sec. 154
    (Gross 1871); People v. Touhy, 
    72 N.E.2d 827
    , 830
    (Ill. 1947) (recounting history and abolition of
    writ). It has since been replaced with a
    statutory provision which, like the state post-
    conviction relief statute, has strict deadlines
    for seeking review of a sentence. In Illinois a
    petition for statutory coram nobis must be filed
    within two years of the original judgment of
    conviction. See 735 ILCS 5/2-1401 (statutory
    coram nobis). And, because imprisonment does not
    constitute legal disability or duress, the two-
    year filing period is not tolled during the time
    of confinement. See Williams v. People, 
    202 N.E.2d 468
    , 469 (Ill. 1964); Morgan v. People,
    
    158 N.E.2d 24
    , 26 (Ill. 1959). Thus, Ryan (and
    others like him whose state sentences have long
    since expired) has no means through which he can
    attack collaterally his state conviction and, if
    successful, seek to have his federal sentence re-
    opened.
    I would find under these circumstances that
    sec. 2255 remains available to such a prisoner to
    serve its classic function: to allow an attack on
    his federal sentence on the ground that all or
    part of it was tainted with constitutional error.
    Not every prisoner will be able to allege the
    kind of error in a prior state conviction that
    would give rise to a right to a hearing in this
    kind of case. Indeed, most will not, both because
    the state courts do not commit those kinds of
    errors on a regular basis, and because
    allegations of ineffective assistance of counsel
    that are sufficiently serious to require a
    hearing are rare. But some will. Under the
    majority’s rule, even a state prisoner who had
    pleaded guilty to earlier charges after 90 days
    in a torture chamber would still be required to
    serve the extra time for his federal sentence. I
    attach no special significance to the fact that
    the state may no longer offer a remedy to correct
    such a sentence, after some reasonable time
    period has passed. Once the sentence has been
    served, the state may take the position (as
    Illinois has) that it does not wish to use its
    scarce judicial resources for essentially a
    record-correction function. The person with a
    stake in the matter is the new federal prisoner,
    like Ryan, and the system that must ensure it is
    not relying on an unconstitutional foundation to
    justify imprisonment is the federal system.
    The only task remaining is to apply this rule
    to Ryan. His allegations, backed up as they are
    by the deplorable later history of the lawyer who
    was allegedly representing him in the 1980
    Illinois proceeding, are more than enough to
    justify a hearing on his petition under sec.
    2255. I would reverse the decision below and
    remand his case to the district court for further
    proceedings.
    I respectfully dissent.