Cite as: 532 U. S. 374 (2001)
Souter, J., dissenting
pose 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.
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