Bousley v. United States, 523 U.S. 614, 14 (1998)

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Cite as: 523 U. S. 614 (1998)

Opinion of Stevens, J.

and prejudice" or "actual innocence." See ante, at 622. Yet the Court cites no authority for its conclusion that "even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Ante, at 621.1 Moreover, the primary case upon which the Government relies, United States v. Timmreck, 441 U. S. 780 (1979), actually supports the contrary proposition: that a constitutionally invalid guilty plea may be set aside on collateral attack whether or not it was challenged on appeal.

Several years before we decided Timmreck, the Court had held that it is reversible error for a trial judge to accept a guilty plea without following the procedures dictated by Rule 11 of the Federal Rules of Criminal Procedure. McCarthy v. United States, 394 U. S. 459 (1969). The question in Timmreck was whether such an error was sufficiently serious to support a collateral attack under 28 U. S. C. § 2255. Because the error was neither jurisdictional nor constitutional, we held that collateral relief was unavailable. If we had thought that the failure to challenge the constitutionality of a guilty plea on direct appeal amounted to procedural default, there would have been no need in Timmreck to rely on the critical difference between reversible error and the more fundamental kind of error that can be corrected on collateral review. The opinion makes it clear that an ordinary Rule 11 violation must be challenged on appeal; the only cri-1 The Court does cite Reed v. Farley, 512 U. S. 339, 354 (1994), for the general proposition that habeas review " 'will not be allowed to do service for an appeal.' " Reed is inapposite, however, as it involved neither a constitutional violation nor a guilty plea. In Reed, the Court rejected a state prisoner's statutory claim brought under 28 U. S. C. § 2254 on the grounds that the prisoner had neither made a timely objection nor suffered prejudice. See 512 U. S., at 349 ("An unwitting judicial slip of the kind involved here ranks with the nonconstitutional lapses we have held not cognizable in a postconviction proceeding").

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