386
Scalia, J., concurring in part
§ 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 postconviction 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)
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.
Page: Index Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: October 4, 2007