410
Breyer, J., dissenting
National Collegiate Athletic Assn. v. Smith, 525 U. S. 459 (1999); United States v. Bestfoods, 524 U. S. 51, 72-73 (1998). The only responsible course for the majority would be to remand to the Court of Appeals, which could determine whether the district attorney may challenge the District Court's finding of a causal link between the unconstitutional convictions and the later, maximum sentence, or whether this issue has already been waived.
Justice Breyer, dissenting.
Because the Commonwealth has failed to argue in this Court that the trial court's consideration of respondent's 1986 convictions was harmless, and consequently, the issue has not been briefed, I would not overturn the Court of Appeals' finding that respondent's sentence was enhanced based on the purportedly defective 1986 convictions. The Court of Appeals, however, operated under the belief that the Constitution generally requires 28 U. S. C. § 2254 (1994 ed., Supp. V) petitioners to be able to attack prior convictions that enhanced their sentences. It did not focus on whether the § 2254 proceeding was "the first and only forum available for review of [respondent's] prior conviction[s]." Ante, at 406. Accordingly, I would vacate the decision below and remand for consideration of that issue. As respondent has not yet shown that he was denied a forum in which to raise his ineffective-assistance-of-counsel claim, any discussion of a constitutionally based exception is premature.
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