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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - -X

3 EARTHY D. DANIELS, JR., :

4 Petitioner :

5 v. : No. 99-9136

6 UNITED STATES :

7 - - - - - - - - - - - - - - - -X

8 Washington, D.C.

9 Monday, January 8, 2001

10 The above-entitled matter came on for oral

11 argument before the Supreme Court of the United States at

12 10:03 a.m.

13 APPEARANCES:

14 G. MICHAEL TANAKA, ESQ., Deputy Federal Public Defender,

15 Los Angeles, California; on behalf of the Petitioner.

16 MICHAEL R. DREEBEN, ESQ., Deputy Solicitor General,

17 Department of Justice, Washington, D.C.; on behalf of

18 the Respondent.

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1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 G. MICHAEL TANAKA, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF

6 MICHAEL R. DREEBEN, ESQ.

7 On behalf of the Respondent 21

8 REBUTTAL ARGUMENT OF

9 G. MICHAEL TANAKA, ESQ.

10 On behalf of the Petitioner 47

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1 P R O C E E D I N G S

2 (10:03 a.m.)

3 CHIEF JUSTICE REHNQUIST: We'll hear argument

4 now in Number 99-9136, Earthy Daniels v. United States.

5 Mr. Tanaka.

6 ORAL ARGUMENT OF G. MICHAEL TANAKA

7 ON BEHALF OF THE PETITIONER

8 MR. TANAKA: Mr. Chief Justice, and may it

9 please the Court:

10 Mr. Daniels was convicted of being an ex-felon

11 in possession of a firearm. Normally, that charge carries

12 a maximum term of 10 years. Where, however, the person

13 has suffered three qualifying felonies, that term, maximum

14 term goes up to life, and there's a mandatory minimum term

15 of 15 years, which Mr. Daniels was sentenced to.

16 Where those convictions are both

17 unconstitutional and unreliable, the resulting sentence is

18 likewise unconstitutional, and the issue before this case

19 is whether section 2255 provides a forum and remedy to

20 address that unconstitutionality of the sentence.

21 QUESTION: May I ask whether the record shows

22 whether the petitioner challenged those '78 and '81

23 convictions in a timely manner on direct appeal at the

24 State and/or Federal level?

25 MR. TANAKA: I don't believe that's in the

3

1 record. There is no indication that he has challenged

2 those at the State level.

3 QUESTION: You know, it seems to me that the

4 opportunity to make those challenges very likely occurred

5 when the convictions became final.

6 MR. TANAKA: That's true, Your Honor, and I'm

7 sure that there was, in California, a procedure for direct

8 appeal and, lacking that, also collateral review of those

9 convictions, but that's not what's at issue today. At

10 issue today is its use in the Federal sentencing

11 procedure, so --

12 QUESTION: Well, why shouldn't there be a

13 measure of finality here? I mean, you know, you can go

14 back and argue was it constitutional, was it accurate, but

15 also there's an interest in getting things done within a

16 certain time frame.

17 MR. TANAKA: I agree, Your Honor, and there --

18 but there is finality with respect to those State

19 convictions. The State of California, he served those

20 convictions, he served the prior terms, he served his

21 imprisonment. Those convictions are final as to the

22 California judgment.

23 QUESTION: Well, are there statutes of

24 limitations for habeas actions as well?

25 MR. TANAKA: Certainly there are.

4

1 QUESTION: And that being the case, this is an

2 end run around those, it seems to me.

3 MR. TANAKA: No, I don't believe so, Justice

4 O'Connor. The statute of limitation goes to the

5 underlying conviction, and certainly he had his chance to

6 challenge those, and that time has long since passed, and

7 we're not challenging that judgment, that conviction, but

8 when that conviction is used, again, to increase his

9 Federal sentence, then necessarily the Federal court must

10 look at its reliability, otherwise it's a violation of due

11 process.

12 QUESTION: Mr. Tanaka, even if you're right that

13 there's no bar from challenging the Federal, the abuse in

14 the Federal proceeding, shouldn't the Federal court at

15 least take into account, in determining whether 2255

16 really is warranted, that these matters could have been

17 raised earlier in the State proceedings on direct appeal

18 or on collateral attack?

19 MR. TANAKA: No, I don't believe so, Your Honor.

20 Again, the Federal interest is totally different than the

21 State interest. The State has no --

22 QUESTION: Why shouldn't the Federal interest

23 include did this person have a reason for not bringing

24 this up earlier? I mean, one can imagine cases where you

25 might try to knock out for Federal sentencing purposes an

5

1 earlier State conviction and say, there was a procedural

2 impediment, or there was a reason I didn't know about this

3 until much later, like Brady material that wasn't turned

4 over? Shouldn't there be at least that requirement, that

5 for the 2255 purpose you would have to show a good reason

6 for not raising it earlier in the State courts?

7 MR. TANAKA: I agree that that would explain,

8 and there certainly would be cases where that would

9 explain why it wasn't raised, and that perhaps presents a

10 more compelling case, but I don't think it's a

11 prerequisite, and the reason for that is --

12 QUESTION: But you're -- but I wanted just to be

13 clear on one thing. You're not saying in this case that

14 there was any special reason why these matters could not

15 have been raised earlier?

16 MR. TANAKA: That's correct, I'm not making any

17 claim that he was prevented by something external to

18 himself that prevented him from raising this in State

19 court, but I don't think the argument depends on that.

20 Again --

21 QUESTION: You said a few times that the -- this

22 is just a Federal matter, it's final as far as the law of

23 the State is concerned. Does the State of California have

24 an interest in the integrity that's accorded to its

25 judgments in this proceeding?

6

1 MR. TANAKA: The State of California has an

2 interest in the integrity of its judgments. Where -- and

3 I guess the State of California has some perhaps minimal

4 interest in whether its judgment is used conclusively as a

5 Federal sentencing predicate.

6 QUESTION: Well, I think it would have a very

7 strong interest. It has its own three-strikes rule, as I

8 understand, and is this man a resident of the State of

9 California? I assume he is. It seems to me it has a very

10 strong interest in having its judgments of criminal

11 convictions respected.

12 MR. TANAKA: Well, we --

13 QUESTION: And to say that, oh, this is just a

14 Federal matter, it's final so far as the law of the State

15 is concerned, I'm not sure is a complete answer.

16 MR. TANAKA: Well, it is respected in the sense

17 that it has a presumptive validity, and certainly this

18 Court's case in Custis established that fact, and no one's

19 suggesting that we go behind that validity once it's

20 presented, but there's -- I don't know that it has an

21 interest in a conclusive-type validity, especially where

22 it's being used as a Federal sentencing predicate. Now --

23 QUESTION: Well, supposing that there's a

24 thought, you win on your ability to challenge, and it's

25 thought there's necessary to be a evidentiary hearing.

1 What incentive does the State have at that point to come

2 in and try to show that the conviction was properly

3 obtained?

4 MR. TANAKA: I don't know that the State would

5 necessarily be a party. I don't believe they have very

6 much incentive --

7 QUESTION: Then it's a very strange proceeding.

8 You're challenging the judgment of a State, and yet the

9 State isn't a party?

10 MR. TANAKA: But it's the Federal Government

11 that's seeking to use that judgment as a Federal

12 sentencing predicate to increase the Federal sentence in

13 Federal court.

14 QUESTION: And if you prevail and you go ahead

15 and have the judgment declared invalid, I -- what would

16 happen if the State in a subsequent proceeding tried to

17 use those convictions for its own three-strikes rule?

18 MR. TANAKA: I would assume that the State could

19 validly use those convictions in its own three-strike

20 rule, because the Federal sentence, the Federal procedure

21 would just invalidate the State conviction, or the use of

22 the State conviction, not the State conviction itself, as

23 a means to lengthen the Federal sentence. The --

24 QUESTION: Well, if the State uses the

25 conviction, it's -- the conviction is just as unreliable

8

1 when the State uses it as when the Feds use it, and I take

2 it the reason that you concede that the State could use it

3 is that there was an understanding, or we have to assume

4 that there was an understanding on the part of the

5 prisoner that this kind of collateral use and enhancement

6 of later sentences might be a consequence of that

7 conviction, and yet he did nothing about it.

8 Is that essentially your theory? In other

9 words, he knew what the risks were, and he did not take

10 any steps to alleviate those risks by bringing a State

11 collateral attack or by going on with his appeal or

12 whatnot. Is that essentially your theory?

13 MR. TANAKA: Certainly that's part of it, but

14 the -- now the --

15 QUESTION: Why doesn't -- I'm sorry. Go ahead.

16 You -- That was part of it.

17 MR. TANAKA: Yes, I agree --

18 QUESTION: What's the other part?

19 MR. TANAKA: Well, the other part would be that

20 the State would obviously not be bound by anything that

21 happened in the Federal proceeding.

22 QUESTION: Well, no, but let's forget Federal

23 proceedings for a moment. If we just have a State

24 proceeding and the State is going to use that supposedly

25 unreliable conviction as a basis for enhancement following

9

1 a subsequent conviction, nothing unfair about that, I take

2 it, on your view, because the prisoner knew that such use

3 could be made of it, and the prisoner let the time for

4 attacking the conviction pass. That's essentially your

5 theory?

6 MR. TANAKA: That could well be. There could

7 well be due process problems associated with its

8 subsequent use in the State, but it might be that those

9 problems are --

10 QUESTION: Well, what are they? I mean, I -- if

11 it's not unfair for the State to use it, despite the

12 assumption of its unreliability, what would a -- what

13 other due process problem might arise at the State level?

14 MR. TANAKA: That would be the problem.

15 QUESTION: That would be the problem, and --

16 MR. TANAKA: But it might be that the problem

17 doesn't rise to a large enough level that the State

18 necessarily violates due process by refusing to litigate

19 that anew. In other words --

20 QUESTION: Well, the State -- but I -- the

21 theory of my question was, he in effect was on notice that

22 there might be a subsequent use of the conviction for

23 enhancement purposes. He had an opportunity to litigate.

24 He didn't litigate. Therefore, it is not unfair, in the

25 due process sense, for the State to use it, and I thought

10

1 that was probably what underlay your suggestion that the

2 State could use it for enhancement purposes.

3 MR. TANAKA: I agree with that.

4 QUESTION: All right. Now, why can't the Fed --

5 why can't a Federal court use it for enhancement purposes?

6 He was on notice that there might be a later enhancement.

7 He did nothing about it. The same reasoning applies at

8 the Federal level, doesn't it?

9 MR. TANAKA: The -- there is a -- there is no

10 problem with notice, and -- but that again suggests the

11 concept of waiver, or maybe even sandbagging.

12 QUESTION: Well, not waiver. Not -- we're not

13 talking about waiver. We talking about, I think, the fact

14 that he had an opportunity to litigate it. As you so --

15 as you conceded a moment ago, there are statutes of

16 limitations that govern these things in most instances.

17 You've got to litigate within that time or it's too late,

18 so he let, in effect, his opportunity to litigate pass.

19 Now, if that -- and therefore it's not unfair,

20 in a due process sense, to use it against him even if he

21 does claim later that it was unreliable.

22 Now, if that is a sound argument with respect to

23 its use for enhancement purposes at the State level, why

24 isn't it an equally good argument with respect to its use

25 in this case at the Federal level?

11

1 MR. TANAKA: I'm sorry, perhaps I didn't

2 understand the predicate of your question when I first

3 answered. I believe I answered that there is a due

4 process problem with using the unreliable conviction

5 whether you're using it to enhance a State sentence or a

6 Federal sentence.

7 QUESTION: Then what's left of the statute of

8 limitations that you concede can be applied?

9 I thought you conceded that the statute of

10 limitations on this kind of litigation could, consistently

11 with due process, be applied at the State level. If you

12 did not concede that, then I will withdraw my question.

13 MR. TANAKA: Okay. It could be applied at the

14 State level to the initial State conviction. Okay, again,

15 if, analogous to this case, that conviction was used in a

16 State proceeding to enhance a subsequent State sentence,

17 then there might -- there would be a due process right to

18 examine that conviction anew --

19 QUESTION: Let me ask you --

20 MR. TANAKA: -- with respect to the enhancement

21 provision --

22 QUESTION: With respect to, at the State level,

23 let me ask you one more question. Let's assume that the

24 State had a statute and the statute were made -- was

25 explained to the defendant at the time of his State

12

1 sentence, and the statute read as follows:

2 This conviction can be used to enhance sentences

3 following later convictions. If you wish to challenge the

4 validity of this conviction, you must challenge it within

5 1 year, or it's too late.

6 Let's assume that the State had such a statute,

7 that was explained to the prisoner at the time of the

8 first sentence, and he didn't litigate within 1 year. The

9 State then wants to use it to enhance following a

10 subsequent conviction. Is there a due process problem in

11 the State's use of it without an opportunity to challenge?

12 MR. TANAKA: There well could be, if there's

13 some unreliability of the conviction.

14 QUESTION: So there can -- I take it your

15 theory, then, is that no amount of warning in the world

16 will ever be enough to allow the State or the Federal

17 Government to treat the first conviction with finality?

18 MR. TANAKA: No. There -- as long as there's a

19 procedure, a substantive due process procedure for

20 litigating that, it could be that, consistent with due

21 process, there could be some limitations and in that case

22 that might well be one of them.

23 QUESTION: Well, what about my limitation?

24 You've got a year to challenge this if you want to

25 challenge it, and if you don't challenge it within the

13

1 year it's too late and it can used for enhancement

2 purposes, and the year expires, it's going to be used for

3 enhancement purposes, he wants to challenge it, and the

4 State says no, it's too late, the year is over. Is that

5 consistent with due process?

6 MR. TANAKA: I think it well could be.

7 QUESTION: Okay.

8 QUESTION: I assume that your theory would apply

9 not just to enhancement questions but also to any other

10 disabilities attaching to the prior criminal conviction.

11 Specifically, I believe that California, like many States,

12 disqualifies convicted felons from voting. Now, could

13 your client have presented himself at the registration

14 booth for voting and, when told that he could not vote

15 because he was a felon, could he say, oh, but that

16 conviction was invalid and I want an opportunity to

17 challenge it?

18 MR. TANAKA: No, I don't believe so, Your Honor.

19 QUESTION: Why not?

20 MR. TANAKA: The difference is this. In this

21 case -- due process is obviously a flexible concept, and

22 what's at stake here is 1) an automatic increase in the

23 sentence and 2) a dramatic increase in the sentence. The

24 sentence went from presumptively 7 years to more than

25 double, to a min -- to a minimum of 15 years.

14

1 QUESTION: The right to vote is worth something,

2 too. We protect that with many due process and other

3 restrictions upon what the State can do. Why shouldn't he

4 have the right to -- you're saying you cannot use the

5 conviction for anything except sending him to jail upon

6 the first conviction. If you say you can't use it to

7 increase his sentence on the later conviction, I don't see

8 why you also don't have to say you can't use it to disable

9 him from voting.

10 MR. TANAKA: Oh, I think there's certainly a

11 greater liberty interest with respect to imprisonment,

12 but --

13 QUESTION: Mr. Tanaka, in your last series of

14 answers you seem to be departing from what I thought was

15 the clear line you took in your brief.

16 That is, for all State purposes you are

17 accepting that this sentence is good, and you are

18 distinguishing the Federal enhancement from any other --

19 from any State law consequence, but now in your answer to

20 the questions that Justice Souter and Justice Scalia just

21 asked you seem to be saying it's not just the Federal

22 enhancement purpose that you're questioning where this can

23 be brought up but also in the State proceeding as well.

24 MR. TANAKA: No, I don't believe so. Obviously

25 the only fact at issue here is the -- is its use in the

15

1 Federal proceeding, and --

2 QUESTION: You kept saying in your brief that

3 you're not touching the State consequences of this, that

4 those are a given, and you accept those, but your answers

5 here depart from that view, so which is it?

6 MR. TANAKA: I'll stick with what I said in the

7 brief. We're not challenging any State use of this

8 conviction.

9 QUESTION: But we're trying to understand why

10 that should be. I -- my understanding of your submission

11 is that there is a Federal constitutional right under the

12 Due Process Clause not to have this conviction used in

13 Federal court. Why is -- why don't you make the same

14 argument if it's a State three-strike conviction case?

15 MR. TANAKA: One might --

16 QUESTION: It's a Federal due process right not

17 to have what you call an unreliable or a false conviction

18 used -- again, it's the same analysis, same Constitution.

19 What's the difference?

20 MR. TANAKA: And one might, if one were arguing

21 that case, argue that, and I think there -- but there are

22 certainly different considerations there, because if the

23 Federal court is reviewing the State court's use of its

24 own recidivist provisions, then there are more comity and

25 finality questions that aren't at issue here.

16

1 That's what distinguishes this case, is that all

2 we're doing in this case is looking at the Federal court

3 examining a Federal sentence under 2255, which explicitly

4 provides for that review. There's no intrusion in the

5 State court judgment, and that's the position I took in

6 the brief and that's the position I take here, that the

7 State judgment, we're leaving that alone.

8 Nothing that the Federal district court's going

9 to do in granting that 2255 motion and finding this

10 conviction too unreliable to automatically sentence this

11 man to an additional 8 years in prison is going to affect

12 that State court judgment.

13 QUESTION: What I'm trying to have -- my problem

14 is -- I agree with you basically. You realize that these

15 things should be challengeable in a sentencing proceeding.

16 I wrote an opinion to that effect in Palleo, and it was

17 reversed by this Court, so now what do I do?

18 (Laughter.)

19 MR. TANAKA: Well, you use your --

20 QUESTION: I mean, my problem is, quite

21 honestly, that I don't see any way, if you're not -- I

22 think these things -- I think a prior should be

23 challengeable in the sentencing hearing, all right?

24 That's clear, simple, done all the time, no problem, fair.

25 All right.

17

1 No, but there's an opinion that says no. Now,

2 given that opinion, I think I'm stuck, unless I were to

3 accept this argument that the -- I see you make an

4 argument about the constitutionality, which I think is

5 interesting, but I'm not sure about that one. Is there

6 anything else? If I don't accept that constitutional

7 point, if I would have been with the dissenters in

8 Custis -- but I believe in stare decisis. I'm stuck,

9 right?

10 MR. TANAKA: Well, if you don't accept that

11 constitutional point that the use of an unreliable prior

12 conviction that doesn't implicate the person -- doesn't

13 implicate the person's guilt can be automatically used to

14 dramatically increase the sentence conclusively, then

15 we're both stuck, unless you can use your powers of

16 persuasion to change the Court's decision, but --

17 (Laughter.)

18 MR. TANAKA: That's certainly the genesis of

19 this argument.

20 QUESTION: May I just ask one question? Are you

21 really making a constitutional argument, or are you

22 arguing for a construction of section 2255, or is it both?

23 MR. TANAKA: It's both. Certainly the case

24 depends on a construction of 2255 to remedy what is an

25 obvious constitutional violation. By its plain language,

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1 2255 allows someone sentenced in Federal court to

2 challenge that sentence as being unconstitutional, and it

3 gives the sentencing court the power to correct that

4 sentence as, in fact, a constitutional --

5 QUESTION: But does your position have to rest

6 on the premise that the sentence would be unconstitutional

7 if the State conviction were -- that the Federal sentence

8 would be unconstitutional if the State sentence were

9 invalid?

10 MR. TANAKA: Not just invalid --

11 QUESTION: You see, it seems to me it would be

12 theoretically possible to say, for a legislature to say,

13 we wanted to enhance a sentence if there's a State

14 conviction out there, and we don't care whether it's

15 obtained fairly or not. The fellow was at least indicted

16 and he went to jail for a while, and that's enough for us.

17 Is it your view that they could not do that?

18 MR. TANAKA: Yes. Where it can be shown that

19 that conviction doesn't reliably indicate the man's guilt

20 I believe -- well, it's my position that that violates the

21 Constitution and the Due Process Clause.

22 QUESTION: Mr. Tanaka, I have a question

23 concerning a point you made in your brief. You said that

24 the 2255 forum is accustomed to dealing with questions of

25 this nature, and you distinguished that from the

19

1 sentencing forum in Custis, but it seems to me it's the

2 same forum. It's the same district judge, just a

3 different proceeding but in the same court, so I did not

4 follow what you were getting at when you were saying that

5 the 2255 forum is accustomed to dealing with these kinds

6 of questions but the sentencing judge is not, when it's

7 one and the same judge.

8 MR. TANAKA: Well, the point was that normally a

9 sentencing procedure is rather quick and summary, whereas

10 a proceeding on a 2255 case, there might be an evidentiary

11 hearing and the scheduling and so forth would be

12 different, and also there are rules that govern 2255 cases

13 that don't govern sentencing, and so it's more

14 appropriately placed there.

15 But the major point is that 2255 expressly

16 provides for this type of procedure, whereas you know,

17 obviously there's nothing in the sentencing statute that

18 likely, likewise provides for it.

19 QUESTION: Mr. Tanaka, you say that what you

20 want to challenge is State court convictions that,

21 judgments that do not reliably indicate guilt. Well, I

22 take it you would allow a challenge on the basis that a

23 Miranda warning wasn't given, and that there was some --

24 it was not harmless error, and yet a Miranda warning

25 really has nothing to do with guilt.

20

1 I mean, there are certainly different

2 constitutional claims which can be vindicated in the

3 proper forum but don't really bear on guilt or innocence,

4 so are you limiting your challenges to those which clearly

5 affect guilt, or to any constitutional claim that would be

6 sustained if timely brought?

7 MR. TANAKA: No, Mr. Chief Justice. I believe

8 that the due process analysis leads to the conclusion that

9 you can only challenge convictions that don't reliably

10 indicate guilt. There's not an identity between a due

11 process violation and a constitutional violation.

12 If the Court has no further questions, I'd like

13 to reserve the remainder of my time for rebuttal.

14 QUESTION: Very well, Mr. Tanaka.

15 Mr. Dreeben, we'll hear from you.

16 ORAL ARGUMENT OF MICHAEL R. DREEBEN

17 ON BEHALF OF THE RESPONDENT

18 MR. DREEBEN: Mr. Chief Justice, and may it

19 please the Court:

20 In Custis v. United States this Court made clear

21 that at a Federal sentencing proceeding a defendant who

22 faces recidivist sentencing may not bring a constitutional

23 challenge to the validity of the underlying enhancement

24 conviction. We submit that the same principle applies

25 where it --

21

1 QUESTION: With certain exceptions.

2 MR. DREEBEN: With the exception of a conviction

3 that was entered in violation of Gideon v. Wainwright,

4 that's correct, Justice Stevens.

5 QUESTION: You think that's the only such

6 exception?

7 MR. DREEBEN: I think that that is the line that

8 the Court drew in Custis, Justice O'Connor. It rested

9 that on a variety of considerations. The first was that

10 the Court's jurisprudence had recognized Gideon violations

11 as a unique constitutional defect that rose even to the

12 level of a jurisdictional defect.

13 The second two reasons I think are the ones that

14 most clearly explain the rule that we're espousing here.

15 QUESTION: Well, how about a so-called Brady

16 violation, where the facts aren't known until maybe

17 immediately before the sentencing proceeding in the new

18 crime?

19 MR. DREEBEN: Well, there are two distinctions

20 between that kind of a situation and the Gideon situation.

21 The one that I think is most applicable to the majority of

22 cases that are going to come up in this context is that a

23 Brady violation is a very fact-intensive inquiry. It

24 can't be resolved, as the Court noted in Custis with

25 respect to a Gideon claim, simply by looking at the

22

1 judgment or the judgment role and determining whether the

2 defendant had counsel.

3 It requires instead a fairly intricate analysis

4 of whether the Government suppressed and withheld

5 information that the defendant couldn't with due diligence

6 have gained access to, and whether there was resulting

7 prejudice to the defendant as a consequence, and the

8 administrative costs of adjudicating that are far more

9 substantial and very intrusive into the sentencing process

10 as compared to Gideon.

11 QUESTION: Well, what about a DNA claim in a

12 death case coming up later?

13 MR. DREEBEN: Well, the second -- I think,

14 Justice O'Connor, that is the second distinction in your

15 hypothetical, that the hypothetical posits that this was

16 information about a constitutional claim that could not

17 with due diligence have been obtained, I'm assuming within

18 any time for bringing an appropriate appeal or collateral

19 challenge.

20 The capital context is unique in that area, I

21 think, and I'm going to set it aside, because questions of

22 actual innocence in the capital context would be dealt

23 with under the Eighth Amendment and would implicate

24 constitutional principles that aren't broadly applicable.

25 But as to the generality of sentencing cases, I

23

1 think that the basic rule is that there is a system in

2 place to challenge convictions that balances two

3 fundamental interests. One is in finality, the other is

4 in fundamental fairness.

5 Those two interests have always been

6 accommodated not by giving one total sway over the other,

7 but by saying that in certain contexts there are claims

8 that are available and they may be brought, and if they

9 are brought in a manner that's compatible with the

10 procedural limitations such as statute of limitations,

11 procedural default, exhaustion, Teague v. Lane, if they

12 surmount those hurdles, then the interests of vindicating

13 the Constitution take precedence over the interests of

14 finality.

15 But if those procedural hurdles have not been

16 met, and the defendant did not bring his claim in

17 accordance with the procedures that are set out, then

18 society is entitled to take that conviction as

19 conclusively final, and any further remedy that would be

20 available would have to come from the executive branch --

21 QUESTION: Do you make that argument even if

22 it's a Gideon violation? In other words, say that it's a

23 final sentencing, the defendant had either no counsel or

24 inadequate counsel, and didn't learn that there was a

25 Gideon violation before and he'd already served his

24

1 sentence for the crime where there was the Gideon

2 violation, could he raise that or not?

3 MR. DREEBEN: Under this Court's decision in

4 Custis he may at the Federal sentencing raise it, and I --

5 QUESTION: No, no, not at the Federal

6 sentencing. Say he gets sentence, and then by mistake the

7 sentencing judge relies on a prior State conviction which

8 was invalid because there was a Gideon violation, but

9 nobody called that to the attention of the court.

10 MR. DREEBEN: That would be a procedural

11 default, Justice Stevens, and I think it would bar the

12 defendant from coming back even if there were otherwise a

13 right to come back under applicable procedure.

14 QUESTION: Would that be true even if the

15 sentence had not been served where there was a Gideon

16 violation?

17 MR. DREEBEN: The sentence of the -- the

18 underlying conviction --

19 QUESTION: This would always have to have been

20 served, wouldn't it?

21 MR. DREEBEN: Well, if the underlying conviction

22 sentence had not been served, then the defendant's remedy

23 would be to go back into the jurisdiction that entered it

24 and see if he can comply with --

25 QUESTION: He couldn't then go in on a 2255 and

25

1 call that to the court's attention and get relief, in your

2 view?

3 MR. DREEBEN: I don't think so, Justice Stevens,

4 because he has the right to do that under Custis at the

5 Federal sentencing proceeding itself, and the failure to

6 bring that claim at a timely point in the proceeding, when

7 it is available, would constitute a default, and then he

8 would be left with the argument --

9 QUESTION: Even if he had -- even if it was

10 inadequate assistance of counsel?

11 MR. DREEBEN: Well, inadequate assistance of

12 counsel isn't even permitted to be brought under this

13 Court's decision in Custis with respect to the underlying

14 conviction.

15 With respect to the conviction that -- the

16 Federal conviction that was entered, ineffective

17 assistance of counsel claims typically are not brought in

18 the original sentencing court that imposed the conviction

19 because the defendant typically has the same counsel and

20 because the facts haven't been developed, and therefore

21 there is no procedural default typically in bringing an

22 ineffective assistance claim directed to the Federal

23 conviction in a section 2255 proceeding.

24 But as to the underlying enhancement conviction,

25 which is what we are talking about here, petitioner is

26

1 saying that I suffered from ineffective assistance of

2 counsel with respect to a 1978 robbery conviction that is

3 now being used to enhance my 1992 Federal sentence, and I

4 should have the right, on 2255, to litigate that 16-year-

5 old, or 19-year-old claim, and we submit that the Court's

6 decision in Custis says you can't do that at the Federal

7 sentencing and you therefore cannot do that on the 2255

8 proceeding.

9 QUESTION: Yes, but it's the therefore part that

10 I guess is giving us all the trouble, and the reason it's

11 giving me trouble is, number 1 -- of course, I was a

12 dissenter in Custis, so maybe I'm looking for trouble --

13 (Laughter.)

14 QUESTION: -- but the Court in -- the majority

15 in Custis left the question open whether there could be

16 another means of challenge other than the challenge at the

17 Federal sentencing proceeding as such.

18 And number 2, textually, what the petitioner

19 wants to do can be fitted within the terms of 2255, and

20 the issue I guess boils -- so I think it's -- I don't

21 think Custis is controlling, and what the issue boils down

22 to for me is this. I will -- I accept your argument that

23 the balance struck on the issues of finality and fairness

24 require a point at which so far as the service of the

25 original sentence, the '78 sentence in your example is

27

1 concerned, the litigation has got to stop.

2 But it seems to me that that balance is entirely

3 different when you get into the subsequent proceeding in

4 which, for example, what is at stake in the finality

5 fairness argument is not, say, a sentence of 5 years or 10

6 years as under the first conviction, whatever it was, but

7 a sentence potentially of life, and when suddenly the

8 stakes change that radically in the Federal proceeding,

9 then the old finality-fairness balance simply doesn't

10 apply any more because the terms have changed, and when

11 the terms change radically, as they have here, why isn't

12 it possible to reassess that balance and say, okay, now,

13 even though you couldn't litigate for State purposes, you

14 can litigate for Federal purposes?

15 MR. DREEBEN: The fundamental problem with that,

16 Justice Souter, is that those same interests are fully at

17 stake in the Custis situation itself. When this Court

18 said --

19 QUESTION: Yeah, but Custis -- that may be true,

20 but number 1, Custis depended in part on a statutory

21 construction reason. They looked at the text of the

22 sentencing enhancement statute and, number 2, Custis left

23 this question open. The Court said --

24 MR. DREEBEN: If I could address that --

25 QUESTION: -- we're not telling you what we'll

28

1 do in this subsequent situation, but they left it open.

2 MR. DREEBEN: That actually is not the question

3 that the Court left open in Custis, Justice Souter. What

4 the Court left open in Custis is the following scenario.

5 Take Custis himself. After Custis is sentenced,

6 the question that was raised in Custis was, could he then

7 go back to the State court that had entered the

8 enhancement conviction and obtain a judgment that that

9 conviction was constitutionally invalid, and then come

10 back to the Federal sentencing court and apply for

11 reopening of his Federal sentence, and the crucial

12 difference between that scenario and the scenario that's

13 presented here is that the litigation over the validity of

14 that sentence would take place in the State court.

15 QUESTION: Oh, you're entirely right, but

16 didn't -- I don't have it in front of me. Didn't the

17 Court also refer to the possibility of litigation on

18 Federal habeas?

19 MR. DREEBEN: Litigation on Federal habeas

20 corpus that attacked the State sentence.

21 QUESTION: Right, but the only basis on which

22 there could be Federal habeas litigation would be Federal

23 habeas litigation in connection with the later Federal

24 sentence, even though the subject of that litigation might

25 be, or would be the validity of the earlier State

29

1 sentence --

2 MR. DREEBEN: No, I don't think that that is --

3 QUESTION: -- and therefore it seems to me this

4 was left open.

5 MR. DREEBEN: Well, I don't think that that's

6 what the opinion says, because it talks about Custis

7 having been in custody still on his State sentences.

8 QUESTION: The last sentence of the opinion

9 says, may attack his State sentence in Maryland or through

10 a Federal habeas review.

11 MR. DREEBEN: Correct.

12 QUESTION: Okay.

13 MR. DREEBEN: And Federal habeas review is

14 Federal review under 2254 --

15 QUESTION: Four, right.

16 MR. DREEBEN: -- that attacks the State

17 sentence. This is a case under section 2255, attacking

18 the constitutionality of the Federal sentence.

19 QUESTION: Well, did --

20 MR. DREEBEN: The necessary --

21 QUESTION: Didn't we confine it to 2254?

22 MR. DREEBEN: The language says, I think

23 accurately, just what Justice Stevens read, and I would

24 interpret Federal habeas review in that context to mean

25 Federal review under 2254 attacking the prior State

30

1 sentence.

2 QUESTION: It certainly does include that. I

3 don't know that it was limited.

4 MR. DREEBEN: If it were not limited to that, it

5 would be odd to say that the defendant could then come and

6 apply for reopening of this Federal sentence, because

7 that's exactly what section 2255 is all about. It is

8 saying there's something wrong with the Federal sentence

9 that was imposed, and we know from Custis --

10 QUESTION: But the reason may be the textual

11 reason in Custis, going to the text of the enhancement

12 statute itself. It may be that we wanted sentencing,

13 Congress wanted sentencing to be clean and simple and

14 leaving any later attack to be worked out afterwards. In

15 other words, get him shut away and then let him litigate

16 as long as he wants to.

17 MR. DREEBEN: But the theory behind section 2255

18 litigation in this case is that there was a constitutional

19 violation at the Federal sentencing.

20 QUESTION: Right.

21 MR. DREEBEN: Because sentence was imposed based

22 on a conviction that, although facially valid and never

23 set aside by any court, might be unreliable if one took

24 the time to unpack the claim that petitioner is now making

25 and get the records and litigate it and determine whether

31

1 it's valid or not, and the Custis court held there is no

2 constitutional violation in imposing sentence without

3 adjudicating that claim and, further, by leaving open the

4 question that we've been discussing, the Court made clear

5 that it's not inherently indispensable that there be any

6 place left to litigate a claim that is based on a

7 conviction that is 16 years old in this case, 19 years

8 old, that the two convictions the petitioner is raising.

9 QUESTION: Let's assume, though -- and I realize

10 you don't concede this, of course, but assume that Custis

11 did leave open the possibility of this litigation. Would

12 you go back to the, we'll say the balance argument?

13 My point is that the balance between finality

14 and fairness changes radically when you go from the

15 limited jeopardy of imprisonment under the State

16 conviction to the potentiality here of life imprisonment,

17 and if the balance is that radically affected, why

18 shouldn't there be, for due process purposes, an

19 opportunity to litigate at the Federal level, even though

20 the State proceeding is past and final for State purposes?

21 MR. DREEBEN: Justice Souter, I think the

22 fundamental answer to that question goes back to the

23 interests in finality that have been struck in this

24 Court's post-conviction jurisprudence generally. There is

25 a recognition that there are fundamental interests in

32

1 having an unconstitutional conviction overturned, but they

2 are counterbalanced by other interests such as the

3 fairness and reliability of the adjudication of that

4 claim.

5 Now, here we are talking about a claim by

6 petitioner that when he entered his guilty plea 16 years

7 ago and 19 years ago he wasn't adequately informed about

8 one of the elements of the offense and therefore, he says,

9 he didn't enter a knowing and voluntary guilty plea.

10 Now, that's the kind of claim that can routinely

11 be made on direct appeal or upon an immediate

12 post-conviction attack, and it's made with the State that

13 entered the judgment as a party, and the State can come

14 back and say we have access to these records, they're very

15 easy to determine, you can see that the judge went over

16 him, the various elements, or his lawyer counseled him

17 about the various elements of the crime and the court can

18 reach a reliable adjudication promptly on whether that

19 conviction is valid.

20 A defendant who doesn't challenge his guilty

21 plea in that fashion at the time that it's available to do

22 so is essentially saying, I struck a deal with the

23 Government, the deal allows me perhaps to reduce my time

24 of imprisonment compared to what it would have been if I

25 had gone to trial and lost, as I probably would have been,

33

1 would have lost, therefore I'm going to enter a guilty

2 plea and establish finality, and I'm not going to take an

3 appeal, because if I appeal and win at this juncture I'll

4 probably be back right in the position that I started in,

5 namely, facing a trial and a potentially longer sentence.

6 QUESTION: And it's perfectly fair for due

7 process purposes or any others, on any other fairness

8 standard, to hold the prisoner to that bargain. He knew

9 what the terms were. The trouble is now, the terms have

10 changed, and it's not only very difficult to litigate this

11 later, but it's also very difficult to stay in prison for

12 life, and when the terms have changed, the calculus that

13 says, or that said in the first instance it's fair to hold

14 you to your bargain, doesn't apply any more, because the

15 terms have changed.

16 MR. DREEBEN: But the risk that he faced,

17 Justice Souter, was one that he either knew actually or

18 should have known at the time that he entered that plea.

19 QUESTION: All right, let's -- I understand that

20 argument, too, and I just don't see how it is sound. The

21 truth is, in the real world, prisoners, when they enter

22 these guilty pleas, are not thinking of the possibility of

23 life in prison 25 years later for a crime that hasn't been

24 committed yet. I mean, I just don't think that that is

25 realistic, to say that he knew or should have known that

34

1 this could happen.

2 MR. DREEBEN: Well, apart from the fact that the

3 Court in Nichols v. United States said that it's the kind

4 of thing that prisoners do know when they're sentenced,

5 that if they're seen back again they're going to face more

6 serious consequences from it --

7 QUESTION: They -- more serious consequences,

8 yes, but this is a serious consequence of a different

9 order of magnitude.

10 MR. DREEBEN: I think that recidivism statutes

11 are among the most common kind of statutes in the criminal

12 justice world. All 50 States have them. The Federal

13 Government has one. There's a great deal --

14 QUESTION: Well, recidivism, yes, but we're --

15 at least at this point in history we're living at a time

16 when a great many prior convictions are being considered

17 under three-strikes laws --

18 MR. DREEBEN: Correct.

19 QUESTION: -- let alone a Federal three-strikes

20 law which couldn't possibly have been in the contemplation

21 of the people who entered the guilty pleas or suffered the

22 convictions 25 years ago.

23 MR. DREEBEN: No, but there has long been a

24 tradition in this country of recidivism laws that fairly

25 significantly escalated the potential sentence from some

35

1 of the cases that I've seen from 5 years to 35 years, and

2 these are convictions based on statutes that were enacted

3 long before the current wave of three-strikes statutes.

4 QUESTION: Yes, but I thought what we're

5 concerned about are people who in 1972 -- something that

6 appeared fairly minor to the individual who is convicted,

7 he's told by somebody, go in and plead guilty, it's not

8 going to be a big deal.

9 He has no idea what he's doing. He doesn't get

10 correct advice, and he goes in and he pleads guilty, and

11 he was totally confused at the State proceeding. Now,

12 that person is going to be in jail for life because of a

13 later crime, although if you look at what happened it

14 would be obviously unconstitutional, his earlier

15 conviction.

16 Now, that's the case we're worried about, and we

17 get rid of the other cases through strict burden of proof

18 rules, so all we have in front of us are those cases, and

19 the question is, why shouldn't a person like that be able

20 to demonstrate the obvious fact that that earlier

21 conviction was obviously unconstitutional, and you give me

22 the answer that Custis says no, but then we could just

23 reply, well, that was because of the language of the

24 statute.

25 MR. DREEBEN: I don't think --

36

1 QUESTION: Here, although we're running around

2 Robin's barn or something in some weird procedural way,

3 better let him do it later than not at all.

4 MR. DREEBEN: I don't think the constitutional

5 holding in Custis had anything to do with the language of

6 the statutes. The Court concluded that the statute in

7 Custis, which is the same statute at issue here, didn't

8 authorize these kinds of challenges at the sentencing

9 proceeding and it then went on to hold that neither did

10 the Constitution. Now, petitioner's --

11 QUESTION: At the sentencing proceeding.

12 MR. DREEBEN: Yes, but there's nothing --

13 QUESTION: But you could say, I guess -- and I

14 don't know how much of a stretch this would be. You could

15 say, but this person who is obviously convicted

16 unconstitutionally, and I'll underscore obviously, because

17 I can get rid of the nonobvious cases through strict

18 burdens of proof, all right, so he was obviously convicted

19 unconstitutionally, that that person should have some

20 forum somewhere in which to point that out before he's in

21 prison for life.

22 MR. DREEBEN: Justice Breyer, I accept that

23 you've attempted to carve out the category of obvious

24 unconstitutionality from what we're dealing with in this

25 realm, but I submit that as a matter of real-life

37

1 litigation it doesn't exist. What you in fact get in the

2 vast majority of cases are records just like this one.

3 The prisoner comes in --

4 QUESTION: The vast majority, fine, but we also

5 have a few cases where it was like somebody had robbed a

6 chicken coop, you know, when he was 18 years old, and now

7 12 years later this chicken coop has come back to put him

8 in prison for life, so there are also at least a few cases

9 where you think maybe he didn't get very good advice the

10 first time.

11 MR. DREEBEN: Any constitutional rule that says

12 you can do this but only when it's really obvious is going

13 to lead to the same sorts of burdens of litigation of

14 whether it falls into that category or not, and it's going

15 to require the Government, when confronted with one of

16 these things, to do exactly what the Court recognized in

17 Custis was an extremely burdensome and usually

18 unproductive exercise of running round and trying to find

19 the prosecutor, the judge, the defense lawyer, the

20 probation officer who were part of the original sentencing

21 proceeding, which could go back decades, and attempting to

22 reconstruct --

23 QUESTION: But that's the prisoner's problem.

24 The Government doesn't have to do that.

25 MR. DREEBEN: No, it is the Government's

38

1 problem, because the prisoner comes in with an affidavit

2 that says, I was there, and I'm going to swear out as a

3 factual matter no one ever told me that aiding and

4 abetting liability required that I join in this venture as

5 if it were something that I intended to succeed. All I

6 thought is that if I was present and I knew about the bank

7 robbery, that was enough for the conviction.

8 That is petitioner's claim right here. He's

9 filed an affidavit, he's sworn it out under oath, and for

10 the Government to sit back and say to the sentencing

11 court, well, judge, he has a strong interest in this and

12 this was 20 years ago, you shouldn't believe him, is

13 really more than can be expected from us. We need to

14 respond factually.

15 QUESTION: Of course, you've got a case that has

16 facts that are very favorable to the Government generally,

17 but some of these cases are much closer, like the Seventh

18 Circuit case where the evidence was really quite

19 disturbing about whether the person actually received a

20 fair proceeding, but you would apply the same rule

21 regardless of how strong the proof is.

22 MR. DREEBEN: That's right, Justice Stevens.

23 QUESTION: And regardless of how serious the

24 violation is, unless it's a Gideon violation.

25 MR. DREEBEN: That's right, and I think that

39

1 that is the line that the Court drew in Custis, and it

2 essentially says --

3 QUESTION: Well, but Custis really was a holding

4 on the meaning of 924(e) on the sentencing proceedings.

5 MR. DREEBEN: Custis was a holding first on the

6 meaning of 924(e) and then on what the Constitution

7 required of a sentencing judge, and it held a sentencing

8 judge may accept a facially valid --

9 QUESTION: That's right.

10 MR. DREEBEN: -- conviction that has never been

11 set aside, other than --

12 QUESTION: And of course, one reason that's

13 permissible is that normally there's a second chance to

14 prove what really happened. That's part of the answer --

15 MR. DREEBEN: Well --

16 QUESTION: -- given in that very case, that

17 they -- there is this other open question.

18 MR. DREEBEN: There are normally other chances

19 for a defendant to attack his prior conviction, the direct

20 appeal from the conviction, post-conviction review in the

21 State, and post-conviction review federally.

22 QUESTION: That was true in Custis itself,

23 wasn't it? He could have gone back to the State court?

24 Yes.

25 MR. DREEBEN: Correct.

40

1 QUESTION: It said he could have gone to

2 Maryland or on 2254 review --

3 MR. DREEBEN: Correct.

4 QUESTION: -- of the Maryland conviction.

5 MR. DREEBEN: That's correct, and the Court

6 didn't say that this is an indispensable prerequisite of a

7 valid Federal sentence. What it said was, the Federal

8 sentencing court can look at the State judgment and say,

9 on its face there's no Gideon problem here, we're not

10 required to entertain other constitutional challenges.

11 QUESTION: Mr. --

12 MR. DREEBEN: If some other court wants to

13 entertain them, that's to be presented to that court. The

14 rendering court --

15 QUESTION: Mr. Dreeben, I don't know why we

16 focus upon what the expectation of the defendant was at

17 the time he pleaded guilty, as opposed to what his

18 expectation was at the time he committed the later crime.

19 Do you think it would be unconstitutional for a State to

20 say that anyone who has a prior conviction on the record,

21 all right, that has been obtained in any manner so long as

22 Gideon has been complied with, anyone who has that on his

23 record who commits a later crime gets a longer sentence?

24 MR. DREEBEN: No, I don't think that's

25 unconstitutional.

41

1 QUESTION: He knows what the rules are when he

2 commits the later crime. He knows he pleaded guilty of

3 the former crime. He knows that anyone who has pleaded

4 guilty to a former crime will get a longer sentence.

5 Isn't that the expectation that we should be concerned

6 about?

7 MR. DREEBEN: That is a, an expectation that the

8 prisoner can have that the laws give him notice that

9 that's what the laws are intended to do.

10 QUESTION: But then it's your view, I take it,

11 that even if the prior conviction were set aside in State

12 proceedings or Federal proceedings, that that would not

13 justify a reduction in the Federal sentence?

14 MR. DREEBEN: Justice Stevens --

15 QUESTION: Is that your view?

16 MR. DREEBEN: It is a view that the Government

17 has taken in the lower courts. We have lost it in the six

18 circuits that have considered it. We're currently

19 rethinking what our position is on that issue. That issue

20 is a quite distinct issue from this one.

21 QUESTION: Correct.

22 MR. DREEBEN: Because in that situation the

23 Federal court, instead of saying, I have a facially valid

24 conviction in front of me and I have a defendant who says

25 there's something wrong with it but he's never done

42

1 anything about it, the Federal court in this latter class

2 of cases has a conviction that it previously relied on and

3 said, this is a reliable indication that you are a more

4 serious offender, and it turns out that a later State

5 court judgment may have set it aside on constitutional

6 grounds that fundamentally call into question reliability.

7 That's a distinguishable scenario from this situation, and

8 the outcome there does not control the outcome here.

9 QUESTION: I agree, but apparently Justice

10 Scalia would not, is my point.

11 MR. DREEBEN: Well, I think Justice Scalia is

12 referring to a statute that was premised on the following

13 theory. If you know you have a conviction on the books

14 and you are not deterred from the -- by committing another

15 crime, notwithstanding the fact that you know that your

16 sentenced will be enhanced, the question is, is that

17 constitutional apart from Gideon violations.

18 My answer to that is yes, but I don't actually

19 think that's the sentencing theory that was adopted in

20 section 924(e).

21 QUESTION: This is a statutory question, though,

22 and not a constitutional question, whether the statute was

23 of the sort that I --

24 MR. DREEBEN: Correct. Correct.

25 QUESTION: That I described or not.

43

1 MR. DREEBEN: Correct, and if it were of the

2 sort, I would submit that it's constitutional, but the

3 question is, is it of that sort.

4 QUESTION: Right.

5 MR. DREEBEN: And I think the answer to it is

6 not.

7 QUESTION: But if you say that it would be

8 constitutional if it were of that sort, then isn't it

9 a fortiori true that what the defendant is complaining

10 about here is likewise constitutional?

11 MR. DREEBEN: I don't think it's a fortiori,

12 Justice Scalia, although I do think our position is

13 a fortiori from Custis, and the reason I think they're

14 distinct is, the theory of the sentencing statute that you

15 have posited is deterrence, and the theory of the

16 recidivist sentencing statute, that is 924(e), and of most

17 recidivist statutes, is reliability of a prior conviction

18 which shows that this defendant is a more serious offender

19 because he has committed crimes in the past which

20 aggravate the current offense, and therefore this

21 individual warrants greater incapacitation as a matter of

22 protecting the public because he's clearly not learning

23 but is going on to commit offense after offense after

24 offense.

25 QUESTION: I recognize what we said in Custis,

44

1 but is there any other structural or fundamental area,

2 other than Gideon, that we should recognize -- the judge

3 was bribed --

4 MR. DREEBEN: Well, the United States took the

5 position in Custis that Gideon error belonged to a very

6 small class of fundamental errors, and the other error

7 that we identified in Custis was the error that you

8 identified, Justice Kennedy, of an error that really

9 deprives the sentencing court of the character of a court

10 that could render a fair judgment.

11 QUESTION: But that's not subsumed in the

12 category of facially valid, is it?

13 MR. DREEBEN: No, because this Court in Custis

14 didn't agree with the position of the Government and held

15 that Gideon violations are unique.

16 They are unique not only because they have such

17 a pervasive impact on the fairness of the proceeding, but

18 they are also unique in that they are fairly easy to

19 discern from the judgment role or from a motion

20 accompanying the judgment role, and the Court relied on

21 the consideration of administrative ease as well as of the

22 character of the error in defining what you could do when

23 confronted with a recidivist enhancement and a prior

24 conviction that is challenged on constitutional grounds,

25 and so long as the Court adheres to that line, I think

45

1 that the interest of the State in ensuring that its

2 judgment carries usual force and effect are just as strong

3 at the Federal sentencing proceeding as they are on 2255.

4 The State --

5 QUESTION: But you're -- but you are leaving

6 open the possibility, say somebody in this position,

7 there's a quorum nobis proceeding in the State, gets it

8 knocked out under State law, you're saying that that's the

9 situation the Government is rethinking whether then, if

10 you succeed, even way out of time, to get it knocked out

11 at the State court, could you then come back to Federal

12 court on a 2255 and say, now the State has knocked this

13 out?

14 MR. DREEBEN: That's correct, Justice Ginsburg.

15 That's the question that we're revisiting after our

16 litigation track record in the lower courts, and it's not

17 presented in this case because petitioner did not do that,

18 and almost undoubtedly would be out of time to do that

19 today, and quorum nobis is not apparently available in

20 California, and our fundamental submission is, that was

21 the chance that he had.

22 Whatever procedures the rendering court provides

23 and post-conviction review provides of the underlying

24 conviction are sufficient for constitutional purposes

25 absent a Gideon error when the Federal sentencing court is

46

1 imposing a recidivist sentence.

2 If the Court has no further questions --

3 QUESTION: Thank you, Mr. Dreeben.

4 MR. DREEBEN: Thank you.

5 QUESTION: Mr. Tanaka, you have 7 minutes

6 remaining.

7 REBUTTAL ARGUMENT OF G. MICHAEL TANAKA

8 ON BEHALF OF THE PETITIONER

9 MR. TANAKA: I'd first like to address the

10 question of what Custis left open. We've been talking

11 about the sentence at issue, and it ends, if -- we

12 recognize -- and this is at page 497 of the Custis

13 decision. We recognize, however, that Custis, who is

14 still in custody for purposes of State convictions, at the

15 time of this Federal sentencing under 924(e) may attack a

16 State sentence in Maryland or through a Federal habeas

17 review, and then, importantly, after that the citation is

18 just see Maleng v. Cook.

19 Now, there are two things that suggest that what

20 that left open was the possibility of reviewing the prior

21 conviction as it enhanced the later sentence. First is

22 that it says, or through a Federal habeas review, and

23 second it says, it cites Maleng v. Cook.

24 Now, what Maleng decided was that there was

25 subject-matter jurisdiction in a Federal habeas case where

47

1 there was an expired conviction, and the petitioner in

2 that case had attacked an expired conviction directly and

3 what this Court said was, no, you couldn't attack that

4 directly, but there was subject-matter jurisdiction on

5 habeas where that prior conviction was used to enhance a

6 subsequent sentence.

7 So that strongly suggests that the remedy that

8 this Court left open in Custis is akin to what exactly is

9 at issue here and that is, a 2255 remedy, by its very

10 terms, allows the petitioner to attack the

11 constitutionality of that prior State conviction, as it

12 was used to enhance his Federal sentence.

13 QUESTION: Maleng, though, was directed just to

14 whether or not he was in custody.

15 MR. TANAKA: Right, whether he was in custody on

16 the subsequent sentence, but it suggests that they would

17 entertain attack on the prior conviction through the

18 custody of the subsequent sentence and conviction.

19 The other point I wanted to make is, the

20 Solicitor General mentioned that there was a fairness-

21 finality balance here, and that this changes where the

22 conviction, as in this case, is so old, but that fails to

23 recognize that the finality interests where the conviction

24 is used in a subsequent proceeding are not the same. In

25 fact, they're not even close to the same, where we're

48

1 challenging the challenges to that State conviction

2 directly, and that is because this Court's jurisprudence

3 in many of those 2254 cases regarding finality posits the

4 rationale that the State judgment is a final one, and we

5 don't want to intrude in the State process. That is, we

6 don't want to release this person from custody. We don't

7 want to make the State retry this man. We don't want to

8 intrude in the State process.

9 In this case, again, that interest is almost

10 nonexistent. If a Federal sentencing court granted a

11 2255, there is no impact on that State court judgment.

12 So it really boils down to a question of, is

13 there a remedy for someone who is going to face a

14 potential life term --

15 QUESTION: May I just question your last

16 conclusion? Supposing he had not -- he was still in State

17 custody on parole or something of that kind, would not

18 then the Federal 2255 have an impact on the State's

19 interest in finality?

20 MR. TANAKA: I'm not sure it would --

21 QUESTION: It seems hard to imagine the Federal

22 judge would conclude the State's conviction was invalid,

23 and therefore nothing would happen in the State

24 proceedings after that.

25 MR. TANAKA: Well, certainly the Federal court

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1 would have no conclusive effect on any subsequent State

2 court proceeding, and whatever persuasive value I imagine

3 that the State court could take it for what it was worth,

4 but I don't know that it would necessarily intrude on the

5 State court proceeding.

6 So basically what's at issue, then, is do we

7 allow 2255, which by its fine language provides a remedy

8 where the sentence is unconstitutional, do we close that

9 door on the basis of considerations that aren't at issue

10 in this case, or do we allow someone who's facing a life

11 sentence to litigate the validity, and in some cases it's

12 going to be obvious, of prior convictions that don't

13 reliably indicate his guilt and, as the Solicitor General

14 said, the whole purpose between the armed career criminal

15 act is incapacitation, or --

16 QUESTION: Of course, in this case, Mr. Tanaka,

17 it's a guilty plea, so you don't have any real question of

18 whether there's a record to show that he did it or didn't

19 do it, because you don't get that sort of a record with a

20 guilty plea.

21 MR. TANAKA: That's correct, Your Honor, and so

22 the issue then would be, does this record reliably reflect

23 his guilt, reviewing the record that's presented on the

24 guilty plea, and that would be an issue for the Federal

25 district court to decide on remand.

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1 If it decided that indeed there's enough

2 evidence here that we have no question that he was guilty

3 and there's a reliable indication of that, then I suppose

4 he's out of court, but the point is, he needs to have that

5 opportunity.

6 QUESTION: But it's very difficult, as pointed

7 out in the briefs, when you're dealing with convictions

8 that are 16 and 19 years old, to go back and show exactly

9 what happened at a guilty plea.

10 MR. TANAKA: I'll grant that, but again I think

11 that that concern is addressed by placing the burden of

12 proof on the petitioner, which -- where it lies, and if

13 the sentencing court doesn't find that persuasive, then --

14 QUESTION: Well, but as Mr. Dreeben pointed out,

15 your client can simply file an affidavit saying that, you

16 know, I wasn't fully advised of what was going on, and

17 then it's up to the Government to come back. It's very

18 difficult for someone who is facing that kind of an

19 affidavit to simply say, well, disbelieve this guy. You

20 want to collect information showing that he should be

21 disbelieved.

22 MR. TANAKA: And to the extent that's possible

23 I'm sure the Government will do that.

24 QUESTION: Yes, with great administrative

25 burden.

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1 MR. TANAKA: Well, the fact is there just aren't

2 that many of these cases, but that's a price that we need

3 to pay in order to make sure that people aren't

4 unjustly --

5 CHIEF JUSTICE REHNQUIST: Well, but there comes

6 a point when the Government should be entitled to say,

7 this is the way the cookie crumbles. You bought into

8 this, and you're stuck with it.

9 Thank you. That's not a question.

10 Well, the case is submitted.

11 (Whereupon, at 11:02 a.m., the case in the

12 above-entitled matter was submitted.)

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