Lackawanna County District Attorney v. Coss - Oral Argument

Argument of William P. O'Malley

Chief Justice Rehnquist: We'll hear argument next in Number 99-1884, Lackawanna County District Attorney v. South Carolina.

Mr. O'Malley.

Mr. O'Malley: Mr. Chief Justice, and may it please the Court:

Essentially involved in this case is the failure of the Third Circuit Court to apply the rationale espoused by this Court in Custis v. United States, to conclude that constitutional deprivations other than deprivation of the right to counsel can be addressed in habeas corpus proceedings as constituting a collateral effect enhancing the sentence of someone in custody under a conviction that they are seeking to attack in the Federal habeas corpus proceedings.

In this case, Edward Coss had been convicted in the mid-eighties of simple assault and institutional vandalism and had been sentenced to incarceration, and he had completely served his sentence.

Justice O'Connor: Had he filed an appeal from that conviction, ever?

Mr. O'Malley: Yes, he did, Your Honor.

Justice O'Connor: A direct appeal?

Mr. O'Malley: Yes.

He filed a direct appeal from that conviction.

Justice O'Connor: And what happened?

Does the record say what happened to the direct appeal?

Mr. O'Malley: The conviction was affirmed.

Justice O'Connor: And then he filed for State post-conviction relief?

Mr. O'Malley: He did, Your Honor.

Justice O'Connor: On the inadequate assistance of counsel claim?

Mr. O'Malley: Yes, Your Honor, that's correct.

Justice O'Connor: And does the record tell us why the State courts never dealt with that?

Mr. O'Malley: No, the record does not tell us why the State courts did not deal with that.

It just wasn't dealt with.

Justice O'Connor: So we can assume that it may have been because the State court just neglected to get around to it?

Mr. O'Malley: All assumptions are possible, and that certainly is one of them.

It slipped through the cracks somehow, and I've not been able to determine how, Your Honor.

Justice O'Connor: But you agree that the respondent was not at fault in failing to have the State court review that claim?

Mr. O'Malley: Well, I wouldn't go quite that far, Your Honor, because the respondent could have requested that the matter be brought up for a hearing.

He just filed his post-conviction collateral petition and then...

Justice O'Connor: And there was an answer, I understood.

Mr. O'Malley: I don't think it was answered, Your Honor.

An answer is not required under the Pennsylvania post-conviction...

Justice O'Connor: Right, and it just sat.

Then it just sat.

Mr. O'Malley: It sat.

He could have called it up, but in the meantime his conviction... his sentence expired, and that's an equally reasonable inference as to why no action was taken, because he got out of jail, and the purpose of...

Justice O'Connor: Well, but the conviction has subsequent consequences, as we see from this case, so it still could be a matter of significance to the respondent.

Mr. O'Malley: Yes, it could be a matter of significance to that extent, Your Honor.

Justice Kennedy: Was he entitled, under Pennsylvania law, after release from custody, to continue the collateral attack on his conviction?

Mr. O'Malley: No.

I believe, Your Honor, under the Pennsylvania law he would have to be in custody to continue his attack on that conviction.

Justice Kennedy: All right.

So then, at that point, there's nothing he can do to attack his conviction?

Mr. O'Malley: That would be correct, Your Honor.

Justice O'Connor: Do you have authority for that, that you've cited, that there is nothing that the Pennsylvania courts could have done at that juncture, when he was out of custody?

Mr. O'Malley: Your Honor, I think that's to be found in the Pennsylvania Post-Conviction Relief Act.

I think the requirement of custody is implicit in the Act, or is...

Justice O'Connor: Not just for filing, but for...

Mr. O'Malley: is expressed in the Act.

Justice O'Connor: resolving it?

Mr. O'Malley: For obtaining the relief.

I think it's in the Act, but I do know, Your Honor, that Pennsylvania cases have construed that if you're not in custody you don't get-post conviction relief, Act relief.

Following the completion and full service of his sentence for that conviction in the eighties, Mr. Coss got in trouble with the law again and was found guilty of assault and was sentenced to a separate term.

The record indicates that the sentence for his earlier 1980's conviction and sentence was considered by the court.

It doesn't quantify the extent to which it was considered.

It was just noted by the court.

That was found both by the district court and by the Third Circuit Court.

Coss filed his petition pro se.

His Federal habeas corpus petition was filed pro se, and the district court, according due deference to his 19... or, to his Federal habeas corpus petition, construed it as an attack on his later conviction in the 1990's, as well as an attack on his 1980's conviction, and denied Mr. Coss relief based upon the fact that, although ineffective assistance of counsel was made to appear from the evidence that Mr. Coss suffered no prejudice.

Mr. Coss then appealed to the Third Circuit and the Third Circuit reversed the district court, finding that prejudice was shown by Mr. Coss and finding also, or ruling also that because Coss' claim of ineffective assistance of counsel in his 1980's conviction was... had an effect upon the sentence he received for his 1990's conviction, that he was entitled to Federal habeas relief.

And the means by which the Third Circuit reached that conclusion is the principal matter that I believe needs to be addressed here this morning, because what the Third Circuit did was relied principally upon jurisprudence developed in the Third Circuit which, for all intents and purposes, reverses district court judges that don't treat attacks on subsequent convictions that were enhanced, sentences of which were enhanced by prior convictions.

The Third Circuit reverses those judges and says, you should have found that this collateral enhancement on grounds other than Gideon violations is something that we will not tolerate in this Circuit.

Chief Justice Rehnquist: Mr. O'Malley...

Mr. O'Malley: Yes.

Chief Justice Rehnquist: You say in your brief that your argument is decided, divided into two parts.

Mr. O'Malley: Yes, Your Honor.

Chief Justice Rehnquist: One is a question left over, left open in Maleng v. Cook as to whether the custody requirement of the Federal statute is satisfied here.

Mr. O'Malley: Yes, Your Honor.

Chief Justice Rehnquist: And then the second is I guess what you've been talking about during most of your argument, what kinds of claims may you make if the Maleng question is decided against you.

Are you going to say anything about the question left open in Maleng v. Cook, or are you going to leave that to your briefs?

Mr. O'Malley: Well, no, I am going to say something about the question left open by Maleng v. Cook.

It is our position that the holding of Maleng v. Cook has been misunderstood by the Third Circuit.

The holding of Maleng v. Cook clearly seems to say that a person may not attack, or a person is not in custody under a prior conviction once he has fully served that conviction, but the Third Circuit reaches a different conclusion by looking at the result that was reached in Maleng, because in Maleng the Court will recall that the petitioner was granted relief, but in that case the basis, as I read Maleng, for the petitioner being granted relief was principally that there was a custodial nexus between the earlier conviction and sentence and that which he was attacking in his Federal habeas corpus petition, that custodial nexus being the hold that was placed upon him for the State conviction that he would be obliged to serve.

In this case, however, there is no custodial nexus to connect the fully expired sentence to the sentence that the Court construed he was attacking in his Federal habeas corpus petition.

Justice Stevens: Well, how can you say there's no connection when the second sentence, the length of the second sentence is determined by the fact that there was an earlier conviction?

Mr. O'Malley: Your Honor, yes, but I was talking about a custodial nexus, and I believe that the determinative factor in Maleng v. Cook was the custodial nexus.

I think the question of the simple enhancement...

Justice Breyer: Well, but this...

Justice Scalia: He was in custody on the prior conviction, not just because of the prior conviction.

He was serving the sentence that had been imposed for the prior conviction, that's what the hold produced; whereas in this case he may well be serving additional time because of the prior conviction, but he is not serving the time of the prior conviction.

Mr. O'Malley: If I understand your question correctly, Your Honor, that is our position.

Justice Souter: Isn't it also in the case in Maleng that if the hold had not been placed, he would have been released under the prior conviction?

Mr. O'Malley: That is correct, Your Honor, and that is the factor that I think the Third Circuit overlooked, and overlooks in its holdings on cases of this type.

Justice Stevens: But even if this case is different from Maleng, how can you say he was not in custody in this case?

He's in prison.

Mr. O'Malley: He definitely is in custody in this case, Your Honor.

Justice Kennedy: Right.

Mr. O'Malley: He's in custody under a 1990 conviction.

Justice Stevens: Right, so the custody requirement of section 2244 is satisfied?

Mr. O'Malley: Well, he wasn't attacking his 1990 conviction.

He was attacking his 1984 conviction.

There's nothing wrong with his 1990 conviction.

The only thing wrong...

Justice Stevens: Well, if you're right on the merits, that's true, but if he's right, the thing that's wrong with it is that the length of the sentence was based on a prior unconstitutional... a violation of the Federal Constitution.

Mr. O'Malley: That is...

Justice Stevens: If he's right.

I don't know whether he is or not.

Mr. O'Malley: That would be correct.

That would be a correct statement.

But the Court in Custis v. The United States adopted a line of reasoning which, while it may not directly apply to Federal habeas cases, Custis having been a case under the sentence... the Federal Sentencing Act, the rationale of those cases clearly seems to announce a constitutional declaration that, in considering prior convictions and sentences, the only constitutional violation that the court will consider, the courts should consider, are Gideon violations, where counsel was totally absent, and that ineffective assistance of counsel cases do not fall under that umbrella and, therefore, are not to be considered as supplying a basis for Federal habeas attacks on subsequent convictions and sentence, enhanced by a sentence in which there may have been ineffective assistance of counsel.

Justice Stevens: Would you say that that rationale would have... also would apply even if the Pennsylvania court had acted within the time period and set aside the earlier conviction?

Mr. O'Malley: If the Pennsylvania court had acted within the time period and set aside the earlier conviction, we wouldn't have the problem, Your Honor, as I see it.

Justice Stevens: Why not?

I think your rationale would be, we shouldn't look at that, regardless of whether there's merit to the earlier case or not.

Would you agree, then, that the Third Circuit would have been correct in this case if, after Mr. Coss had served his sentence, the Pennsylvania court, contrary to what you say the Pennsylvania law is, had decided, well, we will take a look at the earlier conviction, and we now conclude that he was not given effective assistance of counsel?

Supposing they entered such an order, would that mean that this... that the result in this case would be different?

Mr. O'Malley: I think that would mean the result in this case would be different, because the only basis for complaint that Coss had in this case dealt only with the earlier conviction and sentence, not with his 19...

Justice Stevens: So then you're not saying that it's only a Gideon violation that gives rise to a claim.

You're saying it's only an unresolved non-Gideon violation that gives rise...

Justice Scalia: I think you...

Mr. O'Malley: I don't know that I'm saying that, Your Honor.

Justice Scalia: I hope you're not.

In... I assume in that hypothetical just posited there would have been no basis for increasing the sentence.

You could attack the second sentence on its face as being improper because there was no prior conviction.

Justice Stevens: No, no.

I'm assuming the second sentence is entered before the Pennsylvania court rules.

Oh, before the Pennsylvania court...

The second sentence is entered, then the Pennsylvania court rules that, oh, the first case is invalid.

Would that mean the second case falls, or wouldn't it?

Mr. O'Malley: I think it would certainly take a great deal of the weight out of the second case, because it would...

Justice Stevens: But your basic position is, only Gideon violations count.

That's what I understood your argument to be, and I'm suggesting we have a non-Gideon violation that set aside the second... set aside the first conviction after the second sentence was imposed.

Would you count it or not?

It's not a Gideon violation.

Mr. O'Malley: I think we would count it, but I think that count would come only on the basis of comity, on the basis of the Federal court giving due recognition to what Pennsylvania had done with its own...

Chief Justice Rehnquist: Well, these are all Pennsylvania sentences, are they not, that we're talking about here?

Mr. O'Malley: Yes.

Yes, they are, Your Honor.

Chief Justice Rehnquist: If the Pennsylvania Supreme Court had set aside the first sentence, surely the Pennsylvania courts would recognize the fact that it was no longer valid.

Mr. O'Malley: That is correct, Your Honor.

Chief Justice Rehnquist: You don't have to get to any Federal habeas there.

Mr. O'Malley: That's my... that's why I'm having trouble with the question, because you really don't have to get to Federal habeas there.

I think the basis for Federal habeas would evaporate in that situation.

Justice O'Connor: Well, what if the...

Justice Stevens: Well, I don't know why you... my hypothetical is just the opposite.

I... my hypothetical is that they set aside the first sentence, but they didn't set aside the second one.

We had a case like that not long ago.

Mr. O'Malley: Well, I think the answer to that hypothetical, then, Your Honor, would depend upon the extent to which the second sentence was actually enhanced by the first sentence.

Justice Stevens: Well, I'm assuming it was.

It was enhanced an extra year because of the prior conviction.

The court now knows the first conviction was invalid, but it decides, well, we think he really did it anyway, so we're going to leave the second sentence in place.

Mr. O'Malley: Well, we do not...

Justice Stevens: Would there be grounds for Federal habeas relief?

Mr. O'Malley: We do not have that basis in this case because the courts have recognized that in the second sentencing the first conviction and sentence were considered, but there's no way to quantify the extent to which, if any, enhancement actually took place.

Justice Scalia: But you have to deal with his hypothetical, and don't you have to acknowledge at least a second exception besides utter absence of counsel, and the second sentence being that, in fact, the prior conviction has, by the jurisdiction that imposed it, been held to be invalid?

Mr. O'Malley: Yes.

If the second sentence was held invalid by the jurisdiction which imposed it, we have the question of comity, which I think would oblige the Federal courts to give the appropriate deference to that one situation.

Justice O'Connor: Well, let's go one step further and ask, what happens if the defendant has done everything he can to get a resolution on the validity of the first conviction and, through no fault of the defendant's, the State refuses to deal with the question, and nonetheless, in the second proceeding, reliance is placed on the first conviction that the defendant has tried to challenge but couldn't?

That comes closer to this case, doesn't it?

Mr. O'Malley: It comes closer to this case, Your Honor, and I would say that in that situation the only basis for Federal relief that the defendant would have would be a Gideon violation, utilizing the rationale that was expressed by this Court in Custis v. The United States, and that Gideon violations, the court has drawn the line...

Justice O'Connor: Well, Custis acknowledged that a Gideon violation still was open, but did it necessarily conclude that there is no other exception?

Mr. O'Malley: I think it did.

It says, Custis asks us to extend the rule to cases other than Gideon violations, and this the Court refuses to do.

Justice O'Connor: But if you assume there was some constitutional violation in the first conviction, you say the defendant can be deprived by the State of any chance to correct that...

Mr. O'Malley: No, I...

Justice O'Connor: and the subsequent court can use the unconstitutionally-obtained prior conviction to enhance the later sentence?

Mr. O'Malley: What I'm saying is, the vehicle for Federal habeas corpus is not available to examine into the collateral effect of any deprivations other than Gideon violations.

Justice Souter: But you know, in Custis, one of the things, one of the values that the Court was basing its decision on was the value of finality, and it said comity requires us to respect that finality.

Mr. O'Malley: Yes, sir.

Justice Souter: And you are now saying that that same value, and hence the same comity concern, would be implicated when a State in effect says, we are going to stonewall a constitutional claim, even though that claim is brought within the time period that our law specifies for it, and you're saying the result should be the same.

Do you really think the values involved are the same values that Custis respected?

Mr. O'Malley: If we had a situation where the State actually did say, we are going to stonewall, I think we would have an entirely different...

Justice Souter: So that the only distinction between that case and this case is that the State was simply silent and did nothing, as opposed to announcing in advance that it would do nothing.

That's the only distinction?

Mr. O'Malley: That's the principal distinction, coupled with the passage of time and the expiration of the sentence.

Thank you.

Argument of Robert M. Russel

Chief Justice Rehnquist: Thank you, Mr. O'Malley.

Mr. Russel, we'll hear from you.

Mr. Russel: Mr. Chief Justice, and may it please the Court:

We believe that this case is controlled by the constitutional principle announced by this Court in Custis.

Custis found that it is permissible to enhance a defendant's sentence with prior convictions that were themselves infected with constitutional error and, because that's so, a prisoner may not bring a habeas corpus attack under 2254 on his current sentence and hope to reopen the validity of his prior convictions except when the prior convictions are obtained in violation of Gideon.

Justice Ginsburg: Mr. Russel, there was a factor in Custis itself that the forum that rendered the judgment that was considered defective was still open, and it seemed to me an example of the ordinary rule that you go back where the judgment was rendered if that door is still open.

Mr. Russel: Absolutely, Your Honor.

I believe that Custis does express the preference for the forum, which is to say that all these constitutional attacks need to be made in the rendering State or in the habeas corpus petition that follows, while the defendant is in custody, so while Custis, in that particular case the Court recognized that a habeas corpus avenue was available, that observation was premised on the underlying observation that he was still in custody and could go back to his home State and attack his convictions there.

Otherwise, once the convictions are final and the defendant is not in custody, then the only violation that the defendant can raise in a complaint about his prior conviction is that the prior conviction was obtained in violation of Gideon.

Justice Souter: Well...

Justice Kennedy: But in this case, the person in custody is in the position where he simply can't get State collateral review.

There could have been another case, in all respects similar to this petitioner, with the one difference that a week before his custody in the State for the first sentence, a week before the custody expired, the State Supreme Court said, oh, you're right, there's a constitutional violation.

It seems rather quixotic to deprive the petitioner of that opportunity here, simply because his sentence was served before the court got around to ruling on the issue.

Mr. Russel: I have two observations for you, Justice Kennedy.

First, we believe that the petitioner in this case could actually have obtained relief, review of his earlier case while he was in custody.

Now, admittedly the State courts do not... under the Alhorn case we... the cite... the question, the answer to Justice O'Connor's question was, the... in our brief, the green brief, at page 3 on footnote 3 there's the case of Pennsylvania v. Alhorn, and that's the authority for the proposition that once the petitioner is released from custody in Pennsylvania, he cannot bring a PCR attack on his sentence.

The... I think what it amounts to is that Pennsylvania...

Justice O'Connor: Well, he couldn't file it, but could it be resolved if he had previously filed it while in custody?

That's the question.

Mr. Russel: I believe not, Your Honor.

I believe that essentially Pennsylvania...

Justice Kennedy: Well then, my question stands.

Mr. Russel: Yes.

Yes, it does, and the ultimate thing is that, irrespective of what Pennsylvania law would do, the imminent release of the prisoner from custody would have allowed him to file a habeas corpus petition under 2254 while he was still in custody, and he would have had an excellent argument, under futility, that he wouldn't be able to exhaust his State remedies and could have achieved a Federal review of his Strickland claim back in the rendering State.

Now, at this...

Justice Kennedy: Oh, you mean you could file a Federal habeas corpus action saying, you know, my custody is about to expire, the State court is a little slow, it's time for you to get into this?

I've never heard... I think we would immediately say that it's been unexhausted.

Mr. Russel: Well, Your Honor, I mean, the question for that...

Justice Kennedy: That's a strange proposition.

Mr. Russel: The question... I think the question would be whether the State remedies were going to be availing at that point and if, in fact, the State remedies were going to be concluded a week later because of State law, then I thought the petitioner would have an avenue for relief under the Federal habeas corpus while he was in custody.

Even if that's wrong, even... assuming for the sake of argument that I'm wrong about that, and I think there will be...

Justice Scalia: Well, excuse me, would that Federal relief still be available when he was out of custody?

Can you get 2254 when the custody is over?

Mr. Russel: No, Your...

Justice Scalia: Wouldn't you face the same problem in the Federal habeas court that you faced in the State habeas court?

Mr. Russel: If he had filed, Your Honor, his petition while he was in custody in Federal court, then under this Court's mootness analysis of Karafas v. LaVallee and Cibron v. New York, the case would not be moot, and the Court would have jurisdiction to consider the merits of the petition, even though he had been released from custody, precisely because this Court is concerned about the future possibility of collateral consequences.

Justice Breyer: What is the Pennsylvania law?

Leave all this Federal law out of it.

Pennsylvania has some kind of a guideline system, and so if you come into a Federal court, the defendant's convicted, he's now going be sentenced, he has a prior conviction obtained 30 years ago when he was robbing some chicken coops.

He would like to say that that confession was beaten out of me.

It's totally wrong.

Can he do it, or does the judge, like the Federal system after Custis, just say we won't even listen?

Mr. Russel: I believe, Your Honor, that under Pennsylvania law the judge says, we won't even listen.

I think that's the way it works in Pennsylvania, and so our rule definitely, while calling for application of the Custis principle, we certainly think that this may exclude some defendants from achieving relief in State court first, but we think that the line drawn in Custis is a fair and equitable balancing of the competing concerns between fairness and finality, and it's certainly a rule that can be applied uniformly throughout the States.

I would like to point out that in substance our position tracks very closely to the argument advanced by the United States last month in the Daniels case and, while we think the Government's right there, we believe that this case presents even stronger reasons for application of the Custis principle.

One chief difference is that, whereas in Daniels this case came to us through an application of a mandatory sentence enhancement scheme, this involved the discretionary use of a prior conviction by a sentencing court, and that's something that happens much more often.

It happens in every sentencing court in the country every single day, and so to the extent the Custis majority was motivated by concerns about finality, and of the burden of conducting endless derivative collateral attacks, that concern, those concerns are implicated to a far greater degree here.

It would simply be unworkable if we had to go investigate Strickland claims about trials that took place in a different State many years ago every time a prior conviction was used in a discretionary proceeding.

We couldn't...

Justice Ginsburg: Why wouldn't that be taken care of if you had a requirement you have to show cause in prejudice for not knocking it out earlier?

You're talking about stale evidence, and if you had a requirement that a petitioner had to present it at the earliest opportunity, then you wouldn't have the problem of people coming in 20 years later when they could have come in 2 years later, so why doesn't your horribles... why isn't the answer to that simply, we put a timeliness requirement on?

Mr. Russel: Well, because... certainly the cause in prejudice, I think that without... even with the cause in prejudice rule there will be defendants who are trying to raise the validity of their prior convictions many years after the fact.

Perhaps they were precluded because the law didn't allow the attack.

Perhaps they only learned of the violation late, as in the case of a Brady or a newly discovered evidence rule, and in all of those cases we'll be opening up a collateral review, often in a different State, and trying to discuss the relevance, or the reliability of a prior conviction that was obtained many years earlier.

Justice Scalia: You'll have cause in prejudice proceedings...

Mr. Russel: Yes.

Justice Scalia: as a regular matter.

Mr. Russel: Yes.

Justice Scalia: Evidence claimed to have been found later...

Mr. Russel: Yes.

Justice Scalia: when it was too late to do it, and so forth.

Mr. Russel: And the burden of that litigation would just add to the same litigation problems we're going to have.

A second difference between our case and the Daniels case is that there's a federalism component here that was not present in Daniels.

We think it is one thing for the Federal system to say to the States, we will not use your convictions for our sentencing purposes, but it's quite a different thing for the Federal system to say, you may not use your convictions for your sentencing purposes.

And finally, we note that from the transcript of the Daniels argument, some members of the Court at least entertained the possibility that the text of 2255... 2255 may allow for collateral attacks on grounds that are themselves not mandated by the Constitution, and to the extent that's a possibility, we think that's a difference in our case as well, because this Court repeatedly has stated that 2254 exists solely to remedy the errors of constitutional dimension.

In short, we believe that this application of the Custis rule would be totally proper here because it is a workable rule, and that the respondent's position, in contrast, is totally unworkable.

It would subject us to endless collateral reviews, and we would ask that the Third Circuit be reversed on that ground.

While I have a few moments, I do want to approach my first issue and explain why this Court can and should address the main issue, even though we've raised what appears to be a jurisdictional defect.

When we looked at this case, following this Court's decision in Maleng, we expected to see the habeas corpus litigation follow a particular pattern, which was that the defendant would exhaust his state remedies and then he would bring a habeas petition, styled as an attack on the new conviction, complaining about the use of the old conviction.

Well, what we saw instead was something that was quite different.

The defendant here never raised this issue in State court.

He brought his petition while his... excuse me.

Chief Justice Rehnquist: Thank you, Mr. Russel.

Mr. Russel: Thank you.

Argument of James V. Wade

Chief Justice Rehnquist: Mr. Wade, we'll hear from you.

Mr. Wade: Mr. Chief Justice, and may it please the Court:

There are three reasons why this Court should permit Federal habeas review of Mr. Coss' sentence.

First, there's a constitutional interest in reliability at sentencing.

Second, Federal habeas corpus review is necessary to protect that interest.

And third, the State interests are adequately protected by the habeas corpus doctrines of procedural default, exhaustion, and burden of proof.

Justice O'Connor: Would you give us some background information?

Did your client file a direct appeal from the '86 conviction and sentence?

Mr. Wade: I did not see that in the record, Your Honor.

It appears that there's some evidence that he asked his counsel to...

Justice O'Connor: We assume, then, that no direct appeal was filed?

Mr. Wade: That's correct, Your Honor.

Justice O'Connor: And the only relief from that '86 sentence that was requested was the State post-conviction relief petition that was filed?

Mr. Wade: That's correct, Your Honor.

Justice O'Connor: And that was filed while he was in custody under the '86 proceeding?

Mr. Wade: Yes, it was, Your Honor.

Justice O'Connor: And was an answer filed to that?

Mr. Wade: Yes, there was.

Justice O'Connor: And nothing else happened, is that it?

He was released from custody?

Mr. Wade: That's correct, Your Honor.

Justice O'Connor: And no further action was taken?

Mr. Wade: No further action.

Justice O'Connor: And why is that, do we know?

Mr. Wade: We do not know from this record.

We don't know why.

Justice O'Connor: Is that typical in Pennsylvania, that these things languish for years at a time?

Mr. Wade: I wouldn't call it typical.

It does happen that various post-trial motions, motions to modify sentences do not...

Justice O'Connor: Did the Pennsylvania courts lose jurisdiction to consider the post-conviction relief petition once he was discharged from custody?

Mr. Wade: Yes, they did, Your Honor.

Justice O'Connor: That is the Pennsylvania law?

Mr. Wade: That is Pennsylvania law clearly forecloses this.

Justice O'Connor: So this man had no... it was final...

Mr. Wade: It was final.

Justice O'Connor: as a matter of Pennsylvania law at the time of the 1990 charges?

Mr. Wade: Yes, it was.

Turning to my first point about the constitutional interest and reliability of sentencing, Mr. Coss had the burden of proving that his prior conviction was unreliable.

He did...

Justice Breyer: Why... does the Constitution of the United States stop a State from saying, for example, for the future, not for the past, new law, if you commit an assault, and if you have a bad, violence-prone disciplinary record in high school you're going to get a longer sentence?

Mr. Wade: There's nothing that would prevent a State...

Justice Kennedy: All right.

Justice Breyer: Well, is there anything preventing a State from saying, if you are convicted of an assault, and you have an arrest record, you're going to get a longer sentence?

Mr. Wade: You can make such a law.

I think you always have to have the availability to show that the later sentence was not...

Justice Breyer: Well, there's... the later... sorry.

I'm sorry.

Mr. Wade: Well, I didn't expect that the later sentence wasn't improperly enhanced by the...

Justice Breyer: No, I'm saying the lawyers, if you commit an assault in the future, and you are a person who's been arrested several times, you're going to get a higher sentence.

Mr. Wade: They do that by State recidivist statutes, and those are constitutional.

Justice Breyer: Is that all right?

Mr. Wade: That's okay.

Justice Kennedy: Okay.

Justice Breyer: If that's all right, then what's wrong about saying, if you are going to commit an assault, and you are a person who has on his record some convictions, we no more care about whether those convictions were right or wrong, than we do about whether the arrest was right or wrong, than we do about whether the discipline in high school was right or wrong.

We're just saying, if you are a person like that, and you commit a crime in the future, you will get a higher sentence.

Then, why could that be unconstitutional, if the first are not?

Mr. Wade: Well, the reason it's unconstitutional, where I guess, I would depart from the statutory scheme, is that there has to be a place to litigate the constitutional issue, and the...

Justice Breyer: Why does there have to be?

Are you saying...

Mr. Wade: Well...

Justice Breyer: The constitutionality of that earlier offense is for purposes of your present crime totally irrelevant, says the state.

Mr. Wade: Well...

Justice Breyer: All we're interested in is whether you are a person who has written down on a piece of paper somewhere three words, conviction, conviction, conviction, and if you're that kind of a person and you go out and commit another crime, you will get a higher sentence.

We don't care whether it was constitutional or not, any more than we care about whether the arrest was right or wrong, or the disciplinary...

Mr. Wade: Well, the... then I would say that statute's unconstitutional.

Justice Breyer: Well then, is the other... are the others unconstitutional too?

Mr. Wade: Yes, if that's...

Justice Breyer: Because?

Mr. Wade: Because there has to be a forum to litigate the reliability principle.

Justice Breyer: In other words, the Constitution of the United States requires a State to litigate the accuracy of any fact upon which it bases a sentence?

Mr. Wade: The Constitution of the United States doesn't want people sentenced on their subsequent cases on misinformation of a constitutional magnitude, the Tucker principles.

Chief Justice Rehnquist: Well, what if, following up Justice Breyer's hypothetical, what if the State says that this conviction has been set aside, but one of our guidelines says, we can take into consideration prior acts, prior similar acts, and we now say that this conviction represented prior acts whether or not you were convicted?

Is there anything wrong with that?

Mr. Wade: Well, I would say if it's misinformation of a constitutional magnitude...

Chief Justice Rehnquist: Well, I'm not talking... we're not talking about constitutional magnitude.

Mr. Wade: Okay.

Chief Justice Rehnquist: The State says, here, we have a witness, and the same witness who came forth at the trial says, yes, he did slug this guy and slugged him five times, and the defendant is allowed to contest that in the sentencing proceeding, but the judge says, well, I find as a fact that you did slug the guy, and so I'm taking that into consideration in sentencing.

Is there anything wrong with that?

Mr. Wade: I don't think there's anything wrong with that, Your Honor.

Justice O'Connor: Now, here, as I understand it, the defendant had an opportunity to appeal from the 1986 conviction and sentence, and did not do so, as far as this record discloses.

Mr. Wade: That's correct, Your Honor.

Justice O'Connor: Well, why isn't that the end of the matter, then?

Mr. Wade: Well, normally, ineffectiveness claims, normally you'd have the same attorney on appeal, and you would normally bring ineffectiveness claims in post-conviction proceedings.

We're basing our...

Justice Breyer: You see what I was worried... I'm worried about a new Jackson-Denno line of cases now applying to sentences.

Mr. Wade: The... we are suggesting that you cannot use invalid... misinformation of a constitutional magnitude, inaccurate information, based on the cases of Tucker, Burke, Townsend v. Burke, Burgitt, in sentencing proceedings, because you don't want to sentence someone that's not... may not be really guilty of a prior...

Chief Justice Rehnquist: Those were all failure to appoint counsel cases, were they not?

Mr. Wade: They were, Your Honor, that's correct, but they also have been read to include a broader principle of...

Chief Justice Rehnquist: Read by this Court?

Mr. Wade: Disputed, I think, by this Court.

I mean, there's some of this Court that would hold it strictly to the Sixth Amendment.

Chief Justice Rehnquist: Well, I mean, majority opinions of the Court?

Mr. Wade: The majority opinions seem to hold it to the Sixth Amendment, I think.

But if we're going to have a due process principle, a fairness principle at sentencing, that interest has to come down to reliability through fundamental fairness.

Mr. Coss proved that his attorney did not interview witnesses at his 1986 case, did not subpoena them to trial, and the Third Circuit found that the result would have been different had he not... had those things been done, had he received effective assistance of counsel.

The State's interest... there's a lot of, you know, worry about protecting the State's interest, and that's a legitimate worry, but all this Court would have to be doing would be balancing the State's interests and the defendant's interest in reliability...

Chief Justice Rehnquist: Coss has had a string of convictions, hasn't he?

Mr. Wade: He has had a string of convictions, Your Honor, I mean, if you refer to his juvenile record forward.

This is a limited right.

We're not asking for a broad principle.

It applies to constitutional claims and constitutional claims that go to reliability.

It may not necessary... all constitutional claims will not fall within this rubric, and the issue of which claims do or which claims don't are not at issue here.

We're here on a Strickland claim, which is as close as you can get to a Gideon claim.

Mr. Coss has tried to do everything he could possibly do to remedy the situation by filing a State post-conviction, and then he finds himself in the Pennsylvania legal system as being foreclosed from raising it at the next sentencing and on post-conviction.

He's done everything he can do, and if he doesn't get the Federal... if he doesn't get to raise this issue in Federal habeas corpus he gets to litigate it nowhere, and I submit that his sentence for the 1990 conviction would be improper.

It's on the basis of an improper valid conviction.

Justice Scalia: Well, if that's what's driving this, I mean, you think the best remedy is to simply open up all of these convictions to subsequent Federal habeas corpus?

Why not just... if this is the horrible event that we're trying to avoid, why not just adopt a constitutional rule that it is not proper for a State to foreclose habeas corpus relief.

You say that's the only practical way to challenge ineffective assistance.

It's just not constitutional for a State that forecloses habeas corpus relief to use it in subsequent sentence enhancement.

That would be a lot easier than...

Mr. Wade: It may be easier, but I don't believe the Constitution requires the States to have a post-conviction process at all, so from that standpoint I don't see how we could...

Justice Scalia: Well, but you're saying that there's something unconstitutional about sentencing on the basis of a prior sentence that could not be challenged in State habeas.

Mr. Wade: I'm... yes, under the...

Justice Scalia: Okay.

So just say, the State sentence is simply unconstitutional, you cannot use that prior conviction when there's been no ability to challenge it in habeas?

I'd much rather do that than muck up Federal habeas corpus.

Mr. Wade: I see that we're not mucking up Federal habeas corpus, that the way that we're applying the same rules in Federal habeas corpus to sentence enhancement-type cases, and we're used to applying those rules, it is... and those rules protect State interests, such as exhaustion, procedural default, and burden of proof.

Much of the digging up of the record is going to be on the petitioner.

Justice Scalia: Yes, but it requires Federal courts to look into the matter.

The rule that I propose would require the States to do the job themselves.

Mr. Wade: And...

Justice Scalia: It would be a much more efficient way to handle it, it seems to me.

Mr. Wade: I think, Your Honor, that what will happen is that we are going to see a California claim in a Pennsylvania Federal court.

You're going to have the problems of, that the State that's involved with the process is not there, but I think that's... the problem with that is solved by limiting the remedy to the sentence, so that for the purposes... if we... the Pennsylvania Federal court declared a California conviction unconstitutional because of a sentencing in Pennsylvania, then it applies just to that sentencing.

It cannot really...

Justice Scalia: The inquiry still is a very difficult inquiry for a Federal court in California to make.

It would be much more easy for a Pennsylvania court to make.

Mr. Wade: The... it may be difficult, but that difficulty will be on the petitioner.

He'll have to respond to that initially, when he files his habeas corpus petition.

Justice Breyer: What is the... I'm asking because I'm interested in your view.

That is, a State prisoner goes into Federal habeas court and he says, one of the reasons I got a longer sentence was because somebody thought that I hit one of the bystanders, but I want to tell you, there's no evidence of that at all in the record, none, zero.

Can he get Federal habeas relief from that extra sentence?

Mr. Wade: Yes, I think he can get Federal habeas relief from that extra sentence, and I think Tucker...

Justice Breyer: Same principle as a conviction?

I've never seen one.

Justice Scalia: I've never seen a case...

Mr. Wade: Well, I don't know that if the Court would have to make some kind of finding, like a... in Grayson, where they said, I heard you testify on the witness stand and you testified falsely, I'm going to enhance your sentence by 5 years because of that testimony.

I mean, in that type of situation then we would... if we knew that it affected the sentence I think I could answer that, you know, the question the way I did, yes.

In summary, we seek a limited and narrow rule.

We seek a rule that will require the petitioner, or Mr. Coss, to exhaust his State claims, to meet his burden of proof, and when you have a case where he's met his burden of proof, has shown that his counsel was ineffective, and has shown that the subsequent sentence was enhanced or at least influenced by the prior improper conviction, that this Court should not base the sentence on that, they should not let a sentence be founded on an unreliable foundation, and that the judgment of the court of appeals should be affirmed.

Chief Justice Rehnquist: Thank you, Mr. Wade.

The case is submitted.