Amicus Curiae Brief — Custis v. United States

No. 93-5209

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

DARREN J. CUSTIS,

Petitioner,

V.

UNITED STATES

Respondent.

On Writ Of Certiorari To The United States Court

of Appeals For The Fourth Circuit

Brief of the States of Ohio, Arizona, Arkansas,

idaho, Kentucky, Massachusetts, Michigan, Montana,

Nebraska, Nevada, New Jersey, North Dakota,

Oklahoma, Oregon, Pennsylvania, South Carolina,

South Dakota, Vermont, Virginia, Wyoming,

as Amici Curiae in Support of Respondent.

LEE FISHER

Attorney General

RICHARD A. CORDRAY

State Solicitor

COUNSEL OF RECORD

SIMON B. KARAS

Deputy Chief Counsel

DONALD R. JILISKY

Assistant Attorney General

DONALD GARY KEYSER

Assistant Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-5026

COUNSEL FOR AMICUS CURIAE

STATE OF OHIO

Additional Counsel Listed On

Inside Front Cover

Honorable Grant Woods

Attorney General of Arizona

1275 West Washington

Phoenix, Arizona 85007

Honorable Winston Bryant

Attorney General of Arkansas

323 Center Street

Little Rock, Arkansas 72201

Honorable Larry Echohawk

Attorney General of Idaho

State House, Room 207

Boise, Idaho 83720

Honorable Chris Gorman

Attorney General of Kentucky

State Capitol

Frankfort, Kentucky 40601

Honorable Scott Harshbarger

Attorney General of Massachusetts

One Ashburton Place, Room 2019

Boston, Massachusetts 02108-1698

Honorable Frank J. Kelley

Attorney General of Michigan

Law Building

525 West Ottawa

P.O. Box 30212

Lansing, Michigan 48909

Honorable Joseph P. Mazurek

Attorney General of Montana

Justice Building

215 North Sanders

Helena, Montana 59620-1401

Honorable Don Stenberg

Attorney General of Nebraska

2115 State Capitol

Lincoln, Nebraska 68509

Honorable Frankie Sue Dei Papa

Attorney General of Nevada

Capitol Complex

Carson City, Nevada 89710

Honorable Frank DeVesa

Attorney General of New Jersey

Richard J. Hughes

Justice Complex

25 Market Street

Trenton, New Jersey 08625-0085

Honorable Heidi Heitkamp

Attorney General of North Dakota

State Capitol

600 East Boulevard Avenue

Bismarck, North Dakota 58505

Honorable Susan B. Loving

Attorney General of Oklahoma

2300 North Lincoln Boulevard

Room 112, State Capitol

Oklahoma City,

Oklahoma 73105-4894

Honorable

Theodore R. Kulongoski

Attorney General of Oregon

100 Justice Building

Salem, Oregon 97310

Honorable Ernest D. Preate, Jr.

Attorney General of Pennsyivania

16th Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

Honorable T. Travis Mediock

Attorney General of

South Carolina

P.O. Box 11549

Columbia, South Carolina 29211

Honorable Mark Barnett

Attorney General of South Dakota

500 East Capitol Avenue

Pierre, South Dakota 57501-5070

{Additional Counsel

on Following Page)

Honorable Jeffrey L. Amestoy

Attorney General of Vermont

109 State Street

Montpelier, Vermont 05609-1001

Honorable Stephen D. Rosenthal

Attorney General of Virginia

101 North 8th Street

Richmond, Virginia 23219

Honorable Joseph B. Myer

Attorney General of Wyoming

123 Capitol Building

Cheyenne, Wyoming 82002

TABLE OF CONTENTS

Page

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INTEREST OF THE AMICI CURIAE ..................... 1

CURE PUMEESUED cc ccccccccccccccccccccscccces 2

SNe GE PEED co cccenscccsccccssccccsceces 2

ARGUMENT

|. LIMITING CONSTITUTIONAL CHALLENGES TO

PREDICATE STATE CONVICTIONS IN FEDERAL

SENTENCING PROCEEDINGS TO CASES IN

WHICH “PREJUDICE” MAY BE PRESUMED FROM

THE ALLEGED CONSTITUTIONAL VIOLATIONS

PROPERLY BALANCES THE DEFENDANT'S

INTEREST IN RELIABLE SENTENCING WITH THE

STATE’S INTEREST IN THE FINALITY OF ITS

HPT ECT TT CT CT TTT TT TTT CLT 3

I. LIMITING CONSTITUTIONAL CHALLENGES TO

PREDICATE STATE CONVICTIONS IN FEDERAL

SENTENCING PROCEEDINGS TO CASES IN

WHICH “PREJUDICE” MAY BE PRESUMED FROM

THE ALLEGED CONSTITUTIONAL VIOLATIONS

ACCORDS PROPER “FULL FAITH AND CREDIT”

ek ogee + rrr rrr 8

lll. LIMITING CONSTITUTIONAL CHALLENGES TO

PREDICATE STATE CONVICTIONS IN FEDERAL

SENTENCING PROCEEDINGS TO CASES IN

WHICH “PREJUDICE” MAY BE PRESUMED FROM

THE ALLEGED CONSTITUTIONAL VIOLATIONS

PROPERLY MINIMIZES INCREASED BURDENS

ON THE STATE THAT OTHERWISE WOULD

EXIST TO SUPPORT THE VALIDITY OF ITS

TE Sccsecusccdcccnviccssesasdscasese 11

GD Shh cede vccccvcvectisveseccssbevesveces 13

ii

TABLE OF AUTHORITIES

Page

Addonizo v. United States, 442 U.S. 178 (1979) ........... 7

Allen v. McMurry, 449 U.S. 90 (1980) ................008. ce)

Burgett v. Texas, 389 U.S. 109 (1967) ............... 2,4,5

Castille v. Peoples, 489 U.S. 346 (1986) ................. 7

Coleman v. Thompson, 501 U.S. ——— ,

EE indi ncddaccsecosectecsevcennts 8

Davis v. Davis, 305 U.S. 32 (1938) ..............ceeeeee 10

Duckworth v. Serrano, 454 U.S. 1 (1981) ................ 7

Engle v. Isaac, 456 U.S. 107 (1982) .................. 7,13

Gideon v. Wainwright, 372 U.S. 445 (1963) ............. 4,5

Johnson v. Zerbst, 304 U.S. 458 (1938) .................. 7

Kimmeiman v. Morrison, 477 U.S. 365 (1986) ............. 5

Krener v. Chemical Const. Corp., 456 U.S. 461 (1982) ..... 9

Kuhiman v. Wilson, 477 U.S. 436 (1986) ................ 12

Lewis v. United States, 445 U.S. 55 (1980) ............. 4,5

Linkletter v. Walker, 381 U.S. 61 (1965) .................. 4

Marshall v. Lonberger, 459 U.S. 422 (1988) .............. 6

Menna v. New York, 423 U.S. 61 (1975) ..............05. 6

Migra v. Warren City School Dist. Bd. of Educ.,

a cccanevowens 9

Page

Murray v. Carrier, 477 U.S. 478 (1986) ...............005. 8

Parke v. Raley, _- US. ,

EE ee 6,7

Rose v. Lundy, 455 U.S. 509 (1982) .................05. 12

Spencer v. Texas, 385 U.S. 554 (1967) ...............0.. 4

Stone v. Powell, 428 U.S. 465 (1976) .................2.. 5

Strickland v. Washington, 466 U.S. 668 (1984) ............ 5

United States v. Bradshaw,

999 F.2d 798 (4th Cir. 1993) ..................00058. 6, 8

United States v. Custis,

988 F.2d 1355 (4th Cir. 1993) .................. jawase 5

United States v. Frady, 456 U.S. 152 (1982) .............. 7

United States v. Jones, 907 F.2d 456 (4th Cir. 1990),

cert. denied, 498 U.S. 1029 (1991) ............. 9, 10, 11

United States v. McGlocklin, No. 91-1621,

— F.3d — (6th Cir. September 17, 1993),

WUE, SGT GOO BOG oon ccc cece cece ccccccccccss 10

United States v. Paleo, 967 F.2d 7 (ist Cir. 1992) ........ 11

United States v. Timmreck, 441 U.S. 780 (1979) .......... 6

United States v. Tucker, 404 U.S. 443 (1972) ......... 2,4,5

Wainwright v. Sykes, 433 U.S. 72 (1977) ................ 13

Wisconsin v. Mitchell, _-. US. —_.,

EE NE 3

iv

Page

STATUTES

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ED 3b. civiivnncceevddesenedensascanseunen 4,9

ED watdesncdeccdcdeucsatansdeeneanne 8, 9, 10

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Pages Ohio Revised Code §2743.48 ..............00005 12

INTEREST OF AMICI CURIAE

Amici States obtain thousands of criminal convictions each

year, and must defend those convictions on direct appeal, in

post-conviction relief actions, and later in one or more habeas

corpus ©oceedings. These convictions are the result of

extensive and careful work done by police officers, prosecutors,

and other personnel. The States’ central interests in protecting

the public and securing redress and justice for the victims of

crime depend upon an orderly process that assures the finality

of its criminal convictions. Except where constitutional

requirements for due process are implicated, a constitutional

challenge to a predicate state conviction during federal

sentencing proceedings violates the principles of comity and

federalism and is contrary to the presumption of regularity that

attaches to final judgments.

Allowing collateral challenges to predicate state convictions

impermissibly requires the States to passively witness attacks

on their final judgments despite the full faith and credit that

otherwise is owed those judgments. The attacks will take place

in federal courts that are removed in time and place from the

actual convictions. The federal courts and federal prosecutors

may not even notify the States prior to a ruling upon the

convictions. In the alternative, the States may feel themselves

obligated to defend such convictions, thereby bearing the

considerable burden of activity to ensure that their judgments

are upheld. This burden may well consist of providing extensive

documentation, finding witnesses, and advising and participating

in hearings.

lf a state judgment is judged invalid in a federal sentencing

process, the State predictably will bear the burden of defending

actions brought by the defendant in habeas corpus, post-

conviction relief, or parole revocation hearings based upon the

federal court's ruling that the underlying conviction was invalid.

The defendant also may bring suit in wrongful imprisonment and

on other related civil claims. Even if many of these suits

ultimately are unsuccessful, the inevitable costs of defending

them will impose additional and significant burdens on the State.

QUESTION PRESENTED

WHETHER THE UNITED STATES CONSTITUTION

REQUIRES A DISTRICT JUDGE TO HOLD A

HEARING ON A CONSTITUTIONAL CHAL:.ENGE

TO A PREDICATE STATE CONVICTION USED FOR

ENHANCEMENT OF A FEDERAL SENTENCE

IN CASES IN. WHICH THE ALLEGED

CONSTITUTIONAL CHALLENGE IS NOT ONE FOR

WHICH “PREJUDICE” IS PRESUMED TO EXIST.

SUMMARY OF ARGUMENT

In Burgett v. Texas, 389 U.S. 109 (1967) and United States v.

Tucker, 404 U.S. 443 (1972), the Court expounded on a

constitutionally mandated exception to the traditional rule that a

prior conviction can be considered for the purpose of an

enhanced punishment. The reason for such exception is that a

uncounseled conviction undermines the very integrity of the

factfinding process and thus makes consideration of that

conviction in the sentencing process inherently unreliable. Such

a limited exception, however, does not require that all merely

alleged claims of constitutional violation must be considered

and rejected by a federal sentencing judge before a final state

conviction may be considered for enhancement purposes.

While prejudice may be presumed to exist from an outright

denial of counsel, the same prejudice is not presumed to exist

from many other aliegations of constitutional error.

The Fourth Circuit's holding in this case properly balances the

defendant's right to reliable sentencing and a state's important

interests in the finality of its convictions. It is appropriate to limit

challenges to final state convictions solely to those cases where

prejudice may be presumed to exist, for such an approach

respects and preserves the presumption of regularity that

attends final judgments. Allowing broad-based constitutional

attacks on final state judgments in federal sentencing

proceedings would implicate accepted principles of comity and

federalism, and undermine the integrity of state procedures.

In addition, the Fourth Circuit's limited review accords proper

deference to the constitutional principles of the Full Faith and

Credit Clause. Absent statutory waiver, which is not present

here, or a waiver that is constitutionally required in order to

protect the reliability of the federal sentencing process, a final

state court judgment should be respected by a federal court

exactly because it is “final.”

Allowing full-scale challenges to state convictions merely

because a constitutional allegation has been made would

impose significant practical burdens on the States. States, at

best, will be required to provide documentation or witnesses to

support such convictions, which will often be difficult to identify

and obtain because of the passage of time. At worst, the state

will be required to defend collateral litigation, much of which may

be frivolous, that will be engendered by a facile reopening of

final state convictions in federal sentencing proceedings. In the

process, the notion that a trial — rather than endless collateral

review — is the main event in our criminal justice system would

be further and unjustifiably diminished.

ARGUMENT

|. LIMITING CONSTITUTIONAL CHALLENGES TO

PREDICATE STATE CONVICTIONS IN FEDERAL

SENTENCING PROCEEDINGS TO CASES IN

WHICH “PREJUDICE” MAY BE PRESUMED FROM

THE ALLEGED CONSTITUTIONAL VIOLATIONS

PROPERLY BALANCES THE DEFENDANT’S

INTEREST IN RELIABLE SENTENCING WITH THE

STATE’S INTEREST IN THE FINALITY OF ITS

JUDGMENTS.

In Wisconsin v. Mitchell, _- U.S. —-_,, 113 S.Ct. 2194

(1993), this Court reiterated that a sentencing court may take a

large variety of factors into account in determining an

appropriate sentence. The question in this case is whether the

Constitution requires a federal sentencing judge to hold a

hearing on all alleged constitutional challenges to a final state

court conviction before the judge may consider such conviction

in imposing the sentence. Obviously, the Congress, as it has

done in other contexts, see, e.g., 21 U.S.C. §851, could impose

such a limitation as a matter of statutory law. However, Congress

has not enacted any language that would command such a

result under the Armed Career Criminal Act, 18 U.S.C. §924(e).

Thus, any limitation on the power of a federal sentencing judge

to consider a predicate state offense for sentencing purposes

— without first holding a hearing on any alleged constitutional

challenge to that conviction — derives, if at all, from the

Constitution itself. The Constitution does not require, as a per se

rule, that final state convictions may not be considered in federal

sentencing simply because any ‘constitutional challenge’ is

being asserted to that state conviction.

In Burgett v. Texas, 389 U.S. 109 (1967), this Court held that

during recidivist proceedings, the admission of a prior criminal

conviction which was constitutionally infirm under the standards

of Gideon v. Wainwright, 372 U.S. 445 (1963), denied the

defendant his constitutionally protected right to a fair trial. And, in

United States v. Tucker, 404 U.S. 443 (1972), this Court

reaffirmed that “[tlo permit a conviction obtained in violation of

Gideon v. Wainwright to be used against a person either to

support guilt or enhance punishment for another offense . . . is to

erode the principle of that case.” Tucker, 404 U.S. at 449

(quoting Burgett v. Texas, 389 U.S. at 114). In both cases, this

Court identified the interests at stake as the fundamental

unreliability of a completely uncounseled conviction for

sentencing purposes. The subsequent conviction or sentence in

each case depended upon the reliability of a past uncounseled

conviction. See Lewis v. United States, 445 U.S. 55, 57 (1980).

In sentencing terms, the conviction could not be relevant or

material to proper sentencing, since on its face it did not

necessarily establish guilt. See Spencer v. Texas, 385 U.S. 554

(1967). The total denial of counsel was held to implicate and

impeach “the very integrity of the fact finding process.” Linkletter

v. Walker, 381 U.S. 61 (1965).

It certainly does not follow, however, that all alleged

constitutional violations have the same effect on the reliability of

a predicate state conviction. This Court has noted on many

occasions that convictions may be overturned on Fourth

Amendment grounds for reasons that are wholly extraneous

even to whether the evidence excluded was probative, much

less to whether the guilt of the defendant has been undermined.

Stone v. Powell, 428 U.S. 465 (1976) (barring habeas review

of alleged violations of the Fourth Amendment where the

defendant had a “full and fair” hearing in state court). In Lewis v.

United States, supra, the Court even approved an uncounseled

conviction as a predicate for a subsequent conviction for

possession of a firearm by a convicted felon. Indeed, the Court

held that there was a rational connection between any prior

conviction and the potential dangerousness of the defendant.

In the present case, the district court declined to consider

Custis’ challenge to the constitutional validity of his predicate

state convictions. Custis claimed that one predicate conviction

for burglary was obtained as a result of unconstitutionally

ineffective assistance of counsel and that another conviction for

attempted breaking and entering was obtained as a result of a

constitutionally defective guilty plea.

In affirming the decision of the district court not to entertain

challenges io the predicate convictions in this case, the court of

appeals distinguished the Gideon violations at issue in Burgett

and Tucker from the violations alleged by Custis. Unlike

uncounseled convictions, which, on their face, presumptively

affect the reliability of the guilt-determining process, the claims

made by Custis do not, per se, call into question the defendant's

guilt. United States v. Custis, 988 F.2d 1355, 1361 (4th Cir.

1993).

A claim of ineffective assistance of counsel, if shown, is a

constitutional violation. Yet it does not, by mere allegation,

presumptively affect the reliability of a state conviction.

Cf. Kimmelman v. Morrison, 477 U.S. 365, 390-91 (1986). In

such a case, a finding of guilt will be overturned only after a

fact-intensive hearing, in which counsel's performance is judged

against the standard of whether the outcome would have been

materially altered. Strickland v. Washington, 466 U.S. 668

(1984). And a guilty plea — which is a direct admission of guilt

— will be presumed proper upon collateral review, and will be

reversed, again, only after a fact-intensive showing by the

defendant that prejudice exists under the circumstances.

‘ 4

Parke v. Raley, ___. U.S. —-__.,, 113 S.Ct. 517 (1992). When a

guilty plea is at issue, “the concern with finality . .. has special

force.” United States v. Timmreck, 441 U.S. 780 (1979). This is

so because a “counseled plea of guilty is an admission of

factual guilt so reliable that, where voluntary and intelligent, it

quite validly removes the issue of factual guilt from the case.”

Menna v. New York, 423 U.S. 61, 62 n.2 (1975); Marshall v.

Lonberger, 459 U.S. 422 (1988).

Accordingly, the court of appeals held that “district courts are

obliged to hear constitutional challenges to predicate state

convictions in federal sentencing proceedings only when

prejudice can be presumed from the alleged constitutional

violation, regardless of the facts of the particular case; and when

the right asserted is so fundamental that its violation would

undercut confidence in the guilt of the defendant.” /d. at 1362.

See also United States v. Bradshaw, 999 F.2d 798 (4th Cir.

1993), petition for cert. filed Oct. 21, 1993 (No. 93-6448),

wherein the Court of Appeals for the Fourth Circuit elaborated

on its test:

.. . adistrict court must consider (1) whether prejudice

can be “presumed” from the alleged constitutional

violation regardiess of the facts and, conjunctively,

(2) whether the right asserted is “so fundamental’ that

its violation would undermine the court's confidence

in the defendant's guilt. In conducting this two-part

inquiry, district courts cannot “presume prejudice”

beyond the four categories of error that Rose lists as

“necessarily render{ing] a trial unfair.” 478 U.S. at

577, 106 S.Ct. at 3106. Within the Rose categories,

district courts may further restrict collateral challenges

to those fundamental errors that have not been

subjected to harmless-error analysis by the Supreme

Court or the published views of this tribunal.

ld. at 800.

The holding of the court of appeals in this case properly

balances the fundamental right of an accused to reliable

sentencing and the State’s important interests in the finality of

its judgments. Allowing a criminal defendant to attack predicate

state convictions beyond the present holding of the court of

appeals would adversely affect interests of comity and

federalism and is destructive of both the presumption of

regularity of state judgments and the finality of state convictions.

It is a well-settled principle of law that the judgment of a court

of competent jurisdiction is presumed to be proper until the

contrary appears. Parke v. Raley, supra; Johnson v. Zerbst,

304 U.S. 458 (1938). When a defendant's “chance to appeal has

been waived or exhausted, . . . [a court is] entitled to presume he

stands fairly and finally convicted.” United States v. Frady, 456

U.S. 152, 164 (1982).

This Court has repeatedly recognized the interests of comity

and federalism that underlie our dual federal-state judicial

systems. See, e.g., Engle v. Isaac, 456 U.S. 107 (1982). Review

of a final state court conviction by the federal system necessarily

implicates those interests. As the Court has stated, “inroads on

the principle of finality tend to undermine confidence in the

integrity of our procedures.” Addonizo v. United States, 442

U.S. 178, 184-85 (1979).

Even in federal habeas corpus proceedings, where a

collateral challenge to a state conviction is allowed, this Court

has given consideration to the societal costs of such review. For

example, before a state court conviction can be challenged on

application for a federal writ of habeas corpus, the defendant

must have exhausted his remedies in state court. Castille v.

Peoples, 489 U.S. 346 (1989). As this Court has emphasized, it

“would be unseemly in our dual system of government for the

federal courts to upset a state-court conviction without affording

the state courts the opportunity to correct a constitutional

violation.” Duckworth v. Serrano, 454 U.S. 1, 4 (1981).

Similarly, a habeas corpus petitioner who cannot present his

constitutional challenge in state court, because of a procedural

default, will be deemed to have waived it for federal habeas

corpus purposes except in a few limited circumstances. Indeed,

unless the petitioner can demonstrate cause for the procedural

default and actual prejudice resulting from the alleged

constitutional error, or that failure to consider the claim will result

in a fundamental miscarraige of justice, no federal review will be

permitted at all. Coleman v. Thompson, 501 U.S. _. , 112

S.Ct. 1845 (1992); Murray v. Carrier, 477 U.S. 478 (1986).

Collateral challenges to predicate state convictions during

federal sentencing proceedings would undermine the interests

of comity, federalism, and finality even more so than in habeas

corpus review. The district court may be hearing challenges to

state court judgments that are final because such convictions

have never been challenged. Even if a challenge has been

raised at all, the constitutional claims may never have been

presented. If a constitutional doctrine of “reliable sentencing”

would require a hearing on any asserted constitutional claim,

then the federal sentencing court would undertake review of

state convictions unfettered by these limitations. The traditional

legal doctrines of finality of judgments, exhaustion of remedies,

and waiver and default, which have been carefully and

painstakingly devised to protect the State's interests in

collateral review, may be utterly ignored. In contrast, the Fourth

Circuit's holdings in this case and in Bradshaw, supra, respect

and preserve these doctrines and make appropriate

accommodation to the rights of the accused. The Court is urged

to preserve that balance by affirming the court of appeals here.

ll. LIMITING CONSTITUTIONAL CHALLENGES TO

PREDICATE STATE CONVICTIONS IN FEDERAL

SENTENCING PROCEEDINGS TO CASES IN

WHICH “PREJUDICE” MAY BE PRESUMED FROM

THE ALLEGED CONSTITUTIONAL VIOLATIONS

ACCORDS PROPER “FULL FAITH AND CREDIT”’

TO STATE CONVICTIONS.

28 U.S.C. §1738 sets forth in pertinent part:

Such Acts, records, and judicial proceedings [of any

state] or copies thereof, so authenticated shall have

the same full faith and credit in every court within the

United States and its Territories and Possessions as

they have by law or usage in the court of such State,

Territory or Possession from which they are taken.

In addition to properly balancing the State's interest in the finality

and presumption of regularity of its proceedings, the Fourth

Circuit's standard for collateral review of a predicate state

conviction in federal sentencing proceedings also accords

proper deference to the overarching commands of “full faith and

credit.”

The Full Faith and Credit Clause of the United States

Constitution, as implemented by 28 U.S.C. §1738, mandates that

the judicial proceedings of a state court be accorded the same

full faith and credit in the federal court that they enjoy by law or

usage in the courts of the state from which they are taken. See,

e.g., Migra v. Warren City School Dist. Bd. of Educ., 465 U.S.

75 (1984); Allen v. McMurry, 449 U.S. 90 (1980). Since a final

judgment of conviction generally would be accorded respect

and a strong presumption of regularity in a state court, the Full

Faith and Credit Clause commands that it be accorded the

same status in federal sentencing proceedings.

There may, of course, be exceptions to this rule. Exercising its

discretion, Congress has limited the effect of 28 U.S.C. §1738 by

authorizing collateral attacks on prior state convictions in certain

circumstances. See, e.g., 28 U.S.C. §2254 (federal habeas

corpus proceedings); 21 U.S.C. §851 (sentence enhancement

for certain drug offenses). However, a partial repeal of the Full

Faith and Credit Statute cannot be inferred, but must be clearly

and manifestly found in a coordinate federal statute. Krener v.

Chemical Const. Corp., 456 U.S. 461 (1982).

As pointed out previously, the Armed Career Criminal Act, 18

U.S.C. §924(e), contains no statement of congressional intent

that the Full Faith and Credit Statute is to be ignored. United

States v. Jones, 907 F.2d 456 (4th Cir. 1990}, cert. denied, 498

U.S. 1029 (1991).

Nor do the federal sentencing guidelines contain any clear

statement of congressional intent that a final judgment of a state

court may be collaterally attacked and invalidated for the

10

purpose of sentencing. United States v. McGlocklin, No. 91-

1621, _-. F.3d —— (6th Cir. Sept. 17, 1993), WL 356406

(en banc). Thus, again, if any exception is to be made here to the

governing principles of “Full Faith and Credit,” it must arise from

the Constitution itself, or not at all. Except where constitutional

requirements for due process are implicated, state court

judgments are entitled to “full,” ie., complete, faith and credit

pursuant to the Constitution and 28 U.S.C. §1738. See Davis v.

Davis, 305 U.S. 32 (1938). But due process does not itself

require a full hearing on any alleged constitutional challenge to

a predicate state conviction in a federal sentencing proceeding.

Instead, a trial sentencer may take into account a judgment of

conviction of a state court which has become finai because it

has never been directly challenged on the grounds now

belatedly asserted in the collateral federal proceeding.

It is sophistry to argue that, when a federal court holds a final

state judgment to be invalid for the purposes of federal

sentencing proceedings, a denial of full faith and credit is not

implicated because the effect of the federal court's action is

limited to that proceeding only. In United States v. Jones, 907

F.2d at 479, 483, Judge Wilkinson cogently stated in dissent:

Federal court invalidation of a state conviction —

even if it lacks collateral legal consequences within

the state — constitutes a major affront to the integrity

of the state's judicial process.

State convictions are either valid or they are invalid.

They are not valid for some purposes, but invalid for

others. They are not valid in the eyes of the state

judiciary, but invalid in the eyes of the federal system.

The Fourth Circuit's standard herein gives proper deference to

the requirement of full faith and credit by requiring invalidation of

a predicate state conviction only when necessary to protect the

reliability of the federal sentencing process. Since challenges

to predicate state convictions which do not allege presumptively

prejudicial constitutional errors do not, on their face, implicate

11

that reliability, no full hearing on all such claims is constitutionally

required.

ill. LIMITING CONSTITUTIONAL CHALLENGES TO

PREDICATE STATE CONVICTIONS IN FEDERAL

SENTENCING PROCEEDINGS TO CASES

IN WHICH “PREJUDICE” MAY BE PRESUMED

FROM THE ALLEGED CONSTITUTIONAL

VIOLATIONS PROPERLY MINIMIZES INCREASED

BURDENS ON THE STATE THAT OTHERWISE

WOULD EXIST TO SUPPORT THE VALIDITY OF

ITS CONVICTIONS.

In the case below, the United States Court of Appeals for the

Fourth Circuit joined other circuits in assuming that the States

have no interest regarding the issue of review of predicate state

convictions during federal sentencing proceedings. See, e.g.,

United States v. Paleo, 967 F.2d 7, 12 (1st Cir. 1992); United

States v. Jones, 907 F.2d at 468-69. Nonetheless, such courts

have, in part, justified limitations on the review of state

convictions because of the obvious time and resource burdens

thereby imposed on federal prosecutors. Contrary to the views

expressed by these courts, amici States do have an integral

interest in upholding the validity of their state convictions. And to

the extent the defense of this integral interest is made to burden

the States, as a practical matter, with additional demands on

their sovereign resources, it magnifies the ultimate cost to our

judicial system from authorizing such challenges.

The decisions cited above imply that state prosecutors will not

assist federal prosecutors in defending state convictions against

collateral attack, simply because the state convictions are not

directly at issue in federal sentencing proceedings. United

States v. Paleo, 967 F.2d at 12. Even were that otherwise

true, the federal prosecutors inevitably will turn to the state

prosecutors for assistance in locating transcripts, witnesses,

and other evidence, as well as for background information and

advice about the legal arguments raised. More to the point,

however, as a simple matter of comity, most state prosecutors

will cooperate with and even directly assist their federal

counterparts.

12

Of necessity, this activity will impose new demands upon the

limited time and resources available to state prosecutors.

Challenges to prior state convictions in federal sentencing

hearings almost invariably will occur long after the state trial,

conviction, and even appeal have taken place. Thus, they are

remote in time. Review, therefore, is severely hampered by the

“erosion of memory” and “dispersion of witnesses” that occur

when such a length of time has passed. Kuhimann v. Wilson,

477 U.S. 436, 453 (1986). Indeed, if there is to be no exhaustion

requirement in such reviews, comparable to those fastidiously

observed in federal habeas corpus proceedings, then review of

an old conviction may become nearly impossible, due to the

absence of “a complete factual record to aid the federal courts

in their review.” Rose v. Lundy, 455 U.S. 509, 519 (1982).

Inevitably, as in habeas corpus proceedings, the federal court

must seek documentation or other evidence to support a state

conviction that has been called into question in a federal

sentencing hearing. The burden of providing this documentation

can be increased immeasurably if the prior conviction was

never reviewed in the state courts on direct appeal or in state

post-conviction relief, because the necessary records may not

exist at all in such a case. The sentencing hearing would thus

require the state prosecutor, if possible, to duplicate or even

recreate a case once thought to be closed.

Moreover, it is not true that a state will not be adversely

affected by a decision in a federal sentencing proceeding that a

state conviction is invalid. While there may be no direct release

from prison as in a habeas corpus action, a decision holding a

state conviction invalid could and surely would be utilized by an

inmate or former inmate as a predicate for a new habeas corpus

challenge, a challenge to a parole revocation based on the

conviction, a civil rights action, a request for expungement, or, in

states like Ohio with such a statute, a request for money

damages for “wrongful imprisonment.” See Ohio Revised Code

§2743.48. Not only will state attorneys be required to handle

these cases, and state courts to try them, but a successful suit

would result in monetary damages payable by the State, all

traceable to the initial coliateral attack in the federal sentencing

proceeding.

+R Ail et cE ee oe

13

The Court is aware that some portion of inmate litigation can

be routinely labelled as “frivolous.” Former state defendants

may utilize a favorable decision in federal sentencing in ways

that cannot even be foreseen, despite limited chances of

success. Even if these attempts would fail, they will predictably

result in additional time and money being spent by the State in

order to have them dismissed.

Finally, it is simply not true that the State has no interest in the

integrity of its convictions, even if there would be no immediate

practical ramifications for the State in a particular instance. As

this Court has noted, a state trial is to be respected and treated

as the “‘main event’ and not a ‘tryout on the road’ for what will

later be the determinative federal .. hearing.” Wainwright v.

Sykes, 433 U.S. 72, 90 (1977); Engle v. Isaac, supra. Aside from

general interests of finality and of full faith and credit, a state

prosecutor, who has marshalled and expended considerable

time and resources, cannot be expected lightly to stand by to

see that conviction held for naught. Allowing such challenges

would impose significant practical costs on the States, and

would present yet another unwelcome and unnecessary

diversion from the state trial as the “main event” in the criminal

justice process.

14

CONCLUSION

For the foregoing reasons, as well as those set forth in the

Brief of Respondent, this Court should affirm the decision of the

Court of Appeals for the Fourth Circuit.

Respectfully submitted,

LEE FISHER

Attorney General

RICHARD A. CORDRAY

State Solicitor

COUNSEL OF RECORD

SIMON B. KARAS

Deputy Chief Counsel

DONALD R. JILISKY

Assistant Attorney General

DONALD GARY KEYSER

Assistant Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-5026

COUNSEL FOR AMICUS CURIAE

STATE OF OHIO