# Amicus Curiae Brief — Custis v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0521%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 485

## Text

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
ee ED Ko dccbcccecécccevecescsccesese i
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
I NS i erriclivivis tacectieusscsticeeen 4,9
ED 3b. civiivnncceevddesenedensascanseunen 4,9
ED watdesncdeccdcdeucsatansdeeneanne 8, 9, 10
I bs «ins ivs cocvhicvasensssseaadesinsa cad g
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0521%3A09. Public record. Not legal advice.