SUPREME COURT OF THE UNITED STATES

No. 93–5209

DARREN J. CUSTIS, PETITIONER v.

UNITED STATES

on writ of certiorari to the united states court of appeals for the fourth circuit

[May 23, 1994]

Justice Souter, with whom Justice Blackmun and Justice Stevens join, dissenting.

The Court answers a difficult constitutional question that I believe the underlying statute does not pose. Because in my judgment the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e) (ACCA), does not authorize sentence enhancement based on prior convictions that a defendant can show at sentencing to have been unlawfully obtained, I respectfully dissent.

The ACCA mandatory minimum sentence applies to defendants with "three previous convictions . . . for a violent felony or a serious drug offense." 18 U. S. C. §924(e). The Court construes "convictio[n]" to refer to the "fact of the conviction," ante, at 5 (emphasis in original), and concludes that "Congress did not intend to permit collateral attacks [during sentencing] on prior convictions under §924(e)," ante, at 8. This interpretation of the ACCA will come as a surprise to the Courts of Appeals, which (with the one exception of the court below) have understood "convictio[n]" in the ACCA to mean "lawful conviction," and have permitted defendants to show at sentencing that a prior conviction offered for enhancement was unconstitutionally obtained, whether as violative of the right to have appointed counsel, see Gideon v. Wainright, 372 U. S. 335 (1963), the right to effective assistance of counsel, see Strickland v. Washington, 466 U. S. 668 (1984), the right against conviction based on an unknowing or involuntary guilty plea, see Boykin v. Alabama, 395 U. S. 238 (1969), or other constitutional rights. The weight of appellate authority, in my opinion, reflects the proper construction of the ACCA.

The Court's contrary reading ignores the legal framework within which Congress drafted the ACCA, a framework with which we presume Congress was familiar. See, e.g., Cannon v. University of Chicago, 441 U. S. 677, 696–698 (1979). When the language that became the ACCA was first proposed in 1982, when it was enacted in 1984 (codified at §1202(a)(1)) and when it was reenacted in 1986 (codified at §924(e)), this Court's decisions in Burgett v. Texas, 389 U. S. 109

(1967), and United States v. Tucker, 404 U. S. 443 (1972), were on the books. Even under the narrow reading the Court accords those decisions today, they recognize at least a right to raise during sentencing Gideon challenges to prior convictions used for enhancement. See ante, at 10. Unless Congress intended to snub that constitutional right (and we ordinarily indulge a "strong presumption . . . that Congress legislated in accordance with the Constitution," Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 477 (1957) (Frankfurter, J., dis senting)), "convictio[n]" in §924(e) simply cannot refer to the mere fact of conviction, and the provision must have been meant to allow during sentencing at least some challenges to prior convictions offered for enhancement.

Nor is it likely that Congress's intent was informed by as narrow a reading of Burgett and Tucker as the Court adopts today. In the legal environment of the ACCA's enactment, Burgett and Tucker were thought to stand for the broader proposition that "[n]o consideration can be given [at sentencing] to a conviction that was unconstitutionally ob tained," 3 C. Wright, Federal Practice and Procedure §526, p. 102 (1982), and Courts of Appeals consistently read the decisions as requiring courts to entertain claims that prior convictions relied upon for enhancement were unconstitutional for reasons other than Gideon violations. The Congress that enacted the ACCA against this backdrop must be presumed to have intended to permit defendants to attempt to show at sentencing that prior convictions were "unconstitutionally obtained."

That presumption is strongly bolstered by the fact that Congress, despite the consistent interpretation of the ACCA as permitting attacks on prior convictions during sentencing, and despite amending the law several times since its enactment (see note following 18 U. S. C. A. §924 (listing amendments)), left the language relevant here untouched. Congress's failure to express legislative disagreement with the appellate courts' reading of the ACCA cannot be disregarded, especially since Congress has acted in this area in response to other Court of Appeals decisions that it thought revealed statutory flaws requiring "cor rect[ion]." S. Rep. No. 98–583, p. 7 and n. 17 (1984); see id., at 8 and n. 18, 14 and n. 31; see also Herman & MacLean v. Huddleston, 459 U. S. 375, 385–386 (1983) ("In light of [a] well-established judicial interpretation [of a statutory provision], Congress' decision to leave [the provision] intact suggests that Congress ratified" the interpretation). Accordingly, absent clear indication that Congress intended to preclude all challenges during sentencing to prior convictions relied upon for enhancement, the ACCA must be read as permitting such challenges.

The Court fails to identify any language in the ACCA affirmatively precluding collateral attacks on prior convictions during sentencing, as there is none. Instead, the Court hears a clear message in the statutory silence, but I find none of its arguments persuasive. The Court first invokes 18 U. S. C. §921(a)(20), under which a conviction "which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter." According to the Court, this "exemption clause" (as we have elsewhere called it, see Beecham v. United States, 511 U. S. __ (1994) (slip op., at 1) "creates a clear negative implication that courts may count a conviction that has not been set aside." Ante, at 5. Expressio unius, in other words, est exclusio alterius.

Even if the premise of the Court's argument is correct, the bridge the Court crosses to reach its conclusion is notoriously unreliable and does not bear the weight here. While "often a valuable servant," the maxim that the inclusion of something negatively implies the exclusion of everything else (expressio unius, etc.) is "a dangerous master to follow in the construction of statutes." Ford v. United States, 273 U. S. 593, 612 (1927) (internal quotation marks and citation omitted). It rests on the assumption that all omissions in legislative drafting are deliberate, an assumption we know to be false. See Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 813 (1983); Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 873–874 (1930). As a result, "[s]cholars have long savaged the expressio canon," Cheney R. Co. v. ICC, 902 F. 2d 66, 68 (CADC 1990) (Williams, J.), at least when it is made to do the work of a conclusive presumption, and our decisions support the proposition that "[s]ometimes [the canon] applies and sometimes it does not, and whether it does or does not depends largely on context." R. Dickerson, Interpretation and Application of Statutes 47 (1975); see also id., at 234–235.

In this case, the "contemporary legal context," Cannon v. University of Chicago, 441 U. S., at 699, in which Congress drafted the ACCA requires rejecting the negative implication on which the Court relies. That context, as I have described, understood defendants to have a constitutional right to attack at sentencing prior convictions that had not previously been invalidated, and in that legal setting it would have been very odd for Congress to have intended to establish a constitutionally controversial rule by mere implication. See Lowe v. SEC, 472 U. S. 181, 206 n. 50 (1985) ("In areas where legislation might intrude on constitutional guarantees, we believe that Congress, which has always sworn to protect the Constitution, would err on the side of fundamental constitutional liberties when its legislation implicates those liberties") (internal quotation marks and citation omitted). And in fact the legislative history indicates that quite a different intention informed the addition to §921(a)(20) in 1986, two years after the ACCA's enactment, of the exemption clause (and the related "choice-of-law clause," Beecham v. United States, supra, __ (slip op., at 1). Congress simply intended to clarify that the law of the convicting jurisdiction should be the principal reference point in determining what counts as a "conviction" for purposes of the federal "felon in possession" law, and to correct an oversight that had resulted in the omission of exemption language from one of two parallel provisions. See S. Rep. No. 98–583, supra, at 7; H. R. Rep. No. 99–495, p. 20 (1986). In amending §921(a)(20), Congress was not addressing the question of where, in the course of federal litigation, a conviction could be challenged. Indeed, the legislative history of the amendment reveals no hint of any intention at all with respect to §924(e)'s sentence-enhancement provision, but rather an exclusive focus on the federal firearms disability in §922. Cf. Miles v. Illinois Central R. Co., 315 U. S. 698, 714–715 (1942) (Frankfurter, J., dissenting) (relying on legislative history to counter a negative implication from a statute's text). As a result, the Court's argument by negative implication from §921(a)(20)'s exemption clause must fail. The fact that Congress in the exemption clause expressly precluded reliance upon unconstitutional convictions that have been set aside simply does not reveal an intent with respect to §924(e) to require reliance at sentencing on unconstitutional convictions that have not yet been set aside.

The Court's second statutory argument also seeks to establish congressional intent through negative implication, but is no more successful. The Court observes that Congress in other statutes expressly permitted challenges to prior convictions during sentencing, see ante, at 6–7 (citing 21 U. S. C. §851(c)(2) and 18 U. S. C. §3575(e)), which is said to show that "when Congress intended to authorize collateral attacks on prior convictions at the time of sentencing, it knew how to do so." Ante, at 6. But surely the Court does not believe that, if Congress intended to preclude collateral attacks on prior convictions at the time of sentencing, it did not know how to do that. And again, the Court's effort to infer intent from the statutory silence runs afoul of the context of the statute's enactment; within a legal framework forbidding sentencing on the basis of prior convictions a defendant can show to be invalid, a Congress that intended to require sentencing on the basis of such convictions can be expected to have made its intention explicit.

Finally, the Court turns for support to Lewis v. United States, 445 U. S. 55 (1980), which held that the federal "felon in possession" law does not permit a defendant, during his prosecution, to challenge the constitutional validity of the predicate felony conviction. The Court's reliance on Lewis, however, assumes an equivalence between two different types of laws that Lewis itself disclaimed: between a law disabling convicted felons from possessing firearms (at issue in Lewis), and a law requiring sentence enhancement based on prior convictions (at issue here, as well as in Burgett and Tucker). Lewis explained that the "felon in possession" law is "a sweeping prophylaxis" designed "to keep firearms away from potentially dangerous persons," 445 U. S., at 63, 67, whereas a sentence-enhancement law "depend[s] upon the reliability of a past . . . conviction," id., at 67. While the unlawfulness of a past conviction is irrelevant to the former, it is not to the latter, or so the Lewis Court thought in expressly distinguishing Burgett and Tucker: "[e]nforcement of [the federal gun disability] does not `support guilt or enhance punishment' on the basis of a conviction that is unreliable." 445 U. S., at 67 (quoting Burgett, 389 U. S., at 115).

Because of the material way in which a "felon in possession" law differs from a sentence-enhancement law, Burgett and Tucker were not part of the relevant legal backdrop against which Congress enacted the law interpreted in Lewis, and the Lewis Court could thus fairly presume that "conviction" in the statute before it was used as shorthand for "the fact of a felony conviction." 445 U. S., at 60, 67. As Lewis itself recognized, however, Burgett and Tucker are part of the backdrop against which sentence-enhancement laws are enacted, and against that backdrop Congress must be presumed to have used "conviction" in §924(e) to mean "lawful conviction," and to have permitted defendants to show at sentencing that prior convictions offered for enhancement were unconstitutionally obtained.

Even if I thought the ACCA was ambiguous (the most the Court's statutory arguments could establish), I would resolve the ambiguity in petitioner's favor in accordance with the "`cardinal principle'" of statutory construction that "`this Court will first ascertain whether a construction of the statute is fairly possible by which [a constitutional] question may be avoided.'" Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring) (quoting Crowell v. Benson, 285 U. S. 22, 62 (1932)); see also Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 499–501, 504 (1979); Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring in result). The Ashwander principle, to be sure, comes into play only when the constitutional question to be avoided is a difficult one, but that designation easily fits the question that the Court's reading of the ACCA requires it to decide, the question whether the Constitution permits courts to enhance a defendant's sentence on the basis of a prior conviction the defendant can show was obtained in violation of his right to effective assistance of counsel, see Strickland v. Washington, 466 U. S. 668 (1984), or that the defendant can show was based on an unknowing or involuntary guilty plea, see Boykin v. Alabama, 395 U. S. 238 (1969).

This is a difficult question, for one thing, because the language and logic of Burgett and Tucker are hard to limit to claimed violations of the right, recognized in Gideon v. Wainright, to have a lawyer appointed if necessary. As indicated by the uniformity of lower court decisions interpreting them, see p. 3 and n. 3, supra, Burgett and Tucker are easily (if not best) read as announcing the broader principle that a sentence may not be enhanced by a conviction the defendant can show was obtained in violation of any "`specific federal right'" (or, as Tucker put it, that a sentence may not be "founded [even] in part upon misinformation of constitutional magnitude," 404 U. S., at 447) because to do so would be to allow the underlying right to be "denied anew" and to "suffer serious erosion," Burgett, 389 U. S., at 116 (citation omitted); see also Tucker, supra, at 449. The Court's references in both Burgett and Tucker to the right discussed in Gideon is hardly surprising; that was the "specific federal right" (and the record of the conviction obtained in violation of it the "misinformation of constitutional magnitude") that the defendants before it invoked. The opinions in both cases, moreover, made it quite clear that the discussion of Gideon was not meant to supply a limitation. Burgett described Gideon not as unique but as "illustrative of the limitations which the Constitution places on state criminal procedures," and it recounted as supportive of its holding cases involving coerced confessions, denials of the confrontation right, and illegal searches and seizures, 389 U. S., at 114; and Tucker made it clear that "the real question" before the Court was whether the defendant's sentence might have been different if the sentencing judge had known that the defendant's "previous convictions had been unconstitutionally obtained." Tucker, supra, at 448.

Even if, consistently with principles of stare decisis, Burgett and Tucker could be read as applying only to some class of cases defined to exclude claimed violations of Strickland or Boykin, the question whether to confine them so is not easily answered for purposes of the Ashwander rule. Burgett and Tucker deal directly with claimed violations of Gideon, and distinguishing for these purposes between violations of Gideon and Strickland would describe a very fine line. To establish a violation of the Sixth Amendment under Strickland, a defendant must show that "counsel's performance was deficient," and that "the deficient performance prejudiced the defense" in that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 466 U. S., at 687. It is hard to see how a such a defendant is any better off than one who has been denied counsel altogether, and why the conviction of such a defendant may be used for sentence enhancement if the conviction of one who has been denied counsel altogether may not. The Sixth Amendment guarantees no mere formality of appointment, but the "assistance" of counsel, cf. Strickland, supra, at 685, 686 ("That a person who happens to be a lawyer is present at trial alongside the accused . . . is not enough to satisfy the [Sixth Amendment]" because "the right to counsel is the right to the effective assistance of counsel"), and whether the violation is of Gideon or Strickland, the defendant has been denied that constitutional right.

It is also difficult to see why a sentencing court that must entertain a defendant's claim that a prior conviction was obtained in violation of the Sixth Amendment's right to counsel need not entertain a defendant's claim that a prior conviction was based on an unknowing or involuntary guilty plea. That claim, if meritorious, would mean that the defendant was convicted despite invalid waivers of at least one of two Sixth Amendment rights (to trial by jury and to confront adverse witnesses) or of a Fifth Amendment right (against compulsory self-incrimination). See Boykin, 395 U. S., at 243. It is, to be sure, no simple task to prove that a guilty plea was the result of "[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats," id., at 242–243, but it is certainly at least a difficult question whether a defendant who can make such a showing ought to receive less favorable treatment than the defendants in Burgett and Tucker.

Though the Court offers a theory for drawing a line between the right claimed to have been violated in Burgett and Tucker and the rights claimed to have been violated here, the Court's theory is itself fraught with difficulty. In the Court's view, the principle of Burgett and Tucker reaches only "constitutional violations ris[ing] to the level of a jurisdictional defect resulting from the failure to appoint counsel at all." Ante, at 11 (citing Johnson v. Zerbst, 304 U. S. 458 (1938)). But nowhere in Burgett or Tucker is a distinction drawn between "jurisdictional" and "nonjurisdictional" rights, a fact giving no cause for surprise since long before (in Waley v. Johnston, 316 U. S. 101 (1942)) "the Court openly discarded the concept of jurisdiction—by then more a fiction than anything else—as a touchstone of the availability of federal habeas review." Wainwright v. Sykes, 433 U. S. 72, 79 (1977). Nor was Johson v. Zerbst, on which the Court today places much reliance, a ringing endorsement of a jurisdiction theory. For many years prior to that case, "the concept of jurisdiction . . . was subjected to considerable strain," Fay v. Noia, 372 U. S. 391, 450 (1963) (Harlan, J., dissenting), and Johnson v. Zerbst was actually the very last case to mention the idea, offering just "token deference to the old concept that the [habeas] writ could only reach jurisdictional defects." Wechsler, Habeas Corpus and the Supreme Court: Reconsidering the Reach of the Great Writ, 59 U. Colo. L. Rev. 167, 174 (1988)

In reviving the "jurisdiction" theory, the Court skips over the very difficulty that led to its abandonment, of devising a standard to tell whether or not a flaw in the proceedings leading to a conviction counts as a "jurisdictional defect." "Once the concept of `juris diction' is taken beyond the question of the court's competence to deal with the class of offenses charged and the person of the prisoner" (as it must be if the concept is to reach Gideon violations) "it becomes a less than luminous beacon." Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 470 (1963). Thus, if being denied appointed counsel is a "jurisdictional defect," why not being denied effective counsel (treated as an equivalent in Strickland)? If a conviction obtained in violation of the right to have appointed counsel suffers from a "jurisdictional defect" because the right's "purpose . . . is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights," Johnson v. Zerbst, supra, at 465, how distinguish a conviction based on a guilty plea resulting from a defendant's own ignorance of his legal and constitutional rights? It was precisely due to the futility of providing principled answers to these questions that more than 50 years ago, and a quarter of a century before Burgett and Tucker, "[t]he Court finally abandoned the kissing of the jurisdictional book." P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart and Wechsler's The Federal Court and the Federal System 1502 (3d ed. 1988). The Court nevertheless finds itself compelled to re-embrace the concept of "jurisdictional defect," fraught as it is with difficulties, in order to answer the constitutional question raised by its reading of the ACCA. Because it is "fairly possible," Ashwander, 297 U. S., at 348, to construe the ACCA to avoid these difficulties and those associated with the other constitutional questions I have discussed, the Ashwander rule of restraint provides sufficient reason to reject the Court's construction of the ACCA.

The rule of lenity, "which applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose," Albernaz v. United States, 450 U. S. 333, 342 (1981), drives me to the same conclusion. Though lenity is usually invoked when there is doubt about whether a legislature has criminalized particular conduct, "[the] policy of lenity [also] means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." Ibid. (internal quotation marks and citation omitted); cf. Bell v. United States, 349 U. S. 81, 83 (1955) ("It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of harsher punishment"). Because I "cannot say with assurance," United States v. Granderson, 511 U. S. __, __ (1994) (slip op., at 14), that Congress intended to require courts to enhance sentences on the basis of prior convictions a defendant can show to be invalid, the rule of lenity independently requires interpreting the ACCA to permit defendants to present such challenges to the sentencing judge before sentence is imposed.

The Court invokes "[e]ase of administration" to support its constitutional holding. Ante, at 11. While I doubt that even a powerful argument of administrative convenience would suffice to displace the Ashwander rule, cf. Stanley v. Illinois, 405 U. S. 645, 656 (1972), the burden argument here is not a strong one. The burdens of allowing defendants to challenge prior convictions at sentencing are not so severe, and are likely less severe than those associated with the alternative avenues for raising the very same claims.

For more than 20 years, as required by 21 U. S. C. §§851(c)(1) and (2), federal courts have entertained claims during sentencing under the drug laws that prior convictions offered for enhancement are "invalid" or were "obtained in violation of the Constitution," the unamended statute reflecting a continuing congressional judgment that any associated administrative burdens are justified and tolerable. For almost a decade, federal courts have done the same under the ACCA, see n. 2, supra, again without congressional notice of any judicial burden thought to require relief. See also Parke v. Raley, 506 U. S., at __ (slip op., at 11) ("In recent years state courts have permitted various challenges to prior convictions" during sentencing). As against this, the Court sees administrative burdens arising because "sentencing courts [would be required] to rummage through frequently nonexistent or difficult to obtain state-court transcripts or records that may date from another era, and may come from any of the 50 States." Ante, at 11. It would not be sentencing courts that would have to do this rummaging, however, but defendants seeking to avoid enhancement, for no one disagrees that the burden of showing the invalidity of prior convictions would rest on the defendants.

Whatever administrative benefits may flow from insulating sentencing courts from challenges to prior convictions will likely be offset by the administrative costs of the alternative means of raising the same claims. The Court acknowledges that an individual still in custody for a state conviction relied upon for enhancement may attack that conviction through state or federal habeas review and, if successful, "may . . . apply for reopening any federal sentence enhanced by the state sentence." Ante, at 12. And the Court does not disturb uniform appellate case law holding that an individual serving an enhanced sentence may invoke federal habeas to reduce the sentence to the extent it was lengthened by a prior unconstitutional conviction. See J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure, §8.2, pp. 62–64 and n. 13.2, and §8.4, p. 89, n. 27 (1993 Supp.) (collecting cases). From the perspective of administrability, it strikes me as entirely sensible to resolve any challenges to the lawfulness of a predicate conviction in the single sentencing proceeding, especially since defendants there will normally be represented by counsel, who bring efficiency to the litigation (as well as equitable benefits).

Because I cannot agree that Congress has required federal courts to impose enhanced sentences on the basis of prior convictions a defendant can show to be constitutionally invalid, I respectfully dissent.