       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0167P (6th Cir.)
                File Name: 00a0167p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                  ;
                                   
 JERRY LEE SMITH,
                                   
          Petitioner-Appellee,
                                   
                                   
                                      No. 99-3340
           v.
                                   
                                    >
 UNITED STATES OF AMERICA, 
       Respondent-Appellant. 
                                 1
      Appeal from the United States District Court
       for the Northern District of Ohio at Akron.
   No. 98-02824—David D. Dowd, Jr., District Judge.
               Submitted: March 9, 2000
            Decided and Filed: May 18, 2000
  Before: WELLFORD, SILER, and GILMAN, Circuit
                    Judges.
                  _________________
                       COUNSEL
ON BRIEF: Karin Hoppmann, U.S. DEPARTMENT OF
JUSTICE, APPELLATE SECTION, CRIMINAL DIVISION,
Washington, D.C., Gary D. Arbeznik, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellant.
David C. Jack, Wadsworth, Ohio, for Appellee.



                            1
2        Smith v. United States                          No. 99-3340

   WELLFORD, J., delivered the opinion of the court, in
which SILER, J., joined. GILMAN, J. (pp. 12-13), delivered
a separate concurring opinion.
                         _________________
                             OPINION
                         _________________
   HARRY W. WELLFORD, Circuit Judge. The government
appeals the district court’s grant of a motion to vacate Smith’s
federal sentence under 28 U.S.C. § 2255, which was based on
its finding that two of Smith’s predicate state convictions that
were used to enhance his sentence pursuant to the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),1 had
been obtained in violation of Boykin v. Alabama, 395 U.S.
238 (1969). We are called upon to decide whether a
defendant, who does not meet the “in custody” requirement of
28 U.S.C. § 2254, may attack the constitutional validity of
predicate state convictions under the ACCA in a § 2255
proceeding. We conclude that we are bound to hold that such
a collateral attack is impermissible under this court’s previous
decision in Turner v. United States, 183 F.3d 474 (6th Cir.
1999). Thus, we REVERSE the decision of the district court
and REMAND for resentencing.




    1
        Section 924(e)(1) provides:
    In the case of a person who violates section 922(g) of this title
    and has three previous convictions by any court referred to in
    section 922(g)(1) of this title for a violent felony or a serious
    drug offense, or both, committed on occasions different from
    one another, such person shall be fined not more than $25,000
    and imprisoned not less than fifteen years, and, notwithstanding
    any other provision of the law, the court shall not suspend the
    sentence of, or grant a probationary sentence to, such person
    with respect to the conviction under section 922(g).
No. 99-3340                            Smith v. United States          3

                        I. BACKGROUND
  This case is before us for the third time.2 In 1991, Smith
was convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the
government sought to enhance Smith’s sentence pursuant to
the ACCA, which requires a minimum fifteen-year sentence
for offenders who have three or more qualifying acts, based
on Smith’s prior state convictions. The district court refused
to apply the ACCA, finding that two of Smith’s predicate
convictions had been obtained in violation of Boykin v.
Alabama, 395 U.S. 238 (1969), because Smith had not been
advised of his constitutional rights prior to the sentencing
hearing in those cases. The court sentenced Smith to twenty-
seven months in prison.
   The government appealed to this court, and we reversed.
See United States v. Smith, 36 F.3d 490 (6th Cir. 1994). We
held that Custis v. United States, 511 U.S. 485 (1994), which
had just been decided at that time, was indistinguishable from
Smith’s case and did not allow a defendant to “collaterally
attack the validity of previous state convictions that are used
to enhance his sentence under the ACCA . . . (with the sole
exception of convictions obtained in violation of the right to
counsel). . . .” Custis, 511 U.S. at 487, quoted in Smith, 36
F.3d at 492. Thus, we vacated Smith’s sentence and
remanded to the district court for resentencing.
   Smith, who had completed his term of imprisonment under
the prior sentence and was on supervised release, was
returned to custody on January 23, 1995. Sentencing was
rescheduled for January 27, 1995, but Smith obtained a
continuance in order to file a habeas corpus petition under
§ 2255. On February 24, 1995, the district court denied the
habeas petition, noting that the proper means of challenging
state convictions was through § 2254 rather than § 2255. At
the resentencing hearing, however, the district court found

    2
     A brief factual background of the case can be found at United States
v. Smith, 36 F.3d 490, 491 (6th Cir. 1994).
4      Smith v. United States                     No. 99-3340      No. 99-3340                       Smith v. United States      13

that our delay in adjudicating the government’s appeal (three      confidence in the integrity of our procedures and inevitably
years had elapsed between the filing of the notice of appeal       delay and impair the orderly administration of justice,” id. at
and the issuance of this court’s disposition of the case)          497 (alteration in original) (citations and internal quotation
amounted to a denial of due process. Accordingly, the court        marks omitted), the Supreme Court recognized that Custis,
released Smith on March 15, 1995. The government appealed          who was still “in custody” on his state-court convictions,
again, and this court found that the delay did not rise to the     could collaterally attack his state convictions in state court
level of a due process violation. See United States v. Smith,      and, if that was unsuccessful, could seek federal habeas relief.
94 F.3d 204, 205 (6th Cir. 1996). We again reversed and            See id. Custis would then be free to “apply for reopening of
remanded for resentencing under the ACCA. See id. at 213.          any federal sentence enhanced by the state sentences” if he
                                                                   ultimately proved successful in upsetting his state
  On the second remand, the district court applied the ACCA,       convictions. Id. If “finality of judgments” truly was the
sentencing Smith to 180 months imprisonment. The court             primary interest, then the Supreme Court presumably would
gave Smith credit for the fifty-five months he had already         have felt no need to leave this door open.
served, resulting in a balance of 125 months. Smith appealed,
but later withdrew the appeal.                                        Nothing in Custis says that Custis would have been barred
                                                                   from all relief if he were no longer in state custody. Cf.
   On December 4, 1998, Smith filed the instant case pro se        Nichols v. United States, 511 U.S. 738, 765 (1994) (Ginsburg,
under § 2255. His only stated grounds for habeas relief was        J., dissenting) (“Custis presented a forum question. The issue
that two of the prior state convictions that were used to          was where, not whether, the defendant could attack a prior
enhance his federal sentence were constitutionally infirm          conviction for constitutional infirmity.”). Indeed, as the Fifth
under Boykin, supra, and therefore should not have been used       Circuit observed, this was a question that the Supreme Court
to enhance his sentence under the ACCA. Though this court          had expressly left open. See Clark, 203 F.3d at 364 (“We
had before held that Custis prevented the district court from      express no view on the extent to which the [expired] 1958
considering that argument at sentencing, see Smith, 36 F.3d at     conviction itself may be subject to challenge in the attack
492, the district court reconsidered the argument in the           upon the [present] 1978 sentences which it was used to
context of the § 2255 motion. The district court held that         enhance.”) (alterations in original) (quoting Maleng v. Cook,
“Custis does not preclude collateral attacks by way of other       490 U.S. 488, 494 (1989) (per curiam)).
kinds of proceedings, such as habeas corpus proceedings or
proceedings on motions under 28 U.S.C. § 2255.” It                   I nevertheless concur in the judgment and opinion of the
proceeded to address Smith’s arguments, finding that “a            court because I agree with Judge Wellford’s conclusion that
defendant should not be penalized because, years ago, he           “in the absence of en banc review or a Supreme Court
failed to challenge a state court conviction on the off chance     decision to the contrary, Turner forecloses the possibility that
that it might someday be used to enhance a federal sentence.”      Smith can use § 2255 to challenge his ACCA sentence by
In reaching the merits of Smith’s claim, the court made the        collaterally attacking his predicate convictions in federal court
same conclusion as it had prior to the very first appeal in this   without attempting first a challenge in state court.”
case, that the state convictions were invalid under Boykin.
    The government filed this timely appeal.
12    Smith v. United States                       No. 99-3340      No. 99-3340                       Smith v. United States         5

                    _________________                                                      II. ANALYSIS
                     CONCURRENCE                                      We are now squarely faced with the issue of whether Smith
                    _________________                               can attack the validity of his state convictions in this § 2255
                                                                    proceeding aimed at challenging the use of those convictions
  RONALD LEE GILMAN, Circuit Judge, concurring. It                  in deciding his federal sentence. Several months after the
appears to me that Turner takes Custis v. United States, 511        district court issued its final decision in this case, a panel of
U.S. 485 (1994), too far by applying its holding (that a            our court decided Turner v. United States, 183 F.3d 474 (6th
defendant who has state or federal habeas remedies available        Cir. 1999), wherein we held that the rule in Custis, which
to him cannot attack his predicate state convictions at his         involved a defendant’s direct appeal from his federal
federal sentencing hearing) to defendants who may have no           sentence, also applies to actions challenging a federal
available state or federal habeas remedy. When a defendant          sentence pursuant to § 2255. We stated specifically:
such as Smith is no longer “in custody” on his predicate state-
court conviction, and when the proceeding is a § 2255 post-           We read Custis as requiring [the defendant] to challenge
conviction hearing rather than a sentencing hearing, I believe        the underlying state convictions first in the state court or
that the Fifth Circuit’s analysis in United States v. Clark, 203      in an independent habeas corpus proceeding brought
F.3d 358 (5th Cir. 2000), is the sounder application of the           pursuant to 28 U.S.C. § 2254. Only after [the defendant]
Custis decision.                                                      succeeds in such a challenge can he seek to reopen his
                                                                      [federal] sentence in this case.
  In Custis, the Supreme Court held that a defendant was not
entitled “to use the federal sentencing forum to gain review of     Turner, 183 F.3d at 477. Accord Sanders v. United States,
his state convictions.” Custis, 511 U.S. at 497. The Court          No. 98-3651, 1999 WL 591455 (6th Cir. July 27, 1999)
observed that “Congress did not prescribe and the                   (unpublished); see also United States v. Daniels, 195 F.3d
Constitution does not require such delay and protraction of         501 (9th Cir. 1999).
the federal sentencing process.” Id. Allowing a defendant
who has already been sentenced to mount a collateral attack            Smith argues that our holding in Turner does not prevent
on the predicate convictions that were the basis for the            him from attacking the predicate state convictions in this case
enhancement of his present sentence, however, does not delay        because he is not “in custody” for purposes of § 2254. He
and protract the federal sentencing process. This may have          claims that it is impossible to do that which Turner requires--
been one of the main reasons underlying the Supreme Court’s         that is, to first “challenge the underlying state convictions in
distinction between collateral attacks based on the complete        a state court or in an independent § 2254 habeas proceeding.”
denial of counsel, which may be raised at the defendant’s           Turner, 183 F.3d at 477; see Carafas v. LaVallee, 391 U.S.
federal sentencing for being an armed career criminal, and          234 (1968) (if a defendant is not “in custody,” a federal court
other alleged constitutional defects, which may not. See id.        will not have jurisdiction to hear a § 2254 motion).
at 496. Ascertaining whether counsel’s assistance was               Consequently, Smith argues, the district court should be
constitutionally ineffective is often difficult, but ascertaining   permitted to address his § 2255 petition based on the
whether counsel’s assistance was denied altogether is               constitutional infirmity of his prior state convictions. In
relatively easy. See id.                                            support of that rationale, Smith urges this court to follow
                                                                    United States v. Clark, 203 F.3d 358 (5th Cir. 2000).
  Notwithstanding the language in Custis about how
“[i]nroads on the concept of finality tend to undermine
6      Smith v. United States                      No. 99-3340    No. 99-3340                    Smith v. United States   11

   In Clark, the court acknowledged the general rule that when    proposition, and the authority in this circuit supports our
a defendant brings a § 2255 petition challenging the use of       position.
state convictions to enhance his federal sentence, “it may well
make administrative good sense to require the defendant to          We REVERSE the district court and REMAND with
first exhaust his section 2254 remedies and allow him to          instruction to resentence Smith accordingly.
return under section 2255 to the court which imposed the
enhanced sentence only after the prior conviction has been set
aside in the section 2254 proceeding.” Clark, 203 F.3d at
369-70. The court held, however, that if a defendant has
unsuccessfully exhausted all available state remedies but is
not “in custody” for purposes of § 2254, a district court
should address the validity of the state conviction in the
defendant’s § 2255 proceeding. In its analysis, the court
mentioned our decision in Turner but noted that the case did
not address whether the defendant “could meet the ‘in
custody’ requirement of § 2254 or what the result would be if
he could not.” Id. at 367. Ultimately, the court found it
unreasonable to differentiate between a defendant who was
“in custody” and one who was not “in custody” for purposes
of permitting that defendant to bring a § 2255 challenge to his
federal sentence. Id. at 370. The court explained that to hold
otherwise would be contrary to the Supreme Court’s
“reluctance to adopt a reading of the overall statutory habeas
scheme that ‘would bar the prisoner from ever obtaining
federal habeas review.’” Id. (citations omitted).
    The government argues against following Clark:
      A defendant who fails to take advantage of state and
    habeas remedies should not be provided an “alternative”
    remedy under Custis. Such a scheme does violence to
    the principles of finality and efficiency that power the
    Supreme Court’s decision in Custis. And under the Fifth
    Circuit’s reasoning, a federal court may at any time
    reopen a state criminal proceeding without the presence
    of the state as a party, see Clark, 203 F.3d at 364; thus,
    the decision also violates principles of comity.
Furthermore, the government claims that our holding in
Turner does not leave room for the exception made in Clark.
10       Smith v. United States                           No. 99-3340        No. 99-3340                       Smith v. United States      7

                                 in CR 195662                                The opinion is clear, the government argues, that “Custis does
                                 and CR199703.                               not support [the] tactic” of seeking relief from a predicate
                                 Parole 10/25/88,                            state conviction in a § 2255 petition.
                                 final release
                                 1/18/90.                                      We agree with the government’s position that Turner
                                                                             controls our holding in this case. In Turner, we stated plainly
  The defendant was represented by an Attorney.                              that a defendant must challenge his state convictions “first in
  On February 15, 1985, the defendant entered the                            the state court or in an independent habeas corpus proceeding
  premises of Cleveland Board of Education Building,                         brought pursuant to 28 U.S.C. § 2254.” Turner, 183 F.3d at
  tampered with and broke into a safe on the premises.                       477. We did not specifically consider whether the defendant
                                                                             was “in custody” for purposes of applying the holding in
  On August 23, 1985, the defendant pled guilty to the                       Custis. Since Turner was decided, it has been cited by this
  Indictment.                                                                court with approval for the proposition that a defendant may
                                                                             not seek relief from his state convictions in a habeas corpus
   While the federal district court may have no jurisdiction to              petition attacking his federal sentence. Sanders v. United
determine the constitutional adequacy of a challenged state                  States, No. 98-3651, 1999 WL 591455 (6th Cir. July 27,
conviction if the petitioner is no longer in custody, Carafas v.             1999) (unpublished); see also United States v. Henderson,
LaVallee, 391 U.S. 234 (1968), that is a different                           No. 98-4087/4369, 2000 WL 298248, ___ F.3d ___, ___ (6th
circumstance from a petitioner seeking to challenge the                      Cir. March 23, 2000) (citing the holding in Turner in the
constitutional validity of a guilty plea in state court by error4            context of a direct appeal of the defendant’s federal sentence);
coram nobis, or by seeking some other extraordinary relief.                  United States v. Caldwell, No. 97-5252, 2000 WL 331950
Smith had the opportunity to raise a Boykin v. Alabama, 395                  (6th Cir. March 23, 2000) (same). There has been no
U.S. 238 (1969), challenge in state court through affidavit, or              indication that Turner would carve out the exception made in
otherwise.                                                                   Clark for defendants who are not “in custody” for their state
                                                                             sentences. Therefore, in the absence of en banc review or a
  Even if we were disposed to look favorably upon the Clark                  Supreme Court decision to the contrary, Turner forecloses the
approach, as Smith urges, we note an important distinction.                  possibility that Smith can use § 2255 to challenge his ACCA
In Clark, the petitioner was deemed to have “tried and failed                sentence by collaterally attacking his predicate convictions in
to set aside his [later challenged] state convictions.” Clark,               federal court without attempting first a challenge in state
203 F.3d at 361. It is subsequently stated that “apparently . . .            court.
Clark has exhausted his state remedies.” Id. at 362. In the
interest of federalism, we reject a challenge to a state                       Smith has never, since 1994, when we reached our first
conviction made for the first time in a § 2255 proceeding                    decision in this case, made any effort in state court to
challenging a federal sentence. Clark is not authority for this              challenge the two convictions now at issue. Whether or not
                                                                             he may now be foreclosed from proceeding in state court, or
                                                                             may not “succeed in such a challenge,” the record would at
                                                                             least reflect some effort on his part to have set aside at least
     4
      In similar circumstances, we stated in United States v. Caldwell,
2000 WL 331950, at *8 n.4, No. 97-5252 (6th Cir. March 23, 2000)
(unpublished), that Turner required the petitioner first to “challenge the
state convictions either in state court or in a § 2254 petition.”
8        Smith v. United States                            No. 99-3340        No. 99-3340                         Smith v. United States        9

one of these convictions.3 Such an effort, even in the absence                 On January 25, 1984 the defendant plead guilty to the
of successfully setting aside a state conviction, might                        lesser included offense of Breaking and Entering.
conceivably present us with a different circumstance.
Defendant’s counsel conceded at the original sentencing that                   11/22/84     Breaking           8/23/85, Chillicothe 4A1.1(a)
he made no effort to obtain a transcript of defendant’s guilty                              and Entering       Correctional
pleas in state court, but the record and transcript apparently                              with Violence      Institutional
were destroyed by a fire.                                                                   Specification,     2 to 5 years
                                                                                            Grand Theft        with 2 years
  As acknowledged by the district court, the presentence                                    with violence      mandatory
                                                                                            Specification,     sentence Count 1
report reflects the following information about Smith’s prior                               Vandalism          2 to 10 years
offenses which are related to his charge in the district court:                             with Violence      with 2 years
                                                                                            Specification,     mandatory sentence
    9/3/83    Aggravated         2/4/84, Ohio              4A1.1(b)                         Cleveland,         Count 2, 2 to 5
              Burglary,          State Reformatory                                          Ohio Police        years with 2
              Cleveland,         6 months plus                                              Department         years mandatory
              Ohio               cost. Defendant                                            CR195662.          sentence Count 3,
              Police             released 6/22/84.                                                             all concurrent to be
              Department.                                                                                      served concurrent with
              CR185472                                                                                         CR199240 and CR199703
                                                                                                               plus cost. Parole
    The defendant was represented by counsel, Attorney John                                                    10/25/88, final
    Hildebrand.                                                                                                release 1/18/90.
    On September 2, 1983, the defendant was observed                           The defendant was represented by counsel, Attorney
    climbing through a bedroom window of an apartment.                         Richard Dunn.
    He fled through a front door and was subsequently
    arrested by police.                                                        On November 21, 1984, the defendant and two
                                                                               accomplices broke into a furniture store, by using a
    The defendant made a statement to a Cuyahoga County                        bulldozer to knock down the real wall. Police
    Probation Officer denying involvement in this case. He                     apprehended the defendant as he attempted to flee from
    claims he went to the victims [sic] apartment to see if he                 the store.
    and a friend could stay there.
                                                                               On August 23, 1985, the defendant pled guilty to the
                                                                               Indictment.

     3                                                                         2/15/85 Breaking              8/23/85, Chillicothe 4A1.2
      In a letter supplemental brief, Smith’s counsel states that “Clark               and Entering          Correction           Application
specifically held that if Defendant has exhausted his state remedies and               Safecracking,         Institution          Note No. 3
is not ‘in custody’ . . . then the district court should address the                   Cleveland,            1 year each Count
Defendant’s 28 U.S.C. § 2255 petition.” Smith, however, has made no                    Ohio Police           concurrent plus
showing that he has attempted to exhaust his state remedies, if any.                   Department            cost, concurrent
Rather, he stated in his brief (p. 12) that “Smith had no reasonable access
to review the constitutionality on his prior convictions in State Court.”              CR199240.             with sentences
