214 F.3d 877 (7th Cir. 2000)
John Ryan,  Petitioner-Appellant,v.United States of America,  Respondent-Appellee.
No. 98-1736
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 18, 2000Decided June 5, 2000Rehearing and Rehearing En bancDenied july 18, 2000*

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 97 C 2765--Marvin E. Aspen, Chief Judge.
Before Easterbrook, Kanne, and Diane P. Wood, Circuit  Judges.
Easterbrook, Circuit Judge.


1
Custis v. United  States, 511 U.S. 485, 487 (1994), considered  "whether a defendant in a federal sentencing  proceeding may collaterally attack the validity  of previous state convictions that are used to  enhance his sentence" and held that "a defendant  has no such right (with the sole exception of  convictions obtained in violation of the right to  counsel)". We must decide whether Custis means  only that the time for the attack on the state  conviction is postponed to a collateral attack on  the federal sentence. Our answer is no. A  sentence imposed following the approach of Custis is lawful and thus not subject to collateral  attack under 28 U.S.C. sec.2255 as long as the  prior convictions remain undisturbed. Accord,  Moore v. Roberts, 83 F.3d 699, 702-03 (5th Cir.  1996); Turner v. United States, 183 F.3d 474, 477  (6th Cir. 1999); Charlton v. Morris, 53 F.3d 929  (8th Cir. 1995); Clawson v. United States, 52  F.3d 806 (9th Cir. 1995), reiterated by United  States v. Daniels, 195 F.3d 501 (9th Cir. 1999).  Contra, Young v. Vaughn, 83 F.3d 72 (3d Cir.  1996); United States v. Clark, 203 F.3d 358 (5th  Cir. 2000) (agreeing with Young and disapproving  Charlton, but without mentioning the circuit's  earlier decision in Moore).


2
John Ryan was sentenced to 185 months'  imprisonment as a career offender under U.S.S.G.  sec.4B1.1 following his guilty plea to multiple  drug crimes. Career-offender enhancement is  mandatory for an adult who commits a drug felony  and has at least two prior felony convictions for  drug offenses or crimes of violence. Ryan  concedes that his criminal record contains two  convictions meeting that description but insists  that one of them--a 1980 conviction in Illinois  for armed robbery--is invalid. Ryan did not  appeal that conviction or subject it to  collateral attack while he was in custody under  it. At the sentencing for his federal drug  offenses, however, he asked the district judge to  inquire into its validity. Ryan contended that  his 1980 plea had been involuntary because the  panel from which his jury would have been  selected heard the judge sentence another  defendant and make comments deploring the high  incidence of crime. Ryan's lawyer asked the judge  to secure a new pool of jurors; when the judge  refused, Ryan pleaded guilty. The judge in the  federal case remarked that Ryan could have gone  to trial and appealed (if he had been convicted)  to present his claim of error; the federal judge  did not see any possibility that simply by  denying Ryan's motion the state judge rendered  his plea involuntary. Ryan repeated his argument  on appeal to this court but received a different  kind of response: that Custis precludes an  indirect collateral attack on the state sentence,  and that the 1980 conviction therefore counts for  career-offender purposes whether Ryan's plea was  voluntary or not. 1996 U.S. App. Lexis 3836 (7th  Cir. Feb. 29, 1996). Under Custis, we held, only  the lack of counsel permits such an indirect  collateral attack.


3
A few days before the statutes of limitations  in 28 U.S.C. sec.sec. 2244(d) and 2255 para.6  expired, Ryan launched two collateral attacks--  one on the 1980 state conviction, the other on  the 1995 federal sentence. The challenge to  the  state conviction was assigned to District Judge  Bucklo, who dismissed it with the observation  that Ryan was no longer "in custody" under the  1980 conviction and therefore could not use  sec.2254 to contest its validity. See Maleng v.  Cook, 490 U.S. 488, 492-93 (1989). Both Judge  Bucklo and this court denied Ryan's application  for a certificate of appealability to review that  decision. The challenge to the federal sentence  was assigned to Chief Judge Aspen, who rejected  it on the ground that Custis is as applicable to  a petition under sec.2255 as it is to sentencing  and direct appeal. 986 F. Supp. 509 (N.D. Ill.  1997). Ryan offered a new theory of  involuntariness: that his lawyer compelled him to  plead guilty by refusing to go forward with the  trial unless paid $2,000. If Ryan did not tell  this to the state judge when entering his plea,  it is difficult to see how the subject can be  raised 20 years later. See United States v.  Stewart, 198 F.3d 984 (7th Cir. 1999). But the  record does not contain a transcript of the plea,  so Judge Aspen assumed, as shall we, that Ryan  not only could establish that his lawyer made  this demand but also did not know that an  indigent defendant is entitled to court-appointed  counsel. Still, Judge Aspen observed, Ryan had  the assistance of counsel at the time of his  plea, and no more is required by Custis.


4
On this, Ryan's second appeal, the United  States leads off with the argument that our 1996  decision is the law of the case, which Ryan  cannot avoid just by changing his theory about  why the plea was involuntary. Even if an indirect  collateral challenge to a conviction used to  enhance a federal sentence is, like a claim of  ineffective assistance, the sort of contention  that ordinarily may be deferred until a motion  under sec.2255, the fact remains that Ryan did  object at sentencing, and on direct appeal, to  the consideration of the 1980 state conviction.  A defendant who complains on direct appeal about  the quality of his lawyer can't try again on  collateral attack unless there has been an  intervening change of law, United States v.  Taglia, 922 F.2d 413, 417-18 (7th Cir. 1991), and  Ryan does not make such an argument. What he does  say, however, is that our 1996 decision should be  disregarded for the same reason Ryan thinks that  Custis is irrelevant: that all Custis does (and,  by implication, all we did in 1996) is postpone  decision to a collateral attack under sec.2255.  It is not possible to disentangle the argument  based on law of the case from the arguments about  the effect of Custis, so we turn directly to that  subject.


5
Custis gave several reasons why a prior  conviction is conclusive for purposes of  recidivist sentencing. First, the Armed Career  Criminal Act, 18 U.S.C. sec.924(e), the statute  involved in Custis, "focuses on the fact of the  conviction and nothing [in sec.924] suggests that  the prior final conviction may be subject to  collateral attack for potential constitutional  errors before it may be counted." 511 U.S. at 491  (emphasis in original). Lewis v. United States,  445 U.S. 55 (1980), holds that a person with a  felony conviction who possesses a firearm cannot  defend by insisting that he shouldn't have been  convicted; that he was convicted is sufficient,  the Court concluded. Custis holds that sec.924(e)  should be treated like the felon-in-possession  statute. 511 U.S. at 491-93. Although the Court  recognized that prior decisions had permitted an  indirect collateral challenge when a prior  conviction was uncounseled, it declined to extend  these cases. Id. at 493-96. At the conclusion of  this discussion the Court remarked:


6
Ease of administration also supports the  distinction. As revealed in a number of  the cases cited in this opinion, failure  to appoint counsel at all will generally  appear from the judgment roll itself, or  from an accompanying minute order. But  determination of claims of ineffective  assistance of counsel, and failure to  assure that a guilty plea was voluntary,  would require sentencing courts 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 one of the 50  States.


7
511 U.S. at 496. Finally, the Court observed that  "principles of finality associated with habeas  corpus actions apply with at least equal force  when a defendant seeks to attack a previous  conviction used for sentencing. By challenging  the previous conviction, the defendant is asking  a district court 'to deprive [the] [state-court  judgment] of [its] normal force and effect in a  proceeding that ha[s] an independent purpose  other than to overturn the prior judgment.'  [Parke v. Raley, 506 U.S. 20 (1992)] at 30. These  principles bear extra weight in cases in which  the prior convictions, such as one challenged by  Custis, are based on guilty pleas, because when  a guilty plea is at issue, 'the concern with  finality served by the limitation on collateral  attack has special force.' United States v.  Timmreck, 441 U.S. 780, 784 (1979) (footnote  omitted)." 511 U.S. at 497 (full citation to  Parke added; other brackets and parentheses in  the original).


8
What the Court said about sec.924(e) is equally  applicable to the career-offender guideline.  United States v. Killion, 30 F.3d 844, 846 (7th  Cir. 1994); United States v. Arango-Montoya, 61  F.3d 1331, 1336 (7th Cir. 1995). The Sentencing  Commission instructed courts to use the fact of  prior convictions as conclusive when calculating  criminal history. U.S.S.G. sec.4A1.2 Application  Note 6. The Commission recognized, as did the  Court in Custis, that some recidivist statutes  expressly permit contest to the validity of prior  convictions. E.g., 21 U.S.C. sec.851(c)(1). But  in the absence of such an independent right of  review, the Commission stated, all outstanding  convictions must be counted.


9
Ryan wants us to disregard not only the  language in Custis (and the Guidelines)  emphasizing that the fact of prior conviction is  dispositive but also the Court's reminder that  collateral attacks on prior convictions are  incompatible with principles of finality--  especially, Custis said, when the defendant  pleaded guilty, as Ryan did. Instead Ryan plays  up the Court's observation about ease of  administration (the language in the block quote  above). Now that sentencing has been completed,  Ryan contends, it is as easy to go back and  determine the validity of the 1980 conviction as  it is to resolve any other collateral attack.  That may be true, but it does not justify  disregarding the other strands of the Court's  reasoning. Custis concluded that it is proper to  count the prior conviction. Ryan could have  challenged his 1980 conviction by appeal or by  collateral attack when he was still in custody.  He did not do so, the time to do it is long gone,  and "principles of finality associated with  habeas corpus actions apply with at least equal  force when a defendant seeks to attack a previous  conviction used for sentencing." Custis, 511 U.S.  at 497.


10
The linchpin of Ryan's argument is a belief  that only a valid conviction can justify an  increase in one's sentence. Not so. Ryan argues  as if he were in custody once again for the armed  robbery, but he isn't. Recidivist sentencing is  not a second or deferred punishment for the prior  offense. It is a way to determine the appropriate  punishment for the latest crime. Witte v. United  States, 515 U.S. 389 (1995). And there is no  doubt that Ryan's 1995 convictions for drug  offenses are valid and supply adequate grounds  for his current incarceration. (The maximum  punishment Ryan faced in 1995 was 40 years'  imprisonment. 21 U.S.C. sec.841(b)(1)(B)(vii).)  When imposing sentence judges may consider acts  that did not lead to a conviction. E.g., McMillan  v. Pennsylvania, 477 U.S. 79 (1986). The  Sentencing Guidelines contain elaborate rules  about "relevant conduct" that counts against the  defendant whether or not it has been the subject  of a conviction. Edwards v. United States, 523  U.S. 511 (1998). Indeed, a judge may take account  of prior criminal conduct even though a jury has  acquitted the defendant of charges based on the  events. United States v. Watts, 519 U.S. 148  (1997). And the Court added in Nichols v. United  States, 511 U.S. 738 (1994), that even an  uncounseled conviction may be the basis for  recidivist sentencing under the Guidelines, when  the sixth amendment did not require counsel  (because the original crime was a misdemeanor  that did not lead to incarceration).


11
Many events that have been determined only by a  preponderance of the evidence, and without the  safeguards of a criminal trial, lead to higher  sentences. Cases such as Edwards, Watts, Witte,  and Nichols just instantiate this more general  proposition. Consider a few more examples. (1)  Stationhouse confessions are good grounds on  which to enhance a sentence, even though  confessions standing alone do not support  convictions. (2) A person deported after informal  proceedings faces a higher sentence for entering  the United States improperly than does a person  who has never been deported. (3) A person who  cuts someone else's hair without a license may be  punished as a criminal, even though it is  possible to deny a license application without  proof beyond a reasonable doubt. Once we see that  acts proved beyond a reasonable doubt after a  full-dress criminal trial are not the only  acceptable grounds for enhancement, it looks very odd to invest substantial resources determining  whether a particular conviction offered in  sentencing indeed meets the standards developed  for full-dress litigation. Why should a judgment  of conviction based on a guilty plea (that is, on  a confession in open court) be less legitimate,  as a ground for enhancement, than a stationhouse  confession? No one would suppose that a lawyer's  demand for a fee puts a stationhouse confession  off limits for sentencing purposes; should the  confession in open court to armed robbery be the  less usable when ascertaining the appropriate  sentence for Ryan's drug crimes? Both a  stationhouse confession to armed robbery and the  1980 guilty plea show that Ryan is incorrigible--  15 years after committing an armed robbery, and  despite serving time for that offense, Ryan is  still an active criminal. That knowledge  justifies a more severe sentence to achieve both  deterrence and incapacitation.


12
Custis left open the question whether a person  who has his conviction set aside by the rendering  court--say, by a writ of error coram nobis--is  entitled to reconsideration of a federal  recidivist sentence. 511 U.S. at 497. Several  courts have held or assumed that the answer is  yes. E.g., United States v. Pettiford, 101 F.3d  199 (1st Cir. 1996); United States v. Bacon, 94  F.3d 158, 162 n.3 (4th Cir. 1996); Turner v.  United States, 183 F.3d 474 (6th Cir. 1999). We  need not address that question, however, because  Ryan has not persuaded Illinois to annul his  conviction for armed robbery. He had ample chance  but did not pursue his avenues. Today is too  late. Even had Judge Bucklo concluded that Ryan's  federal custody authorizes a collateral challenge  to the state conviction under sec.2254 this would  not have done Ryan any good. A person seeking  federal relief against a state conviction must  fairly present his contentions to state court.  O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Ryan  never did, and Illinois would deem untimely any  effort to do so at this remove. 725 ILCS 5/122-  1(c). Like Custis itself, our decision in Tredway  v. Farley, 35 F.3d 288 (7th Cir. 1994), which  treated the state's timeliness rules as defects  in state remedial processes that entitle a  federal court to disregard a person's failure to  present the claims to the state, was rendered  when federal law did not impose time limits on  collateral attacks. That changed in 1996, with  the Antiterrorism and Effective Death Penalty  Act. Now federal law includes a one-year period  of limitations, for collateral attacks against  both state and federal convictions. It is no  longer possible to conclude, as Tredway did in  1994, that time limits under state law excuse  convicted persons from the duty to present their  claims to state court. See Edwards v. Carpenter,  120 S. Ct. 1587 (2000) (failure to present a  claim to a state court within the state's  timeliness rules is a default that precludes  collateral review in federal court unless both  cause and prejudice are established). By  disdaining the Illinois courts when he had the  chance, Ryan lost any entitlement to obtain a  federal declaration that his 1980 conviction is  invalid, for he does not argue that any "cause"  (which is to say, an impediment created by the  state) excuses the delay. See also, e.g., Freeman  v. Page, 208 F.3d 572 (7th Cir. 2000).


13
Defendants have ample reason to challenge their  convictions on direct appeal, or collaterally  while serving their sentences. The Sentencing  Commission's approach, like that of the Armed  Career Criminal Act, relies on this incentive.  Serious challenges are likely to be brought, and  resolved, before the sentencing for a later  offense. Convicts who wait too long can try coram  nobis, which is available in many states. This is  what happened in United States v. Tucker, 404  U.S. 443 (1972): the defendant obtained writs of  error coram nobis, which justified resentencing  on the current conviction. See also Johnson v.  Mississippi, 486 U.S. 578 (1988). Any convicted  person has ample opportunities to obtain review.  Requiring defendants to use these opportunities,  rather than tarry and then launch indirect  collateral attacks during or after sentencing for  some other offense, has significant benefits. It  sends persons to the rendering courts, which have  the records necessary to determine whether a  conviction is valid or not. It requires them to  act promptly, while the information necessary to  determine validity is available (and while  reprosecution is possible, at least in theory, if  the conviction is flawed).


14
Honoring judgments that remain outstanding after  full opportunity for direct and collateral review  does not dis-honor the constitutional claims the  defendant wishes to make. It simply establishes  rules for presenting these claims to the right  court, and in a timely fashion. Respecting  judgments is the norm in our legal culture: the  full faith and credit clause and common law  principles of res judicata combine to make  respect for judgments the rule. During this  century courts began to readjudicate issues that  were, or could have been, presented to the  rendering court. E.g., Frank v. Mangum, 237 U.S.  309 (1915); Waley v. Johnston, 316 U.S. 101  (1942); Brown v. Allen, 344 U.S. 443 (1953). This  development depends on a federal statute, not on  constitutional right. See Lindh v. Murphy, 96  F.3d 856, 871-74 (7th Cir. 1996) (en banc),  reversed on other grounds, 521 U.S. 320 (1997).  See also Williams v. Taylor, 120 S. Ct. 1495  (2000). No statute expressly authorizes the form  of derivative collateral attack that Ryan wants  to wage, and the changes made by the AEDPA show  that long-deferred challenges that were never  presented to the state courts are no longer  appropriate grounds of federal relief. Whether  some avenue remains open to Ryan in Illinois is  a question we pretermit, along with the question  (the one reserved at the end of Custis) whether  a writ of error coram nobis would justify relief  under sec.2255. Because Ryan's 1980 conviction  remains on the books to this day, it is not  possible to conclude, in the language of sec.2255  para.1, that his federal sentence "was in excess  of the maximum authorized by law, or is otherwise  subject to collateral attack". The sentence is  within the statutory limit, was altogether proper  under Custis, and therefore may not now be upset.

Affirmed


Note:


*
 Judge Diane P. Wood voted to grant rehearing.



15
DIANE P. WOOD, Circuit Judge, dissenting.  Once  again, we are called upon to unravel the  complexities of collateral attacks on federal  sentences. That task, which is hard enough when  the question is what kinds of defects in the  original proceeding are serious enough to entitle  a prisoner to have a conviction or sentence set  aside, becomes even more difficult when the  attack indirectly calls into question the results  of earlier proceedings. Our case is such a case.  We must decide here whether there is any way at  all that a federal prisoner can challenge a  federal sentence that was based in part on a  void, unconstitutional prior state conviction.  The majority concludes that there is nothing such  a prisoner can do, even in a state like Illinois  that affords absolutely no way for an individual  who has finished serving the unconstitutional  prior sentence to erase it from the books. I  disagree, and I therefore respectfully dissent.


16
John Ryan pleaded guilty in 1980 to state  charges of armed robbery before the Circuit Court  of Cook County, Illinois. He was sentenced to six  years' imprisonment for that offense. He took no  appeal, nor did he file a state post-conviction  petition; instead, he served out the sentence to  its completion. Only later did it turn out that  his guilty plea may have been procured through  the most serious form of attorney misconduct.  Ryan claims that on the day of trial, his lawyer  demanded a payment of $2,000 as the price of  going forward. Ryan didn't have the money, and so  he pleaded guilty instead. The lawyer in question  was later disbarred by the Illinois Supreme  Court. In 1987, the court accepted a voluntary  disbarment based on six pending proceedings in  which he was charged with unethical conduct  toward clients other than Ryan. The charges  included lying to a client by telling him that  the appellate court had affirmed his conviction,  when the lawyer had never appealed the case at  all; lying to another pair of clients by telling  them he had incorporated their business when he  had not done so, and the lie eventually forced  them into bankruptcy; and using client escrow  accounts to hide personal funds from the Internal  Revenue Service. Ryan claims that the lawyer's  effort to shake him down on the morning of the  trial was one more item on this inglorious list.  If Ryan's allegation proves to be true, then it  would be compelling evidence that he had received  constitutionally ineffective counsel in  conjunction with his 1980 conviction.


17
Years later, Ryan was foolish enough to commit  another offense, this time the federal controlled  substance crime to which he pleaded guilty on  September 20, 1993, in United States v. Ryan, No.  93-CR-419-1, N.D. Illinois. For that crime, Ryan  received a sentence of 185 months plus five  years' supervised release. He started with an  offense level of 26 and a criminal history  category of VI. Six levels were then added  pursuant to the career offender provision,  U.S.S.G. sec. 4B1.1, based on the 1980 Illinois  conviction just described and one other  conviction that he does not challenge. Last, two  levels were deducted for acceptance of  responsibility, see sec. 3E1.1(b), giving a final  offense level of 30 and a range of 168 to 210  months. Had it not been for the 1980 Illinois  conviction, the career offender enhancement would  not have been proper; and without those extra 6  levels, the final offense level would have been  24 and the range 100 to 125 months. It is  therefore obvious that Ryan and anyone similarly  situated has a substantial stake in being able to  correct the kind of problem he had in the 1980  conviction, in some court, at some time.    The majority holds that Ryan is out of luck,  unless the state offers a way to vacate an  unconstitutional prior conviction for which the  entire sentence has been served. It believes that  its result is compelled by Custis v. United  States, 511 U.S. 485 (1994). But the Court had no  such problem before it in Custis. We must decide  now whether the principles underlying Custis  apply to this significantly different fact  pattern.


18
The first question is whether Ryan should be  proceeding under 28 U.S.C. sec. 2254, the statute  normally used to attack state convictions and  sentences, or 28 U.S.C. sec. 2255, the  counterpart statute for federal convictions and  sentences. I agree with the district court that  the correct vehicle was sec. 2255. This follows  from Maleng v. Cook, 490 U.S. 488 (1989), in  which the Court held that when a state prisoner  seeks to challenge a prior state conviction via  sec. 2254, the custody that matters is the  current one, not any custody that resulted from  the prior conviction: "[T]he habeas petitioner  [is] 'in custody' under the conviction or  sentence under attack at the time his petition is  filed." Id. at 490-91 (emphasis added), citing  Carafas v. LaVallee, 391 U.S. 234, 238 (1968).  See also Crank v. Duckworth, 905 F.2d 1090, 1091  (7th Cir. 1990) ("Maleng holds that when sentence  A has expired but has been used to augment  sentence B, the prisoner is 'in custody' only on  sentence B."). Although neither the Supreme Court  nor this court has explicitly ruled on this point  before, Maleng makes clear that the district  court did not have jurisdiction to consider the  validity of Ryan's expired Illinois sentence  under sec. 2254. Ryan has not been "in custody"  of the State of Illinois under that sentence for  many years. Neither is he under "present  restraint" pursuant to that conviction. Maleng,  490 U.S. at 492. Therefore, he does not meet the  statutory requirements to seek review of that  sentence under sec. 2254. This is the first  important contrast with the situation facing the  Court in Custis, where the Court found that the  petitioner could attack the prior state  conviction through sec. 2254 because he was still  in state custody at the time of his federal  sentencing. The Custis Court had no occasion to  consider what might happen if neither sec. 2254  nor any other remedy was still available.


19
Following Maleng, we have held that when a  sentence has been enhanced based on an allegedly  unlawful or factually erroneous conviction, a  prisoner may bring a habeas corpus petition in  the court with jurisdiction to grant release from  the enhanced sentence, or reduction of that  sentence. Lowery v. Young, 887 F.2d 1309, 1312-13  (7th Cir. 1989). Lowery involved a different  permutation of today's problem, where a state  prisoner in custody under one state sentence  claimed that the sentence had been  unconstitutionally enhanced by prior, unlawful  convictions of another state. We concluded that  the district court had jurisdiction to consider  his claims, even though the prisoner was in  custody only of the state which had imposed the  enhanced sentence. Indeed, the only court with  jurisdiction to grant his requested relief--an  earlier release from his current custodian--was  the court with jurisdiction over that custodian.  887 F.2d at 1312-13. See also Crank, 905 F.2d at  1091.


20
The same logic applies here. Ryan is a federal  prisoner "in custody" under a federal sentence.  His complaint pertains to the length of that  sentence, which means that the statute he can and  must use is sec. 2255. Maleng rules out sec.  2254, and the fact that the attack relates to the  sentence rules out 28 U.S.C. sec. 2241. This  conclusion follows from a number of our prior  decisions. See, e.g., Tredway v. Farley, 35 F.3d  288, 292 (7th Cir. 1994) ("Because a person  currently serving a sentence that was enhanced on  the basis of a prior conviction is still in  custody, he may challenge the enhancing  conviction as constitutionally invalid even  though the prior conviction's original custodial  term has expired."), quoting Smith v. Farley, 25  F.3d 1363, 1365-66 (7th Cir. 1994); Crank, 905  F.2d at 1091 ("Whether the federal court with  jurisdiction over the custodian holding the  prisoner on [the enhanced] sentence B may inquire  into the validity of [the prior] sentence A is a  matter of comity and the rules of preclusion, not  of 'custody'."). See also United States v.  Tucker, 404 U.S. 443 (1972) (granting relief  under sec. 2255 to petitioner whose federal  sentence was enhanced based on prior,  unconstitutional state conviction); United States  v. Clark, 203 F.3d 358, 364 (5th Cir. 2000)  (collecting cases).


21
Custis itself implies that the "in custody"  requirement of sec. 2255 is met where a federal  sentence has been enhanced by a prior state  conviction. In stating that "[i]f Custis is  successful in attacking these state sentences, he  may then apply for reopening of any federal  sentence enhanced by the state sentence," 511  U.S. at 497, the Court acknowledged that the  proper vehicle to attack the enhanced sentence is  sec. 2255. Several circuits have likewise held  that a federal prisoner may bring a sec. 2255  motion after successfully attacking a prior state  conviction. See Turner v. United States, 183 F.3d  474, 477 (6th Cir. 1999); United States v. Bacon,  94 F.3d 158, 161-62 & n.3 (4th Cir. 1996); United  States v. Cox, 83 F.3d 336, 339 (10th Cir. 1996);  United States v. Nichols, 30 F.3d 35, 38 (5th  Cir. 1994). The only wrinkle presented by this  case is whether the federal prisoner is entitled  to seek correction of his federal sentence if he  has not, for whatever reason, already launched a  successful collateral attack on his state  conviction.


22
The majority's principal reason for concluding  that no such entitlement exists is the fact that  Ryan's 1980 conviction was literally on the books  at the time of his federal sentencing. It argues  that because there was a conviction, the decision  to enhance his federal sentence under sec. 4B1.1  was automatically "correct" and the sentence is  therefore immune from challenge under sec. 2255.  Custis, however, did not take such a strict  approach. Nothing in Custis implied that the  earlier state conviction used to enhance Custis's  sentence was legally correct. Nor did the Court  suggest that the possibility that Custis's prior  conviction was tainted with constitutional error  was irrelevant. Instead, the Court focused on the  language of the Armed Career Criminal Act  ("ACCA") to resolve the narrow question whether  that statute provided persons sentenced under it  an opportunity to attack the validity of their  prior convictions during sentencing under that  statute. The Court explained: "The [ACCA] focuses  on the fact of the conviction and nothing  suggests that the prior final conviction may be  subject to collateral attack for potential  constitutional errors before it may be counted  [for sentencing]." 511 U.S. at 490-91. The Court  came to a similar conclusion in Lewis v. United  States, 445 U.S. 55 (1980). Construing a  predecessor to the current felon-in-possession-  of-a-firearm statute, 18 U.S.C.A. sec. 1202(a)(1)  (Supp. 1982), the Court held that the statute was  not limited to felons whose convictions were  subject to possible collateral attack but rather  applied to all persons with a felony conviction  on the books. 445 U.S. at 60-65.


23
What the Court focused on in both of these  cases was whether the applicable recidivist  statute provided an opportunity for persons  subject to the statute to expunge their past in  the same sentencing proceeding in which the trial  court was to determine whether the individual was  subject to additional sanctions and penalties  based on those past convictions. Some statutes  allow people with a criminal history to attack  the validity of their prior convictions before  being subjected to higher penalties, see 18  U.S.C. sec. 3575(e) (dangerous special offender),  21 U.S.C. sec. 851(c)(2) (recidivism under the  Comprehensive Drug Abuse Prevention and Control  Act of 1970), while others do not, see 18 U.S.C.  sec. 924(e) (sentencing for felons in possession  of a firearm).


24
My colleagues construe the criminal history  provisions of the Sentencing Guidelines, U.S.S.G.  sec. 4A1.2, in the same manner as the Supreme  Court construed the ACCA in Custis, to mean that  convictions that have not yet been expunged or  vacated may be used to enhance a sentence without  providing the person being sentenced with an  opportunity to attack the validity of those  convictions during the original sentencing  proceedings. Given the language of the criminal  history Guideline, this much of its  interpretation makes sense. Naturally, this  language also implies (consistently with Custis)  that a conviction that has previously been  expunged or vacated may not be counted.


25
The question of use in the original sentencing  proceeding is analytically different from the  question of the permissible scope of a collateral  attack. The Guidelines speak indirectly to the  question of collateral attacks, and what they say  is more open to the possibility of such an attack  on an earlier, allegedly invalid, sentence than  the majority's opinion admits. Section 4A1.2,  Application Note 6, expressly states that, "with  respect to the current sentencing proceedings,"  the Guidelines do not "confer any right to attack  collaterally a prior conviction or sentence  beyond any such rights otherwise recognized in  law." (Emphasis added). The majority reads this  language as if the sentence ended just before the  phrase I have highlighted. (Obviously the U.S.  Sentencing Guidelines are not enacting laws for  the states, and so the possibility that a state  might provide an avenue for a challenge does not  change matters. Such an avenue would not be  something "conferred" by the Guidelines.) There  is no hint in that passage that if the conviction  is on the books at the time of sentencing, any  sentence enhancement based on it is thereafter  immune from challenge. The Sentencing Commission  was saying only that the Guidelines themselves  were not a source of law for possible collateral  attack--hardly a controversial proposition.


26
The question then is what kind of collateral  attack on a prior state sentence used for  enhancing purposes under the Guidelines is  "otherwise recognized in law". In my opinion, the  answer for a federal prisoner is the procedure  established in sec. 2255. This conclusion does  not take away with the left hand what the Supreme  Court gave the district courts with the right  hand in Custis: the freedom not to explore prior  convictions. That would be true only if exactly  the same grounds, under exactly the same  procedures, applied to sec. 2255 cases as apply  to original sentencing proceedings, and that is  plainly not the case. Even if a defendant may not  collaterally attack her prior sentence in the  original sentencing proceeding (except on narrow  grounds not available to Ryan), it does not  necessarily follow that such a prior sentence is  immune from all attack, on any ground, at any  time. That is the key point at which I part  company with the majority.


27
Both the Supreme Court and the Sentencing  Commission have concluded that there is much to  be lost and little to be gained by clogging up  the federal district courts with collateral  attacks on prior convictions during sentencing.  One could imagine an array of complaints ranging  from the sufficiency of indictments, to  evidentiary errors at the state proceeding, to  sentencing complaints. Such attacks would bog  down the sentencing process, slowing down the  operation of the courts and clogging their  already crowded dockets. (In fact, this was part  of the Custis Court's rationale for allowing a  collateral attack during sentencing proceedings  for violations of the right to counsel recognized  in Gideon v. Wainwright, 372 U.S. 335 (1963):  lack of counsel is one of the few constitutional  errors which will be readily apparent and can be  discovered without poring over the record of the  earlier proceedings. See 511 U.S. at 496.)  Collateral attacks, in contrast, are available  only on grounds far narrower than those that can  be raised in the original case (either at  sentencing or on appeal). Well established  principles governing sec. 2255 proceedings would  leave the door open to that far smaller universe  of complaints: those that assert substantial  federal constitutional flaws with the original  state conviction. The majority overlooks this  fact when it presumes that the two stages would  be identical.


28
If sentencing hearings were the last word,  always, then there would be no occasion ever to  use sec. 2255 to attack a sentence. But that is  not the system we have. To the contrary,  countless cases hold that a petitioner can attack  a federal sentence for constitutional error. See,  e.g., United States v. Addonizio, 442 U.S. 178,  185 (1979); Waley v. Johnston, 316 U.S. 101, 104-  05 (1942). And a subset of those cases involve  challenges to prior sentences that were used to  enhance the federal sentence once a prior  (invalid) conviction has been expunged, reversed,  or invalidated. See, e.g., Tucker, supra; Clark,  supra. Applying the same rule to a previously  unexamined, and presently unexaminable, prior  sentence would be no different and no more  disruptive than holding a hearing to re-examine  the conviction for which the prisoner is serving  time--an activity that is routine for the federal  courts. Complaints about ineffective assistance  of counsel are regularly thrown over to  collateral attack proceedings, precisely because  the original trial record almost never contains  the necessary information to evaluate the claim.  See, e.g., United States v. Cooke, 110 F.3d 1288,  1299 (7th Cir. 1997). The fact that a new point  can be raised on collateral attack that was  unavailable at the original proceeding in no way  undermines the significance or importance of the  original proceeding, nor would it do so in the  present context.


29
The Sentencing Commission itself was concerned  with the lawfulness of prior convictions used for  enhancement purposes. The Sentencing Commission  did not say that any conviction--constitutionally  infirm, factually erroneous, or not--can count  for sentencing purposes. Instead, it carved out  an exception for convictions vacated because of  errors of law or fact or invalidated because of  constitutional error. The majority claims that  the Commission meant to exclude only those  convictions invalidated prior to federal  sentencing; the result, according to the  majority's view, is that if the sentencing court  took into account any conviction not yet  invalidated at the time the federal sentence was  imposed, the sentence is presumptively lawful and  immune from collateral attack under sec. 2255.


30
That conclusion, however, simply restates the  question, which is what to do in cases like  Ryan's, where collateral attack is not possible  either before the federal sentencing or at the  time of the sec. 2255 petition. In hindsight, one  assumes, Ryan probably now wishes that he had  been more litigious after he pleaded guilty to  the 1980 state charges, but he was not. It is now  too late for him to raise any challenge in the  Illinois courts to that plea. See 725 ILCS 5/122-  1 (providing petition for post-conviction relief  must be filed within three years from the date of  conviction, at the latest). The majority holds  out hope for Ryan and those in his position by  speculating that some form of post-hoc relief may  be available through a writ of error coram nobis.  I am not nearly so sanguine. The common law writ  was abolished in Illinois in 1871 by the Illinois  legislature. See Ill. Rev. Stat. Ch. 83, sec. 154  (Gross 1871); People v. Touhy, 72 N.E.2d 827, 830  (Ill. 1947) (recounting history and abolition of  writ). It has since been replaced with a  statutory provision which, like the state post-  conviction relief statute, has strict deadlines  for seeking review of a sentence. In Illinois a  petition for statutory coram nobis must be filed  within two years of the original judgment of  conviction. See 735 ILCS 5/2-1401 (statutory  coram nobis). And, because imprisonment does not  constitute legal disability or duress, the two-  year filing period is not tolled during the time  of confinement. See Williams v. People, 202  N.E.2d 468, 469 (Ill. 1964); Morgan v. People,  158 N.E.2d 24, 26 (Ill. 1959). Thus, Ryan (and  others like him whose state sentences have long  since expired) has no means through which he can  attack collaterally his state conviction and, if  successful, seek to have his federal sentence re-  opened.


31
I would find under these circumstances that  sec. 2255 remains available to such a prisoner to  serve its classic function: to allow an attack on  his federal sentence on the ground that all or  part of it was tainted with constitutional error.  Not every prisoner will be able to allege the  kind of error in a prior state conviction that  would give rise to a right to a hearing in this  kind of case. Indeed, most will not, both because  the state courts do not commit those kinds of  errors on a regular basis, and because  allegations of ineffective assistance of counsel  that are sufficiently serious to require a  hearing are rare. But some will. Under the  majority's rule, even a state prisoner who had  pleaded guilty to earlier charges after 90 days  in a torture chamber would still be required to  serve the extra time for his federal sentence. I  attach no special significance to the fact that  the state may no longer offer a remedy to correct  such a sentence, after some reasonable time  period has passed. Once the sentence has been  served, the state may take the position (as  Illinois has) that it does not wish to use its  scarce judicial resources for essentially a  record-correction function. The person with a  stake in the matter is the new federal prisoner,  like Ryan, and the system that must ensure it is  not relying on an unconstitutional foundation to  justify imprisonment is the federal system.


32
The only task remaining is to apply this rule  to Ryan. His allegations, backed up as they are  by the deplorable later history of the lawyer who  was allegedly representing him in the 1980  Illinois proceeding, are more than enough to  justify a hearing on his petition under sec.  2255. I would reverse the decision below and  remand his case to the district court for further  proceedings.


33
I respectfully dissent.

