John RYAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 214 F.3d 877

EASTERBROOK, Circuit Judge. Custis v. United States, 511 U.S. 485, 487, 114 S.Ct. 1732, 128 L.Ed.2d 517 (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. § 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). John Ryan was sentenced to 185 months’ imprisonment as a career offender under U.S.S.G. § 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. A few days before the statutes of limitations in 28 U.S.C. §§ 2244(

d) and 2255 ¶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 § 2254 to contest its validity. See Maleng v. Cook, 490 U.S. 488, 492-93, 109 S.Ct. 1923, 104 L.Ed.2d 540 (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 § 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. 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 § 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 § 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. 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. § 924(e), the statute involved in Custis, “focuses on the fact of the conviction and nothing [in § 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, 114 S.Ct. 1732 (emphasis in original). Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (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 § 924(

e) should be treated like the felon-in-possession statute. 511 U.S. at 491-93, 114 S.Ct. 1732. 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, 114 S.Ct. 1732. At the conclusion of this discussion the Court remarked: 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. 511 U.S. at 496, 114 S.Ct. 1732. 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, 30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) ]. 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, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (footnote omitted).” 511 U.S. at 497, 114 S.Ct. 1732 (full citation to Parke added; other brackets and parentheses in the original). What the Court said about § 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. § 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. § 851(c)(1).

But in the absence of such an independent right of review, the Commission stated, all outstanding convictions must be counted. 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 habe-as 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, 114 S.Ct. 1732. 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, 115 S.Ct. 2199, 132 L.Ed.2d 351 (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. § 841(b)(l)(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, 106 S.Ct. 2411, 91 L.Ed.2d 67 (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, 118 S.Ct. 1475, 140 L.Ed.2d 703 (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, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). And the Court added in Nichols v.

United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (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 was1'a misdemeanor that did not lead to incarceration). 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 station-house 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 án 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. 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, 114 S.Ct. 1732.

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 § 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, 119 S.Ct. 1728, 144 L.Ed.2d 1 (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, - U.S. -•, 120 S.Ct. 1587, 146 L.Ed.2d 518 (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). 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, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972): the defendant obtained writs of error coram no-bis, which justified resentencing on the current conviction. See also Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (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).

Honoring judgments that remain outstanding after full opportunity for direct and collateral review does not dishonor 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 read-judicate issues that were, or could have been, presented to the rendering court. E.g., Frank v.

Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915); Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942); Broum v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (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, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). See also Williams v. Taylor, — U.S.-, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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 § 2255.

Because Ryan’s 1980 conviction remains on the books to this day, it is not possible to conclude, in the language of § 2255 ¶ 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