Ryan v. USA.

• Decision Date: 18 July 2000
• Docket Number: No. 98-1736,98-1736
• Citation: 214 F.3d 877
• Parties: (7th Cir. 2000) John Ryan, Petitioner-Appellant, v. United States of America, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 877

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, 2000

Decided June 5, 2000

Rehearing and Rehearing En banc

Denied 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.

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).

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.

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.

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.

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:

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. 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).

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.

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...