The opinion of the court was delivered by: GRADY
Petitioner Alejandro Bernal is a prisoner in federal custody, having been sentenced on October 1, 1993 to a term of fifteen years' imprisonment for violating 18 U.S.C. § 922(g), prohibiting a convicted felon from knowingly possessing a firearm. United States v. Bernal, No. 92 CR 568 (N.D. Ill.). His conviction and sentence were affirmed on appeal. United States v. Bernal, 28 F.3d 630 (7th Cir. 1994). Bernal was sentenced under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1), which requires a fifteen-year minimum prison term for a convicted firearms possessor who "has three previous convictions ... for a violent felony or a serious drug offense." A "violent felony" is any crime punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 924(e)(2)(B). Because Bernal had four prior burglary convictions entered in 1978 and 1980, he received the fifteen-year minimum enhanced sentence.
Bernal has filed four petitions for habeas corpus under 28 U.S.C. § 2254 attacking the burglary convictions. A "Motion for Court Order and/or Subpoena" accompanied each petition, seeking evidentiary material in support of his claims. All of the challenged convictions were entered by the Circuit Court of Cook County, Illinois, following either a guilty plea or a stipulated bench trial, and none was appealed. With respect to each conviction Bernal filed a petition under the Illinois Post-Conviction Act, 725 ILCS 5/122-1, formerly Ill. Rev. Stat. Ch. 38 P 122-1. He alleges that he did not learn that his prior convictions were constitutionally infirm until they were used to enhance his federal sentence. Each of his petitions was dismissed as time-barred, and he did not appeal the denial. While the Post-Conviction Act provides an exception for untimely petitions if the petitioner "alleges facts showing that the delay was not due to his culpable negligence," id., Bernal's petitions suggest no such grounds. Bernal has therefore exhausted his state law remedies.
Case No. 96 C 5156 addresses a conviction entered August 7, 1980 in No. 79-7720, resulting in a sentence of three years' imprisonment. He alleges that the conviction, entered after a stipulated bench trial he contends was equivalent to a guilty plea, was unconstitutional because his counsel did not inform him (a) that he had a right to plead not guilty and go to trial; (b) that conviction would make him deportable; and (c) that a mandatory term of supervised release would follow his incarceration.
Case No. 96 C 5157 addresses a conviction entered September 28, 1978 in Nos. 78-17540 and 78-17541, resulting in a sentence of restitution and four years' probation. Bernal alleges that the conviction, entered upon a negotiated guilty plea, was unconstitutional because (a) he was not informed of his right to plead not guilty and go to trial; (b) he was not informed that conviction would make him deportable; (c) he was promised drug rehabilitation if he pled guilty, which he did not receive; (d) he was not informed that he would have to pay restitution; (e) he had limited fluency in English; (f) he was under the influence of methadone and heroin; (g) his counsel did not inform the court of (e) and (f), and waived presentence investigation without explaining this to him; and (h) he never actually pleaded guilty at his hearing.
Case No. 96 C 5158 addresses a conviction entered August 7, 1980 in No. 80-200325 following a guilty plea and resulting in a sentence of three years' imprisonment, to run concurrently with the sentence in No. 79-7720. He alleges that the conviction was unconstitutional because he was not informed that there would be a period of supervised release following his incarceration and counsel erroneously informed him that conviction would not lead to his deportation.
Case No. 96 C 5159 addresses a conviction entered July 14, 1980 in No. 80-2864 after a stipulated bench trial resulting in a sentence of three years' imprisonment. Bernal alleges essentially the same constitutional violations as in 96 C 5158.
The first problem posed by Bernal's petitions is the court's jurisdiction to consider them.
If Bernal's petitions are brought under 28 U.S.C. § 2254, as he asserts, this court does not have jurisdiction. The federal habeas corpus statute provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It appears from the petitions that Bernal has completely served the sentences imposed by all of the challenged convictions. He is not, therefore, in custody pursuant to the judgment of a state court, but only the judgment of this court. The Supreme Court established in Maleng v. Cook, 490 U.S. 488, 492-93, 104 L. Ed. 2d 540, 109 S. Ct. 1923 (1989), that the fact that a conviction whose sentence has already been served has been used to enhance a sentence that the petitioner is currently serving does not satisfy the custody requirement as to the prior conviction. However, the Court's opinion concluded by stating that "Our holding is limited to the narrow issue of "custody" for subject-matter jurisdiction of the habeas court. We express no view on the extent to which the 1958 conviction itself may be subject to challenge in the attack upon the [later] sentences which it was used to enhance. See 28 U.S.C. § 2254 Rule 9(a)." Maleng, 490 U.S. at 494.
Although the question was reserved in Maleng and again in Parke v. Raley, 506 U.S. 20, 28, 121 L. Ed. 2d 391, 113 S. Ct. 517 (1992), some Courts of Appeals, including the Seventh Circuit, have held that federal courts do have jurisdiction to hear challenges to earlier convictions used to enhance a conviction the prisoner is currently serving or is yet to serve, but only in the context of a challenge to the later conviction in which the "in custody" requirement is met. See Young v. Vaughn, 83 F.3d 72, 75-76 (3rd Cir. 1996)(citing cases from other circuits); Tredway v. Farley, 35 F.3d 288, 292 (7th Cir.1994), cert. denied, 513 U.S. 1129, 130 L. Ed. 2d 885, 115 S. Ct. 941, 115 S. Ct. 941, 130 L. Ed. 2d 885 (1995); Smith v. Farley, 25 F.3d 1363, 1365-66 (7th Cir. 1994), cert. denied. 513 U.S. 1114, 115 S. Ct. 908, 130 L. Ed. 2d 791 (1995).
However, because Bernal is in custody only as a result of his federal conviction, the court does not have power to entertain the petitions under § 2254. Congress has provided a procedure for federal prisoners challenging the legality of their confinement: a motion brought before the sentencing court to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Bernal could be ordered to refile these four habeas petitions as a single § 2255 motion.
Nevertheless, as the matter is properly before me as the sentencing judge, in the interest of time and economy the four petitions are consolidated into one action pursuant to Rule 42, Fed. R. Civ. P., and will be reviewed pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings For The United States District Courts as if they had been brought as a single § 2255 motion.
II. DERIVATIVE COLLATERAL REVIEW UNDER § 2254
The question then arises whether this court has the same power under § 2255 that it would have had if Bernal were serving a state rather than a federal sentence and had brought his challenge under § 2254. It will be necessary to review the Seventh Circuit's decisions under § 2254 and the differences between § 2254 and § 2255.
There are at least three principal issues raised when a federal court proposes to reexamine a state court conviction when the sentence imposed pursuant to that conviction has expired and the prisoner is in custody only with respect to a later sentence that has been enhanced on the basis of the prior conviction. The first is whether such derivative collateral review is available at all. The second is its scope -- should the court consider any claim that, if it had been presented on "direct" habeas review, would warrant invalidating the prior conviction or sentence? The third question is what effect should be given procedural defaults. If a petitioner such as Bernal does not timely avail himself of available state remedies to attack his prior conviction, he is normally prevented from challenging them in a habeas action. If he delays in perfecting an appeal or filing a post-conviction petition until after the prescribed time has passed, he has waived his opportunity to present his claim to the state courts and so forfeited his right to federal habeas review. If he proceeds anyway and the state court rejects his filing as untimely, that counts as an adequate and independent state ground of decision preventing the federal court from reaching the merits of his habeas petition. Barksdale v. Lane, 957 F.2d 379, 382-83 (7th Cir. 1992), cert. denied, 506 U.S. 890, 113 S. Ct. 257, 121 L. Ed. 2d 189 (1992); Chatman v. Page, 868 F. Supp. 1036 (N.D. Ill. 1994) (Shadur, J.).
While such procedural defaults may be excused by a showing of cause and prejudice, Bernal only alleges that he was ignorant of the unconstitutionality of his convictions until they were used to enhance his federal sentence some twelve years later. This is not an acceptable excuse, and Bernal's petition can be considered only if the use of his prior convictions to enhance his federal conviction gives rise to a new opportunity to challenge them.
The question whether derivative collateral attacks may be considered was answered in the affirmative in Lowery v. Young, 887 F.2d 1309 (7th Cir. 1989), cert. denied, 506 U.S. 834, 113 S. Ct. 104, 121 L. Ed. 2d 63 (1992). Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990) cert. denied, 498 U.S. 1040, 112 L. Ed. 2d 701, 111 S. Ct. 712 (1991) (" Crank I "), following Lowery, permitted a habeas petitioner to challenge a burglary conviction that had been used to enhance a later sentence for battery under an Indiana recidivist statute. Crank, imprisoned in Indiana, alleged that his earlier conviction was invalid because his counsel had failed to perfect an appeal. After the district court dismissed his habeas petition, the Court of Appeals reversed because he had shown a "positive and demonstrable nexus" between his custody and the prior conviction. Crank I, 905 F.2d at 1091.
After the district court on remand granted a writ of habeas corpus, the state of Indiana appealed, arguing that Crank's lack of diligence in attempting to correct his counsel's neglect was an independent ground for denying the writ. Crank had neglected to do anything about his unappealed conviction until twelve years after the conviction and five years after it had been used to enhance his later sentence. Because of Crank's lack of diligence, the Indiana courts had refused to permit Crank to file a belated motion to correct errors. His initial failure to appeal was excused by his counsel's ineffective assistance, but his personal failure to seek relief for twelve years thereafter was not.
In Crank v. Duckworth, 969 F.2d 363, 364 (7th Cir. 1992), cert. denied, 507 U.S. 923, 122 L. Ed. 2d 682, 113 S. Ct. 1290 (1993) (" Crank II "), the Seventh Circuit agreed that under Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991), where a state court declines to address a prisoner's constitutional claims because the prisoner failed to satisfy an independent state procedural rule, they are subject to federal habeas review only if the petitioner can show cause for and prejudice from the default, or that failure to review the claims would cause a miscarriage of justice. Crank II, 969 F.2d at 364. The court recognized that Crank had only served a year under his prior conviction and "probably didn't care one way or another how his appeal came out"; his conviction became ...