nevertheless attack the prior conviction because it contributed to his present sentence.
In an unpublished and non-precedential opinion, the Seventh Circuit denied derivative collateral review under § 2255, citing Custis. Hankins v. United States, No. 93-3750, 54 F.3d 779 (table), 1995 WL 302409 (7th Cir. 1995). It is also noteworthy that in affirming a federal conviction where the defendant had not been permitted to challenge default judgments used to enhance his sentence, the Seventh Circuit, in a recent opinion by Judge Flaum, discussed at length the appellant's collateral remedies in Wisconsin courts but did not mention the possibility of federal collateral review under § 2255. United States v. Jiles, 102 F.3d 278 (7th Cir. 1996).
Other circuits appear to have concluded that Custis limits derivative collateral attacks to cases where the prior conviction is flawed as a consequence of denial of the right to counsel. In Clawson v. United States, 52 F.3d 806 (9th Cir. 1995), the Ninth Circuit considered a § 2255 motion challenging a federal sentence based on a state conviction that had not become final. Following Custis, the court held that the petitioner could not challenge the prior conviction at his sentencing on any grounds except denial of counsel. Because his state-court conviction was on appeal, it appears the petitioner was not asking the court to review it, but was only challenging its being factored into his sentencing while the appeal was pending. Nevertheless, the court made the broad pronouncement that "there is no constitutional right to collaterally challenge the constitutionality of a prior conviction for any reason other than deprivation of the Gideon right to counsel." Clawson, 52 F.3d at 809. In an unpublished and non-precedential opinion, a Ninth Circuit panel, citing that statement, held that "a defendant may not challenge, in a § 2255 motion, a prior state conviction used to enhance a federal sentence." United States v. Chow, 1996 U.S. App. LEXIS 32795, 1996 WL 717089 (9th Cir. 1996).
The Ninth Circuit earlier held, in Brock v. Weston, 31 F.3d 887, 890-91 (9thCir. 1994), that Custis did not overrule existing precedent making derivative collateral review available under § 2254. Like the Seventh Circuit in Tredway, the court read Custis narrowly as only barring collateral review at sentencing, without acknowledging the ambiguity of its pronouncement. The court in Brock noted that Justice Souter had stated in his dissent in Custis that "the Court does not disturb uniform appellate case law holding that an individual serving an enhanced sentence may invoke federal habeas to reduce the sentence to the extent it was lengthened by a prior unconstitutional conviction." Custis, 114 S. Ct. at 1746 (Souter, J., dissenting). While this is literally true, the question was not presented in Custis. While Custis does not overrule Smith and Tredway, either, it supports not extending their rationale to § 2255.
The Eighth Circuit in Partee v. Hopkins, 30 F.3d 1011, 1012 (8th Cir. 1994), cited Custis for the proposition that "there is no federal constitutional right to collaterally attack a prior conviction used to enhance a sentence on any constitutional ground other than failure to appoint counsel for an indigent defendant." It then held that the petitioner, who had not been permitted in state court to challenge the constitutionality of his guilty plea in a prior conviction, could not raise the issue in a federal habeas proceeding either. The Eighth Circuit subsequently concluded that a federal prisoner is similarly limited in challenging a prior enhancing conviction under § 2255. Charlton v. Morris, 53 F.3d 929 (8th Cir. 1995).
While this court is constrained to follow Seventh Circuit precedent, Custis militates against extending Smith and Tredway to § 2255 proceedings. The court also notes that Smith and Tredway were recently criticized in Moore v. Hargett, 83 F.3d 699, 702-03 (5th Cir. 1996), rhg. en banc denied, 95 F.3d 56 (1996), on the additional grounds that the Seventh Circuit's approach does not adequately respect the principle of finality, and that the Seventh Circuit had ignored the concerns of comity and federalism underlying the adequate and independent state ground doctrine as articulated in Coleman. Moore, 83 F.3d at 702.
Differences between § 2254 and § 2255 also militate against extending the right of derivative collateral attack to the latter. It is true that while a federal court can grant relief under § 2254 only if the petitioner is being held in violation of the Constitution or laws of the United States, a court is authorized by § 2255 to hear a motion "claiming the right to be released upon the ground that ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Even if a sentence imposed on the basis of a constitutionally defective conviction does not, absent a Gideon violation, violate the Constitution and laws of the United States, this catchall provision arguably permits the court to grant relief. But while there is no difficulty in reading this as permitting the court to revise the sentence of a movant who can show that a prior enhancing conviction has already been vacated or invalidated, see Burgett, supra ; United States v. Pettiford, 101 F.3d 199 (1st Cir. 1996), it is dubious that it authorizes a forum for a petitioner to attack a prior conviction in the first instance. Neither § 2255 nor the Rules Governing Section 2255 Proceedings provide for joining a state attorney general as a party. Without doing so it is unclear how the court could obtain the state-court record, a prerequisite for the disposition of most constitutional claims.
While the court presumably has the power to join a state attorney general -- although in the case of an expired sentence it is unclear whether the state rendering the enhancing conviction would have sufficient interest in the outcome to meet the "case or controversy" requirement -- the absence of such a provision is persuasive that Congress never intended to grant federal courts this power under § 2255.
IV. THE EFFECT OF THE 1996 AMENDMENTS TO § 2254
Even if derivative collateral review of convictions with non-jurisdictional defects were permitted in principle, the question of Congressional intent brings us to a further problem. In 1996 Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, curtailing the scope and availability of federal habeas corpus. Bernal's petition was filed after the enactment of these amendments. Bernal contends that the amendments to § 2254 are unconstitutional as applied to convictions predating the effective date of the amendments. This argument is precluded by Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996). If these amendments apply to collateral challenges under § 2255, they bar Bernal's petitions.
The court believes they apply. Smith assumed that the restrictions and limitations generally applicable to habeas review would apply to derivative collateral attacks, see Smith, 25 F.3d at 1367 n.8, with, of course, the exception that the petitioner must have an opportunity to seek a full and fair review of his claims after receiving the enhanced sentence. Assuming that the rationale of Smith and Tredway should apply to § 2255 cases, it is reasonable to assume that limitations applicable to habeas review generally are applicable. There is precedent for applying the requirements of habeas review, notably exhaustion, to § 2255 cases. See, e.g., U.S. v. Gaylor, 828 F.2d 253, 254-55 (4th Cir. 1987); United States v. Custis, 923 F. Supp. 768 (D.Md. 1996). U.S. v. Crovedi, 517 F.2d 541 (7th Cir. 1975), is to the contrary, but was decided before Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), emphasized exhaustion as a matter of federalism and comity in § 2254 cases.
The limitations introduced by the Act would bar Bernal's petitions. Assuming that the constitutional errors Bernal asserts would, if proven, invalidate his conviction, Bernal could not show that he is entitled to a writ of habeas corpus without an evidentiary hearing, as his claims that he was uninformed or misinformed by his attorney before pleading guilty would not appear on the state-court record.
The 1996 amendments to § 2254 provide that
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--