Jerry Lee Smith v. United States of America

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0167P (6th Cir.)
File Name: 00a0167p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J ERRY LEE S MITH ,
Petitioner-Appellee,
v.
UNITED S TATES OF AMERICA ,
Respondent-Appellant.
;>

1
No. 99-3340
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 98-02824—David D. Dowd, Jr., District Judge.
Submitted: March 9, 2000
Decided and Filed: May 18, 2000
Before: WELLFORD, SILER, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ON BRIEF: Karin Hoppmann, U.S. DEPARTMENT OF
JUSTICE, APPELLATE SECTION, CRIMINAL DIVISION,
Washington, D.C., Gary D. Arbeznik, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellant.
David C. Jack, Wadsworth, Ohio, for Appellee.

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2 Smith v. United States No. 99-3340
1Section 924(e)(1) provides:
In the case of a person who violates section 922(g) of this title
and has three previous convictions by any court referred to in
section 922(g)(1) of this title for a violent felony or a serious
drug offense, or both, committed on occasions different from
one another, such person shall be fined not more than $25,000
and imprisoned not less than fifteen years, and, notwithstanding
any other provision of the law, the court shall not suspend the
sentence of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).
WELLFORD, J., delivered the opinion of the court, in
which SILER, J., joined. GILMAN, J. (pp. 12-13), delivered
a separate concurring opinion.
_________________
OPINION
_________________
HARRY W. WELLFORD, Circuit Judge. The government
appeals the district court’s grant of a motion to vacate Smith’s
federal sentence under 28 U.S.C. § 2255, which was based on
its finding that two of Smith’s predicate state convictions that
were used to enhance his sentence pursuant to the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),1 had
been obtained in violation of Boykin v. Alabama, 395 U.S.
238 (1969). We are called upon to decide whether a
defendant, who does not meet the “in custody” requirement of
28 U.S.C. § 2254, may attack the constitutional validity of
predicate state convictions under the ACCA in a § 2255
proceeding. We conclude that we are bound to hold that such
a collateral attack is impermissible under this court’s previous
decision in Turner v. United States, 183 F.3d 474 (6th Cir.
1999). Thus, we REVERSE the decision of the district court
and REMAND for resentencing.

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No. 99-3340 Smith v. United States 3
2A brief factual background of the case can be found at United States
v. Smith, 36 F.3d 490, 491 (6th Cir. 1994).
I. BACKGROUND
This case is before us for the third time.2 In 1991, Smith
was convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the
government sought to enhance Smith’s sentence pursuant to
the ACCA, which requires a minimum fifteen-year sentence
for offenders who have three or more qualifying acts, based
on Smith’s prior state convictions. The district court refused
to apply the ACCA, finding that two of Smith’s predicate
convictions had been obtained in violation of Boykin v.
Alabama, 395 U.S. 238 (1969), because Smith had not been
advised of his constitutional rights prior to the sentencing
hearing in those cases. The court sentenced Smith to twenty-
seven months in prison.
The government appealed to this court, and we reversed.
See United States v. Smith, 36 F.3d 490 (6th Cir. 1994). We
held that Custis v. United States, 511 U.S. 485 (1994), which
had just been decided at that time, was indistinguishable from
Smith’s case and did not allow a defendant to “collaterally
attack the validity of previous state convictions that are used
to enhance his sentence under the ACCA . . . (with the sole
exception of convictions obtained in violation of the right to
counsel). . . .” Custis, 511 U.S. at 487, quoted in Smith, 36
F.3d at 492. Thus, we vacated Smith’s sentence and
remanded to the district court for resentencing.
Smith, who had completed his term of imprisonment under
the prior sentence and was on supervised release, was
returned to custody on January 23, 1995. Sentencing was
rescheduled for January 27, 1995, but Smith obtained a
continuance in order to file a habeas corpus petition under
§ 2255. On February 24, 1995, the district court denied the
habeas petition, noting that the proper means of challenging
state convictions was through § 2254 rather than § 2255. At
the resentencing hearing, however, the district court found

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4 Smith v. United States No. 99-3340
that our delay in adjudicating the government’s appeal (three
years had elapsed between the filing of the notice of appeal
and the issuance of this court’s disposition of the case)
amounted to a denial of due process. Accordingly, the court
released Smith on March 15, 1995. The government appealed
again, and this court found that the delay did not rise to the
level of a due process violation. See United States v. Smith,
94 F.3d 204, 205 (6th Cir. 1996). We again reversed and
remanded for resentencing under the ACCA. See id. at 213.
On the second remand, the district court applied the ACCA,
sentencing Smith to 180 months imprisonment. The court
gave Smith credit for the fifty-five months he had already
served, resulting in a balance of 125 months. Smith appealed,
but later withdrew the appeal.
On December 4, 1998, Smith filed the instant case pro se
under § 2255. His only stated grounds for habeas relief was
that two of the prior state convictions that were used to
enhance his federal sentence were constitutionally infirm
under Boykin, supra, and therefore should not have been used
to enhance his sentence under the ACCA. Though this court
had before held that Custis prevented the district court from
considering that argument at sentencing, see Smith, 36 F.3d at
492, the district court reconsidered the argument in the
context of the § 2255 motion. The district court held that
“Custis does not preclude collateral attacks by way of other
kinds of proceedings, such as habeas corpus proceedings or
proceedings on motions under 28 U.S.C. § 2255.” It
proceeded to address Smith’s arguments, finding that “a
defendant should not be penalized because, years ago, he
failed to challenge a state court conviction on the off chance
that it might someday be used to enhance a federal sentence.”
In reaching the merits of Smith’s claim, the court made the
same conclusion as it had prior to the very first appeal in this
case, that the state convictions were invalid under Boykin.
The government filed this timely appeal.
No. 99-3340 Smith v. United States 13
confidence in the integrity of our procedures and inevitably
delay and impair the orderly administration of justice,” id. at
497 (alteration in original) (citations and internal quotation
marks omitted), the Supreme Court recognized that Custis,
who was still “in custody” on his state-court convictions,
could collaterally attack his state convictions in state court
and, if that was unsuccessful, could seek federal habeas relief.
See id. Custis would then be free to “apply for reopening of
any federal sentence enhanced by the state sentences” if he
ultimately proved successful in upsetting his state
convictions. Id. If “finality of judgments” truly was the
primary interest, then the Supreme Court presumably would
have felt no need to leave this door open.
Nothing in Custis says that Custis would have been barred
from all relief if he were no longer in state custody. Cf.
Nichols v. United States, 511 U.S. 738, 765 (1994) (Ginsburg,
J., dissenting) (“Custis presented a forum question. The issue
was where, not whether, the defendant could attack a prior
conviction for constitutional infirmity.”). Indeed, as the Fifth
Circuit observed, this was a question that the Supreme Court
had expressly left open. See Clark, 203 F.3d at 364 (“We
express no view on the extent to which the [expired] 1958
conviction itself may be subject to challenge in the attack
upon the [present] 1978 sentences which it was used to
enhance.”) (alterations in original) (quoting Maleng v. Cook,
490 U.S. 488, 494 (1989) (per curiam)).
I nevertheless concur in the judgment and opinion of the
court because I agree with Judge Wellford’s conclusion that
“in the absence of en banc review or a Supreme Court
decision to the contrary, Turner forecloses the possibility that
Smith can use § 2255 to challenge his ACCA sentence by
collaterally attacking his predicate convictions in federal court
without attempting first a challenge in state court.”

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12 Smith v. United States No. 99-3340
_________________
CONCURRENCE
_________________
RONALD LEE GILMAN, Circuit Judge, concurring. It
appears to me that Turner takes Custis v. United States, 511
U.S. 485 (1994), too far by applying its holding (that a
defendant who has state or federal habeas remedies available
to him cannot attack his predicate state convictions at his
federal sentencing hearing) to defendants who may have no
available state or federal habeas remedy. When a defendant
such as Smith is no longer “in custody” on his predicate state-
court conviction, and when the proceeding is a § 2255 post-
conviction hearing rather than a sentencing hearing, I believe
that the Fifth Circuit’s analysis in United States v. Clark, 203
F.3d 358 (5th Cir. 2000), is the sounder application of the
Custis decision.
In Custis, the Supreme Court held that a defendant was not
entitled “to use the federal sentencing forum to gain review of
his state convictions.” Custis, 511 U.S. at 497. The Court
observed that “Congress did not prescribe and the
Constitution does not require such delay and protraction of
the federal sentencing process.” Id. Allowing a defendant
who has already been sentenced to mount a collateral attack
on the predicate convictions that were the basis for the
enhancement of his present sentence, however, does not delay
and protract the federal sentencing process. This may have
been one of the main reasons underlying the Supreme Court’s
distinction between collateral attacks based on the complete
denial of counsel, which may be raised at the defendant’s
federal sentencing for being an armed career criminal, and
other alleged constitutional defects, which may not. See id.
at 496. Ascertaining whether counsel’s assistance was
constitutionally ineffective is often difficult, but ascertaining
whether counsel’s assistance was denied altogether is
relatively easy. See id.
Notwithstanding the language in Custis about how
“[i]nroads on the concept of finality tend to undermine
No. 99-3340 Smith v. United States 5
II. ANALYSIS
We are now squarely faced with the issue of whether Smith
can attack the validity of his state convictions in this § 2255
proceeding aimed at challenging the use of those convictions
in deciding his federal sentence. Several months after the
district court issued its final decision in this case, a panel of
our court decided Turner v. United States, 183 F.3d 474 (6th
Cir. 1999), wherein we held that the rule in Custis, which
involved a defendant’s direct appeal from his federal
sentence, also applies to actions challenging a federal
sentence pursuant to § 2255. We stated specifically:
We read Custis as requiring [the defendant] to challenge
the underlying state convictions first in the state court or
in an independent habeas corpus proceeding brought
pursuant to 28 U.S.C. § 2254. Only after [the defendant]
succeeds in such a challenge can he seek to reopen his
[federal] sentence in this case.
Turner, 183 F.3d at 477. Accord Sanders v. United States,
No. 98-3651, 1999 WL 591455 (6th Cir. July 27, 1999)
(unpublished); see also United States v. Daniels, 195 F.3d
501 (9th Cir. 1999).
Smith argues that our holding in Turner does not prevent
him from attacking the predicate state convictions in this case
because he is not “in custody” for purposes of § 2254. He
claims that it is impossible to do that which Turner requires--
that is, to first “challenge the underlying state convictions in
a state court or in an independent § 2254 habeas proceeding.”
Turner, 183 F.3d at 477; see Carafas v. LaVallee, 391 U.S.
234 (1968) (if a defendant is not “in custody,” a federal court
will not have jurisdiction to hear a § 2254 motion).
Consequently, Smith argues, the district court should be
permitted to address his § 2255 petition based on the
constitutional infirmity of his prior state convictions. In
support of that rationale, Smith urges this court to follow
United States v. Clark, 203 F.3d 358 (5th Cir. 2000).

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6 Smith v. United States No. 99-3340
In Clark, the court acknowledged the general rule that when
a defendant brings a § 2255 petition challenging the use of
state convictions to enhance his federal sentence, “it may well
make administrative good sense to require the defendant to
first exhaust his section 2254 remedies and allow him to
return under section 2255 to the court which imposed the
enhanced sentence only after the prior conviction has been set
aside in the section 2254 proceeding.” Clark, 203 F.3d at
369-70. The court held, however, that if a defendant has
unsuccessfully exhausted all available state remedies but is
not “in custody” for purposes of § 2254, a district court
should address the validity of the state conviction in the
defendant’s § 2255 proceeding. In its analysis, the court
mentioned our decision in Turner but noted that the case did
not address whether the defendant “could meet the ‘in
custody’ requirement of § 2254 or what the result would be if
he could not.” Id. at 367. Ultimately, the court found it
unreasonable to differentiate between a defendant who was
“in custody” and one who was not “in custody” for purposes
of permitting that defendant to bring a § 2255 challenge to his
federal sentence. Id. at 370. The court explained that to hold
otherwise would be contrary to the Supreme Court’s
“reluctance to adopt a reading of the overall statutory habeas
scheme that ‘would bar the prisoner from ever obtaining
federal habeas review.’” Id. (citations omitted).
The government argues against following Clark:
A defendant who fails to take advantage of state and
habeas remedies should not be provided an “alternative”
remedy under Custis. Such a scheme does violence to
the principles of finality and efficiency that power the
Supreme Court’s decision in Custis. And under the Fifth
Circuit’s reasoning, a federal court may at any time
reopen a state criminal proceeding without the presence
of the state as a party, see Clark, 203 F.3d at 364; thus,
the decision also violates principles of comity.
Furthermore, the government claims that our holding in
Turner does not leave room for the exception made in Clark.
No. 99-3340 Smith v. United States 11
proposition, and the authority in this circuit supports our
position.
We REVERSE the district court and REMAND with
instruction to resentence Smith accordingly.

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10 Smith v. United States No. 99-3340
4In similar circumstances, we stated in United States v. Caldwell,
2000 WL 331950, at *8 n.4, No. 97-5252 (6th Cir. March 23, 2000)
(unpublished), that Turner required the petitioner first to “challenge the
state convictions either in state court or in a § 2254 petition.”
in CR 195662
and CR199703.
Parole 10/25/88,
final release
1/18/90.
The defendant was represented by an Attorney.
On February 15, 1985, the defendant entered the
premises of Cleveland Board of Education Building,
tampered with and broke into a safe on the premises.
On August 23, 1985, the defendant pled guilty to the
Indictment.
While the federal district court may have no jurisdiction to
determine the constitutional adequacy of a challenged state
conviction if the petitioner is no longer in custody, Carafas v.
LaVallee, 391 U.S. 234 (1968), that is a different
circumstance from a petitioner seeking to challenge the
constitutional validity of a guilty plea in state court by error
coram nobis, or by seeking some other extraordinary relief.4
Smith had the opportunity to raise a Boykin v. Alabama, 395
U.S. 238 (1969), challenge in state court through affidavit, or
otherwise.
Even if we were disposed to look favorably upon the Clark
approach, as Smith urges, we note an important distinction.
In Clark, the petitioner was deemed to have “tried and failed
to set aside his [later challenged] state convictions.” Clark,
203 F.3d at 361. It is subsequently stated that “apparently . . .
Clark has exhausted his state remedies.” Id. at 362. In the
interest of federalism, we reject a challenge to a state
conviction made for the first time in a § 2255 proceeding
challenging a federal sentence. Clark is not authority for this
No. 99-3340 Smith v. United States 7
The opinion is clear, the government argues, that “Custis does
not support [the] tactic” of seeking relief from a predicate
state conviction in a § 2255 petition.
We agree with the government’s position that Turner
controls our holding in this case. In Turner, we stated plainly
that a defendant must challenge his state convictions “first in
the state court or in an independent habeas corpus proceeding
brought pursuant to 28 U.S.C. § 2254.” Turner, 183 F.3d at
477. We did not specifically consider whether the defendant
was “in custody” for purposes of applying the holding in
Custis. Since Turner was decided, it has been cited by this
court with approval for the proposition that a defendant may
not seek relief from his state convictions in a habeas corpus
petition attacking his federal sentence. Sanders v. United
States, No. 98-3651, 1999 WL 591455 (6th Cir. July 27,
1999) (unpublished); see also United States v. Henderson,
No. 98-4087/4369, 2000 WL 298248, ___ F.3d ___, ___ (6th
Cir. March 23, 2000) (citing the holding in Turner in the
context of a direct appeal of the defendant’s federal sentence);
United States v. Caldwell, No. 97-5252, 2000 WL 331950
(6th Cir. March 23, 2000) (same). There has been no
indication that Turner would carve out the exception made in
Clark for defendants who are not “in custody” for their state
sentences. Therefore, in the absence of en banc review or a
Supreme Court decision to the contrary, Turner forecloses the
possibility that Smith can use § 2255 to challenge his ACCA
sentence by collaterally attacking his predicate convictions in
federal court without attempting first a challenge in state
court.
Smith has never, since 1994, when we reached our first
decision in this case, made any effort in state court to
challenge the two convictions now at issue. Whether or not
he may now be foreclosed from proceeding in state court, or
may not “succeed in such a challenge,” the record would at
least reflect some effort on his part to have set aside at least

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8 Smith v. United States No. 99-3340
3In a letter supplemental brief, Smith’s counsel states that “Clark
specifically held that if Defendant has exhausted his state remedies and
is not ‘in custody’ . . . then the district court should address the
Defendant’s 28 U.S.C. § 2255 petition.” Smith, however, has made no
showing that he has attempted to exhaust his state remedies, if any.
Rather, he stated in his brief (p. 12) that “Smith had no reasonable access
to review the constitutionality on his prior convictions in State Court.”
one of these convictions.3 Such an effort, even in the absence
of successfully setting aside a state conviction, might
conceivably present us with a different circumstance.
Defendant’s counsel conceded at the original sentencing that
he made no effort to obtain a transcript of defendant’s guilty
pleas in state court, but the record and transcript apparently
were destroyed by a fire.
As acknowledged by the district court, the presentence
report reflects the following information about Smith’s prior
offenses which are related to his charge in the district court:
9/3/83 Aggravated 2/4/84, Ohio 4A1.1(b)
Burglary, State Reformatory
Cleveland, 6 months plus
Ohio cost. Defendant
Police released 6/22/84.
Department.
CR185472
The defendant was represented by counsel, Attorney John
Hildebrand.
On September 2, 1983, the defendant was observed
climbing through a bedroom window of an apartment.
He fled through a front door and was subsequently
arrested by police.
The defendant made a statement to a Cuyahoga County
Probation Officer denying involvement in this case. He
claims he went to the victims [sic] apartment to see if he
and a friend could stay there.
No. 99-3340 Smith v. United States 9
On January 25, 1984 the defendant plead guilty to the
lesser included offense of Breaking and Entering.
11/22/84 Breaking 8/23/85, Chillicothe 4A1.1(a)
and Entering Correctional
with Violence Institutional
Specification, 2 to 5 years
Grand Theft with 2 years
with violence mandatory
Specification, sentence Count 1
Vandalism 2 to 10 years
with Violence with 2 years
Specification, mandatory sentence
Cleveland, Count 2, 2 to 5
Ohio Police years with 2
Department years mandatory
CR195662. sentence Count 3,
all concurrent to be
served concurrent with
CR199240 and CR199703
plus cost. Parole
10/25/88, final
release 1/18/90.
The defendant was represented by counsel, Attorney
Richard Dunn.
On November 21, 1984, the defendant and two
accomplices broke into a furniture store, by using a
bulldozer to knock down the real wall. Police
apprehended the defendant as he attempted to flee from
the store.
On August 23, 1985, the defendant pled guilty to the
Indictment.
2/15/85 Breaking 8/23/85, Chillicothe 4A1.2
and Entering Correction Application
Safecracking, Institution Note No. 3
Cleveland, 1 year each Count
Ohio Police concurrent plus
Department cost, concurrent
CR199240. with sentences

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