LACKAWANNA COUNTY DISTRICT ATTORNEY et al. v. COSS

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394 OCTOBER TERM, 2000
Syllabus
LACKAWANNA COUNTY DISTRICT ATTORNEY
et al. v. COSS
certiorari to the united states court of appeals for
the third circuit
No. 99–1884. Argued February 20, 2001—Decided April 25, 2001
In 1986, respondent Coss was convicted in Pennsylvania state court of
simple assault, institutional vandalism, and criminal mischief. Coss
filed a petition for state postconviction relief with respect to these con-
victions, alleging ineffective assistance of counsel, but the Pennsylvania
courts have never ruled on the petition. In 1990, after Coss had served
the full sentences for his 1986 convictions, he was convicted in state
court of aggravated assault. He successfully challenged his 6 to 12 year
sentence on direct appeal. On remand, the court did not consider Coss’
1986 convictions in determining his eligible sentencing range. In choos-
ing a sentence within the applicable range, the court considered several
factors including Coss’ extensive criminal record, and reimposed a 6 to
12 year sentence. Coss filed a petition for a writ of habeas corpus,
claiming that his 1986 convictions were constitutionally invalid, and that
he was “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U. S. C. § 2254(a). The Federal District Court
held that it could properly exercise § 2254 jurisdiction because, in sen-
tencing Coss for his 1990 conviction, the sentencing judge made refer-
ence to the 1986 convictions. The District Court denied the petition
because Coss had not been prejudiced by his 1986 counsel’s ineffective-
ness. The Third Circuit remanded, agreeing that the District Court
had jurisdiction, but finding a “reasonable probability” that but for his
counsel’s ineffectiveness, Coss would not have been convicted in 1986.
Held: The judgment is reversed, and the case is remanded.
204 F. 3d 453, reversed and remanded.
Justice O’Connor delivered the opinion of the Court with respect
to Parts I, II, III–A, and IV, concluding that § 2254 does not provide
a remedy when a state prisoner challenges a current sentence on
the ground that it was enhanced based on an allegedly unconstitutional
prior conviction for which the petitioner is no longer in custody.
Pp. 401–405, 408.
(a) A § 2254 petitioner must first show that he is “in custody pursuant
to the judgment of a State court.” § 2254(a). Because Coss is no
longer serving the sentences for his 1986 convictions, he cannot bring a
federal habeas action directed solely at those convictions. However, his

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Syllabus
§ 2254 petition can be (and has been) construed as asserting a challenge
to the 1990 sentence he is currently serving, as enhanced by the alleg-
edly invalid 1986 convictions. See Maleng v. Cook, 490 U. S. 488, 493.
Thus, he satisfies § 2254’s “in custody” requirement. Pp. 401–402.
(b) The more important question here is the one left unanswered in
Maleng: the extent to which a prior expired conviction may be subject
to challenge in an attack upon a current sentence it was used to enhance.
In Daniels v. United States, ante, p. 374, this Court held that a federal
prisoner who has failed to pursue available remedies to challenge a prior
conviction (or has done so unsuccessfully) may not collaterally attack
that conviction through a motion under 28 U. S. C. § 2255 directed at the
enhanced federal sentence. That holding is now extended to cover
§ 2254 petitions directed at enhanced state sentences. The considera-
tions on which the Daniels holding was grounded—finality of convic-
tions and ease of administration—are equally present in the § 2254 con-
text. See Daniels, ante, at 379–380. Pp. 402–404.
(c) As in Daniels, an exception exists to the general rule for § 2254
petitions that challenge an enhanced sentence on the basis that the prior
conviction used to enhance the sentence was obtained where there was
a failure to appoint counsel in violation of the Sixth Amendment, as set
forth in Gideon v. Wainwright, 372 U. S. 335. The failure to appoint
counsel is a unique constitutional defect, rising to the level of a jurisdic-
tional defect, which therefore warrants special treatment among alleged
constitutional violations. Moreover, an exception for Gideon claims
does not implicate this Court’s concerns about administrative ease. As
with any § 2254 petition, a petitioner making a Gideon challenge must
satisfy the procedural prerequisites for relief, including exhaustion of
remedies. Pp. 404–405.
O’Connor, J., delivered the opinion of the Court with respect to Parts
I, II, III–A, and IV, in which Rehnquist, C. J., and Scalia, Kennedy,
and Thomas, JJ., joined, an opinion with respect to Part III–C, in which
Rehnquist, C. J., and Kennedy and Thomas, JJ., joined, and an opinion
with respect to Part III–B, in which Rehnquist, C. J., and Kennedy,
J., joined. Souter, J., filed a dissenting opinion, in which Stevens and
Ginsburg, JJ., joined, post, p. 408. Breyer, J., filed a dissenting opinion,
post, p. 410.
William P. O’Malley argued the cause for petitioners.
With him on the brief were Eugene M. Talerico and Andrew
J. Jarbola III.

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396 LACKAWANNA COUNTY DISTRICT ATTORNEY v. COSS
Opinion of the Court
Robert M. Russel, Assistant Solicitor General of Colorado,
argued the cause for the State of Colorado et al. as amici
curiae urging reversal. With him on the brief were Ken
Salazar, Attorney General of Colorado, Dan Schweitzer, and
the Attorneys General for their respective States as follows:
Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark
Pryor of Arkansas, M. Jane Brady of Delaware, Carla J.
Stovall of Kansas, Tom Reilly of Massachusetts, Jennifer M.
Granholm of Michigan, Joseph P. Mazurek of Montana, Don
Stenberg of Nebraska, Frankie Sue Del Papa of Nevada,
Philip T. McLaughlin of New Hampshire, Michael F. Easley
of North Carolina, Betty D. Montgomery of Ohio, W. A. Drew
Edmondson of Oklahoma, Hardy Myers of Oregon, Jan
Graham of Utah, William H. Sorrell of Vermont, Mark L.
Earley of Virginia, and Christine O. Gregoire of Washington.
James V. Wade argued the cause for respondent. With
him on the brief was Daniel I. Siegel.*
Justice O’Connor delivered the opinion of the Court,
except as to Parts III–B and III–C.†
For the second time this Term, we are faced with the ques-
tion whether federal postconviction relief is available when
a prisoner challenges a current sentence on the ground that
it was enhanced based on an allegedly unconstitutional prior
conviction for which the petitioner is no longer in custody.
In Daniels v. United States, ante, p. 374, we held that such
relief is generally not available to a federal prisoner through
a motion to vacate the sentence under 28 U. S. C. § 2255 (1994
ed., Supp. V), but left open the possibility that relief might
be appropriate in rare circumstances. We now hold that re-
lief is similarly unavailable to state prisoners through a peti-
*Edward M. Chikofsky and David M. Porter filed a brief for the Na-
tional Association of Criminal Defense Lawyers as amicus curiae urging
affirmance.
†Justice Scalia joins all but Parts III–B and III–C of this opinion.
Justice Thomas joins all but Part III–B.

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Opinion of the Court
tion for a writ of habeas corpus under 28 U. S. C. § 2254 (1994
ed. and Supp. V).
I
Respondent Edward R. Coss, Jr., has an extensive criminal
record. By the age of 16, he had been adjudged a juvenile
delinquent on five separate occasions for offenses including
theft, disorderly conduct, assault, and burglary. See Record
Doc. No. 101 (Pl. Exh. 5, pp. 4–6). By the time he turned
23, Coss had been convicted in adult court of assault, institu-
tional vandalism, criminal mischief, disorderly conduct, and
possession of a controlled substance. See id., at 6–7. His
record also reveals arrests for assault, making terroristic
threats, delivery of controlled substances, reckless endanger-
ment, disorderly conduct, resisting arrest, retail theft, and
criminal conspiracy, although each of those charges was later
dropped. See ibid. A report generated by the Lacka-
wanna County Adult Probation Office sums up the “one con-
sistent factor in this defendant’s life: criminal behavior, much
of it being aggressive.” Id., at 8.
This case revolves around two of the many entries on Coss’
criminal record. In October 1986, Coss was convicted in
Pennsylvania state court of simple assault, institutional van-
dalism, and criminal mischief. He was then sentenced to
two consecutive prison terms of six months to one year. He
did not file a direct appeal. See App. 54a; see also Tr. of
Oral Arg. 28–29.
In June 1987, Coss filed a petition for relief from the 1986
convictions under the Pennsylvania Post Conviction Relief
Act, 42 Pa. Cons. Stat. § 9541 et seq. (1998), alleging that his
trial attorney had been constitutionally ineffective. See
App. 50a–53a. The Lackawanna County Court of Common
Pleas promptly appointed counsel for Coss, id., at 57a, and
the district attorney filed an answer to the petition, id., at
59a. The court, however, took no further action on the peti-
tion for the remainder of Coss’ time in custody. Indeed, it
appears that Coss’ state postconviction petition has now

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398 LACKAWANNA COUNTY DISTRICT ATTORNEY v. COSS
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been pending for almost 14 years, and has never been the
subject of a judicial ruling. Neither petitioners nor re-
spondent is able to explain this lapse. Tr. of Oral Arg. 4, 29.
In 1990, after he had served the full sentences for his 1986
convictions, Coss was again convicted in Pennsylvania state
court, this time of aggravated assault. He was sentenced to
6 to 12 years in prison, but successfully challenged this sen-
tence on direct appeal because of a possible inaccuracy in the
presentence report. App. 62a.
On remand, the court’s first task was to determine the
range of sentences for which Coss was eligible. In calculat-
ing Coss’ “prior record score”—one of two determinants of
the applicable sentencing range, see 42 Pa. Cons. Stat. § 9721
(1998) (reproducing 204 Pa. Code § 303.9(a) (1998))—the new
presentence report took account of Coss’ most serious juve-
nile adjudication and Coss’ 1986 misdemeanor convictions,
counting the latter as separate offenses. See Record Doc.
No. 101 (Pl. Exh. 3, at 10). Coss objected, claiming that his
1986 convictions should be counted as one misdemeanor of-
fense because they arose from the same transaction. See
ibid. (Pl. Exh. 5, at 3–4). The trial court sustained Coss’
objection, finding that the convictions should be “view[ed] . . .
as being one transaction, one incident, one conviction.” Id.,
at 5. Under the Pennsylvania Sentencing Guidelines, one
prior misdemeanor does not affect the prior record score.
See id., at 10 (displaying grid for calculating prior record
score). Thus, the practical effect of the court’s decision was
to eliminate the 1986 convictions from Coss’ prior record
score entirely. See ibid.; see also 204 F. 3d 453, 467–468
(CA3 2000) (en banc) (Nygaard, J., dissenting). Conse-
quently, Coss’ 1986 convictions played no part in determining
the range of sentences to which Coss was exposed.
The court’s next task was to choose a sentence within that
range. In doing so, the trial court considered a number of
factors, including “the seriousness and nature of the crime
involved here, the well being and protection of the people

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who live in our community, your criminal disposition, your
prior criminal record, the possibility of your rehabilitation,
and the testimony that I’ve heard.” Record Doc. No. 101
(Pl. Exh. 3, at 26). The court concluded that “it’s indicative
that from your actions that you will continue to break the
law unless given a period of incarceration.” Ibid. The
court then reimposed a 6 to 12 year sentence. Because
Coss’ 1986 convictions are a part of his prior criminal record,
the Court of Appeals concluded that the state court took
those convictions “into consideration” in sentencing Coss.
See 204 F. 3d, at 459.
In September 1994, Coss filed a petition for a writ of ha-
beas corpus under 28 U. S. C. § 2254 in the United States Dis-
trict Court for the Middle District of Pennsylvania. That
provision, a postconviction remedy in federal court for state
prisoners, provides that a writ of habeas corpus is available
to “a person in custody pursuant to the judgment of a State
court” if that person “is in custody in violation of the Consti-
tution or laws or treaties of the United States.” § 2254(a).
In his petition, Coss contended that his 1986 assault convic-
tion was the product of ineffective assistance of counsel.
App. 73a–74a.
In answer to Coss’ § 2254 petition, the Lackawanna County
District Attorney argued that the District Court could not
review the constitutionality of Coss’ 1986 convictions be-
cause Coss was no longer in custody on those convictions.
Record Doc. No. 55, p. 2. The district attorney, however,
indicated his understanding that the crux of Coss’ claim was
that his 1986 convictions “may have impact [sic] upon the
sentences which have been imposed . . . upon [Coss] for crimi-
nal convictions rendered against him” for his 1990 convic-
tions. Ibid. See also Brief for Petitioners 4 (“[R]espondent
argues that the sentence for his 1990 conviction was ad-
versely and unconstitutionally affected by the 1986 simple
assault conviction”).

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The District Court stated that Coss was arguing “that his
current sentence [for the 1990 conviction] was adversely af-
fected by the 1986 convictions because the sentencing judge
considered these allegedly unconstitutional convictions in
computing Coss’s present sentence.” App. to Pet. for Cert.
105a–106a. Finding that “the sentencing judge . . . did make
reference to the 1986 convictions in sentencing Coss,” id., at
107a, the court held that it could properly exercise jurisdic-
tion under § 2254, id., at 108a; see also Record Doc. No. 87,
p. 3, n. 2. After an evidentiary hearing, the court denied
the petition, holding that Coss’ 1986 trial counsel had been
ineffective, but that Coss had not been prejudiced by the
ineffectiveness. App. to Pet. for Cert. 113a, 116a, 120a.
The Court of Appeals for the Third Circuit, sitting en banc,
agreed that “the sentencing court for the 1990 conviction
took into consideration [Coss’ 1986] conviction[s],” and there-
fore that the District Court had jurisdiction over Coss’ § 2254
petition. 204 F. 3d, at 459. Citing Circuit precedent and
our decisions in Maleng v. Cook, 490 U. S. 488 (1989) (per
curiam), and United States v. Tucker, 404 U. S. 443 (1972),
the court concluded that § 2254 provided a remedy for “an
allegedly unconstitutional conviction, even if [the § 2254 peti-
tioner] has served in entirety the sentence resulting from
the conviction, if that conviction had an effect on a present
sentence.” 204 F. 3d, at 459–460.
The court then found that Coss had received ineffective
assistance during his 1986 trial, and that there was “a rea-
sonable probability” that but for the ineffective assistance,
Coss “would not have been found guilty of assau[lt].” Id.,
at 462. The court remanded the case to the District Court,
ordering that the Commonwealth be allowed either to retry
Coss for the 1986 assault or to resentence him for the 1990
assault without consideration of the 1986 conviction. Id.,
at 467.
We granted certiorari to consider the threshold question
that the District Court and Court of Appeals both resolved

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in Coss’ favor: whether § 2254 provides a remedy where a
current sentence was enhanced on the basis of an allegedly
unconstitutional prior conviction for which the sentence has
fully expired. 531 U. S. 923 (2000).
II
A
The first showing a § 2254 petitioner must make is that he
is “in custody pursuant to the judgment of a State court.”
28 U. S. C. § 2254(a). In Maleng v. Cook, supra, we consid-
ered a situation quite similar to the one presented here. In
that case, the respondent had filed a § 2254 petition listing as
the “ ‘conviction under attack’ ” a 1958 state conviction for
which he had already served the entirety of his sentence.
490 U. S., at 489–490. He also alleged that the 1958 convic-
tion had been “used illegally to enhance his 1978 state sen-
tences” which he had not yet begun to serve because he was
at that time in federal custody on an unrelated matter. Ibid.
We determined that the respondent was “in custody” on his
1978 sentences because the State had lodged a detainer
against him with the federal authorities. Id., at 493.
We held that the respondent was not “in custody” on his
1958 conviction merely because that conviction had been
used to enhance a subsequent sentence. Id., at 492. We
acknowledged, however, that because his § 2254 petition
“[could] be read as asserting a challenge to the 1978 sen-
tences, as enhanced by the allegedly invalid prior conviction,
. . . respondent . . . satisfied the ‘in custody’ requirement for
federal habeas jurisdiction.” Id., at 493–494.
Similarly, Coss is no longer serving the sentences imposed
pursuant to his 1986 convictions, and therefore cannot bring
a federal habeas petition directed solely at those convictions.
Coss is, however, currently serving the sentence for his 1990
conviction. Like the respondent in Maleng, Coss’ § 2254
petition can be (and has been) construed as “asserting a
challenge to the [1990] senten[ce], as enhanced by the alleg-

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edly invalid prior [1986] conviction.” Id., at 493. See also
supra, at 399–400. Accordingly, Coss satisfies § 2254’s “in
custody” requirement. Cf. Daniels, ante, at 383, 384, n. 2
(stating that the text of § 2255, which also contains an “in
custody” requirement, is broad enough to cover a claim that
a current sentence enhanced by an allegedly unconstitutional
prior conviction violates due process).
B
More important for our purposes here is the question we
explicitly left unanswered in Maleng: “the extent to which
the [prior expired] conviction itself may be subject to chal-
lenge in the attack upon the [current] senten[ce] which it was
used to enhance.” 490 U. S., at 494. We encountered this
same question in the § 2255 context in Daniels v. United
States, ante, p. 374. We held there that “[i]f . . . a prior
conviction used to enhance a federal sentence is no longer
open to direct or collateral attack in its own right because
the defendant failed to pursue those remedies while they
were available (or because the defendant did so unsuccess-
fully), then that defendant . . . may not collaterally attack his
prior conviction through a motion under § 2255.” Ante, at
382. We now extend this holding to cover § 2254 petitions
directed at enhanced state sentences.
We grounded our holding in Daniels on considerations
relating to the need for finality of convictions and ease of
administration. Those concerns are equally present in the
§ 2254 context. The first and most compelling interest is
in the finality of convictions. Once a judgment of conviction
is entered in state court, it is subject to review in multiple
forums. Specifically, each State has created mechanisms
for both direct appeal and state postconviction review,
see L. Yackle, Postconviction Remedies §§ 1, 13 (1981 and
Supp. 2000), even though there is no constitutional mandate
that they do so, see Pennsylvania v. Finley, 481 U. S. 551,
557 (1987) (no constitutional right to state postconviction

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review); Abney v. United States, 431 U. S. 651, 656 (1977)
(no constitutional right to direct appeal). Moreover, § 2254
makes federal courts available to review state criminal
proceedings for compliance with federal constitutional
mandates.
As we said in Daniels, “[t]hese vehicles for review . . . are
not available indefinitely and without limitation.” Ante, at
381. A defendant may choose not to seek review of his con-
viction within the prescribed time. Or he may seek review
and not prevail, either because he did not comply with proce-
dural rules or because he failed to prove a constitutional vio-
lation. In each of these situations, the defendant’s convic-
tion becomes final and the State that secured the conviction
obtains a strong interest in preserving the integrity of the
judgment. See ante, at 379–380. Other jurisdictions ac-
quire an interest as well, as they may then use that convic-
tion for their own recidivist sentencing purposes, relying on
“the ‘presumption of regularity’ that attaches to final judg-
ments.” Parke v. Raley, 506 U. S. 20, 29 (1992); see also
Daniels, ante, at 380.
An additional concern is ease of administration of chal-
lenges to expired state convictions. Federal courts sitting
in habeas jurisdiction must consult state court records and
transcripts to ensure that challenged convictions were ob-
tained in a manner consistent with constitutional demands.
As time passes, and certainly once a state sentence has been
served to completion, the likelihood that trial records will be
retained by the local courts and will be accessible for review
diminishes substantially. See Daniels, ante, at 379.
Accordingly, as in Daniels, we hold that once a state con-
viction is no longer open to direct or collateral attack in its
own right because the defendant failed to pursue those reme-
dies while they were available (or because the defendant did
so unsuccessfully), the conviction may be regarded as conclu-
sively valid. See Daniels, ante, at 382. If that conviction
is later used to enhance a criminal sentence, the defendant

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generally may not challenge the enhanced sentence through
a petition under § 2254 on the ground that the prior convic-
tion was unconstitutionally obtained.
III
A
As in Daniels, we recognize an exception to the general
rule for § 2254 petitions that challenge an enhanced sentence
on the basis that the prior conviction used to enhance the
sentence was obtained where there was a failure to appoint
counsel in violation of the Sixth Amendment, as set forth in
Gideon v. Wainwright, 372 U. S. 335 (1963). The special sta-
tus of Gideon claims in this context is well established in our
case law. See, e. g., Custis v. United States, 511 U. S. 485,
496–497 (1994); United States v. Tucker, 404 U. S., at 449;
Burgett v. Texas, 389 U. S. 109, 115 (1967). Cf. Daniels,
ante, at 382.
As we recognized in Custis, the “failure to appoint counsel
for an indigent [is] a unique constitutional defect . . . ris[ing]
to the level of a jurisdictional defect,” which therefore
warrants special treatment among alleged constitutional
violations. See 511 U. S., at 496. Moreover, allowing an
exception for Gideon challenges does not implicate our con-
cern about administrative ease, as the “failure to appoint
counsel . . . will generally appear from the judgment roll
itself, or from an accompanying minute order.” 511 U. S.,
at 496.
As with any § 2254 petition, the petitioner must satisfy the
procedural prerequisites for relief including, for example,
exhaustion of remedies. See 28 U. S. C. § 2254(b) (1994 ed.,
Supp. V). When an otherwise qualified § 2254 petitioner can
demonstrate that his current sentence was enhanced on the
basis of a prior conviction that was obtained where there
was a failure to appoint counsel in violation of the Sixth
Amendment, the current sentence cannot stand and habeas
relief is appropriate. Cf. United States v. Tucker, supra, at

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449 (affirming vacatur of sentence that was based in part on
prior uncounseled state convictions).
B
We stated in Daniels that another exception to the general
rule precluding habeas relief might be available, although
the circumstances of that case did not require us to resolve
the issue. See ante, at 383–384. We note a similar situa-
tion here.
The general rule we have adopted here and in Daniels
reflects the notion that a defendant properly bears the conse-
quences of either forgoing otherwise available review of a
conviction or failing to successfully demonstrate constitu-
tional error. See supra, at 403–404; Daniels, ante, at 381–
383. It is not always the case, however, that a defendant
can be faulted for failing to obtain timely review of a consti-
tutional claim. For example, a state court may, without jus-
tification, refuse to rule on a constitutional claim that has
been properly presented to it. Cf. 28 U. S. C. § 2244(d)(1)(B)
(1994 ed., Supp. V) (tolling 1-year limitations period while
petitioner is prevented from filing application by an “impedi-
ment . . . created by State action in violation of the Constitu-
tion or laws of the United States”). Alternatively, after the
time for direct or collateral review has expired, a defendant
may obtain compelling evidence that he is actually innocent
of the crime for which he was convicted, and which he could
not have uncovered in a timely manner. Cf. Brady v. Mary-
land, 373 U. S. 83 (1963); 28 U. S. C. § 2244(b)(2)(B) (1994 ed.,
Supp. V) (allowing a second or successive habeas corpus ap-
plication if “the factual predicate for the claim could not
have been discovered previously through the exercise of due
diligence; and . . . the facts underlying the claim, if proven
and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense”).

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In such situations, a habeas petition directed at the en-
hanced sentence may effectively be the first and only forum
available for review of the prior conviction. As in Daniels,
this case does not require us to determine whether, or under
what precise circumstances, a petitioner might be able to use
a § 2254 petition in this manner.
Whatever such a petitioner must show to be eligible for
review, the challenged prior conviction must have adversely
affected the sentence that is the subject of the habeas peti-
tion. This question was adequately raised and considered
below. As the District Court stated, Coss contended “that
his current sentence [for the 1990 conviction] was adversely
affected by the 1986 convictions because the sentencing
judge considered these allegedly unconstitutional convictions
in computing Coss’s present sentence.” App. to Pet. for
Cert. 105a–106a (emphasis added). The District Court and
majority of the Court of Appeals agreed with Coss on this
point. See id., at 107a; 204 F. 3d, at 459. Judge Nygaard,
joined by Judge Roth, dissented to dispute the conclusion
that the 1986 convictions had any effect whatsoever on Coss’
sentence for the 1990 conviction. Id., at 467–469.
C
After a careful examination of the record here, we are sat-
isfied that the findings of the lower courts on this threshold
factual point are clearly erroneous. Cf. Neil v. Biggers, 409
U. S. 188, 193, n. 3 (1972). We therefore conclude that re-
spondent Coss does not qualify to have his § 2254 petition
reviewed, even assuming the existence of a limited exception
to the general rule barring review of an expired prior convic-
tion. Specifically, it is clear that any “consideration” the
trial court may have given to Coss’ 1986 convictions in reim-
posing sentence for his 1990 conviction did not actually affect
that sentence.
As we explain above, see supra, at 398–399, when Coss
was resentenced on his 1990 conviction, he objected to the

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presentence report’s calculation of his prior record score.
The court sustained that objection and, in effect, eliminated
Coss’ 1986 convictions from the prior record score entirely.
Because the prior record score is one of two determinants of
the applicable sentencing range, see 42 Pa. Cons. Stat. § 9721
(1998) (reproducing 204 Pa. Code § 303.9(a) (1998)), it is clear
that Coss’ 1986 convictions had no role in determining the
range of sentences to which Coss was exposed.
In choosing a sentence for Coss within that range, the trial
court considered several factors, including “the seriousness
and nature of the crime involved here, the well being and
protection of the people who live in our community, your
criminal disposition, your prior criminal record, the possibil-
ity of your rehabilitation, and the testimony that I’ve heard.”
Record Doc. No. 101 (Pl. Exh. 3, at 26). Coss’ 1986 convic-
tions are, of course, a portion of his criminal record. Thus,
it is technically correct to say that the court “considered”
those convictions before sentencing Coss. Cf. 204 F. 3d,
at 459.
But it is a different thing entirely to say that the 1986
convictions actually increased the length of the sentence the
court ultimately imposed. As the sentencing court told
Coss, “I think that it’s indicative that from your actions that
you will continue to break the law unless given a period of
incarceration.” Record Doc. No. 101 (Pl. Exh. 3, at 26).
The “actions” to which the judge referred were obviously
not limited to Coss’ criminal conduct in 1986, but Coss’ ex-
tensive and violent criminal record as a whole. We con-
clude, as Judge Nygaard did below, that the 1986 convictions
are “such a minor component of [Coss’] record that there is
no question that the sentencing court, given its concerns,
would have imposed exactly the same sentence” had those
convictions been omitted from Coss’ record. 204 F. 3d, at
468 (dissenting opinion).
We note that the record does not explain why Coss’ inef-
fective assistance claim did not receive a timely adjudication

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408 LACKAWANNA COUNTY DISTRICT ATTORNEY v. COSS
Souter, J., dissenting
in the Pennsylvania courts. While the reason might have
been that Coss’ petition “slipped through the cracks,” due to
no fault of his own, Tr. of Oral Arg. 4, it might also have
been that Coss was responsible for “request[ing] that the
matter be brought up for a hearing,” id., at 5. But even if
Coss cannot be faulted for that lapse, he would not qualify
to have his current § 2254 petition reviewed because the 1990
sentence he is challenging was not actually affected by the
1986 convictions.
IV
The judgment of the United States Court of Appeals for
the Third Circuit is therefore reversed, and the case is re-
manded for further proceedings consistent with this opinion.
It is so ordered.
Justice Souter, with whom Justice Stevens and
Justice Ginsburg join, dissenting.
The error of Daniels v. United States, ante, p. 374, is re-
peated once more, and I respectfully dissent for reasons set
out in my dissenting opinion in that case. There is a further
reason to disagree with the majority here.
Although state law theoretically provided a procedure for
respondent Coss to challenge his 1986 convictions, the provi-
sion has proven to be a mirage; Coss’s challenge was filed
and answered by the district attorney, only to disappear in
the state-court system for almost 14 years, so far. This fail-
ure of state process leads the plurality to qualify its general
rule against attacking predicates to enhanced sentences, by
raising the possibility of such a challenge when the opportu-
nity for attack under provisions of state law, timely invoked,
has proven to be imaginary. Ante, at 405. The plurality
then goes on to deny Coss the benefit of this exception on
the ground that he cannot demonstrate that “the challenged
prior conviction . . . adversely affected the sentence that is

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409 Cite as: 532 U. S. 394 (2001)
Souter, J., dissenting
the subject of the habeas petition.” Ante, at 406. This con-
clusion is premature.
The issue of adverse effect was by no means adequately
raised and considered by the Court of Appeals. The earlier
convictions could have affected the later sentence in either
of two ways: by subjecting Coss to a higher sentencing range
or by being considered as a reason to give him a higher sen-
tence than he would otherwise have received within a given
range. It appears that the sentencing court did not treat
the convictions as subjecting Coss to a higher range of poten-
tial sentence, but the District Court expressly found that
the sentencing court considered the challenged convictions
in sentencing Coss to the maximum sentence within the ap-
plicable range. App. to Pet. for Cert. 107a (“The sentencing
judge, however, did make reference to the 1986 convictions
in sentencing Coss to the top of the standard range for his
1990 aggravated assault conviction”). This finding was
never challenged in the Court of Appeals,* which appeared
to accept the District Court’s finding as a matter of course.
Id., at 11a (“We are satisfied that the sentencing judge . . .
took into consideration [Coss’s 1986 conviction]”).
In holding the District Court’s finding to be clearly errone-
ous, the majority is thus ruling on a matter in the first in-
stance in derogation of this Court’s proper role as a court of
review. E. g., Glover v. United States, 531 U. S. 198 (2001);
*The district attorney made no mention of the causal connection be-
tween the 1986 conviction and the 1990 sentence either in his brief before
the Third Circuit panel, or in his petition for rehearing. That petition
claimed only that the panel had improperly applied the principle of United
States v. Tucker, 404 U. S. 443 (1972), to the facts of this case.
Even the so-called “Epilogue” included in the district attorney’s brief
before the en banc Court of Appeals argued only that the 1986 conviction
did not subject Coss to a higher sentencing range in 1990. Supplemental
Brief [on Rehearing] for Appellee in No. 98–7416 (CA3), pp. 15–18. It did
not challenge the District Court’s finding that the 1990 sentencing court
considered the challenged convictions in sentencing Coss to the maximum
sentence within the applicable range.

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410 LACKAWANNA COUNTY DISTRICT ATTORNEY v. COSS
Breyer, J., dissenting
National Collegiate Athletic Assn. v. Smith, 525 U. S. 459
(1999); United States v. Bestfoods, 524 U. S. 51, 72–73 (1998).
The only responsible course for the majority would be to
remand to the Court of Appeals, which could determine
whether the district attorney may challenge the District
Court’s finding of a causal link between the unconstitutional
convictions and the later, maximum sentence, or whether
this issue has already been waived.
Justice Breyer, dissenting.
Because the Commonwealth has failed to argue in this
Court that the trial court’s consideration of respondent’s
1986 convictions was harmless, and consequently, the issue
has not been briefed, I would not overturn the Court of Ap-
peals’ finding that respondent’s sentence was enhanced based
on the purportedly defective 1986 convictions. The Court
of Appeals, however, operated under the belief that the Con-
stitution generally requires 28 U. S. C. § 2254 (1994 ed., Supp.
V) petitioners to be able to attack prior convictions that en-
hanced their sentences. It did not focus on whether the
§ 2254 proceeding was “the first and only forum available for
review of [respondent’s] prior conviction[s].” Ante, at 406.
Accordingly, I would vacate the decision below and remand
for consideration of that issue. As respondent has not yet
shown that he was denied a forum in which to raise his
ineffective-assistance-of-counsel claim, any discussion of a
constitutionally based exception is premature.