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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-20550

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CLIVE CLARK, JR.,
Defendant-Appellant.

Appeal from the United States District Court for the
Southern District of Texas

February 8, 2000
Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant James Clive Clark, Jr. (Clark) pleaded guilty to one count of possession
of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). As a result of his three prior
state drug convictions, Clark was sentenced in December, 1992, to a mandatory minimum term of
fifteen years' imprisonment under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §
924(e)(1). Clark appealed and in January, 1994, this Court affirmed his conviction and sentence. On
April 23, 1997, Clark filed the instant motion for post-conviction relief under 28 U.S.C. § 2255,
alleging that his sentence was enhanced under the ACCA on the basis of state convictions that were

constitutionally invalid because the evidence of his guilt was insufficient. The district court dismissed
Clark's motion without prejudice on the ground that Custis v. United States, 114 S.Ct. 1732 (1994),
precluded Clark from thus challenging the prior state convictions that were used to enhance his
current sentence. Clark moved for reconsideration of this order or alternatively, for a certificate of
appealability (COA). The district court denied both motions. Clark then filed an application for a
COA in this Court, alleging that the district court misinterpreted Custis. This Court granted a COA
on that issue. We conclude that the district court erred in finding a jurisdictional impediment to
Clark's challenge to the prior state convictions used to enhance the federal sentence he is currently
serving under the ACCA. Therefore, we vacate the district court's dismissal of Clark's section 2255
motion and remand for further proceedings consistent herewith.
Facts and Proceedings Below
On January 13, 1983, a Texas state jury convicted Clark in Tarrant County District Court of
three separate offenses occurring in January and February, 1982, for delivery of a controlled
substance, lysergic acid diethylamide (LSD). For each o ffense, the court sentenced Clark to five
years in t he Texas Department of Corrections (TDC), suspended for ten years probation, and a
$15,000 fine, with the sentences running concurrently. Clark was represented by counsel in the state
court proceedings. On August 16, 1986, Clark's probation was revoked for failure to report to his
probation officer. At the probation revocation hearing, at which he was represented by counsel, Clark
was ordered to serve five years in the TDC. On February 18, 1987, he was paroled to Harris County,
Texas, with a scheduled parole expiration date of February 6, 1991. Clark did not appeal the state
convictions or his probation revocation.
On August 9, 1990, while still on parole, Clark was arrested by undercover agents of the Drug
2

Enforcement Agency (DEA) for trafficking in marihuana and carrying a semiautomatic Baretta .25
millimeter caliber pistol. On July 8, 1991, a federal grand jury in the Southern District of Texas
indicted Clark under 18 U.S.C. § 922(g)1 for one count of knowingly possessing, on or about August
9, 1990, a firearm, which had been shipped in interstate commerce, after he had been previously
convicted on January 13, 1983 of three felonies each punishable for a term exceeding one year. Clark
pleaded guilty to the indictment on December 10, 1991, but the district court allowed him to
withdraw his guilty plea at sentencing because Clark's potential sentence under the ACCA was
"particularly harsh." After appointing new counsel to represent Clark, the district court on July 16,
1992, conducted a subsequent sentencing hearing, at which Clark again pleaded guilty to the
indictment.2
On December 17, 1992, the district court sentenced Clark under the ACCA.3 The applicable
1 18 U.S.C. § 922(g) provides in relevant part:
"It shall be unlawful for any person
(1) who has been convicted in any court of, a crime punishable by imprisonment
for a term exceeding one year;
. . .
to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce."
2 On June 26, 1991, Clark was also convicted in a Harris County court of illegal
drug trafficking, based on the same August, 1990 transaction as his federal conviction.
The state court sentenced him to fifteen years in the TDC and fined him $50,000.
3 18 U.S.C. § 924(e)(1), the codification of the ACCA, provides in relevant part:

"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
3

sentencing range under the Sentencing Guidelines for Clark's offense would normally have been
seventy-seven to ninety-six months of incarceration. The ACCA, however, imposes a mandatory
minimum sentence of fifteen years and a maximum of life in prison without parole if a defendant has
three previous convictions for a "violent felony" or "serious drug offense." 18 U.S.C. § 924(e)(1).
Clark's three prior state drug convictions rendered him eligible for punishment under the ACCA.
U.S.S.G. § 5G1.1(b) provides that "[w]here a statutorily required minimum sentence is greater than
the maximum of the applicable guideline range, the statutorily required minimum sentence shall be
the guideline sentence." Accordingly, the district court sentenced Clark to the minimum mandatory
term of fifteen years as required by the ACCA.4
Clark filed a timely notice of appeal to this Court. Clark's counsel submitted a brief
withdrawing from the case pursuant to Anders v. California, 87 S.Ct. 1396 (1967), and in January,
1994, we dismissed the appeal on that basis in an unpublished order. See United States v. Clark, No.
93-2033 (5th Cir. Jan. 10, 1994). On September 6, 1996, Clark (represented by his third counsel)
fifteen years, and, notwithstanding any other provision of 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)."
4 Specifically, the district court sentenced Clark to fifteen years in the custody of the
Bureau of Prisons, with three years of supervised release, and payment of a $50
mandatory assessment. The district court's sentencing order states: "The court makes the
following recommendations to the Bureau of Prisons: The federal writ has deprived the
defendant of consideration for a state parole hearing. It is the Court's intent that the
federal sentence run concurrently with the state's sentence imposed in No. 571728 [the
1991 state sentence, see note 2 supra] and therefore recommends to the Bureau of Prisons
that the Texas Department of Corrections be designated for service of the federal
sentence." This recommendation seems not to have been followed, as it appears that
Clark has been serving his 1992 federal sentence in the Federal Correctional Institution in
Memphis, Tennessee.
4

apparently filed a state habeas corpus petition for post-conviction relief under TEX. CODE CRIM. P.
11.07, in which he sought to show that none of his three 1983 state convictions was supported by
constitutionally sufficient evidence; the state trial court refused to hold an evidentiary hearing and
recommended that relief be denied; the Texas Court of Criminal Appeals refused to docket the case.
On April 23, 1997, Clark filed the instant motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255.5 He asserted he was serving his 1992 federal sentence at the Federal
Correctional Institution in Memphis, Tennessee. He alleged that (1) the evidence was constitutionally
insufficient to support the 1983 state convictions that were then used to enhance his federal sentence
under the ACCA; and (2) 18 U.S.C. § 922(g) violated the Commerce Clause. He further alleged his
unsuccessful 1996 state habeas attack on his 1983 state convictions and that as a result "[m]ovant
has no further avenue of attack available in state court." The state habeas records are not in the
record before us and were not before the district court.
In a published memorandum opinion, the district court dismissed Clark's motion without
prejudice. See United States v. Clark, 996 F.Supp. 691 (S.D. Tex. 1998). The district court held that
Clark's motion was timely filed under the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), but rejected his Commerce Clause challenge to section 922(g) on the ground that this
Court had repeatedly held that statute to be valid. Id. at 692. The district court further held that the
528 U.S.C. § 2255 provides in relevant part:
"A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or the laws of the United States . . . or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.
5

Supreme Court's opinion in Custis v. United States, 114 S.Ct. 1732 (1994), precluded the section
2255 challenge to Clark's 1983 state convictions that were used to enhance his current federal
sentence under the ACCA. See Clark, 996 F.Supp. at 692-94. The distri ct court concluded by
stating:
"Because the constitutionality of defendant's state convictions may, if appropriate, be
challenged t hrough a § 2254 petition filed in the Northern District of Texas, his §
2255 motion will be dismissed without prejudice to defendant's right to refile in this
court should any of his state convictions be vacated or otherwise expunged. Id. at
694 (footnote omitted).
The court observed in this connection that "Defendant is currently in federal custody in Tennessee,
and the convicting state court is in the Northern District of Texas." Id. at 694 n.6. The court did not,
however, find that Clark was (or had been at any time after his federal indictment) in state custody
pursuant to or as a result of the 1983 state convictions, nor did the court recite any facts reflecting
such custody (nor does our review of the record disclose any). While the district court did not
expressly find whether Clark had exhausted his state remedies respecting his 1983 state convictions,
the court appears to have assumed that Clark probably had done so. See id. at 694 n.7 ("Although
defendant has not submitted the state habeas records, he has apparently tried and failed to set aside
his state convictions through a post-conviction state habeas action").
Clark moved for reconsideration of the order, or alternatively, for a COA, asserting, among
other things, that 28 U.S.C. § 2254 was not available to him to challenge his 1983 state convictions
because he was not in state custody under or as a result of those convictions. The district court
denied both motions. On August 7, 1998, Clark filed an application for a COA with this Court. He
alleged that the district court misinterpreted Custis and requested a COA on the question whether
section 2255 is a proper vehicle for bringing collateral challenges to prior state convictions used to
6

enhance a current federal sentence. On November 19, 1998, this Court granted a COA limited to that
question. We now vacate and remand.
Discussion
We disagree with the district court's conclusion that Custis has rendered unavailable a section
2255 challenge to constitutionally infirm prior state convictions that have been used to enhance a
federal sentence being currently served where the defendant has exhausted his state remedies and is
not in state custody pursuant to or as a result of the state convictions for purposes of section 2254.
Custis announced only a prohibition on these types of challenges in the context of federal sentencing
hearings. This Court has consistently sanctioned the use of section 2255 motions to attack a federal
sentence being currently served on the ground that it was enhanced on the basis of a constitutionally
invalid prior conviction. We do not read Custis to disturb this principle. Moreover, the ACCA is a
sentencing enhancement statute, and most courts, including the district court here, have construed
it to be inapplicable where the prior enhancing convictions, though in apparent full force on the date
of commission of the underlying section 922(g) offense, are subsequently set aside on constitutional
grounds, and this is so even though they are not set aside until after the ACCA sentence is imposed.
We do not read Custis as otherwise construing the ACCA. If, as is apparently the case here, Clark
has exhausted his state remedies but does not meet the "in custody" requirement of section 2254 as
to the state convictions, then accepting the district court's reading of Custis would, in the name of
forum reallocation, eviscerate Clark's substantive right to review of these potentially constitutionally
invalid state convictions. We therefore vacate the district court's judgment and remand for further
proceedings consistent herewith.
In considering challenges to a district court's denial of a section 2255 motion, this Court
7

reviews the district court's factual findings for clear error and its conclusions of law de novo. See
United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994); United States v. Woods, 870 F.2d 285,
287 (5th Cir. 1989).
I. The "in custody" requirement and related section 2255 concerns.
As a preliminary matter, we note that Clark satisfies the jurisdictional "in custody"
requirement for challenging the use of his prior state convictions to enhance his current federal
sentence. Federal prisoners seeking relief under section 2255 must be "in custody under sentence of
a court established by Act of Congress" at the time they file their motions. See United States v.
Drobny, 955 F.2d 990, 995-96 (5th Cir. 1992). A parallel custody requirement applies under 28
U.S.C. § 2254.6 If the prisoner fails to satisfy the custody requirement, the court will not have
jurisdiction to hear the motion. See Carafas v. LaVallee, 88 S.Ct. 1556, 1559-60 (1968); Pleasant
v. State, 134 F.3d 1256, 1257-58 (5th Cir. 1998).
In Maleng v. Cook, 109 S.Ct. 1923 (1989) (per curiam), the Supreme Court held that a
section 2254 petitioner could not attack a prior completed state sentence because "once the sentence
imposed for a conviction has completely expired, the collateral consequences of that conviction are
not themselves sufficient to render an individual <in custody' for the purposes of a habeas attack upon
it." Id. at 1926. Suffering "no present restraint" from his expired state conviction (even though it
had been used to enhance his current sentences), Maleng did not satisfy the custody requirement for
6 28 U.S.C. § 2254(b) provides for "a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a state court." 28 U.S.C. § 2241(c) likewise
provides, with here immaterial exceptions, that habeas corpus extends to "a prisoner"
only if "[h]e is in custody." 28 U.S.C. § 2243 provides that " [t]he writ [of habeas
corpus] . . . shall be directed to the person having custody of the person detained."
8

the prior conviction and therefore could not challenge it directly in a section 2254 proceeding. Id.
If, as appears to be the case, Clark is no longer in state custody pursuant to or as a result of his 1983
state convictions, then there is no jurisdiction to challenge those convictions in a section 2254
proceeding. That Clark is still serving his federal sentence which was enhanced as a result of those
1983 state convictions does not provide the requisite custody for a section 2254 challenge to those
convictions. See Pleasant, 134 F.3d at 1258.7
Clark does, however, satisfy the "in custody" requirement of section 2255 by bringing a
section 2255 challenge t o the federal sentence he is presently serving on the grounds that it was
erroneously enhanced by the allegedly invalid 1983 state convictions. The Maleng Court left open
the question whether the use of a conviction the sentence for which had been fully served to enhance
a sentence being currently served could be challenged in an attack on that current sentence. See id.
at 1927 ("We express no view on the extent to which t he [expired] 1958 conviction itself may be
subject to challenge in the attack upon the [present] 1978 sentences which it was used to enhance.").
This Court and other Courts of Appeals have uniformly answered that question in the affirmative: as
long as the habeas relief sought is framed as an attack on a present sentence, as to which the prisoner
is still "in custody," then the expired conviction used to enhance that sentence may be challenged.
See Herbst v. Scott, 42 F.3d 902, 905 (5th Cir. 1995) ("A habeas petitioner may attack a prior
conviction used to enhance his punishment . . . . The jurisdictional requirement of <in custody' is
satisfied by reading the petition as a challenge to the current conviction.") (citations omitted); United
7Although we doubt it, it may be that the district court was of the opinion that Clark
was eligible to seek § 2254 relief as to his 1983 state convictions because they were used
to enhance the federal sentence he was (and is) still serving. Any such view would be
erroneous. See Pleasant, 134 F.3d at 1258.
9

States v. Nichols, 30 F.3d 35 (5th Cir. 1994); Thompson v. Collins, 981 F.2d 259, 260 (5th Cir.
1993); Allen v. Collins, 924 F.2d 88 (5th Cir. 1991) (no distinction for this purpose between
constitutionally "voidable" and "void" prior enhancing convictions); see also Young v. Vaughn, 83
F.3d 72, 75-76 (3d Cir. 1996); Treadway v. Farley, 35 F.3d 288, 292 (7th Cir. 1994); Brock v.
Weston, 31 F.3d 887, 890 (9th Cir. 1994); Collins v. Hesse, 957 F.2d 746, 748 (10th Cir. 1992);
Lowery v. United States, 956 F.2d 227, 229 (11th Cir. 1992); Taylor v. Armontrout, 877 F.2d 726,
726-27 (8th Cir. 1989) (per curiam); 28 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE
§ 671.04[3][b] [hereinafter MOORE'S].8 Accordingly, we hold that Clark is "in custody" for the
purpose of his section 2255 motion.
We note one other potential problem presented by the use of section 2255 to chal lenge a
federal sentence being currently served on the ground that it was enhanced by a state conviction
alleged to be unconstitutional, where state remedies have been exhausted and the state conviction has
not been set aside, but the petitioner is no longer in custody under the state conviction so there is no
jurisdiction to challenge it under section 2254. The problem in such a situation is that the state whose
conviction is being challenged is not a party to the section 2255 proceeding. However, that should
not be a basis for denying relief as to the federal sentence. In United States v. Tucker, 92 S.Ct. 589
8 We note that if Clark's prior convictions had taken place in federal instead of state
court, he might be able to challenge them through a federal writ of coram nobis in the
court of conviction. This method of collateral attack may be used by a prisoner who has
completed his federal sentence and is no longer "in custody" thereunder for the purpose
of seeking relief under either 28 U.S.C. § 2241 or § 2255 but nevertheless still suffers
certain adverse consequences from his conviction. See United States v. Dyer, 136 F.3d
417, 422 (5th Cir. 1998); Drobny, 955 F.2d at 996; cf. Carlisle v. United States, 116 S.Ct.
1460, 1468 (1996) ("difficult to conceive of a situation" in which coram nobis "would be
necessary or appropriate") (citation omitted). Under the facts of this case, however, it is
clear that such a federal coram nobis remedy is wholly unavailable to Clark.
10

(1972), the Supreme Court sustained a section 2255 attack on a sentence imposed by a federal
district court in California on the ground that the sentencing court had considered Florida and
Louisiana convictions obtained in violation of Gideon v. Wainwright, 83 S.Ct. 792 (1963). We
pointed out in Mitchell v. United States, 482 F.2d 289, 292-94 (5th Cir. 1973), that it was evident
in Tucker that the prior convictions had not been set aside, either by the courts of the respective state
in which they were rendered or by any federal court. In Mitchell we similarly held section 2255 was
an appropriate vehicle to challenge a federal sentence on the ground that the sentencing court
considered prior state convictions obtained in violation of Gideon, notwithstanding that those
convictions had not been set aside by the state courts or by any federal court. In Sammons v. Rogers,
785 F.2d 1343 (5th Cir. 1986), we held a federal prisoner could, in a section 2241 habeas petition
brought against the warden o f the federal institution where he was confined and the U.S. Parole
Board, challenge on double jeopardy grounds the constitutionality of Tennessee convictions which
adversely affected consideration of parole from his federal sentence. And, in Craig v. Beto, 458 F.2d
1131, 1133 (5th Cir. 1992), we held that in a Texas prisoner's section 2254 challenge to the Texas
sentence he was serving that had been enhanced by a prior Oklahoma conviction, the prisoner could
prove that the Oklahoma conviction was constitutionally invalid under Gideon. As Texas had
enhanced its sentence on the basis of the Oklahoma conviction, it was proper for Texas to "bear" the
"burden" of defending that conviction against the prisoner's challenge. Id. at 1134; see also Marks
v. Rees, 715 F.2d 372, 374-75 (7th Cir. 1983) (Kentucky prisoner whose sentence was enhanced by
prior Indiana conviction could challenge the constitutional validity of the Indiana conviction in a
section 2254 attack on the Kentucky sentence). In Pleasant, we cited Craig and suggested that
although a federal prisoner whose current sentence was enhanced under the ACCA as a result of an
11

expired Texas conviction could not challenge the Texas conviction under section 2254 since he was
not in Texas custody, he might be able to challenge it in a section 2255 petition directed to the ACCA
sentence. See Pleasant, 134 F.3d at 1259. We observe that the apparent anomaly of determining the
validity of one jurisdiction's conviction later used for enhancement of another jurisdiction's sentence,
without a representative of the jurisdiction of the initial conviction being a party, is ameliorated by
the rule that the determination does not bind the former jurisdiction. As we said in Craig, "our
decision only relates to the use of [the Oklahoma] conviction in a Texas court" and "[o]ur action will
leave standing the conviction in Oklahoma, so far as Oklahoma is concerned." Id. at 1134.
II. United States v. Custis and the ACCA
The appearance of Custis in 1994 "created some further confusion" regarding the ability to
challenge convictions that are later used for sentence enhancement. MOORE'S § 671.04[3][b]. In
Custis, the Supreme Court considered the availability during federal sentencing hearings of collateral
attacks on prior convictions that serve as the basis for enhancement under the ACCA. The Court
held that Congress did not intend to permit defendants to challenge the validity of such convictions
at federal sentencing hearings, except in cases where t he prior convictions were obtained in total
denial of the right to counsel, contrary to Gideon, as in cases such as Tucker and Burgett v. Texas,
88 S.Ct. 258 (1967). See Custis, 114 S.Ct. at 1734, 1737, 1738.
Like Clark, Custis received the minimum mandatory fifteen-year sentence under the ACCA.
At his federal sentencing hearing, Custis argued that his two prior Maryland convictions were
constitutionally unsound because in those cases his attorney had provided ineffective assistance,
Custis had not made a knowing and voluntary guilty plea, and he had not been adequately advised
of his rights in selecting a "stipulated facts" trial. Id. at 1734. Observing that the ACCA "focuses
12

on the fact of the conviction," the Court did not find in the statute "any indication that Congress
intended to permit collateral attacks on prior convictions used for sentence enhancement purposes."
Id. at 1736-37. In reaching its conclusion, the Court observed that "[e]ase of administration . . .
supports the distinction" it makes between Gideon error and other constitutional infirmities due to
the undesirability of a procedure which "would require sentencing courts to rummage through
frequently nonexistent or difficult to obtain state-court transcripts." Id. at 1738. And, the Court also
observed that allowing attacks for non-Gideon error at sentencing would only result in "delay and
protraction of the federal sentencing process." Id. at 1739. Consequently, the ACCA did "not permit
Custis to use the federal sentencing forum to gain review of his state convictions." Id.
With collateral relief unavailable to Custis at sentencing, the Court noted that he could pursue
alternative means to challenge his prior convictions. Because he was still "in custody," Custis "may
attack his state sentences in Maryland or through federal habeas review." Id. "If Custis is successful
in attacking these state sentences," the Court reasoned, "he may then apply for reopening of any
federal sentence enhanced by the state sentences. We express no opinion on the appropriate
disposition of such an application." Id.
Custis is difficult to interpret. The opinion's statement that ACCA "focuses on the fact of the
conviction," id. at 1736, and its reliance, id. at 1736-37, on Lewis v. United States, 100 S.Ct. 915
(1980), suggest that the Court may have construed the ACCA to render irrelevant the validity of the
prior convictions so long as they had not been set aside before the commission of the predicate
section 924(g) offense. In other words, Custis may have been a substantive, not a procedural,
decision. In Lewis, the defendant was charged with violating 18 U.S.C. App. § 1202(a)(1) (1976),
the predecessor to section 922(g)(1), the current felon-in-possession-of-a-firearm statute. Lewis had
13

pleaded guilty to and been convicted of a felony in a Florida court in 1961. That conviction was
never overturned. In 1977, he possessed a firearm. At his federal trial for the firearm offense, he
offered to prove that his Florida conviction was constitutionally invalid because he had been without
counsel contrary to Gideon. The trial court ruled that the validity of the Florida conviction was
irrelevant. The Supreme Court affirmed, although it plainly assumed that the Florida conviction was
invalid under Gideon, Tucker, and Burgett. See id. at 917-18. The Lewis Court held that under the
language of section 1202(a)(1) "the fact of a felony conviction imposes a firearm disability until the
conviction is vacated," id. at 918, t hat the defendant "before obtaining his firearm, could have
challenged his prior conviction in an appropriate proceeding in the Florida state courts," id. at 920,
and that "section 1202(a)(1) prohibits a felon from possessing a firearm despite the fact that the
predicate felony may be subject to attack on constitutional grounds." Id. at 921. The court
distinguished Burgett and Tucker on the ground that in those cases the proper relevance of the
challenged prior conviction "depended up" its "reliability." Id. at 922.9
We ultimately conclude, however, that Custis does not construe the ACCA the way Lewis
construed former section 1202(a)(1). In other words, Custis does not hold that the "three previous
convictions" mentioned in section 924(e)(1) include all convictions of the kind there described which
were outstanding when the predicate section 922(g)(1) offense was committed, even though the
convictions have thereafter been vacated for constitutional error. Nor does the government urge such
a construction. Two aspects of Custis particularly support our interpretation of it in this respect.
First, Custis recognizes that a claim of Gideon errora claim such as that made in Burgett and
9We observe that we have held that § 924(e) is a sentence enhancement statute and
does not create a separate or independent offense. See United States v. Affleck, 861 F.2d
97, 99 (5th Cir. 1988).
14

Tuckermay be raised at sentencing under the ACCA to challenge any one or more of the "three
previous convictions" asserted under section 924(e) even though the thus challenged conviction had
not previously been vacated or set aside. Custis, 114 S.Ct. at 1737-38. But, under Lewis the putative
Gideon invalidity of the prior conviction would have been substantively irrelevant. Second, Custis
strongly suggests that if the defendant after his federal sentencing under the ACCA successfully
attacks the prior convictions "through federal habeas review," he may thereafter reopen the ACCA
sentence. Id. at 1739. While Custis expressly leaves open the ultimate result in such a
situation"[w]e express no opinion on the appropriate disposition of such an application," id.the
fact that the question is left open is necessarily inconsistent with any interpretation of Custis as
holding or assuming that the constitutional invalidity on non-Gideon grounds of ACCA prior
convictions is substantively irrelevant if the convictions have not been set aside prior to ACCA
sentencing. Moreover, Justice Ginsburg, who concurred without reservation in Custis, has stated that
"Custis presented a forum question. The issue was where, not whether, the defendant could attack
a prior conviction for constitutional infirmity." Nichols v. United States, 114 S.Ct. 1921, 1937
(1994) (Ginsburg, J. dissenting).
The few published ACCA appellate decisions since Custis all appear to hold, or assume, that
a successful post-ACCA sentencing attack on the prior convictions used for enhancement will result
in appropriate section 2255 adjustment of the federal sentence. In United States v. Pettiford, 101
F.3d 199 (1st Cir. 1996), the defendant had been sentenced under the ACCA based on several
Massachusetts convictions, but after his ACCA sentencing the Massachusetts courts set aside all but
one of the convictions. The defendant then sought section 2255 relief from his ACCA sentence. The
district court granted relief, the government appealed, and the First Circuit affirmed, holding that the
15

ACCA sentence was properly challenged pursuant to section 2255 because the predicate prior
convictions had been set aside after the ACCA sentencing. See id. at 201. In Turner v. United
States, 183 F.3d 474 (6th Cir. 1999), Turner, who had been sentenced under the ACCA, brought a
section 2255 challenge to his sentence, asserting that his prior state convictions on which the ACCA
sentence was based were constitutionally invalid. The Sixth Circuit affirmed dismissal of the section
2255 petition, stating "We read Custis as requiring Turner 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 Turner succeeds in such a challenge can he seek to reopen his
sentence in this case." Id. at 477. The opinion does not address whether Turner could meet the "in
custody" requirement of section 2254 or what the result would be if he could not.
Custis has also been applied outside of the ACCA context. The majority of courts hold that
Custis does not preclude a federal habeas challenge to an enhanced sentence on the basis of a post-
sentence attack on the constitutional validity (for other than Gideon error) of a prior conviction on
which the enhancement was based. In United States v. Cox, 83 F.3d 336 (10th Cir. 1996), the
defendant, after his federal sentencing, successfully attacked several of the state convictions which
had been used to calculate his criminal history category for purposes of his federal sentencing, and
then attacked his federal sentence in a section 2255 proceeding. The Tenth Circuit held the district
court erred by failing to reopen the federal sentence and cited Custis, and our decision in Nichols, for
the proposition that "[i]f a defendant successfully attacks state sentences, he may then apply for
reopening of any federal sentence enhanced by the state sentences." Id. at 339. The Third Circuit
in Young v. Vaughn, 83 F.3d 72 (3d Cir. 1996), held that a section 2254 challenge properly lay to a
state sentence then being served on the basis that it had been enhanced by a prior state conviction,
16

the sentence for which had been fully served, which was constitutionally invalid (on other than
Gideon grounds). The Young court specifically rejected the contention that such a challenge was
precluded by Custis and particularly disagreed with the Eighth Circuit's statement in Partee v.
Hopkins, 30 F.3d 1011, 1012 (8th Cir. 1994), that Custis held "`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.'" See Young, 83 F.3d at 77. The Young
opinion goes on to state that "[i]f a general principle is to be derived from Custis, it is the much
narrower one that `federal sentencing hearings are not the proper forum for addressing the validity
of prior convictions.'" Id. (emphasis Young's); see also Brock v. Weston, 31 F.3d 887, 890-91 (9th
Cir. 1994) (Custis does not preclude section 2254 challenge to fully served convictions used to
enhance current state confinement); United States v. Bacon, 94 F.3d 158, 162 n.3 (4th Cir. 1996) (in
sentencing Bacon the federal district court erred in disregarding a prior state robbery conviction
claimed to be invalid, but "of course, if Bacon succeeds in a future collateral proceeding in
overturning his robbery co nviction, federal law enables him then to seek review of any federal
sentence that was imposed due to his state conviction," citing Custis and our Nichols opinion).
As noted, in Partee the Eighth Circuit took a different approach, holding that under Custis
there could be no section 2254 challenge to a Nebraska sentence on the ground that it had been
enhanced by a prior Arkansas conviction alleged to be constitutionally invalid on a basis other than
Gideon error. Thereafter, in Charlton v. Morris, 53 F.3d 929 (8th Cir. 1995) (per curiam), the court
held that a section 2254 petition would not lie to attack a current federal drug offense sentence
enhanced on the basis of a prior state conviction, which the petitioner alleged to be unconstitutional
on the grounds of an improper jury instruction, and for which the sentence had been fully served.
17

The court also remarked in dicta that under Partee the same result would obtain were the petition
construed to be one under section 2255. See Charlton, 53 F.3d at 929-30. Similarly, in Arnold v.
United States, 63 F.3d 708, 709 (8th Cir. 1995), the court, based on Custis, held that a section 2255
challenge would not lie to a federal drug sentence enhanced by a prior state conviction allegedly based
on an involuntary guilty plea. None of these Eighth Circuit opinions provides any analysis of Custis
or any reasoning or discussion. The result in these cases seems to assume that Custis decided the
question it expressly left open.10
We have previously refused to give Custis such a broad, preclusive reading. Post-Custis , we
have reiterated our prior jurisprudence that "[a] habeas petitioner may attack a prior conviction used
to enhance his punishment" and t hat the "jurisdictional requirement of `in custody' is satisfied by
reading the petition as a challenge to the current conviction." Herbst, 42 F.3d at 905; see also
Nichols, 30 F.3d at 37 (under Custis defendant who has a state sentence set aside properly utilizes
section 2255 to reopen federal sentence enhanced on basis of the state sentence); United States v.
Fisher, 106 F.3d 622, 630 (5th Cir. 1997) ("The rationale of Burgett . . . is equally applicable to . .
. constitutional infirmity arising from lack of notice . . . Custis only addresses the right of a defendant
in a federal sentencing proceeding to collaterally attack the validity of prior state proceedings");
Pleasant, 134 F.3d at 1259 (suggesting possible availability of section 2255 to challenge federal
10 In Partee, the only state challenge to the allegedly invalid prior conviction was at
sentencing for the later offense, so Partee arguably could be read as merely saying that
the state courts can do what Custis says the federal courts can do, namely not entertain
non-Gideon challenges to prior convictions at sentencing for a later offense. But this
would assume there was some other vehicle available to the defendant to thereafter
challenge the enhancing conviction, as there was in Custis. Had such a vehiclesuch as a
state habeasbeen available, then it would appear that the Partee court would have
dismissed for failure to exhaust state remedies.
18

sentence enhanced by prior allegedly invalid fully served state sentence). We agree with the Third
Circuit's Young opinion in its rejection of Partee and in its refusal to expand Custis or its principles
beyond speaking to what can or cannot be addressed at a federal sentencing hearing. Likewise, we
agree with Justice Ginsburg that Custis speaks only to "where, not whether, the defendant could
attack a prior conviction for constitutional infirmity."
The logic of the majority of post-Custis decisions leads to the conclusion that a defendant,
who after his federal sentencing succeeds in a section 2254 (or state court) proceeding in setting aside
as constitutionally infirm a prior state conviction used to enhance his federal sentence, may thereafter
procure relief as to his federal sentence under section 2255.11 We agree with this conclusion. And,
11 By the same logic, if the prior conviction used for enhancement is a federal one,
and it is later set aside as constitutionally infirm in a § 2255 proceeding brought in the
court which imposed the prior conviction, then relief as to the enhanced federal sentence
could be procured in a subsequent § 2255 brought in the court which imposed the
enhanced sentence. So, too, if a prior federal conviction used for enhancement is later set
aside in a coram nobis proceeding in the convicting court (as might be the case if the
sentence on the prior conviction had been fully served), then relief as to the enhanced
federal sentence could be procured in a subsequent § 2255 brought in the court which
imposed the enhanced sentence.
We do not suggest that if the prior state conviction relied on for enhancement is
later vacated on constitutional grounds by the state that imposed it or in a § 2254
proceeding, that this always automatically entitles the defendant to § 2255 relief in the
court which imposed the enhanced sentence. For example, if the relevant federal statute
allowed the defendant to raise at sentencing the asserted invalidity of the prior
convictione.g., 21 U.S.C. § 851and he failed to so, such failure might be a procedural
default barring § 2255 relief. See, e.g., Hogue v. Johnson, 131 F.3d 466, 489-91 (5th Cir.
1997); Weaver v. McKaskle, 733 F.3d 1103 (5th Cir. 1984). As a Gideon defect in the
prior conviction tendered for enhancement can also be raised at federal sentencing, the
failure to do so then might also be a procedural default barring § 2255 relief. So also
would a statute of limitations such as 21 U.S.C. § 851(e). See United States v. Gonzales,
79 F.3d 413, 426-27 (5th Cir. 1996). The same approach would apply if the prior
sentence used for enhancement were a federal one. And, this same reasoning would also
19

if such a defendant meets the "in custody" requirement of section 2254 with respect to his state
sentence,12 then 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.13
This is discussed below. But, what if the defendant, having unsuccessfully exhausted all available
state remedies, does not meet section 2254's "in custody" requirement as to the state conviction? In
that situation, on what rational basis can preclusion of initial resort to section 2255 in the court
imposing the enhanced federal sentence be justified? If a constitutionally infirm prior conviction,
apply if the defendant proceeded under § 2255 directly in the court imposing the
enhanced sentence even if that court were to find that in a hypothetical § 2254 proceeding
(in which the defendant met the § 2254 "in custody" requirement as to the prior
conviction) the defendant could set aside the prior conviction. The point is simply that
even though the prior enhancing conviction is held constitutionally infirm this will not
entitle the defendant to relief from the later enhanced sentence if there is some
independent ground which bars relief as to the enhanced sentence itself (such as
procedural default in the proceedings in which the enhanced sentence was imposed).
12 As might be the case, for example, if the state has lodged a detainer with the federal
prison, see, e.g., Braden v. 30th Judicial Circuit Court, 93 S.Ct. 1123 (1973); Dickerson
v. State of Louisiana, 816 F.2d 220, 224-25 (5th Cir. 1987); or the defendant's state
sentence has been suspended or he is on probation or parole respecting it. See Sammons
v. Rodgers, 785 F.2d 1343, 1345 (5th Cir. 1986).
13 So, too, it may well make administrative sense to require that available state
remedies be exhausted as to the prior state conviction before resort to § 2255 in the court
which imposed the enhanced federal sentence. While such an exhaustion requirement is
implicit in requiring resort to § 2254 for those meeting its "in custody" requirement
respecting the state conviction (as § 2254 itself requires exhaustion of available state
remedies), it would have independent significance where the defendant did not meet §
2254's in custody requirement as to the state conviction.
If the § 2254 court denies relief on the merits (including, for example, on the basis
of limitations or laches or procedural default) then that would end the matter.
20

which after the ACCA sentencing has been set aside in a section 2254 proceeding, is so unreliable as
to justify reopening the ACCA sentence under section 2255, an identically infirm prior conviction
must likewise be too unreliable to justify the ACCA sentence when the defendant does not meet
section 2254's "in custody" requirement as to it and hence must initially resort to section 2255 in the
ACCA court to establish its infirmity. As demonstrated in part I above, the "in custody"
requirement of section 2255 is met and the fact that the state whose conviction is being challenged
is not a party to the proceeding does not suffice to preclude the ultimate availability of section 2255
relief. To hold otherwise on the basis of Custis is to treat it, contrary to our above analysis, as
dictating "whether" in such a situation the prior state conviction can ever be challenged. Moreover,
recently the Supreme Court has expressed reluctance to adopt a reading of the overall statutory
habeas scheme that "would bar the prisoner from ever obtaining federal habeas review." Stewart v.
Martinez-Villareal, 118 S.Ct. 1618, 1622 (1998).
We thus conclude that the district court erred in refusing to address Clark's section 2255
petition without first determining whether he had exhausted his state remedies as to his 1983 state
convictions and whether he met section 2254's "in custody" requirement respecting them. If Clark
has exhausted his state remedies and if he is not "in custody" for purposes of a section 2254 challenge
to his 1983 state convictions, then the district court should address Clark's section 2255 petition.
We note that in no event should Clark be entitled to section 2255 relief if, had he met the "in
custody" requirement of section 2254 as to his 1983 state convictions, he would for any reason
nevertheless not have been entitled to relief as to them in a section 2254 proceeding against an
appropriate state respondent. In other words, the failure to meet the section 2254 "in custody"
requirement should not enhance Clark's rights beyond what they would be if he met that requirement.
21

See Craig, 458 F.2d at 1133-34 ("Texas is burdened with defending the attack on the Oklahoma
conviction in the same way that the State of Oklahoma would be so burdened in a collateral attack
in Oklahoma. No more, and no less. . . . the Oklahoma conviction should receive the same
consideration by us that it would receive under a direct collateral attack. . . .").
III. Exhaustion and prior resort to section 2254 if "in custody"
We recognize that in neither Craig nor Mitchell did we require a defendant attacking a
sentence enhanced by an allegedly constitutionally infirm prior conviction either to exhaust his
remedies in courts of the state imposing the prior conviction or to exhaust his section 2254 remedies
in a proceeding directly challenging the prior conviction. However, in both of those cases the
infirmity in the prior convictions was a Gideon error, and under Custis that is a challenge which can
be raised at the sentencing for the later offense. We do not here deal with prior convictions which
are invalid under Gideon. Moreover, since Craig and Mitchell there has been a virtual sea charge
in overall habeas jurisprudence and Custis itself clearly indicates a preference for initial resort to
available state remedies, and to section 2254 where the defendant meets its "in custody" requirement
as to the prior conviction, before returning to the federal court which imposed the ACCA sentence
in a section 2255 proceeding.
Conclusion
We vacate the judgment of the district court and remand the case for further proceedings
consistent herewith.
VACATED and REMANDED
22