Invalid prior convictions may not be considered in sentencing.[400]  To obtain a new sentence, the defendant must establish (a) the prior conviction is constitutionally invalid, and (b) the sentencing judge relied upon it in passing sentence originally.[401] 

 

The United States Supreme Court has held that a federal defendant may not raise a claim that a prior state-court conviction is constitutionally invalid (except upon a claim of complete denial of counsel, rather than ineffective assistance), during federal sentencing pursuant to a recidivist sentence statute, since Congress did not provide for that procedure.  If the defendant uses a separate post-conviction remedy to obtain an order vacating the conviction, however, s/he may apply in federal court for resentencing without consideration of the unconstitutional conviction.[402]

Some states, however, decline to apply recent federal procedural limitations on the use of habeas corpus in this context.  Under California law, for example, habeas corpus an appropriate means of challenging the constitutionality of a prior conviction being used to enhance a current sentence.[403]  Moreover, although Lackawanna v. Coss[404] recently held that doing the same on federal habeas review of a state conviction was not permitted, it did so as a matter of federal procedure.  The California Supreme Court has rejected the importation of such limitations into California post-conviction procedures.[405]  Other states may do likewise.

 

[400] Tucker v. United States, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (conviction invalid because of a violation of the right to counsel may not be considered in sentencing); see also Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (no error in considering prior valid misdemeanor conviction even though defendant had not been represented by counsel); Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (capital sentence based in part on invalid prior felony conviction held cruel and unusual); Moore v. Jarvis, 885 F.2d 1565 (11th Cir. 1989) (due process precluded imposing enhanced sentence based on prior conviction flowing from involuntary plea of guilty).

[401] United States v. Ellis, 949 F.2d 952 (8th Cir. 1991); United States v. Sammons, 918 F.2d 592 (6th Cir. 1990); Moore v. Jarvis, 885 F.2d 1565 (11th Cir. 1989); Bourgeois v. Whitley, 784 F.2d 718, 721 (5th Cir. 1986); United States v. Laviguer, 801 F.Supp. 382 (D. Ore. 1992).

[402] Custis v. United States, 511 U.S. 485 (1994); see Lackawanna v. Coss, 532 U.S. 394 (2001) (held: (1) state sentence currently being served, which was enhanced by an allegedly unconstitutional prior conviction for which the sentence had fully expired, satisfied the “in custody” requirement for federal habeas jurisdiction; (2) relief is generally unavailable to a state prisoner through a petition for a writ of habeas corpus when the 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; and (3) exception exists where there was a failure to appoint counsel in violation of the Sixth Amendment in connection with the prior conviction). “In Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 [2001], 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 considerations on which the Daniels holding was grounded — finality of convictions and ease of administration — are equally present in the § 2254 context. See Daniels, post, at 379-380, 121 S.Ct. 1578.  Pp. 1573-1574.”  Id. at 394.

[403] E.g., In re Johnson, 3 Cal.3d 404 (1970); In re Woods, 64 Cal.2d 3 (1966); see also People v. Garcia, 14 Cal.4th 953, 965 (1997) (holding that a prior conviction cannot be attacked, based on a claim of ineffective counsel, through a motion to strike filed in the current complaint — the proper vehicle is habeas corpus).

[404] Lackawanna v. Coss, 532 U.S. 394 (2001).

[405] See People v. Allen, 21 Cal.4th 424, 427 (1999); People v. Horton, 11 Cal. 4th 1068 (1995) (both refusing to apply Custis to limit state collateral attacks on prior convictions).

Ninth Circuit

ALMANDAREZ-TORRES DOES NOT APPLY WHERE NATURE OF CRIME CHANGES
United States v. Rodriguez-Gonzalez, __ F.3d __ (9th Cir. Feb. 19, 2004) (Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior offense may be used to increase sentence even if omitted in Government pleading), does not apply when the earlier offense operated not merely to increase defendant's sentence, but to transform his second offense from misdemeanor to felony).
http://www.ilw.com/lawyers/immigdaily/cases/2004,0227-Rodriguez.pdf