
    Jerry Lee SMITH, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
    No. 99-3340.
    United States Court of Appeals, Sixth Circuit.
    Submitted July 30, 2001.
    Decided and Filed Aug. 15, 2001.
    
      David C. Jack, Wadsworth, OH, for petitioner-Appellee.
    Gary D. Arbeznik, Asst. U.S. Atty., Cleveland, OH, Karin Hoppmann, briefed, U.S. Dept, of Justice, App. Sec., Crim. Div., Washington, DC, for Respondent-Appellant.
    Before: WELLFORD, SILER, and GILMAN, Circuit Judges.
   OPINION

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), had been obtained in violation of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (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 recent decisions from the Supreme Court compel us to hold that such a collateral attack is impermissible. See Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), and Lackawanna Cty. District Attorney v. Coss, 531 U.S. 923, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001); see also Turner v. United States, 183 F.3d 474 (6th Cir.1999). Thus, we REVERSE the decision of the district court and REMAND for resentencing.

I. BACKGROUND

This case is before us for the third time. 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, 89 S.Ct. 1709, 23 L.Ed.2d 274 (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, 114 S.Ct. 1732, 128 L.Ed.2d 517 (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, 114 S.Ct. 1732, 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 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 re-sentencing 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.

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 § 2264. 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, 238-39, 88 S.Ct. 1556, 20 L.Ed.2d 554 (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.

The government argues:

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.

After this case was submitted to the panel for consideration, the Supreme Court of the United States issued two decisions that have resolved the issue now before the court in favor of the government. In Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), and in Lackawanna Cty. District Attorney v. Coss, 531 U.S. 923, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), the Court held that a prisoner could not rely on §§ 2254 or 2255 as vehicles through which to challenge his prior state convictions used to enhance federal sentences. See Daniels, 121 S.Ct. at 1583 (deciding issue in the context of a § 2255 petition directed at attacking federal sentence); Coss, 121 S.Ct. at 1573 (deciding issue in the context of a § 2254 petition directed at attacking state sentence). Like the petitioner in Daniels, petitioner Smith “is without recourse” because his “prior conviction[s] used to enhance [his] federal sentence [are] no longer open to direct or collateral attack in [their] own right because the defendant failed to pursue those remedies while they were available.” Daniels, 121 S.Ct. at 1583; accord Steverson v. Summers, 258 F.3d 520 (6th Cir.2001).

The Supreme Court’s position in this matter is consistent with our decision in Turner, supra, and its progeny. 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 consider specifically 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, 209 F.3d 614, 618 (6th Cir.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).

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 whether he would “succeed in such a challenge,” are no longer relevant issues in light of Daniels and Coss. 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 Burglary, Cleveland, Ohio Police Department CR185472.
2/4/84, Ohio State Reformatory 6 months plus cost. Defendant ' released 6/22/84.
4Al.l(b)

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.

On January 25,1984 the defendant plead guilty to the lesser included offense of Breaking and Entering.

11/22/84
Breaking and Entering with Violence Specification, Grand Theft with violence Specification, Vandalism with Violence Specification, Cleveland, Ohio Police Department CR195662.
8/23/85, Chillicothe Correctional Institution 2 to 5 years with 2 years mandatory sentence Count 1 2 to 10 years with 2 years mandatory sentence Count 2, 2 to 5 years with 2 years mandatory sentence Count 3, all concurrent to be served concurrent with CR199240 and CR199703 plus cost. Parole 10/25/88, final release 1/18/90.
4Al.l(a) Application Note No. 3

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 rear 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 and Entering Safecracking, Cleveland, Ohio Police Department CR199240.
8/23/85, Chillicothe Correctional Institution 1 year each Count concurrent plus cost, concurrent with sentences in CR 195662 and CR199703. Parole 10/25/88, final release 1/18/90.
4A1.2 Application Note No. 3

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, 88 S.Ct. 1556, 20 L.Ed.2d 554 (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. Smith had the opportunity to raise a Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), challenge in state court through affidavit, or otherwise.

We REVERSE the district court and REMAND with instruction to resentence Smith accordingly. 
      
      . Section 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).
     
      
      . A brief factual background of the case can be found at United States v. Smith, 36 F.3d 490, 491 (6th Cir.1994).
     
      
      . Smith’s argument was based on the rationale of the court in United States v. Clark, 203 F.3d 358 (5th Cir.2000). 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 light of the decision in Daniels, however, the Supreme Court vacated the Clark decision and remanded to the Fifth Circuit for further consideration. United States v. Clark, - U.S. -, 121 S.Ct. 1731, 149 L.Ed.2d 656 (2001).
     
      
      . In similar circumstances, we stated in United States v. Caldwell, No. 97-5252, 2000 WL 331950, at *8 n. 4 (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.”
     