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Unconstitutional Prior Convictions Eight AmendmentUnconstitutional Prior Convictions Eight Amendment

Unconstitutional Prior Convictions


Johnson v. Mississippi, 486 U.S. 578 (1988), the United States Supreme Court held that Johnson’s death sentence, which was based in part on a prior conviction vacated after his Mississippi capital trial, violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Mr. Johnson was sentenced to death after a jury found three aggravating circumstances outweighed the mitigating factors. One of the aggravators (that Johnson had been previously convicted of a felony involving the use or threat of violence to another person) was supported solely by a 1963 New York conviction of second degree assault with intent to commit first degree rape, the only evidence of which was an authenticated copy of Johnson’s commitment to Elmira Reception Center.

After his Mississippi conviction, Johnson successfully challenged the 1963 assault conviction. Prior to the assault trial in New York, the police obtained an incriminating statement from Johnson. Despite his objection that it had been coerced, the confession was admitted into evidence without an evidentiary hearing. Moreover, after he was convicted, he was not informed of his right to appeal though he attempted to do so three times without the benefit of counsel. Each attempt was rejected as untimely. Johnson’s attorneys were able to convince the Monroe County Court in New York that Johnson had been unconstitutionally deprived of his right to appeal. The county court entered a new sentencing order from which Johnson was able to take a direct appeal. In that proceeding, the New York Court of Appeals reversed his conviction. People v. Johnson, 506 N.E.2d 1177 (1987).

Johnson then sought post conviction relief from the Mississippi Supreme Court which was denied. Subsequently, the United States Supreme Court granted certiorari to determine whether the reversal of the 1963 conviction affected the validity of the death sentence. The Supreme Court’s holding was grounded in its concern for heightened reliability in capital cases. Because the 1963 conviction was ultimately reversed, evidence regarding it was entirely irrelevant to the Mississippi jury’s sentencing decision. Therefore, the jury “was allowed to consider evidence that has been revealed to be materially inaccurate.” 486 U.S. at 590. Johnson’s death sentence was vacated.

Since Johnson, the Supreme Court has decided three other cases, all noncapital, concerning how and when challenges to the unconstitutionality of prior convictions used to enhance a sentence can be brought.

In the first case, Custis v. United States, 511 U.S. 485 (1994), the defendant attacked the validity of two prior state convictions the government sought to use to enhance his federal sentence under the Armed Career Criminal Act (“ACCA”), a federal recidivist statute. Custis argued that the prior convictions were unconstitutional as a result of ineffective assistance of counsel and an involuntary guilty plea. 511 U.S. at 480. Relying on the wording of the ACCA which did not expressly provide for a collateral attack of priors on constitutional grounds at the time of sentencing, and the interest in ease of administration and promoting finality, the Supreme Court concluded that, except where a defendant was claiming a violation of the right to appointed counsel, a defendant cannot collaterally attack a state conviction at the time of his federal sentencing. 511 U.S. at 496-97. The defendant could, however, seek to have his prior convictions voided in state court or by a federal habeas corpus proceeding, and if successful, could apply to reopen his federal enhanced sentence. 511 U.S. at 497.

In Daniels v. United States, 532 U.S. 374 (2001), and Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001), the Supreme Court answered the question left unanswered by Custis: whether the constitutionality of prior convictions used to enhance a federal or state sentence may be challenged through a motion pursuant to 28 U.S.C. § 2255 (the post-conviction remedy for federal prisoners), or a habeas corpus petition pursuant to 28 U.S.C. §2254 (the federal post-conviction remedy for state prisoners). In both cases, the answer was no, with several important exceptions.

In Daniels v. United States, the defendant filed a §2255 motion challenging the constitutionality of his state convictions used to enhance his federal sentence under the ACCA. He argued that his prior state convictions were unconstitutional because they were based on involuntary guilty pleas and resulted from ineffective assistance of counsel. 121 S.Ct. at 1581. Extending Custis (and its reliance on the interests of “finality” and “ease of administration”) to prohibit such challenges in §2255 motions except where the defendant was denied his right to counsel, the Supreme Court noted that a defendant “generally has ample opportunity to obtain constitutional review of a state conviction.” If the defendant did not pursue those avenues, or the pursuit was unsuccessful, §2255 cannot be used to collaterally attack those convictions. 121 S.Ct. at 1584-85. The Court recognized, however, that in “rare cases” where “no channel of review was actually available” to challenge the prior conviction “due to no fault of his own,”a §2255 motion may be appropriate. Id. The examples the Court cited for such circumstances included newly discovered evidence of innocence and the impediment to timely challenging the prior conviction was the fault of governmental actors. Id.

In Lackawanna County District Attorney v. Coss, the Court reached the same result when the habeas petitioner sought to challenge the constitutionality of prior state convictions used to enhance his state sentence. Unlike Daniels, Coss had challenged the constitutionality of his prior convictions in a state postconviction petition that was still pending some 14 years later. 532 U.S. at 397-98. After extending Daniels and its rationale to §2254 habeas petitions, the Court concluded that “even assuming the existence of a limited exception to the general rule” barring review of expired convictions, Coss was not harmed because “it is clear” that any consideration the state judge gave to the unconstitutional prior convictions “did not actually affect that sentence.” 532 U.S. at 406. The Court reiterated the exceptions described in Daniels, adding that a state court’s “refus[al’ to rule on a constitutional claim properly that has been properly presented to it”constitutes such an exception. 532 U.S. at 405.

Although neither Daniels nor Coss address the separate concerns of the Eighth Amendment’s “special `need for reliability in the determination that death is the appropriate punishment'” in a capital case, Johnson, 486 U.S. at 584, counsel should timely challenge the constitutionality of any prior conviction used to support a death sentence in the forum where the prior conviction occurred, in addition to challenging those convictions under Johnson at the capital sentencing and post-conviction proceedings.





(Updated September 2017)



Duest v. Singletary,
967 F.2d 472 (11th Cir. 1992); 997 F.2d 1336 (11th Cir. 1993), cert. denied, 114 S.Ct.
1107 (1994) and cert. denied, 114 S.Ct. 1126 (1994)

Duest was convicted of capital murder and sentenced to death. At the sentencing phase of
appellant's trial, the state introduced evidence that Duest had two prior convictions; one for
armed robbery and the other for armed assault with intent to murder. Subsequently, one of these
convictions was vacated and one was nolle prossed. On appeal, the state did not dispute that error
occurred in this case but, instead contended that the error was harmless. The court found error
based on the evidence that the jury had seriously considered the two convictions. During
deliberations, the jury asked to see the vacated convictions. The court also emphasized the
likelihood that the assault conviction which involved murderous intent would have likely had a
particularly adverse impact on a jury deciding to recommend life or death. Duest v. Singletary,
967 F.2d 472 (11th Cir. 1992). The Supreme Court later vacated the court of appeals' judgment
and remanded the case back to the Court of Appeals for further consideration in light of Brecht v.
Abrahamson, 507 U.S. 619, (1993), which adopted a relaxed harmless error standard. Duest v.
Singletary, 997 F.2d 1336 (11th Cir. 1993). Under Brecht, actual prejudice to the defendant
occurs when constitutional error has a substantial and injurious effect or influence in determining
the jury's verdict. Habeas relief is thus justified if just one juror who voted for the death sentence
was likely substantially influenced by the evidence of Duest's prior conviction. The court found
that such a likelihood existed in Duest's case based on several factors: the jury requested to see
the vacated convictions, the sentencing hearing only took one day, there was a close jury vote
(7-5), and the evidence improperly considered was materially inaccurate.

Harris v. Blodgett,
853 F.Supp. 1239 (D. Wash. 1994)

At the penalty phase of his capital trial, Harris' prior convictions for manslaughter and assault
were admitted into evidence in the form of a judgment and sentence for each conviction. At the
time of his murder trial, the manslaughter conviction had already been dismissed. Nonetheless,
the conviction was admitted into evidence without objection from defense counsel. Moreover,
there was no pre-trial hearing to consider the validity of this guilty plea prior conviction.
Referring to Johnson, the court held that the legal effect of the dismissal should have been
determined. At the very least, the dismissal should have been presented to the jury along with the
judgment and sentence to comply with due process. Moreover, there was no definition of
manslaughter presented to the jury. This omission exacerbated the injurious nature of the
prosecutor's statements to the jury that the defendant had killed before leaving them to believe
that the manslaughter conviction was tantamount to a murder conviction. There was serious

constitutional error and influence on the jury's verdict which required that the habeas writ be
NOTE: Habeas relief was granted on other grounds concerning Harris’ capital conviction.
The Superintendent did not appeal the grant of sentencing relief. The grant of relief as to
the capital conviction was affirmed. Harris v. Wood, 64 F.3d 1432 (9th Cir. 1995).

Gillet v. State,
148 So.3d 260 (Miss. 2014)

In this post-conviction capital case, the Mississippi Supreme Court remanded for a new sentencing
hearing because the jury considered evidence in support of an improper aggravator. On direct
appeal the Mississippi Supreme Court had found that Gillet’s prior conviction for escape did not
support the “previous-violent-felony” aggravating factor because the escape did not necessarily
involve violence. The Court nevertheless upheld the death sentence after finding that the mitigating
evidence did not outweigh the three valid aggravating factors. In this post-conviction proceedings,
Gillet argued that the Court’s reweighing violated his due process rights, citing Brown v. Sanders,
546 U.S.212 (2006). The Court accepted that argument and found that it applied the wrong
standard on direct appeal because it did not find the error harmless beyond a reasonable doubt.
Reviewing the claim in this posture, it concluded that it could not find the error harmless beyond a
reasonable doubt. But also, although a state statute allows the Mississippi Supreme Court to reweigh the aggravators and mitigating factors itself, it declined to perform this analysis because it
concluded that appellate courts are not in the best position to do so because of its reliance on a
cold, hard record (citing Caldwell v. Mississippi, 472 U.S. 320 (1985)), and because of the Court's
long-standing recognition that "[t]he right to a jury determination of the penalty of death is a
substantial substantive right long held in this State." Woodward v. State, 726 So.2d 524, 542

State v. Bowman,
337 S.W.3d 679, 691 (Mo. 2011)

Death sentence reversed where jury found and weighed six aggravating factors two of which related
to vacated murder convictions. “Even if the prosecution's evidence regarding the underlying facts
of Bowman's two prior murder convictions were properly admissible as non-statutory aggravating
prior bad acts, the Court cannot assume that the jury's weighing process and sense of responsibility
were unaffected by its knowledge that Bowman previously had been convicted of two murders. A
sentence resting on invalid sentencing factors is invalid.”

Estrada v. State,
313 S.W.3d 274 (Tex. Crim. App. 2010)

Defendant, a youth pastor, was convicted of capital murder for killing a member of his youth group
and their 13-week-old unborn child. During the penalty phase of defendant’s capital trial, a State’s
expert witness unintentionally presented false testimony that an inmate who was sentenced to life
without parole for capital murder could, after 10 years, obtain a less restrictive prison classification
than those to which a defense expert testified defendant would be subject. During deliberations, the
jury sent out a question asking the trial court whether “there is a possibility that the defendant would
be eligible for a less restrictive status after 10 years (or some other period of time).” The trial court
responded, “you have the law and evidence. Please continue your deliberations.” On appeal, the
Texas Court of Criminal Appeals took judicial notice of a Texas Department of Criminal Justice
regulation that both parties agreed unambiguously shows that defendant would not be eligible for
lessrestrictive status at any time ifsentenced to life without parole. Furthermore, the State conceded
that, in the interest of justice, it believed defendant was entitled to a new trial on punishment due to
this error. The Texas Court of Criminal Appeals agreed, citing Johnson v. Mississippi, among
others, in support of its conclusion that the United States Supreme Court would find this error to be
constitutionally intolerable. Remanded for a new punishment hearing.

State v. Kilgore,
976 So.2d 1066 (Fla. 2008)

Acknowledging that a defendant is entitled to prosecute a collateral claim attacking his 1978
conviction utilized as an aggravator in his capital case but ruling that the defendant is not entitled
to representation by the same counsel appointed to represent him in the capital case.

State v. McFadden,
216 S.W.3d 673 (Mo. 2007)

Jury’s consideration of defendant’s prior invalid felony convictions and death sentence in unrelated
case as aggravatingfactorssupporting the imposition of death penaltyin first-degreemurdertrial was
clearly prejudicial, so as to render imposition of the death penalty invalid, where state’s evidence
during the penalty phase regarding the prior unrelated convictions and death sentence was
voluminous, narrated in detail by witness testimony, and illustrated by over a dozen exhibits. The
Court rejects the State’s argument that defendant’s prior convictions and death sentence were not
critical to the jury’s decision-making process because there were other aggravating factors present.
“[W]hen the sentencing body istold to weigh an invalid factor in its decision, a reviewing court may
not assume that it would have made no difference if the thumb had not been removed from death’s
side of the scale.” Brown v. Sanders, 546 U.S. 212 (2006).

Armstrong v. State,
862 So.2d 705 (Fla. 2003)

Death sentence reversed where prior felony conviction that jury considered as an aggravating

circumstance was vacated after petitioner was sentenced to death. "Given the nature of the crime
underlying the vacated conviction--a sexual offense upon a child--and the detailed testimony
given by the young victim of that crime at Armstrong's penalty phase, we cannot say that the
consideration of Armstrong's prior felony conviction of indecent assault and battery on a child of
the age of fourteen constituted harmless error beyond a reasonable doubt."

People v. Horton,
47 Cal.Rptr.2d 516 (Cal. 1995)

There were two aggravating circumstances in this case: armed robbery and a previous conviction
for murder. At the end of the guilt phase of defendant's trial, counsel moved to strike the prior
conviction special circumstance on the grounds that defendant's constitutional rights had been
violated in numerous ways during the pendency of the previous murder trial. The trial court
acknowledged several irregularities in the proceeding in question but denied the motion to strike.
Notably, the defendant's earlier trial occurred when he was a juvenile. The defendant's lawyer
asked to be absent when the jury returned its verdict. The jury came back deadlocked and the
court was on the verge of granting a mistrial when the prosecution convinced the judge to send
the jury back for further deliberations. The lawyer for Horton's co-defendant was present and also
objected to the granting of a mistrial. The jury acquitted the co-defendant but found the defendant
guilty. The court relied heavily on Johnson v. Mississippi in finding that the trial court erred in
refusing to strike the prior conviction special circumstance on the grounds that the prior
conviction had been obtained in an unconstitutional manner (denial of assistance of counsel).
Because the prosecution relied entirely on the prior conviction for aggravation at the penalty
phase, the court set aside the death sentence notwithstanding the validity of the other special
circumstance (armed robbery).

State v. Shepherd,
902 S.W.2d 895 (Tenn. 1995)

There were three aggravating circumstances presented in this case: a previous conviction of a
felony involving violence to the person, the murder was especially heinous, atrocious etc., and
the murder was committed during the commission of a felony. The felony conviction involving
violence to another person was reversed. Relying on Johnson v. Mississippi, the court found that
it had no alternative but to remand the case for resentencing. In so finding, the court noted that
one of the other aggravators (that the murder was committed during the commission of a felony)
was not supported by the evidence though the jury found it to be true. The cumulative effect of
finding two invalid aggravators in the face of potentially substantial mitigating proof eliminated
the possibility the error was harmless.

Greene v. State,
878 S.W.2d 384 (Ark. 1994)

During the sentencing phase of appellant's trial, the state introduced evidence that appellant had
been convicted in North Carolina of the murder of his brother. That conviction was later
reversed. The state conceded there was Johnson error but maintained the error was harmless. The
state court concluded it could perform a harmless error test only if the jury found no mitigating
circumstances. Because the jury unanimously found four mitigating circumstances, the court
vacated the death sentence.

Ward v. State,
827 S.W.2d 110 (Ark. 1992)

The defendant alleged error in the trial court's admission of a collection of documents relating to
his prior manslaughter conviction in Pennsylvania. Even though Ward was convicted only of
manslaughter, and there was no proof that he had raped or robbed the victim, the documents
introduced into evidence contained a felony information charging appellant with murder, and an
affidavit alleging that appellant raped and robbed the Pennsylvania victim. The state offered no
collateral proof appellant committed the offenses of murder, rape, or robbery, thus the court the
court held that mere allegations do not constitute proof. Therefore the documents were
improperly admitted and Ward was entitled to a new sentencing hearing.

Sanders v. State,
824 S.W.2d 353 (Ark. 1992), cert. denied, 115 S.Ct. 1126 (1995)

The jury found two aggravating circumstances, one of which was that the defendant previously
committed a felony for which he received a death sentence. The capital murder conviction
supporting the aggravator was later overturned. The court concluded there was reversible error
under Johnson, stating it could not surmise how much the jury relied upon the felony conviction.
The fact that the jury foreman came out and asked if the jury could consider the prior conviction
was persuasive evidence that the error was in fact prejudicial.

State v. Burr,
576 So.2d 278 (Fla. 1991)

Appellant was convicted of capital murder and sentenced to death. During the guilt phase of the
proceedings, evidence of collateral crimes was introduced to establish the identity of the
perpetrator. This evidence was presented in the form of live testimony from the victims of the
three crimes; no evidence offered in the form of a certified judgment. The three victims'
statements suggested that a similar modus operandi had been used in those crimes as that used in
the crime for which Burr was now being tried. Later, in imposing the sentence, the trial court
relied expressly on the collateral crimes evidence as supporting the existence of several
aggravating factors. Subsequently, Burr was acquitted of one of the collateral crimes and the
other was dismissed by nolle prosequi. The court determined that the admission of the collateral
crimes at the guilt phase was harmless. However, because the trial judge, in rejecting the jury's
recommendation of life imprisonment, relied upon the collateral crimes evidence, the defendant
was entitled to a new sentencing hearing.

Preston v. State,
564 So.2d 120 (Fla. 1990), cert. denied, 113 S.Ct. 1619 (1993)

The trial court found four aggravating circumstances, one of which was the conviction of a prior
felony involving the use of or threat of violence to another. This conviction was later vacated
because of ineffective assistance of counsel. Preston filed a petition for habeas corpus based upon
Johnson. The court noted that the Supreme Court had not precluded a harmless error analysis in
cases where the conviction for a prior felony that formed the basis for an aggravating
circumstance is set aside, but reasoned that such an error is likely to be harmful because evidence
has been admitted which has been found to be materially inaccurate. The court noted the fact that
the prosecutor placed special emphasis on the importance of the prior felony at issue, and
reversed the death sentence.

Commonwealth v. Karabin,
559 A.2d. 19 (Pa. 1989)

At the defendant's murder trial, the jury found the aggravating circumstance of "a history of
felonies." The sole evidence for the history of felonies circumstance consisted of the introduction
of a conviction for aggravated assault in 1979. The evidence was offered in the form of testimony
by the clerk of court reading a docket entry that the defendant pled guilty and was sentenced to
the charge on the specified dates. What really happened is a different story. On the day that
defendant was sentenced, he filed a petition to withdraw his guilty plea. The trial court denied the
petition and defendant appealed. While that appeal was pending, defendant's capital trial took
place and he was sentenced to death, in part, based on the aggravating circumstance of history of
felonies. The capital conviction was later found invalid on appeal and his death sentence was
vacated. The court held that no prior conviction had actually occurred that could support the
aggravating circumstance of a history of felonies. Subsequently, defendant's aggravated assault
appeal did become a conviction. The state then sought to have the death sentence reinstated. The
court declined to reinstate the death sentence because technically the conviction occurred after the
sentencing in the capital case. Therefore, there was no conviction to support the finding of an
aggravating circumstance.

Teague v. State,
772 S.W.2d 915 (Tenn.Crim.App. 1988), cert. denied, 493 U.S. 874 (1989)

At the sentencing hearing, the jury found, inter alia, the aggravating circumstance that Teague
had been convicted of the prior felony of accessory before the fact to second degree murder. On
the same day that the court of criminal appeals issued the decision at hand, it issued a separate
decision finding the prior felony conviction to be void. The court addressed the issue of
whether petitioner's death sentence should be vacated where another aggravating circumstance
was unaffected and still valid. Referring at length to Johnson, the court determined that Johnson
left it unclear as to whether or not harmless error was applicable pointing out that in Johnson,
the Supreme Court held that it was "plainly justified" in not applying the harmless error test in
view of the fact that the prosecutor argued, as the prosecutor did in the this case, that the jury
should return a death sentence on the basis of the infirm aggravating circumstance. Assuming it
was required, the court of criminal appeals conducted harmless error analysis and concluded
that “it cannot be said that the admission of a void and constitutionally infirm conviction for the
offense of being an accessory before the fact to murder second degree at the second sentencing
hearing was harmless beyond a reasonable doubt.”


Mateo v. United States,
398 F.3d 126 (1st Cir. 2005)

The state court's vacation of the prior state conviction rendered Mateo's federal sentence subject
to correction under 28 U.S.C.§ 2255 insofar as it was enhanced by the state conviction.

United States v. Walker,
198 F.3d 811 (11th Cir. 1999)

District court properly reduced petitioner’s federal sentence that had been enhanced under the
Armed Career Criminal Act where petitioner filed a habeas corpus petition pursuant to 28 U.S.C.
§ 2255, challenging the sentence after one of his three predicate state court convictions has been
vacated in a state habeas action due to a violation of Boykin v. Alabama. In affirming, the appeals
court observed that "[s]ince Custis was decided in 1994, seven other circuits, all that have
considered the issue, have also held, or indicated without expressly deciding, that pursuant to
federal habeas corpus, a district court may reopen and reduce a federal sentence, once a federal
defendant has, in state court, successfully attacked a prior state conviction, previously used in
enhancing the federal sentence." See United States v. Pettiford, 101 F.3d 199, 201 (1st Cir.1996);
United States v. Cardoza, 129 F.3d 6 (1st Cir.1997); Young v. Vaughn, 83 F.3d 72 (3d Cir.1996);
United States v. Bacon, 94 F.3d 158, 162 n. 3 (4th Cir.1996); United States v. Nichols, 30 F.3d 35,
36 (5th Cir.1994); United States v. Rogers, 45 F.3d 1141, 1143 (7th Cir.1995); Clawson v. United
States, 52 F.3d 806, 807 (9th Cir.1995); United States v. Cox, 83 F.3d 336, 339 (10th Cir.1996);
United States v. Garcia, 42 F.3d 573, 581 (10th Cir.1994).

United States v. Pettiford,
101 F.3d 199 (1st Cir. 1996)

District court correctly reduced petitioner’s sentence where he successfully raised Boykin v.
Alabama challenges in state court to eight of nine prior state convictions that had been the basis
for sentencing petitioner pursuant to the Armed Career Criminal Act.

United States v. Cox,
83 F.3d 336 (10th Cir. 1996)

District court erred in refusing to reopen defendant's sentence after his prior state convictions,
which were considered in determining sentence, were dismissed or expunged.

McGee v. Estelle,
732 F.2d 447 (5th Cir. 1984)

After a jury trial, the defendant was convicted of theft of property, a third degree felony. This
1977 sentence was enhanced by two prior felony convictions obtained in 1960 and 1969. He was
sentenced to life imprisonment in accordance with sentencing guidelines set forth in the Texas
Penal Code. Petitioner contended that the 1960 theft conviction was constitutionally infirm and
therefore could not be relied upon to enhance his sentence. The court concluded that use of the
1960 conviction was not harmless, and remanded to the district court for determination as to the
constitutionality of the 1960 conviction.
NOTE: this case preceded the Supreme Court’s ruling in Lackawanna County District Attorney
v. Coss, 121 S.Ct. 1567 (2001).

Bryan v. Davis,
2005 WL 1009561 (W.D.Tenn. March 31, 2005)

State prisoner who entered a guilty plea and was sentenced in 1986 as a “persistent offender” was
entitled to habeas relief where the sole basis of his “persistent offender” status was the prisoner’s
void 1983 convictions.

Candelaria v. United States,
247 F.Supp.2d 125 (D. R.I. 2003)

Where petitioner received an enhanced sentence as a Career Offender due in part to a prior
Massachusetts conviction which was subsequently vacated in habeas proceedings because of a
deficient plea colloquy, he was entitled to resentencing by the federal court.

U.S. v. Payne,
894 F.Supp. 534 (D. Mass. 1995)

Payne was convicted of unlawful possession of a firearm and sentenced under the Armed Career
Criminal Act (ACCA) based on his prior convictions for armed robbery and larceny from the
person. Payne returned to the state court that issued his prior larceny conviction and successfully
acted its validity on the ground that the judge had engaged in an inadequate colloquy in violation
of Boykin v. Alabama, 395 U.S. 238 (1969). Because the prior larceny conviction was invalidated,
Payne’s sentence under the ACCA was constitutionally infirm and he was entitled to

U.S. v. Gray,
773 F.Supp. 86 (N.D.Ill. 1990)

Defendant was convicted of being a felon in possession of a firearm. The government sought
enhancement of defendant's sentence based on four prior convictions. Gray argued that no
enhancement should be permitted because two of the four prior convictions were based on guilty
pleas that were not knowing or voluntary. The state offered certified documents containing
evidence of defendant's convictions. The court considered the documents offered by the state to
contain certain inconsistencies, factual inaccuracies, and missing pieces. The documents,
therefore, did not constitute a prima facie case of the constitutionality of the defendant's
convictions. The defendant also claimed ineffective assistance of counsel. Counsel in neither trial
could remember the defendant or the case as the events in both occurred in 1966 and 1967
respectively. The court heard live testimony by the defendant as to the events that transpired at
both of those trials, found him to be quite credible and denied the state's request for sentence

Thompson v. State,
583 S.E.2d 14 (Ga. 2003)

The court of appeals erred when it upheld the trial court's consideration of Thompson's three
prior habitual violator convictions in aggravation of his sentence where the prosecutor conceded
that the prior convictions had been uncounseled.

State v. Payne,
69 P.3d 889 (Wash. App. 2003)

Trial court properly refused to consider prior Canadian conviction in sentencing defendant
because the conviction was unconstitutional in that Canada did not provide a right to a jury trial.

State v. Shimabukuro,
60 P.3d 274 (Hawaii 2002)

Trial court erred by denying motion to dismiss habitual DUI charge where one of the predicate
prior convictions had been vacated because it was unconstitutionally obtained.

People v. Cabassa,
717 N.Y.S.2d 487, 496-497 (N.Y. Sup. 2000)

After jury trial, defendant was convicted of sale of a controlled substance. His sentence was
enhanced based on a prior federal conviction for possession with intent to distribute cocaine and
possession of a firearm during a drug trafficking crime. That conviction, however, was later
vacated on Fourth Amendment grounds. On defendant's motion for new trial and/or sentencing,
the court remanded for a new sentencing because "it cannot be said that defendant's sentence was
not directly enhanced, at least in part, based upon the fact of the conviction."

State v. Herret,
965 S.W.2d 363 (Mo. App. 1998)

Defendant's sentences for first-degree robbery and armed criminal action were vacated due to the
trial court's reliance on a previously vacated conviction for first-degree robbery in finding that
defendant was a prior and persistent offender and sentencing him on the basis of that

Commonwealth v. Palmer,
700 A.2d 988 (Penn. 1997)

Defendant was convicted of rape, involuntary deviate sexual intercourse, and corrupting the
morals of a minor. He was sentenced as a repeat felony offender, a classification which required
a prior record score of 6. Defendant's prior record score was only 5, thus the sentence was
vacated and remanded.

People v. Howie,
41 Cal.App.4th 729 (Cal. App. 1995)

In 1993, defendant was convicted of robbery, commercial burglary, assault with a deadly weapon
or by means of force likely to cause great bodily injury, and assault. The jury found three prior
serious felony convictions which enhanced the defendant's sentence by a total of fifteen years
(five years for each offense). One of these three felonies consisted of a 1973 robbery conviction
which was later declared unconstitutional in 1979. The 1973 prior conviction was struck because
of the trial court's failure to inform the defendant of his Boykin-Tahl rights before he pled guilty
to robbery. Prior to the trial for the 1993 robbery, defendant filed a pre-trial motion to strike the
1973 prior on grounds of collateral estoppel. This motion and subsequent motions to exclude and
strike the prior were denied. The jury then found the 1973 conviction to be true and defendant's
sentence was thus enhanced by five years (in addition to the other enhancements). California case
law and the doctrine of collateral estoppel prevent the trial court from using the constitutionally
invalid 1973 robbery conviction to enhance defendant's sentence.

McNaulty v. State,
826 P.2d 567 (Nev. 1992)

Defendant was sentenced as a habitual criminal pursuant to his stipulation with the state as to
two prior felony convictions. Defendant plea bargained with the state to one count of grand
larceny. He also agreed to stipulate to the two felony convictions as a part of the plea agreement.
The court held that for enhancement purposes, it is essential that convictions be constitutionally
valid. The defendant cannot stipulate to their constitutional validity. Thus the inquiry may not
end with a stipulation. No matter what the plea bargain, it is up to the district court to determine
the constitutional validity of a prior conviction.

State v. Melancon,
596 So.2d 331 (La. 1992)

Defendant was convicted of distribution of cocaine and sentenced as a second-felony offender.
After a careful reading of the record, the court could not find any evidence that the defendant had
been convicted of a prior felony. The second offender status was thus vacated.

Wisconsin v. Baker,
485 N.W.2d 237 (Wis. 1992)

The defendant was convicted of operating a vehicle after revocation of his license. The court was
presented with four issues: May a defendant collaterally attack a prior conviction for operating a
motor vehicle after revocation (hereafter OAR) in a subsequent OAR proceeding? If he may, is
he limited to asserting a violation of right to counsel? If he is not so limited, may he collaterally
attack the prior conviction on the grounds that he did not knowingly and voluntarily enter a guilty
plea? The court concluded that a defendant may collaterally attack a prior OAR conviction
allegedly obtained in violation of defendant's constitutional rights. Specifically, a defendant may,
for sentencing purposes, collaterally attack a prior conviction obtained in violation of defendant's
right to counsel if the prior conviction is used to enhance punishment or support guilt for another
offense. A defendant is not restricted to asserting a violation of ineffective assistance of counsel.
The court found that one of defendant's prior OAR convictions was constitutionally infirm
because the plea entered into was not knowing, voluntary, or intelligent. A guilty plea accepted in
violation of constitutional requirements raises doubts about the reliability of the conviction.

State v. McJunkin,
815 S.W.2d 542 (Tenn.Crim.App. 1991)

Defendant was convicted of two counts of DUI. The jury was asked to decide whether the
defendant was a second time offender based on proof offered by the state. The only proof offered
was a certified copy of a January 1984 judgment from another court which had not been signed
by the judge. The appeals court held that an unsigned judgment is void and may not be used as
proof of a prior conviction for enhancement purposes.

State v. Prince,
781 S.W.2d 846 (Tenn. 1989)

This case involved two defendants who were convicted of felonies triggering the habitual
criminal statute and found to be habitual criminals. There were three issues in the case: (1) Did
the defendants waive the right to challenge their prior guilty pleas by having failed to challenge
them in a prior post-conviction petition attacking a sentence enhanced by those guilty plea
convictions? As to this issue, the court held that because a defendant cannot make a collateral
attack on prior guilty pleas in a post-conviction petition attacking a sentence enhanced by those
prior guilty plea convictions, there was no waiver. (2) If there is no waiver for that reason, must
the enhanced sentence be vacated if the guilty plea convictions are found to be void? The answer
to this question is yes and the sentence is void. (3) Finally, does a defendant waive his right to
vacate the enhanced sentence by having failed to establish any invalidity in the guilty pleas
before filing his first petition attacking an enhanced punishment sentence? The court found that
there was no waiver. The court remanded to the trial court for an evidentiary hearing on the
merit's of Prince's 1976 guilty pleas. The trial court held the hearing and dismissed the petition.
Prince appealed the dismissal of the petition. The court of appeals set aside his prior convictions
because the trial court did not advise Prince of his constitutional rights. The court held that the
burden was consequently on the state to prove that despite the failure of the trial court, Prince
knew that he had the right to avoid self-incrimination. The state did not carry its burden and the
court vacated his prior convictions. Thus, Prince could no longer be considered a habitual

Lacy v. People,
775 P.2d 1 (Colo. 1989), cert. denied, Colorado v. Lacy, 493 U.S. 944 (1989)

This is not a case that actually cites Johnson but it is relevant to the use of previous convictions
as sentence enhancers. Defendant was convicted on three habitual counts. On appeal, he asserted
that his guilty pleas to those three counts were constitutionally infirm and therefore could not be
used as predicates for habitual criminality charges. The court agreed with him as to two of the
habitual criminal counts, finding that a prior conviction obtained in a constitutionally invalid
manner could not be used against a defendant in a subsequent proceeding to support guilt or to
increase punishment.

Successful Johnson v. Mississippi Cases.pdf (updated September 2017) cited