LACKAWANNA COUNTY DISTRICT ATTORNEY, et al., PETITIONERS v. EDWARD R. COSS, Jr.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[April 25, 2001]
Justice Breyer, dissenting.
Because the State has failed to argue in this Court that the trial court’s consideration of respondent’s 1986 convictions was harmless, and consequently, the issue has not been briefed, I would not overturn the Court of Appeals’ finding that respondent’s sentence was enhanced based on the purportedly defective 1986 convictions. The Court of Appeals, however, operated under the belief that the Constitution generally requires §2254 petitioners to be able to attack prior convictions that enhanced their sentences. It did not focus on whether the §2254 proceeding was “the first and only forum available for review of [respondent’s] prior conviction[s].” Ante, at 11. Accordingly, I would vacate the decision below and remand for consideration of that issue. As respondent has not yet shown that he was denied a forum in which to raise his ineffective assistance of counsel claim, any discussion of a constitutionally based exception is premature.