Full opinion text
COFFEY, Circuit Judge. Robert Russell Cuppett filed a petition for a writ of habeas corpus in the district court challenging as unconstitutional the enhancement of his Indiana sentence for a robbery conviction. 28 U.S.C. § 2254. The enhancement, which increased Cuppett’s sentence from ten to forty years, was based on a finding that he was a habitual offender under Indiana law. The district court denied Cup-pett’s habeas petition. We affirm. I. Cuppett has committed felony offenses in three different states. On September 10, 1962, he and two others were indicted in a West Virginia state court for breaking and entering into and stealing money from a laundromat. Three days later, Cuppett pled guilty to “breaking and entering as charged in the ... indictment.” Less than one month later, he received a sentence of one-to-ten years imprisonment for this offense. The court record reflects that at the guilty-plea hearing Cuppett and his codefendant “being in custody, were brought out of jail by the Sheriff and placed before the Bar of the Court, and were without counsel, did not desire counsel appointed by this Court to represent them.” (emphasis added). In November, 1972, Cuppett was found guilty in Illinois state court of aggravated battery and robbery. On June 10, 1981, Cuppett was convicted of robbery once again, this time in Indiana, after entering a tavern, drawing a sawed-off shotgun, cocking it, holding it to the head of the tavern’s owner-manager, and ordering him to turn over his cash. The Indiana state court sentenced Cuppett to ten years imprisonment on the robbery charge. Since Cuppett had two prior felony convictions (in West Virginia and in Illinois), he was also found to be a habitual offender under Indiana Code § 35-50-2-8 and received an enhancement of his sentence of an additional thirty years imprisonment consecutive to his ten-year robbery sentence. Cup-pett’s conviction was affirmed on direct appeal by the Indiana Supreme Court. Cuppett v. State, 448 N.E.2d 298, 299 (Ind.1983). On March 19, 1984, almost twenty-two years after his West Virginia conviction, Cuppett petitioned the Circuit Court of Mo-nongalia County, West Virginia to vacate his 1962 conviction on the grounds that, when he pled guilty, he had not been advised of his right to assistance of counsel or that his conviction could later be used to enhance his sentence thirty years. The West Virginia court denied Cuppett’s petition, and also stated that, in accordance with its practice in 1962, no transcript had been made of the guilty plea hearing. Cuppett then moved in West Virginia court for the appointment of counsel to assist him in attacking his 1962 conviction. The West Virginia court denied Cuppett’s motion on May 9, 1984, stating “that this matter is final and closed in the State of West Virginia and to allow it to be reopened would mean that finality would never attach to a criminal action in this jurisdiction.” On May 2, 1984, Cuppett filed a pro se petition for post-conviction relief in Indiana state court. Cuppett argued, inter alia, that he received ineffective assistance of counsel because his attorney in the Indiana state court and on appeal did not object to the use of his 1962 West Virginia conviction as part of the habitual offender sentence enhancement. The Indiana post-conviction court held an evidentiary hearing to explore Cup-pett’s contention, and subsequently denied Cuppett’s petition, specifically finding that Cuppett had waived his right to counsel. The Indiana Court of Appeals upheld the denial in an unpublished memorandum opinion. Cuppett v. Indiana, 502 N.E.2d 503 (Ind.App.1986) (Table). The Indiana appellate court stated that “[i]n Indiana, the general rule is that the alleged invalidity of a predicate felony may not be challenged during habitual offender proceedings when the prior final judgment is regular on its face. Edwards v. State (1985), Ind., 479 N.E.2d 541, 547.” Mem. op. at 3. However, the court explained, “Indiana law permits a defendant to raise as a defense in the habitual offender proceeding the alleged invalidity of those prior convictions if he can show that he was not represented by counsel or knowingly and intelligently waived such representation at the time of these convictions. Morgan v. State (1982), Ind., 440 N.E.2d 1087, 1088.” Id. (emphasis added). The court held that the statement on the West Virginia court judgment roll order that Cuppett “being in custody, [was] brought out of jail by the Sheriff and placed before the Bar of the Court, and [was] without counsel, did not desire counsel appointed by this Court” indicated that Cuppett “was aware of his right to representation [by counsel]” and waived it. Id. (emphasis added). “Consequently,” the court concluded, “the record was regular on its face, and an objection [by Cuppett’s attorney to the use of the 1962 conviction] would have been unavailing.” Id. The Indiana Supreme Court denied Cuppett’s request for a transfer on July 21,1987 in an unpublished order. Having exhausted his potential state court remedies, Cuppett filed a petition for a writ of habeas corpus in Indiana federal district court in November, 1987. As in his state court petitions, his central claim was that he was denied effective assistance of counsel during his Indiana trial and direct appeal because of his attorney’s failure to attack the validity of his 1962 conviction. In an unpublished order issued January 9, 1989, the district court denied Cuppett’s petition. The district court began its analysis by stating that if Cuppett’s “waiver of counsel during his 1962 West Virginia burglary hearing” was valid “then the ineffective assistance of counsel and unconstitutional enhancement claims are easily resolved” because Cuppett’s attorneys could not be deemed incompetent for failing to challenge a conviction free of error. Turning to the waiver question, the district court stated that the West Virginia record reflected that Cuppett appeared “without counsel, and did not desire counsel appointed by this Court to represent” him. The district court reasoned that the word “appointed” carries with it “a specific connotation referring to judicial assignment of cost free counsel to a criminal defendant. Any other use of the word would be inappropriate in the common language of trial procedure. The record, therefore, indicates that the defendant had been informed of his right to have an attorney notwithstanding his inability to pay and knowingly and intelligently waived that right. Thus his conviction was valid and was appropriately used to enhance the petitioner’s robbery sentence.” The district court also ruled that the “fact that both trial and appellant (sic) counsel failed to raise the invalid waiver issue lacks any indication of professional ineffectiveness. The determination by his attorneys that the 1962 trial court record demonstrated a valid waiver of counsel was not evidence of deficient conduct. Their familiarity with the language of the law quite properly led to such a conclusion.' Nor is it likely that any objection would have altered the outcome since the court would most likely have denied it.” Cuppett appeals the district court’s denial of his petition, arguing that he received ineffective assistance of counsel. II. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court defined the burden a defendant must carry in order to successfully bring an ineffective assistance of counsel claim: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S.Ct. at 2064. This court has held that “[t]o establish that counsel’s conduct was deficient, the defendant must show counsel’s specific acts or omissions which, viewed from the perspective of counsel at the time of trial, fell below the standard of reasonable professional assistance.” United States v. Payne, 741 F.2d 887, 891 (7th Cir.1984) (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Acts or omissions of counsel are outside the range of professionally competent assistance when “counsel’s representation [falls] below an objective standard of reasonableness ... under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. The Supreme Court cautioned that, “[a] fan assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonably professional assistance; that is, that defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ “[I]t is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689, 104 S.Ct. at 2065 (citation omitted) (emphasis added). Prejudice to the defendant, the second element necessary to a finding of ineffective assistance, will be found only if there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Cuppett’s ineffectiveness claim is grounded in his assertion that when he pled guilty in 1962 he did not know he had a right to counsel, and therefore did not knowingly or intelligently waive that right. He maintains that both his trial and appellate counsel were constitutionally ineffective because they failed to challenge the prosecution’s use of this guilty charge and plea in the habitual offender charge against him. We hold that the West Virginia record reflects that Cup-pett knowingly waived his right to counsel in the 1962 guilty plea proceeding, and since Cuppett has offered no basis for questioning the validity of that waiver, his conviction was properly used by the Indiana state courts to enhance his sentence, and his counsel’s performance cannot be considered ineffective for failing to challenge its use. The West Virginia state judge who accepted Cuppett’s guilty plea recounted in the official court record that Cuppett waived his right to counsel before pleading guilty, stating: “This day came the State by the Prosecuting Attorney and the defendants, Robert Russell Cuppett and Robert Lee War-nick, being in custody, were brought out of jail by the Sheriff and placed before the Bar of the Court, and were without counsel, did not desire counsel appointed by this Court to represent them.” (emphasis added). Our Circuit’s approach to challenges raised by a defendant to a prior conviction is similar to the one used by the Indiana appellate court in considering Cuppett’s state post-conviction petition. We accord a “ ‘strong presumption’ of constitutional validity [to] state judicial proceedings.” United States v. Ferguson, 935 F.2d 862, 867 (7th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 907, 116 L.Ed.2d 807 (1992) (citation omitted). The presumption applies even in the absence of a transcript. Id. A defendant bears the burden of proving that the prior conviction was infected by constitutional error. United States v. Banks, 964 F.2d 687, 693 (7th Cir.), cert. denied, — U.S. —, 113 S.Ct. 470, 121 L.Ed.2d 377 (1992); United States v. Boyer, 931 F.2d 1201, 1204 (7th Cir.), cert. denied, — U.S. —, 112 S.Ct. 209, 116 L.Ed.2d 167 (1991); United States v. Gallman, 907 F.2d 639, 643 (7th Cir.1990), cert. denied, 499 U.S. 908, 111 S.Ct. 1110, 113 L.Ed.2d 219 (1991); United States v. Brown, 899 F.2d 677, 680 (7th Cir.1990). In the face of legal presumptions, ambiguities must be construed against the party carrying the burden of proof. Cf. Pennsylvania R.R. v. Chamberlain, 288 U.S. 333, 339, 53 S.Ct. 391, 393, 77 L.Ed. 819 (1933) (when evidence supports two inconsistent inferences, “judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences ... ”). “[A] defendant can overcome the government’s proof of a conviction, but only if he musters evidence of that conviction’s unconstitutionality.” Gallman, 907 F.2d at 643. The Supreme Court has only recently approved of this allocation of burdens. In Parke v. Raley, — U.S. —, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), the Court considered Kentucky’s procedures for allowing criminal defendants to challenge prior convictions used against them under a “persistent felony offender” statute. Id. at —, 113 S.Ct. at 519-20. Under Kentucky law, when a defendant challenges a previous conviction, the government “must prove the existence of the judgment on which it intends to rely. Once this is done, a presumption of regularity attaches, and the burden shifts to the defendant to produce evidence that his rights were infringed or some procedural irregularity occurred in the earlier proceeding. If the defendant refutes the presumption of regularity, the burden shifts back to the government affirmatively to show that the underlying judgment was entered in a manner that did, in fact, protect the defendant’s rights.” Id. at —, 113 S.Ct. at 520. The Supreme Court rejected the argument of the petitioner in Parke that, in a recidivism proceeding, a State could not place the initial burden on the defendant to establish that his guilty plea in a prior conviction was knowing and voluntary when no transcripts of the guilty plea proceedings had been made. The petitioner had based this argument on Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), where the Court found reversible error when a trial judge accepted a defendant’s guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary, and explicitly held that waiver of rights resulting from a guilty plea cannot be presumed from a silent record. Parke, — U.S. at—, 113 S.Ct. at 523. The Court found petitioner’s reliance on Boykin misplaced because that case involved a challenge to a conviction on direct review, while in Parke the petitioner was challenging a prior conviction in a separate recidivism proceeding. The Court explained that “[t]o import Boykin’s presumption of invalidity into this very different context [of collateral challenges] would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the ‘presumption of regularity’ that attaches to final judgments, even when the question is waiver of constitutional rights." Parke, — U.S. at —, 113 S.Ct. at 523 (emphasis added). In support of this presumption of regularity, the Court cited Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), which held that “a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of Counsel.” Id. at 468-69, 58 S.Ct. at 1025. This presumption of regularity necessarily applies with equal force to the waiver of counsel which preceded Cuppett’s guilty plea; it would make little sense to accord less respect to a waiver of counsel followed by a guilty plea conviction, which was likely backed up by such overwhelming evidence that the defendant was convinced that there was no point in challenging it, than to a conviction gained after what may have been classified as an aggressively contested jury trial. Under Parke and Johnson, the petitioner Cuppett, not the State, has the burden of establishing that his waiver of counsel in his 1962 conviction was not intelligently made, thus overcoming the presumption of the constitutionality of state judicial proceedings. Nevertheless, it is true that “[pjresuming waiver of counsel from a silent record is impermissible,” Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967), at least as to convictions entered before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), established an indigent defendant’s right to appointed counsel. Parke, — U.S. at —, 113 S.Ct. at 524. The dissent claims that “[wjhen the conviction occurred before Gideon and the defendant was not represented by counsel, then presuming the regularity of a state conviction is not only unwarranted, but it is impermissible! Burgett, 389 U.S. at 114 [88 S.Ct. at 261].” Dissent at 1152. Burgett contains no such holding. Burgett stands for the proposition that presuming waiver of counsel from a silent record is impermissible. 389 U.S. at 114-15, 88 S.Ct. at 261-62. Nor does Parke create an exception for pre-Gide-on cases to the presumption of regularity accorded to prior convictions. In discussing Burgett, the Parke court carefully noted that it involved a situation in which “the record of the earlier proceeding did not show that the defendant had waived his right to counsel.” Parke, — U.S. at —, 113 S.Ct. at 524. The crucial distinction between the case at bar and Burgett is that here the waiver of counsel appears on the face of the record in a clear statement in an official court document. The West Virginia court record states that Cuppett “did not desire counsel appointed by this Court to represent” him. The clear language of the official court record creates the presumption that Cuppett was informed that he had the right to court-appointed counsel paid for by the state, and that he knowingly and intelligently waived that right. We agree with the district court that the word “appointed” carries with it this connotation; courts do not “appoint” attorneys unless they are paid for from public funds. A defendant does not express a “desire” not to have counsel “appointed” until after, and unless, he has been made aware that he has a right to appointed counsel if he so desires it. For this reason, Smith v. Lane, 426 F.2d 767 (7th Cir.), cert. denied sub nom., Lash v. Smith, 400 U.S. 874, 91 S.Ct. 103, 27 L.Ed.2d 109 (1970), is of no help to the petitioner. In Smith, the habeas petitioner challenged Indiana’s use of a 1942 conviction in his 1948 habitual offender conviction. 426 F.2d at 768. Smith alleged that his 1942 guilty plea was invalid because he had been denied his right to counsel. Id. A record entry from the 1942 conviction merely stated that the petitioner was asked “if he wanted an attorney to represent him in this cause, and the said defendant stated that he did not want the service of an attorney.” Id. We held that the district court could not properly determine from this brief record entry that the petitioner intelligently waived counsel. Id. at 769. This record entry, we explained, “fails to show that petitioner was advised that if he was unable to employ an attorney, the court would appoint one who would serve without expense to petitioner.” Id. at 768 (emphasis added). We continued that “[mjerely asking a defendant if he ‘wants’ an attorney is not sufficient to inform him that he has a right to any attorney. “An indigent accused must know not only of his right to be represented by counsel, but must also know that if he could not procure one through his own resources the court would appoint a lawyer for him.” Id. at 769 (emphasis added). Our use in Smith of the word “appoint”, especially in the second excerpt just quoted, demonstrates its special significance in determining whether a defendant had been offered counsel at government expense. In contrast to the record entry in Smith, Cuppett’s sentencing order records that he “did not desire counsel appointed” by the Court. That is more than sufficient to give rise to a presumption that he made the conscious decision to waive his right to counsel after he had been informed of his right to court-appointed counsel. All Cuppett has done to overcome the presumption created by very clear language inscribed on the West Virginia court judgment roll is to deny that he was informed of his right to appointed counsel; he has provided no evidence other than his self-serving affidavit in support of this allegation. This is not sufficient to meet his burden. See Banks, 964 F.2d at 693 (“self-serving testimony” does not overcome court’s findings that prior conviction was constitutionally obtained); Ferguson, 935 F.2d at 867 (describing the defendant’s affidavit as representing “paucity” of evidence in light of the presumption of a valid conviction despite the fact there was no transcript recording the proceeding); Boyer, 931 F.2d at 1205 (transcript revealed the judge did not give “explicit” warnings, but sentencing enhancement still valid because the only evidence that was a “self-serving” affidavit). In arguing that he has met his burden of demonstrating that his conviction is constitutionally suspect, Cuppett asserts that in West Virginia in 1962 the word “appointed” may not have meant “paid for from public funds” and that the practice of the West Virginia courts at the time may not have been to offer indigent defendants representation at public expense. He claims that his position is bolstered by the fact that his guilty plea was entered before the Supreme Court announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) that indigent defendants have a right to counsel at public expense. Cuppett’s arguments are entirely speculative. Neither Cuppett nor his attorney have adduced any evidence that in West Virginia in 1962 the word “appointed” carried a different meaning than it does today: an attorney named by the court and paid by the state. Nor has Cuppett.present-ed any evidence that pre-Gideon West Virginia courts did not offer indigent defendants representation at public expense, nor, more specifically, that Cuppett himself was not offered appointed counsel. Tellingly, Cup-pett never requested an evidentiary hearing at which he might have proved his contentions about West Virginia’s custom and practice in 1962. In short, the petitioner has made no effort to demonstrate that his assertions about his 1962 conviction are supported by anything other than his allegations mounted for the first time nearly 22 years after the fact. Cuppett apparently believes that his affidavit is enough to meet his burden, but, as noted above, we have repeatedly held that self-serving statements by a defendant that his conviction was constitutionally infirm are insufficient to overcome the presumption of regularity .accorded state convictions. This rule makes sense. If a defendant could throw into doubt the validity of a prior conviction by merely filing a self-serving document alleging that it was unconstitutionally obtained, then the burden would in effect be the government’s to establish the validity of all prior waivers of counsel and convictions. This might very well create judicial chaos, if all criminal convictions are considered void, until the government proves that they are not. To avoid this scenario, we, like Indiana, have placed the initial burden on the defendant to demonstrate that his conviction is constitutionally suspect. Cuppett has not only failed to meet this burden; he has not even attempted to meet it. Instructive in this regard is the Supreme Court’s discussion in Parke of a hypothetical defendant’s challenge to a conviction from another jurisdiction. In those situations, the Court explained, “the defendant may be the only witness who was actually present at the earlier proceeding.” Parke, — U.S. at —, 113 S.Ct. at 524. The Court reasoned that allowing the defendant to place the entire burden of proof on the government by merely raising a Boykin claim that his guilty plea was not knowing and voluntary and pointing to a missing record would frequently force the government “to expend considerable effort and expense attempting to reconstruct records from far-flung States where procedures are unfamiliar and memories unreliable. To the extent that the government fails to carry its burden due to the staleness or unavailability of evidence ..., its legitimate interest in differentially punishing repeat offenders is compromised. In light of the relative positions of the defendant and the prosecution in recidivism proceedings, we cannot say that it is fundamentally unfair to place at least a burden of production on the defendant.” Parke, — U.S. at —, 113 S.Ct. at 525. We would be compromising Indiana’s “legitimate interest in differentially punishing repeat offenders” were we to allow Cuppett to shift the burden of proof to the state of Indiana by simply alleging, without a scintilla of supporting evidence, that the word “appointed” did not mean counsel appointed by the court at public expense in West Virginia in 1962 and that West Virginia courts pre-Gideon did not offer appointed counsel to indigent defendants. Sheer speculation such as presented by Cuppett is not sufficient grounds for compelling the state of Indiana to launch an investigation into the state of the law in a foreign jurisdiction 30 years ago. The person in the best position, and with the best incentive, to undertake such an inquiry was Cuppett. This he has failed to do. We emphasize in this connection that Cuppett never attempted to attack his West Virginia conviction collaterally after Gideon was decided (which was barely five months after he pled guilty), but raised his right-to-counsel argument for the first time his post-eonviction challenge to his Indiana habitual offender conviction. Cuppett’s conviction is now over thirty-years-old; at some point a conviction must become final if the justice system is to operate in an efficient manner. We refuse to reward Cuppett’s repeated delays in challenging his conviction by shifting the burden of proof to the state of Indiana to establish its validity, A second presumption operates against Cuppett’s claim. Under 28 U.S.C. § 2254(d), “factual findings of a state court are presumed to be correct in a federal habeas corpus proceeding, if the findings are made after a hearing on the merits, and are fairly supported by the record.” Lewis v. Huch, 964 F.2d 670, 671 (7th Cir.1992). “This presumption applies to the factual findings of state appellate courts as well as state trial courts.” Id. We have held that “the determination of knowing and intelligent waiver is a factual inquiry. We therefore conclude that findings of a state court on questions of whether a defendant understood his or her rights and knowingly and intelligently waived them are entitled to the § 2254(d) presumption.” Perri v. Director, Department of Corrections, 817 F.2d 448, 451 (7th Cir.), cert. denied sub nom., Perri v. Lane, 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987); see also Cain v. Peters, 972 F.2d 748, 749 (7th Cir.), cert. denied, — U.S. —, 113 S.Ct. 1310, 122 L.Ed.2d 698 (1992); Lewis, 964 F.2d at 774-75; Sotelo v. Indiana State Prison, 850 F.2d 1244, 1247 n. 6 (7th Cir.1988); Holleman v. Duckworth, 700 F.2d 391, 395 (7th Cir.), cert. denied, 464 U.S. 834, 104 S.Ct. 116, 78 L.Ed.2d 116 (1983). As recounted above, the Indiana state courts found, as a factual matter, that Cuppett had waived his right to counsel at the West Virginia proceeding. That finding, made after an evidentiary hearing, was “fairly supported”, 28 U.S.C. § 2254(d)(8), by the record entry that Cup-pett “did not desire counsel appointed” to represent him. Thus, “the burden [rests] upon [Cuppett] to establish by convincing evidence that the factual determination by the state court was erroneous.” 28 U.S.C. § 2254(d). Cuppett has failed to come forward with any such evidence. III. Cuppett has failed to overcome the presumption of regularity accorded convictions and thus has offered no grounds for questioning the validity of his 1962 West Virginia conviction. The West Virginia judgment documents his valid waiver of his right to counsel. We join the Indiana post-conviction courts and the federal district court in concluding that Cuppett’s counsel was not ineffective for failing to challenge the 1962 conviction because there is no indication that the conviction is constitutionally suspect. The district court’s denial of Cuppett’s habeas petition ÍS AFFIRMED. . Judge Easterbrook joins us in concluding that Cuppett failed to meet his burden of showing that his West Virginia conviction was invalid, but also offers two alternative grounds for affirming the denial of Cuppett's habeas petition. As recounted above, the Indiana post-conviction courts and the federal district court rejected Cup-pett’s challenge because they concluded that Cuppett had not provided any grounds to cast doubt on the validity of his West Virginia conviction. The appropriateness of Indiana’s use of Cuppett’s West Virginia conviction is the question which prompted us to consider this appeal en banc, and was the focus of attention at oral argument. This question is presented by the facts of the case. In concurrence, Judge Easterbrook argues that Cuppett has forfeited his right to mount his habe-as challenge. The concurrence also doubts whether Cuppett should have been permitted to wait until his Indiana sentencing to attack his West Virginia conviction, and suggests that the United States Sentencing Guidelines provide a better approach to the problem. We agree that these may well be sound alternative reasons for affirming the district court’s denial of Cuppett's petition, but because the validity of the West Virginia conviction is squarely presented by the appeal, and the issue is an important one which was fully briefed and argued by the parties and thoroughly addressed by the Indiana courts and the federal district court, we choose to address Cuppett's attack on his West Virginia conviction. . Gideon is fully retroactive, Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971), and therefore Cuppett had a constitutional right to appointed counsel in 1962. . Slaton v. United States, 356 F.Supp. 1172 (N.D.Ill.1973), cited by the dissent, is also readily distinguishable. In Slaton, the record reflected that the defendant ’ had “waive[d his] right to counsel” and pled guilty. 356 F.Supp. at 1173. Unlike the record entry supporting Cuppett’s conviction, the record in Slaton did not state that the defendant was offered appointed counsel. . The dissent speculates that the West Virginia court "may” not have used the word "appointed” when accepting Cuppett's guilty plea, while acknowledging that the court did use the word in its order recording the guilty plea. Dissent at 1156. We are obligated to rely on the judgment entered by the court describing what was said. No record evidence casts any doubt on the veracity of that judgment. The dissent’s approach would apparently lead to a situation in which a record entry not supported by a transcript of the hearing which preceded it is automatically called into question. The dissent also briefly argues that the word "appointed" does not mean “paid for by the state.” Without any evidence supporting the allegation that "appointed” meant something different in West Virginia in 1962 than what it is commonly assumed to mean in other jurisdictions, or that unusual circumstances in Cuppett's situation demonstrate that "appointed" as used in his case had some special meaning, the dissent’s argument is speculative. If these claims had any validity, Cuppett was required to submit evidence to support them during his long trek through the state and federal court systems. He has not. . We note that we find the dissent's analysis of the state of West Virginia law in 1962 unpersuasive. For example, the dissent quotes from Wade v. Skeen, 140 W.Va. 565, 85 S.E.2d 845, 847 (1955), overruled by State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964), but ignores the following passage from Wade: "The constitutional right of the defendant in a criminal case to be represented by counsel has been considered by this Court on numerous occasions. The right guaranteed is not a requirement that every defendant in a criminal case be represented by counsel. It is the right of a defendant to call for or demand counsel and to have counsel act pursuant to the call or demand, whether the demand is made before or after the entry of a plea. That defendant may waive the right is made clear by decisions of this Court, as well as other courts, including the Supreme Court of the United States. It has, of course, been made clear also that such a waiver must be intelligently made, but an intelligent waiver does not imply that a defendant must have precise, or even average, knowledge of every legal or factual question that may arise in the case. He must, however, have sufficient intellect and knowledge to understand and appreciate the consequences of his act of waiver." 85 S.E.2d at 847 (citation omitted) (emphasis added). Thus, it appears that as early as 1955, seven years before the entry of the guilty plea in question, the courts of the State of West Virginia understood and followed their own Supreme court’s mandate that a defendant's waiver of the right to counsel "must be intelligently made.” Moreover, in State ex rel. Post v. Boles, 147 W.Va. 26, 124 S.E.2d 697, 699, cert. denied, 371 U.S. 833, 83 S.Ct. 57, 9 L.Ed.2d 70 (1962), the court described the usual practice of a West Virginia trial judge in advising criminal defendants of their right to counsel prior to 1962: "Honorable Lewis H. Miller, Judge, now deceased; Judge Miller followed an invariable practice of inquiring of defendants charged with felonies as to whether they were represented by, or desired, counsel ... to which inquiry petitioner replied in the negative; he distinctly remembers that Judge Miller then advised petitioner of his right to counsel and asked if he desired the Court to appoint counsel, specifically advising petitioner that he was charged with approximately twelve felonies, to which petitioner replied that he did not desire the services of counsel and wanted to plead guilty; and, thereafter, the indictments were read and explained to petitioner by Judge Miller and, upon petitioner's separate pleas of guilty, the sentences shown by the record were imposed.” These excerpts from Wade and Boles undermine the dissent’s claim to that it knows what the custom and practice of West Virginia courts was in 1962 as to the right to counsel. The dissent claims Judge Miller's practice was the exception, not the rule. This assertion, however, fails to explain the clear and unambiguous language contained in the docket entry in Cuppett's case. In light of the clerk's entry in the court record that Cuppett "did not desire counsel appointed by this court to represent [him],'’ we are convinced that he has failed to satisfy his burden of proving the invalidity of his conviction. Cuppett failed to establish the invalidity of his 1962 conviction before the Indiana court which entered his sentence, or the Indiana courts which affirmed it on direct appeal, or the Indiana courts which denied his petition for post-conviction relief, or the federal district court which denied his habeas petition. A party with the burden of persuasion loses if he fails to meet that burden. As we said above, Cuppett has not even attempted to meet his burden. . Section 2254(d) lists several other exceptions to the presumption of correctness accorded state court findings, but none is relevant to Cuppett's petition. . The dissent argues that the 2254(d) presumption is inapplicable here because ''[t]o the extent that waiver of a right is tied to factual findings by the state trial court, such deference is warranted only because the trial judge was there to witness the waiver and to assess whether it was given knowingly and intelligently." Dissent at 1153 n. 4. However, this assertion ignores the fact that the 2254(d) presumption applies with equal force to factual findings made by state appellate courts, which obviously are not able to witness waivers first-hand. Lewis, 964 F.2d at 671. As the Supreme Court explained in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), § 2254(d) "applies to cases in which a state court of competent jurisdiction has made 'a determination after a hearing on the merits of a factual issue.’ It makes no distinction between the factual determinations of a state trial court and those of a state appellate court. Nor does it specify any procedural requirements that must be satisfied for there to be a 'hearing on the merits of a factual issue,’ other than that the habeas applicant and the State or its agent be parties to the state proceeding and that the state-court determination be evidenced by ‘a written finding, written opinion, or other reliable and adequate written indicia.’ Section 2254(d) by its terms thus applies to factual determinations made by state courts, whether the court be a trial court or an appellate court.... This interest in federalism recognized by Congress in enacting § 2254(d) requires deference by federal courts to factual determinations of all state courts.” Id. at 546-47, 101 S.Ct at 769. Thus, contrary to the dissent’s assertions, § 2254(d) does not require that the fact finder have actually witnessed the waiver at issue in order for the statute's presumption to apply. We are bound by the Supreme Court's interpretation of § 2254(d).
EASTERBROOK, Circuit Judge, concurring. The court persuasively explains why Cup-pett has not carried his burden of showing that the West Virginia conviction is invalid under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 268, 19 L.Ed.2d 319 (1967), and I join its opinion. Although this means that Cup-pett is not entitled to a writ of habeas corpus, two other routes leading to the same destination are worth exploring. I Cuppett did not ask the court that imposed his sentence in Indiana to examine the validity of the West Virginia conviction. The only issue he raised on appeal was the sufficiency of the evidence. Cuppett v. State, 448 N.E.2d 298 (Ind.1983). So he has forfeited any opportunity to contest his sentence as an habitual offender unless he can establish cause for, and prejudice from, the default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). He attempted to do so by arguing that his lawyer rendered constitutionally inadequate assistance, a shortcoming that establishes “cause.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). The state’s court of first instance rejected this contention, ruling that a reasonably competent lawyer would have accepted the force of the West Virginia conviction because of the notation in the record that Cuppett “did not desire counsel appointed by this Court”. The Court of Appeals of Indiana likewise concluded that competent counsel could have decided against challenging the West Virginia conviction, explaining: “Cuppett’s 1962 order indicates that he was aware of his right to representation. Consequently, the record was regular on its face, and an objection would have been unavailing.” Cuppett v. State, 502 N.E.2d 503 (Ind.App.1986) (Table). The court relied on Smith v. State, 477 N.E.2d 857, 864-65 (Ind.1985), which held that a conviction accompanied by a record showing that the defendant declined an opportunity to have counsel’s aid may be used to support sentencing as an habitual offender. Cuppett’s lawyer in this court scarcely mentions the need to show “cause” via ineffective assistance, no doubt understanding that his client’s best chance lies in the hope that we will o’erleap this obstacle in order to resolve an interesting legal question. Current counsel deserves credit for a nice try, but the state courts got this subject exactly right. To show that his lawyer at sentencing was constitutionally deficient, Cuppett must establish that he performed well below the norm of competence in the profession, and that this caused prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Assistance may be deficient, in the sense that counsel erred, without being constitutionally ineffective. Even the best lawyer slips up from time to time. With the benefit of hindsight, judges see how many a lawyer could have acted differently. On the spot, with limited time to explore options, counsel must do the best they can. Only “errors so serious that the counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” establish deficient performance. Ibid. The materials at hand during Cuppett’s sentencing in Indiana would not have seemed a promising vein for counsel to mine. The West Virginia judgment was regular in all respects — rendered by a court of competent jurisdiction and meeting Indiana’s standards for enhancement. Anyone seeking to attack such a judgment has a steep hill to climb. Indeed, it remains unclear whether it is possible to surmount the challenge. Burgett suggests that the answer is yes, but a later case, Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), holds that in certain instances even uncounseled convictions may be used as the foundation for a recidivist conviction. See also Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (counsel not essential for misdemeanor convictions); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); United States v. Nichols, 979 F.2d 402, 414-18 (6th Cir.1992) (uncounseled misdemeanor conviction may be used to enhance a sentence for a later crime); United States v. Garcia, 995 F.2d 556 (5th Cir.1993) (same). Cf. Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). But cf. Baldosar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). More recently still the Supreme Court reserved the question whether, and under what circumstances, “States must allow recidivism defendants to challenge prior guilty pleas”. Parke v. Raley, — U.S. —, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992). Cuppett’s 1962 conviction was based on a guilty plea. To get anywhere, Cuppett’s lawyer would have had to persuade the sentencing judge in Indiana that the kind of claim he seeks to present may be maintained, and that Cup-pett’s situation is closer to Burgett than to Lewis. It is hard to fault counsel for directing his energies elsewhere. We do not assess the competence of lawyers by whether they can navigate between seemingly opposed decisions of the Supreme Court and argue, successfully, for one side of a question that years later the Court identified as a tough subject in need of mulling over. If counsel could have persuaded the judge to look behind the face of the West Virginia judgment, he would have encountered the notation in the record that Cuppett “did not desire counsel appointed by this Court to represent” him. That makes this case harder than Burgett. Because one seeking to upset a judgment bears the burden, Cuppett would have had to persuade the sentencing judge that this notation did not connote an offer of counsel at no expense. Yet “appointed” suggests such an offer. To avoid the force of this implication, counsel would have had to research the law and the practice of West Virginia, trying to ascertain what “appointed” meant there in 1962 — and, if this word is insolubly ambiguous, whether the judge before whom Cuppett was standing would have appointed counsel for someone in Cuppett’s shoes. Under Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), which established the rules that preceded Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), counsel had to be appointed whenever the facts or law were too complex for the defendant to handle unassisted. Judges did not appoint lawyers automatically, but neither could they leave all defendants to fend for themselves. How complex was the charge laid against Cuppett? What would a judge in West Virginia have done? More than a decade after Cuppett’s sentencing in Indiana, members of this court are debating that question. That they are doing so, and finding the answer elusive, speaks directly to the “performance” component of Strickland. We do not call a lawyer incompetent for failing to address on the spot a subject that perplexes 11 judges with a platoon of law clerks. And it is worth pointing out once again that we have no reason to believe that in 1962 in West Virginia the word “appointed” meant anything other than what it means to us today: “at public expense”, or at least “at no cost to the litigant.” Cf. Duckworth v. Eagan, 492 U.S. 195, 203-04, 109 S.Ct. 2875, 2879-80, 106 L.Ed.2d 166 (1989). Thus there is good reason to believe that West Virginia offered Cuppett the free lawyer that Gideon requires. Then there is the “prejudice” component of Strickland. A majority of this court believes that the West Virginia conviction is invulnerable, so there could be no prejudice. Once again, however, we need not decide the merits to reach this conclusion. “Prejudice” is a more demanding standard than but-for causation. “The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986). “[A]n analysis focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” Lockhart v. Fretwell, —U.S.—,—, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). Cuppett has at least three felony convictions preceding the crime he committed in Indiana. (The prosecution proved three; we do not know whether- more could have been adduced had the court decided to disregard the West Virginia conviction.) Disregard the West Virginia conviction for now. Is it “fundamentally unfair” to give an enhanced sentence to a criminal with two prior felonies? The enhancement in Indiana is 30 years, but some federal laws treat defendants even more harshly: 18 U.S.C. § 924(c) adds up to 20 years per prior conviction. See Deal v. United States, — U.S.—, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). Indiana enhances the sentence only if two of the prior convictions were imposed on different occasions; if Cup-pett knocks out the West Virginia conviction the other two, imposed at the same time in Illinois, would not suffice for purposes of Indiana law. Yet the writ of habeas corpus is not a device to enforce state law. E.g., Gilmore v. Taylor, — U.S. — — —, 113 S.Ct. 2112, 2117-18, 124 L.Ed.2d 306 (1993); Estelle v. McGuire, — U.S. —, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). “Prejudice” under Strickland means fundamental unfairness, not a violation of state law. So far as the Constitution is concerned, enhancement on the basis of two prior felonies that were consolidated for trial and sentencing is not “fundamentally unfair”; Deal disposes of any such contention. Indeed, so far as the Constitution is concerned, states may enhance sentences for prior conduct that did not result in conviction. Suppose Indiana were to treat a voluntary confession as equivalent to a conviction. Voluntariness does not depend on the presence of a lawyer. Courts regularly use uncounseled confessions taken in police stations; solemn guilty pleas in open court are more reliable. Cuppett has never contended that his guilty plea was involuntary; indeed, he has never denied that he committed the offense to which he pleaded guilty. So Indiana is back to three prior felonies, securely ascertained. Cuppett had a lawyer at trial and sentencing in Indiana. The procedure was adversarial, and none of counsel’s omissions “so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Thus Cuppett cannot escape forfeiture, and his quest for a writ of habeas corpus fails without regard to the validity of the 1962 conviction. II If Cuppett can establish cause and prejudice, the next question is not whether the 1962 West Virginia conviction complies with Gideon. It is whether Cuppett is entitled to contest that conviction by a derivative collateral attack. After Gideon was decided in 1963, Cuppett could have asked the courts of West Virginia to set aside his sentence, which he was still serving. See State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964). He did not. Instead he waited until after his conviction in Indiana had become final to ask both the courts of Indiana and now the federal courts to treat the Indiana sentence as derivatively invalid, because its length is influenced by the West Virginia conviction. If Cuppett had objected at sentencing to the use of the West Virginia conviction, then according to Burgett the court would have had to decide whether that conviction appears to comply with Gideon. Notice the qualifications: “at sentencing”; “appears to comply.” Burgett dealt with a claim timely raised and pursued on appeal, and it addressed only a challenge to the face of the former conviction. To get relief now, Cup-pett must ask us to extend Burgett — to look beneath the surface of the judgment, and to do this on collateral attack once removed rather than direct review. Other courts have declined to follow such a path. E.g., United States v. French, 974 F.2d 687, 701 (6th Cir.1992). In deciding whether to permit this derivative collateral attack, we must consider the difference between direct and collateral review, a difference that is increasingly important in the Supreme Court’s jurisprudence. E.g., Brecht v. Abrahamson, — U.S.—, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Burgett was decided during a period in which a majority of the Justices believed that review is unending — that waiver of the right to continuing collateral attack is all but impossible (only “deliberate bypass” would do) and that courts should reexamine judgments whenever necessary to ensure that no residue of error is allowed to remain. Those days are gone, and the defining decisions of that era have been overruled. E.g., Coleman v. Thompson, — U.S. —, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), overruling Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Keeney v. Tamayo-Reyes, — U.S. —, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), overruling Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The last extension of Burgett came in 1971, when four Justices in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), stated that a judge must decide whether a conviction complies with Gideon before permitting its use in impeaching the defendant. Loper was decided without a majority opinion (a fifth Justice concurred in the judgment), and Chief Justice Burger wrote in dissent, 405 U.S. at 494, 92 S.Ct. at 1025: “If Burgett does, indeed, mean what the plurality opinion reads into it, we should overrule that decision without delay. As Mr. Justice Harlan, for himself, Mr. Justice Black, and Mr. Justice White, observed [dissenting in Burgett ], ‘We do not sit as a court of errors and appeals in state eases_’ 389 U.S., at 120 [88 S.Ct. at 264].” Burgett was severely limited in Lewis, which held that an uncoun-seled conviction may be used to prohibit the possession of a firearm, and therefore may be the basis of conviction for being a felon in possession of a firearm. Lewis means that convictions said to be invalid under Gideon are not automatically improper bases for judicial action. Within the last year the Supreme Court relied on Justice Rehnquist’s dissent in Loper, 405 U.S. at 500-01, 92 S.Ct. at 1027-28 (joined by Burger, C.J., and Blackmun & Powell, JJ.), ignoring the plurality’s contrary view. Parke, — U.S. at —, 113 S.Ct. at 524. While the Supreme Court retrenches, we should not push forward. Indirect collateral review of judgments in the course of sentencing for other crimes creates substantial difficulties for the court. The record of the prior conviction will be elsewhere, often in another state that has no continuing interest in defending its judgment. Inquiring into the validity of such convictions bogs down the trial or sentencing at hand. Delay and distractions might be the lesser of the available evils if prior convictions were the only permissible basis for enhanced punishment. But when imposing sentence judges may consider acts that did not lead to a conviction. E.g., McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). The Sentencing Guidelines contain elaborate rules about “relevant conduct” that counts against the defendant; almost none of this conduct will be the subject of a conviction. Indeed, a judge may take account of prior criminal conduct even though a jury has acquitted the defendant of charges based on these crimes. E.g., United States v. Masters, 978 F.2d 281, 285-86 (7th Cir.1992); United States v. Fonner, 920 F.2d 1330, 1332-34 (7th Cir.1990). Stationhouse confessions without the assistance of counsel are good grounds on which to enhance a sentence, even though confessions standing alone do not support convictions. Once we see that acts proved beyond a reasonable doubt after a full-dress trial are not the only acceptable grounds for enhancement, it looks very odd to invest substantial resources determining whether a particular conviction offered in sentencing indeed meets the standards developed for full-dress litigation. Why should a judgment of conviction based on a guilty plea (that is, on a confession in open court) be less legitimate, as a ground for enhancement, than a stationhouse confession? The Sentencing Guidelines suggest an approach that avoids turning sentencing into a mass collateral attack on all prior convictions, and thus preserves both finality and expeditious adjudication while assuring defendants ample opportunity to protect their rights: a judge may use a conviction to increase a sentence unless that conviction has previously been held invalid. U.S.S.G. § 4A1.2 Application Note 6 (amendment 353, effective November 1, 1990). The note reads: Sentences resulting from convictions that have been reversed or vacated because of errors of law, or because of subsequently-discovered evidence exonerating the defendant, are not to be counted. Also, sentences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted. Nonetheless, the criminal conduct underlying any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3 (Adequacy of Criminal History Category). In other words, a conviction “counts” unless reversed or otherwise held invalid prior to the sentencing — but even if a judgment does not count as a conviction, the sentencing court is free to consider the conduct that led to the conviction. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), presaged this approach. A district judge had enhanced a sentence because of three prior convictions. Later the rendering courts vacated two of these convictions in light of Gideon. In Tucker the Court concluded that resentencing was in order because the prior convictions had disappeared — but the Court did not declare that on resentencing the judge was to put the prior criminal episodes out of mind. Instead it explained that the judge must rethink the sentence with knowledge that the prior convictions had been set aside. 404 U.S. at 448, 92 S.Ct. at 592. Defendants have ample reason to challenge their convictions on direct appeal, or collaterally while serving their sentences. The Sentencing Commission’s approach relies on this incentive. Serious challenges are likely to be brought, and resolved, before the sentencing for a later offense. Convicts who wait too long can try coram nobis, which is available in the federal courts and many states. This is what happened in Tucker: the defendant obtained writs of error coram nobis from the courts in which he had been convicted, and these writs justified resentencing on the new charge. See also Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Any convicted person has ample opportunities to obtain review. Requiring defendants to use these opportunities, rather than tarry and then launch indirect collateral attacks during sentencing for some other offense, has significant benefits. It sends persons to the rendering courts, which have the records necessary to determine whether a conviction is valid or not. It requires them to act promptly, while the information necessary to determine validity is available (and while reprosecution is possible, at least in theory, if the conviction is flawed). It simplifies the sentencing process. It winnows claims, excluding those made only because the defendant hopes that the sentencing judge will discard the conviction rather than undertake the labor of determining its Validity- Honoring judgments that remain outstanding after full opportunity for direct and collateral review does not dishonor the constitutional claims the defendant wishes to make. It simply establishes rules for presenting these claims to the right court, and in a timely fashion. Respecting judgments is the norm in our legal culture: the full faith and credit clause and common law principles of res judicata combine to make respect for judgments the rule. During this century courts began to readjudicate issues that were, or could have been, presented to the rendering court. E.g., Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915); Whaley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). This development depends on a federal statute, not on constitutional right. See also Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 463-69 (1963). No statute expressly authorizes the form of derivative collateral attack that Cup-pett wants to wage. Three courts of appeals have concluded that the Guidelines’ limit on collateral challenges during sentencing is consistent with both statute and Constitution. United States v. Custis, 988 F.2d 1355, 1360-63 (4th Cir.1993); United States v. Elliott, 992 F.2d 853 (8th Cir.1993); United States v. Roman, 989 F.2d 1117 (11th Cir.1993) (in banc). Accord, United States v. Isaacs, 1993 WL 210537, at *2-7, 1993 U.S.App. LEXIS 14892, at *5-20 (1st Cir. June 22, 1993) (unpublished opinion). We observed in Lowery v. McCaugh-try, 954 F.2d 422, 423-24 (7th Cir.1992), that the full faith and credit clause supports this approach and may require it. Custis, Elliott, and Roman, citing a background note to Application Note 6, allow that Burgett may require sentencing courts to entertain a