Cuppett v. Duckworth

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).