concurring in part and dissenting in part:
I concur with the reasoning and result of the majority opinion in all respects except its discussion of the relief to be afforded to Eddie Coss as set forth at Part VIII. I believe that Part VIII of the majority opinion proceeds from an erroneous premise about a “general rule” to be followed in habeas cases challenging a sentence enhancement, ante at 464, 465, and then, as a result, asks the wrong question about what relief is appropriate in this particular case.1 I conclude that: (1) a “general rule” favoring retrial does not exist in subsequent sentence enhancement cases; (2) for reasons of prudence and comity, the better alternative in this case is to condition our writ only on the Commonwealth court’s resentencing Coss on his 1990 conviction; and (3) such a writ would not provide an untoward “windfall” to the petitioner.
The majority’s discussion of remedy begins with the unobjectionable proposition that “[t]he normal relief that we grant in habeas corpus is to order that the habeas petitioner be freed, subject to the right of society to correct in a timely manner the constitutional error through a new state proceeding.” Ante at 464. I take no issue with this statement, nor do I disagree with the majority’s assertion that, in § 2254 cases, there is a “general rule of permitting the state to correct the constitutional infirmity,” and that this rule extends to *470subsequent sentence enhancement cases as well as other habeas cases. Ante at 464.
However, the majority then makes an unarticulated leap of logic that I cannot accept, transforming its general rule that the state should be permitted to correct its constitutional error into a “general rule” that the state should be permitted retrial as the method for this correction whenever possible. This latter rule simply does not exist. It is true, as the majority observes, that in an ordinary habeas case — one in which the confinement that gives rise to the § 2254 petition stems directly from the conviction that is alleged to be deficient— the writ normally granted is a conditional writ allowing the state to retry the defendant. This is because, in garden-variety habeas cases, the “constitutional infirmity” being complained of lies in the conviction being challenged. In contrast, in a situation involving an improperly enhanced sentence, it is the latter sentence itself that is the basis for our jurisdiction and that is the “constitutional infirmity” complained of. See Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam) (stating that a habeas petitioner in an enhancement case is not “in custody” on the earlier expired sentence, but rather is “in custody” only on the subsequent enhanced sentence); Young v. Vaughn, 83 F.3d 72, 75-76 (3d Cir.1996) (stating that we have jurisdiction in a Maleng-Vpgo, case only because the habeas petition is construed as challenging the subsequent enhanced sentence rather than the underlying conviction, and pointing out that “the purpose of [petitioner’s] petition is presumably to terminate the sentence he is presently serving”). Accordingly, while I agree that we should “permit the state to correct the constitutional infirmity,” I believe that this goal is to be accomplished by conditioning our writ on the state’s resentencing Coss in a manner consistent with the knowledge that his 1986 conviction was obtained without the effective assistance of counsel. Such a writ, which would instruct the state to release Coss unless it resentences him in a fashion that accords with our determination that the use of the 1986 conviction as a sentencing enhancer was improper and rendered his sentence unconstitutional, is an exact parallel to the conditional writ in an ordinary habeas case, which instructs the state to release the petitioner unless it repeats the offending process in a way that accords with the reviewing court’s determination that some aspect of that process was constitutionally infirm.
The majority asserts that cases such as Tucket2 and Clark3 are exceptions to a general rule that the state should be permitted retrial whenever possible, even in the sentencing enhancement scenario. However, the majority has not been able to point to one enhancement case in which a habeas court has ordered retrial on the initial charge, or even suggested retrial as a potential form of relief. Nowhere in the ease law is there support for the proposition that Tucker was conceived as an exception to a general rule of retrial applicable in sentence ■ enhancement cases.4 Although it is true that Tucker, unlike the instant case, addresses the use of earlier state convictions as invalid enhancements of a federal sentence, there is no evidence either in Tucker itself or in subsequent cases citing Tucker that Tuck*471er is limited to cases arising from § 2255 petitions. The majority quotes an excerpt from Tticker as support for the theory that Tucker is so limited, see ante at 465 n. 13. However, the majority has omitted the lines immediately preceding that excerpt, which clearly point in the opposite direction. The full content of the relevant passage is instructive:
We need not speculate about whether the outcome of the respondent’s 1938 and 1946 prosecutions would necessarily have been different if he had had the help of a lawyer. Such speculation is not only fruitless, but quite beside the point. For the real question here is not whether the results of the Florida and Louisiana proceedings might have been different if the respondent had had counsel, but whether the sentence in the 1953 federal case might have been different if the sentencing judge had known that at least two of the respondent’s previous convictions had been unconstitutionally obtained.
Tucker, 404 U.S. at 447-48, 92 S.Ct. 589. In other words, the relevant inquiry is not an inquiry into the prior convictions themselves; the Supreme Court’s characterization of such speculation as being “quite beside the point” suggests that the convictions are not the appropriate targets of our relief. Rather, as Tucker states, the “real question” is whether the result of the sentencing proceeding is suspect. I cannot accept the majority’s statement that Tucker’s import is somehow limited to § 2255 petitions. Tucker simply does not present itself as an exception to a general rule. Nor has our Court s jurisprudence understood Tucker as such.5 Rather, Tucker appears to reflect a background assumption that resentencing — providing the sentencing court with the opportunity to correct the infirm sentence that was attacked in the habeas petition — is the appropriate remedy in habeas challenges to sentence enhancements.
Many federal appellate cases, including some of our own, support the basic concept that resentencing is the default form of relief in habeas challenges to invalid sentence enhancements. The law of our Court is actually quite clear on this point. In Clark, we held that where a Pennsylvania sentencing judge wrongly considered two previous Pennsylvania convictions obtained while Clark was a juvenile but without appropriate juvenile procedures, the appropriate relief on Clark’s § 2254 petition challenging the enhanced sentence was resentencing on the later, wrongfully enhanced charge. See Clark, 892 F.2d at 1143-44. In its references to resentencing as the proper remedy, Clark is replete with language about “mandates” and “musts,”6 and refers to resentencing as “[t]he only relief permitted under Tucker.” Id. at 1149 n. 10. The majority’s efforts to explain Clark away on the basis that the sixteen years that had passed since the prior trial made retrial in Clark impracticable are unavailing; these arguments would be equally applicable to Coss’s case, in which retrial would require reopening of a simple assault case whose events took place nearly fourteen years ago. Other Courts of Appeals have apparently as*472sumed resentencing as the relief in sentence enhancement cases, and indeed the Seventh Circuit Court of Appeals has specifically read Tucker’s holding to extend to § 2254 cases. See, e.g., Crank v. Duckworth, 905 F.2d 1090, 1090 (7th Cir.1990) (“Tucker holds that ‘misinformation of constitutional magnitude’ — that is, reliance on an invalid prior conviction — authorizes relief from the current sentence.”) (citation omitted);7 Feldman v. Perrill, 902 F.2d 1445, 1449-50 (9th Cir.1990) (stating that if the challenged prior conviction is indeed flawed, the appropriate remedy shall be a remand to the Parole Commission for a recomputation of the petitioner’s parole eligibility on the later offense without consideration of the challenged conviction);8 see also Smith v. Farley, 25 F.3d 1363, 1368 n. 10 (7th Cir.1994) (stating that a petitioner challenging a wrongly enhanced sentence would not be seeking to set aside his original conviction as constitutionally invalid, but would merely be challenging “the constitutionality of his conviction as used to enhance his present sentence”). In fact, Justice Souter has described the “uniform appellate case law” in this area as suggesting that the wrongly enhanced sentence, not the prior conviction, is the target of the habeas petition. See Custis v. United States, 511 U.S. 485, 512, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (Souter, J., dissenting) (joined by Blackmun and Stevens, JJ.) (pointing out that the Custis majority’s holding “does not disturb uniform appellate case law holding that an individual serving an enhanced sentence may invoke federal habeas to reduce the sentence to the extent it was lengthened by a prior unconstitutional conviction”). At the very least, I think it clear that the appellate case law dispels any notion of a “general rule” favoring retrial on the previous conviction in an enhancement case.
I think it equally clear that resentencing is the appropriate remedy in this case, for several reasons implicating both judicial prudence and comity. First, I am not convinced that we even can afford the relief suggested by the majority. Having served his entire sentence on the original 1986 conviction, Coss clearly is not “in custody” on that charge, see Maleng, 490 U.S. at 490, 109 S.Ct. 1923, and therefore would not have recourse to the remedy of retrial through a habeas petition at this point. It is unclear to me that we have the power to provide that same relief, the benefits of which are unavailable to the -petitioner in a habeas petition challenging a subsequent enhanced sentence, to the respondent in that same petition. I have found no federal case that addresses this question,9 and I believe that we should not reach out to decide this issue unnecessarily when we can instead choose the well-established option of simply conditioning our writ on the Commonwealth’s resentencing Coss on the 1990 conviction.
In addition, I believe that the comity concerns raised by the majority argue in *473favor of relief limited to resentencing. It is difficult to determine what ramifications the relief mandated by the majority will have on the 1986 state conviction. I am not certain exactly what it means to give a state an “opportunity” to retry a defendant in this context; I cannot fit the majority’s proposed relief into any proper procedural parlance. Are we vacating the underlying 1986 conviction? Are we overturning it? It seems that in order to allow the state to retry Coss, we must essentially declare the 1986 conviction, which is not the subject of the current petition, invalid for all purposes. This seems to me a far more extensive intrusion on the state’s criminal process than the alternative of merely declaring that that conviction cannot be used to enhance the sentence at issue in Coss’s habeas petition. Thus, the principle that federal habeas courts should generally grant the relief that “require[s] the least intervention into the state criminal process,” Henderson v. Frank, 155 F.3d 159, 168 (3d Cir.1998), suggests that conditioning the writ on resentencing is the appropriate option here.10 Several cases decided by the Seventh Circuit Court of Appeals have explicitly found that comity concerns are implicated less by re-sentencing than by a reopening of the initial state conviction.11 See, e.g., Crank, 905 F.2d at 1091 (“We did not decide in Lowery whether the federal court could invalidate the prior conviction for all purposes or only for the purpose of the particular sentence then being served, an important distinction if the state rendering the original judgment retains an interest in its validity.”); Smith, 25 F.3d at 1368 n. 10 (finding that “merely ... challenging] the constitutionality of [the earlier] conviction as used to enhance his present sentence” implicates comity less directly than would “set[ting] aside the[earlier] conviction as constitutionally invalid”). Furthermore, as previously noted, Coss has served the full sentence imposed on him by the Commonwealth for the 1986 conviction, reducing any possible interest that the state might have in retrying him.12
The majority’s contention that comity is fostered by its choice of relief is further weakened by the fact that the Commonwealth of Pennsylvania has already had the opportunity to address the validity of the 1986 conviction, and declined to do so. As Part V of the majority opinion discusses, see ante at 460, Coss presented the Commonwealth with an attack on his 1986 conviction in a petition pursuant to Penn*474sylvania’s Post Conviction Hearing Act (PCHA), 42 Pa. Cons.Stat. § 9541 et seq. (now known as the Post Conviction Relief Act). Prior to Coss’s filing his § 2254 petition in federal court, the state PCHA petition had been pending for approximately seven years without any activity.
Pennsylvania’s inaction also highlights one aspect of the inaccuracy of the “nice” question posed by the majority, see ante at 464: “Should we give society, here, the Commonwealth of Pennsylvania, the right to cure the Sixth Amendment constitutional defect or should we give the Appellant a free ride and have his second sentence declared invalid simply because he is a recidivist?” I submit that any “right” to cure the Sixth Amendment defect inherent in the 1986 conviction has already been afforded to the Commonwealth via its opportunity to defend this conviction against Coss’s PCHA petition; the Commonwealth has forfeited further consideration of this “right” by its seven years of inaction. To my mind, the majority’s relief gives the courts of the Commonwealth a “free ride” for no apparent reason.
The assumptions underlying the second part of the majority’s question — referring, to the possibility of a “free ride” for Coss — are equally inaccurate. I reject the implication that a person who has already served a prison sentence on a conviction that was secured in violation of his Sixth Amendment rights has gotten a “free ride.” The majority opinion, in stating that resentencing would provide a windfall to recidivists, seems to believe that a criminal defendant would lie in wait while serving an invalid prison sentence, refusing to contest this initial sentence because of a potential future benefit to him of a later challenge to this sentence in the context of an enhancement proceeding on a hypothetical crime that he has not yet committed.13 Such an image of what motivates an imprisoned convict strains credulity, and has the additional flaw of having been explicitly rejected by the Supreme Court. In Garlotte v. Fordice, 515 U.S. 39, 41, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995), the Supreme Court held that a prisoner serving consecutive state sentences is “in custody” for habeas purposes on all the consecutive sentences, even those that were scheduled to run first and that had therefore already expired at the time of the petition. The Court rejected the argument that this holding would encourage prisoners to delay raising their claims: “A prisoner naturally prefers release sooner to release later. Further, because the habeas petitioner generally bears the burden of proof, delay is apt to disadvantage the petitioner more than the State.” Id. at 46, 115 S.Ct. 1948. The Court’s observations in Garlotte are equally applicable to Coss’s case.14 I therefore find that the majority’s specter of a “free ride” is without substance here.15
*475In sum, I can find no support for the majority’s choice of relief. I express no opinion on the question whether it would in some other case be possible for us to order such relief. Rather, I would decline to reach that difficult question, and would instead reverse the District Court’s denial of Coss’s habeas petition and remand to the District Court with instructions that it order a writ of habeas corpus to issue conditioned upon Coss’s being resentenced on the 1990 conviction without consideration of the previous 1986 assault conviction. Such relief would comport with the traditional principles of habeas jurisdiction by giving the tribunal that incorrectly subjected Coss to his only current “custody”— namely, the 1990 sentencing court — the opportunity to correct its error by resen-tencing Coss, ridding his sentence of the unconstitutional taint of his prior conviction.
Judge McKEE joins in this opinion.
. This "nice” question, see ante at 464, is: “Should we give society, here, the Commonwealth of Pennsylvania, the right to cure the Sixth Amendment constitutional defect or should we give the Appellant a free ride and have his second sentence declared invalid simply because he is a recidivist?”
. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
. Clark v. Pennsylvania, 892 F.2d 1142 (3d Cir.1989).
. Cases cited by the majority such as Henderson v. Frank, 155 F.3d 159, 162 (3d Cir.1998), which ordered a writ conditioned on retrial, and Barry v. Brower, 864 F.2d 294, 296 (3d Cir.1988), which ordered a writ conditioned on re-appeal (the relief granted in Barry was re-appeal because the violation in question occurred in the appellate proceeding), simply do not present the same situation as the instant case; Henderson and Barry are not sentence enhancement cases and only involve the "garden-variety” habeas scenario. Similarly, the double jeopardy and other non-sentence enhancement cases cited by the majority do not resolve the question before us.
. Third Circuit case law clearly states that Tucker itself is applicable beyond the § 2255 context. In Clark, a § 2254 enhancement case, we made several references to the fact that Tucker was the governing precedent. See Clark, 892 F.2d at 1144 ("Thus, under the mandate of United States v. Tucker, the matter must be remanded for resentencing of the 1979 conviction with instruction that the 1974 convictions, obtained in violation of Clark’s constitutional right to due process, not be considered in the imposition of the sentence.”) (citation omitted); id. at 1149 n. 10 ("The only relief permitted under Tucker is resenlencing on the subsequent conviction.”); id. at 1150 ("Because the 1974 convictions were relied upon by the 1980 sentencing court, Clark is entitled to the relief provided by Tucker and must be resentenced.”). That is, we not only afforded resentencing as the relief in a § 2254 case, but also explicitly stated that Tucker controls § 2254 as well as § 2255 cases.
. See, for example, the three excerpts from Clark quoted in note 5 above.
. Crank, like the instant case, is a § 2254 petition case in which both the prior, allegedly flawed conviction and the subsequent sentence that relied on that conviction as an enhancement were state offenses (both the initial and subsequent Crank convictions were Indiana state convictions).
. Although Feldman, like Tucker, addresses the use of a flawed previous state conviction in a subsequent federal proceeding, nothing in Feldman suggests that reaching back to the original conviction would be appropriate in any sentence enhancement case. The Ninth Circuit Court of Appeals noted that Feldman was "indistinguishable from Maleng,” a § 2254 case. Feldman, 902 F.2d at 1448.
.A leading treatise on federal habeas procedure notes that Maleng left open this very question. See 1 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 8.2c, at 333 n. 20 (3d ed. 1998) ("Maleng ... left open ... [the] question whether, in the process of voiding a current sentence enhanced on the basis of an unconstitutionally imposed prior conviction as to which custody has terminated, the prior conviction 'itself may be voided, thus depriving it of other collateral consequences in addition to its effect on the sentence currently being served.”) (citing Maleng, 490 U.S. at 493-94, 109 S.Ct. 1923).
. Contrary to the majority’s assertion, Henderson’s guidance that federal habeas power is seemingly limited "first, to a determination of whether there has been an improper detention by virtue of the state court judgment; and second, if we find such an illegal detention, to ordering the immediate release of the prisoner, conditioned on the state's opportunity to correct constitutional errors that we conclude occurred in the initial proceedings,” Henderson, 155 F.3d at 168, argues in favor of conditioning the writ on resentencing on the 1990 charge rather than on the possibility of retrial on the 1986 charge. The "detention” complained of by Coss (indeed, the only detention he suffers) is the detention resulting from the 1990 sentence, and thus the relevant proceedings that the state should have the opportunity to correct are the sentencing proceedings, not the 1986 conviction.
. As noted in the majority opinion, the majority’s choice of relief would require resen-tencing on the 1990 charge regardless of the Commonwealth’s decision whether to pursue a retrial on the 1986 charge, and regardless of the outcome of such a retrial should it occur. See ante at 467 n. 14. Thus, the limited intrusion on state process that is presented by resentencing will occur regardless of which relief we choose to fashion — the relief ordered by the majority as well as the relief that I would propose.
.See Feldman v. Perrill, 902 F.2d 1445, 1450 (9th Cir.1990) (stating that, because the petitioner who challenges a later sentence enhancement is no longer in custody on the initial flawed conviction, the state rendering that initial conviction "has extracted its punishment and has no further interest in petitioner”). We need not go as far as Feldman’s statement that the state’s interest in the initial conviction is eliminated. However, the fact that Coss has served his full sentence on the 1986 conviction clearly greatly reduces the Commonwealth’s interest in that conviction.
. It is also worth noting that in order to take advantage of this speculative future benefit, our defendant would have to run the “exhaustion” gauntlet of state post-conviction proceedings, and, of course, to prevail on the merits of the Strickland test, a heavy burden indeed.
. It is obvious that Coss himself has made no such strategic decision to delay a challenge to his 1986 conviction. In fact, the District Court’s reference to the fact that Coss's PCHA petition challenging the 1986 conviction was pending for "about seven years” before Coss filed the instant § 2254 petition in 1994 makes it clear that Coss challenged the 1986 conviction well before the commission of the offense of which he was convicted in 1990. District Court opinion at 9.
.One last observation is in order concerning the risk of a "free ride” in this or any other unconstitutional enhancement challenge. Were we to condition our writ on the Commonwealth's resentencing Coss on the 1990 conviction, the sentencing judge would presumably be able to take into account the underlying facts at issue in the 1986 conviction, if sufficiently proven, even though our order would bar it from taking the tainted conviction itself into account. This ability to consider the facts of a defendant’s possible prior bad act reduces the possibility that the defendant can get a "free ride.”