1. The erroneous imposition of two sentences for a single
offense of which the accused has been convicted, or as to which he
has pleaded guilty, does not constitute double jeopardy. P.
313 U. S.
2. A prisoner, while serving a valid sentence cannot, by habeas
corpus, attack a second sentence for the same offense timed to
begin at the end of the first, although the second must be vacated
before he can apply for parole under the first. P. 313 U. S.
His remedy is to apply for vacation of the sentence and for a
resentence in conformity with the statute under which he was
3. Petitions for habeas corpus are not to be regarded
meticulously; and, even if insufficient in substance, may be
amended in the interest of justice. P. 313 U. S.
In the present instance, the district judge, by regarding the
petition, traverse, and return as making issues of fact justifying
the taking of evidence, did not abuse his discretion.
4. Under the habeas corpus statute, the district judge must
himself hear the prisoner's testimony and, in the light of it and
other testimony, must find the facts and base his disposition of
the case upon his findings. P. 313 U. S.
A practice of commanding that the prisoner be taken before a
Commissioner to take evidence and report and of disposing of the
case upon the record made before the Commissioner, cannot be
sustained because of its convenience or because it is a practice of
long standing which has found its place in a rule of court.
5. Rule 53 of the Rules of Civil Procedure dealing with
references to Masters, has no application to habeas corpus cases.
P. 313 U. S.
Certiorari, 312 U.S. 673, to review an order refusing a petition
for leave to appeal in forma pauperis
from a judgment of
the District Court discharging a writ of habeas corpus.
Page 313 U. S. 347
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The petitioner applied to the District Court for the Northern
District of California for a writ of habeas corpus. His petition
alleged that he was unlawfully detained by the respondent in
Alcatraz Penitentiary; that he had been indicted in the District
Court for North Dakota under an Act of May 18, 1934, § 2, [Footnote 1
] the indictment being in two
counts, one for robbery of an insured bank and the other for
jeopardizing the lives of officials of the bank in the course of
the robbery; that he pleaded guilty to both counts and was
sentenced to ten years under the first and to fifteen years under
the second, "commencing at the expiration of the sentence imposed
under count one." The petition charged that he was unlawfully
detained because he was tried without the advice and assistance of
counsel, was ignorant of his right to have counsel, although unable
to pay for an attorney, was not advised by the court that he was
entitled to counsel, and was unable to, and did not, intelligently
waive his constitutional right to have counsel. The petition
alleged that the two counts of the indictment charged but one
offense, and that the petitioner was placed in double jeopardy by
the imposition of the consecutive sentences.
The court issued a rule on the respondent to show cause why a
writ should not issue. The respondent made return showing that the
petitioner was held under a commitment issued pursuant to his
conviction upon the indictment in question. He attached a
certificate of the judge who imposed the sentence attesting to his
uniform practice of inquiring of prisoners charged with felony
whether they wanted counsel and his firm belief that he so inquired
of the petitioner, and the affidavit of a deputy marshal to the
effect that petitioner said he did not desire counsel.
Petitioner filed a traverse in which he denied that the
Page 313 U. S. 348
trial judge had interrogated him as stated and denied that he
had made the alleged statement to the deputy marshal. The district
judge issued a writ commanding the respondent to produce the
petitioner before a commissioner of the District Court at the
Alcatraz prison on a day named. This was done, and the commissioner
there took the petitioner's testimony and later received the
depositions of two witnesses on behalf of the respondent. The
commissioner submitted a report in which he recited his
proceedings, summarized the asserted grounds for relief, made
findings of fact, stated conclusions of law, and recommended that
the application be denied. After hearing argument on the report,
the judge entered an order discharging the writ.
The petitioner applied for leave to appeal in forma
This was denied by an order which recited that, so
far as the petition was based on the alleged invalidity of the
sentence on the second count of the indictment, it was premature,
and, so far as it was grounded on the deprivation of the assistance
of counsel, the evidence sustained the finding of the commissioner
that the petitioner had competently and intelligently waived his
right to such assistance. Accordingly, the judge denied an appeal
for want of merit in the application.
The petitioner moved the Circuit Court of Appeals for leave to
appeal in forma pauperis,
which was denied. He then
petitioned this Court for certiorari, [Footnote 2
] Ex parte Holiday,
312 U.S. 673, and
for leave to proceed in forma pauperis.
were granted, and counsel was appointed to represent him in this
The burden of petitioner's complaint is that the procedure
adopted by the District Court -- that of a hearing before a
commissioner and the disposition of the cause on the record made
before him -- is a plain violation of
Page 313 U. S. 349
the Acts of Congress regulating the practice in habeas corpus
cases. In addition, he seeks a reversal of the judgment on the
ground that the sentence on the second count is void. He insists
that he is entitled to a decision to this effect so that he may
apply for parole under the sentence imposed on the first count.
The respondent argues that we need not consider the question of
the regularity of the hearing in habeas corpus, since the petition
should have been denied as premature so far as it rested on the
asserted illegality of the sentence and since the District Court
should have dismissed the petition for insufficiency of the
allegations concerning the denial of assistance of counsel.
1. The respondent admits that § 2 of the Act of May 18, 1934,
does not create two separate crimes, but prescribes
alternative sentences for the same crime depending upon the manner
of its perpetration. This concession, however, does not aid the
petitioner. The erroneous imposition of two sentences for a single
offense of which the accused has been convicted, or as to which he
has pleaded guilty, does not constitute double jeopardy. And if, as
the petitioner contends, the first sentence of ten years is valid
and the second void, he is no better off. Conceding, without
deciding, that he is right in saying the first sentence is the only
valid one, he has not served that sentence, and is not entitled now
to be discharged from custody under it. He urges that, if the
second sentence is adjudged void, he will now be entitled to apply
for parole under the first. But we have recently decided that
habeas corpus cannot be awarded to afford a prisoner such an
opportunity. [Footnote 3
remedy is to apply for vacation of the sentence and a resentence in
conformity to the statute under which he was adjudged guilty.
Page 313 U. S. 350
2. The respondent's contention that we should affirm the
judgment because the petition for the writ insufficiently alleges a
denial of constitutional right and fails to rebut the presumption
of regularity which attaches to the record of petitioner's trial
and conviction may be shortly answered. A petition for habeas
corpus ought not to be scrutinized with technical nicety. Even if
it is insufficient in substance, it may be amended in the interest
of justice. In the present instance, moreover, the judge, by
calling on the respondent to show cause, adjudged that, in his
view, the petition was sufficient and, by referring the cause to a
master, evinced a judgment that the petition, the return, and the
traverse made issues of fact justifying the taking of evidence.
These decisions did not constitute an abuse of discretion, and we
will not review them.
3. The respondent insists that the petition was premature if the
petitioner's claim that he was denied the assistance of counsel is
without merit, but the contention is pressed only if we find that
no question as to such denial is presented.
4. We come then to the serious question in the case. Was the
method of trial of the fact issues presented by the pleadings in
accordance with law?
Revised Statutes §§ 757, 758, and 761 [Footnote 4
] prescribe the procedure to be followed. The
first requires that
"The person to whom the writ is directed shall certify to the
court, or justice, or judge before whom it is returnable the true
cause of the detention of such party;"
and the second that: "The person making the return shall at the
same time bring the body of the party before the judge who granted
the writ." [Footnote 5
third provides that:
Page 313 U. S. 351
court, or justice, or judge shall proceed in a summary way to
determine the facts of the case, by hearing the testimony and
arguments, and thereupon to dispose of the party as law and justice
It is plain, as the respondent concedes, that a commissioner is
not a judge, and that the command of the court's writ that the
petitioner appear before that officer was not a literal compliance
with the statute. The respondent argues, however, that the writ in
effect referred the cause to the commissioner as a master whose
function was to take the testimony and submit it, together with his
findings and conclusions, for such action as the court might take
upon such submission. The argument runs that this practice is, in
substance, equivalent to a hearing before the judge in his proper
person, has long been followed in the district courts in
California, has not incurred the criticism of this Court in cases
brought here where it was followed, is a convenient procedure,
tends to expedite the disposition of such cases, is in accordance
with longstanding equity practice, and is countenanced by Rule
53(a)(b) of the Rules of Civil Procedure. [Footnote 6
We cannot sanction a departure from the plain mandate of the
statute on any of the grounds advanced. We have recently emphasized
the broad and liberal policy adopted by Congress respecting the
office and use of the writ of habeas corpus in the interest of the
protection of individual freedom to the end that the very truth and
substance of the cause of a person's detention may be disclosed and
justice be done. [Footnote 7
The Congress has seen fit to lodge in
Page 313 U. S. 352
the judge the duty of investigation. One of the essential
elements of the determination of the crucial facts is the weighing
and appraising of the testimony. Plainly it was intended that the
prisoner might invoke the exercise of this appraisal by the judge
himself. We cannot say that an appraisal of the truth of the
prisoner's oral testimony by a master or commissioner is, in the
light of the purpose and object of the proceeding, the equivalent
of the judge's own exercise of the function of the trier of the
The circumstance that the practice has grown up of referring
such causes to a commissioner, has long been indulged in in the
federal courts of California, and has found a place in a rule of
court cannot overcome the plain command of the statute. It is true
that the practice was followed in certain deportation cases which
were reviewed by this Court, but, so far as appears, no point was
made as to the procedure followed in those cases, and the matter
was passed without notice.
It may be that the practice is a convenient one, but, if so,
that consideration is for Congress. In view of the plain terms in
which the Congressional policy is evidenced in the habeas corpus
act, the courts may not substitute another more convenient mode of
It is said that the procedure tends to expedite the disposition
of habeas corpus cases. The record in this case would seem to
contradict the argument. [Footnote
] And when it is remembered that R.S. § 756 [Footnote 9
] required that the return
Page 313 U. S. 353
in this case be made within three days of the issue of the writ,
and that R.S. § 758, supra,
required the respondent to
produce the body at the same time he made the return; that R.S. §
759 [Footnote 10
that the hearing shall be set not more than five days after the
return, and that R.S. § 761, supra,
enjoins the judge to
proceed in a summary way to hear the cause and dispose of the
petitioner, it is difficult to see how the comparatively cumbersome
and time-consuming procedure of reference, report, and hearing upon
the report can be thought a more expeditious method than that
prescribed by the statute.
The practice of referring equity causes to masters presents no
persuasive analogy. The scope and purpose of the two proceedings
are obviously different. Moreover, when Congress prescribed the
procedure in habeas corpus, the practice of reference to masters in
chancery was well known to it. The legislature nevertheless saw fit
to require a different procedure in habeas corpus cases.
Finally, the sanction by Rule 53 of the Rules of Civil Procedure
of references to masters does not aid in the decision of the
question presented. Rule 81(a)(2) provides that appeals in habeas
corpus cases are to be governed by the rules, but that the rules
are not applicable "otherwise than on appeal" in habeas corpus
"except to the extent that the practice in such proceedings is
not set forth in statutes of the United States and has heretofore
conformed to the practice in actions at law or suits in equity. . .
Since the practice in habeas corpus is set forth in plain terms
in the Revised Statutes to which reference has been made, Rule 53
has no application.
In summary, we hold that the provisions of the habeas corpus
act, as embodied in the Revised Statutes, are too plain to be
disregarded for any of the reasons advanced. The District Judge
should himself have heard the prisoner's
Page 313 U. S. 354
testimony and, in the light of it and the other testimony,
himself have found the facts and based his disposition of the cause
upon his findings. The petitioner has not been afforded the right
of testifying before the judge which the statute plainly accords
him. In order that he may have that right, we reverse the judgment
and remand the cause to the District Court for further proceedings
in conformity to this opinion. We express no opinion as to the
weight or sufficiency of the evidence heretofore adduced. The
issues of fact will be for solution by the District Court upon a
48 Stat. 783, 12 U.S.C. § 588b.
We have jurisdiction under § 262 of the Judicial Code, 28 U.S.C.
§ 377; In re 620 Church Street Corporation, 299 U. S.
McNally v. Hill, 293 U. S. 131
28 U.S.C. §§ 457, 458, 461.
Both these sections are derived from the Habeas Corpus Act of
February 5, 1867, c. 28, 14 Stat. 385. In the codification, the
language of the original statute was altered to indicate that the
return might be made to the court, justice, or judge, whereas, in
the original statute, the provision is that the respondent "shall
make return of said writ and bring the party before the judge who
granted the writ, and certify the true cause of the detention of
such person. . . ." 14 Stat. 386. Nothing in this case turns on the
diversity between the language employed in the statute and that
found in the revision.
28 U.S.C. following section 723c.
Johnson v. Zerbst, 304 U. S. 458
Walker v. Johnston, 312 U. S. 275
The petition was filed May 8, 1939. The order to show cause
issued June 29, 1939. The return was presented July 10, 1939; the
traverse July 31, 1939. The writ issued December 14, 1939. The
commissioner held hearings on December 16, 1939, and April 30,
1940. He filed his report May 23, 1940, and the judge entered an
order confirming the report and discharging the writ July 1, 1940.
No explanation is vouchsafed for what seems, in view of the
peremptory terms of the statute, an inordinate protraction of the
28 U.S.C. § 456.
28 U.S.C. § 459.