Under 28 U.S.C. § 2255, which provides that a federal prisoner
may move the sentencing court to vacate, set aside or correct any
sentence subject to collateral attack, respondent, confined in a
federal penitentiary in the Washington, filed in the Federal
District Court in California a motion to vacate his sentence and
grant a new trial. He alleged that at his trial he did not have the
effective assistance of counsel guaranteed by the Sixth Amendment,
because his counsel was also counsel for another person, who was
the principal witness against respondent and was defendant in a
related case. The District Court, without notice to respondent and
without ordering the presence of respondent, found that the
counsel's dual representation was with respondent's knowledge and
consent, and denied respondent's motion.
Held: the District Court erred in determining the
factual issues raised by respondent's motion under § 2255 without
notice to respondent and without his presence. Pp.
342 U. S.
206-224.
1. A review of the history of § 2255 shows that it was passed at
the instance of the Judicial Conference to meet practical problems
that had arisen in administering the habeas corpus jurisdiction of
the federal courts. Pp.
342 U. S.
210-219.
2. Section 2255 was not intended to impinge upon prisoners'
rights of collateral attack upon their convictions; its sole
purpose was to minimize the difficulties encountered in habeas
corpus hearings by affording the same rights in another and more
convenient forum. Pp.
342 U. S.
214-219.
3. In making findings on controverted issues of fact relating to
respondent's own knowledge without notice to respondent and without
his being present, the District Court did not proceed in conformity
with § 2255. Pp.
342 U. S.
219-223.
(a) The crucial issue of fact presented by respondent's motion
under § 2255 was whether his counsel represented the other person
with respondent's knowledge and consent, and respondent's presence
at a hearing on this issue is necessary if the procedure
Page 342 U. S. 206
under § 2255 is to be adequate and effective in this case. Pp.
342 U. S.
219-220.
(b) Issuance of an order to produce the prisoner is auxiliary to
the jurisdiction of the trial court over respondent granted in §
2255 itself and invoked by respondent's filing of a motion under
that section.
Ahrens v. Clark, 335 U.
S. 188, distinguished. Pp.
342 U. S.
220-222.
(c) Where, as here, there are substantial issues of fact as to
events in which the prisoner participated, the trial court should
require his production for a hearing. Pp.
342 U. S.
222-223.
4. The procedure prescribed by § 2255 will be adequate and
effective if respondent is present for a hearing in the District
Court on remand of this case, and, in the circumstances, this Court
does not reach the constitutional questions presented. P.
342 U. S.
223.
5. The Court of Appeals correctly reversed the order of the
District Court, but should have remanded the case for a hearing
under § 2255 instead of ordering that respondent's motion be
dismissed. Pp.
342 U. S.
223-224.
187 F.2d 456, judgment vacated.
Respondent's motion under 28 U.S.C. § 2255 to vacate his
sentence and grant a new trial was denied by the District Court.
The Court of Appeals reversed, and ordered the motion dismissed.
187 F.2d 456. This Court granted certiorari. 341 U.S. 930.
Vacated and remanded, p.
342 U. S.
224.
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
In its 1948 revision of the Judicial Code, Congress provided
that prisoners in custody under sentence of a federal
Page 342 U. S. 207
court may move the sentencing court to vacate, set aside or
correct any sentence subject to collateral attack. 28 U.S.C. (Supp.
IV) § 2255. [
Footnote 1]
Page 342 U. S. 208
Respondent, confined at the McNeil Island penitentiary in the
Western District of Washington, [
Footnote 2] invoked this new procedure by filing a motion
to vacate his sentence and grant a new trial in the District Court
for the Southern District of California. That court had imposed a
sentence of twenty years' imprisonment in 1947 for forging
Government checks and related violations of federal law. [
Footnote 3]
In his motion, respondent alleged that he did not enjoy the
effective assistance of counsel guaranteed defendants in federal
courts by the Sixth Amendment. Specifically, he alleged that one
Juanita Jackson, a principal witness against respondent as his
trial and a defendant in a related case, was represented by the
same lawyer as respondent. Respondent claims that he was not told
of the dual representation, and that he had no way of discovering
the conflict until after the trial was over. It appeared from court
records that Juanita Jackson testified against respondent after
entering a plea of guilty, but before sentence. Since a conflict in
the interests of his attorney might have prejudiced respondent
under these circumstances, the sentencing court and the court
below, one judge dissenting, found that the allegations of
respondent's motion warranted a hearing. Respondent's motion
requested the issuance of an order to secure his presence at such a
hearing.
For three days, the District Court received testimony in
connection with the issues of fact raised by the motion. This
proceeding was conducted without notice to respondent and without
ordering the presence of respondent. On the basis of this
ex
parte investigation, the District Court found as a fact that
respondent's counsel had also
Page 342 U. S. 209
represented Juanita Jackson, but that he "did so only with the
knowledge and consent, and at the instance and request of
[respondent]." Pursuant to this finding, the District Court entered
an order denying respondent's motion to vacate his sentence and to
grant a new trial.
On appeal to the Court of Appeals for the Ninth Circuit,
[
Footnote 4] the majority,
acting
sua sponte, raised questions as to the adequacy and
constitutionality of Section 2255. The court addressed itself to
the provision that an application for a writ of habeas corpus
"shall not be entertained" where the sentencing court has denied
relief "unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his detention."
Considering that the proceedings in the District Court were proper
under the terms of Section 2255, the court below held, one judge
dissenting, that the Section 2255 procedure could not be adequate
or effective in this case and, in the alternative, that the
Section, in precluding resort to habeas corpus, amounted to an
unconstitutional "suspension" of the writ of habeas corpus as to
respondent. [
Footnote 5]
On rehearing below, and again in this Court, the Government
conceded that respondent's motion raised factual issues which
required respondent's presence at a hearing. The Court of Appeals,
however, refused either to affirm the denial or respondent's motion
or to accept the Government's concession and remand the case for a
hearing with respondent present. Instead, it treated Section 2255
as a nullity and ordered respondent's motion dismissed
Page 342 U. S. 210
so that respondent might proceed by habeas corpus in the
district of his confinement. 187 F.2d 456.
We granted certiorari in this case, 341 U.S. 930 (1951), to
review the decision that Section 2255 must be considered a nullity,
a holding that stands in conflict with cases decided in other
circuits. [
Footnote 6] We do
not reconsider the concurrent findings of both courts below that
respondent's motion states grounds to support a collateral attack
on his sentence and raises substantial issues of fact calling for
an inquiry into their verity.
First. The need for Section 2255 is best revealed by a
review of the practical problems that had arisen in the
administration of the federal courts' habeas corpus
jurisdiction.
Power to issue the writ of habeas corpus, "the most celebrated
writ in the English law," [
Footnote
7] was granted to the federal courts in the Judiciary Act of
1789, 1 Stat. 73, 81-82. Since Congress had not defined the term
"habeas corpus," resort to the common law was necessary. [
Footnote 8] Although
Page 342 U. S. 211
the objective of the Great Writ long has been the liberation of
those unlawfully imprisoned at common law a judgment of conviction
rendered by a court of general criminal jurisdiction was conclusive
proof that confinement was legal. Such a judgment prevented
issuance of the writ without more. [
Footnote 9]
In 1867, Congress changed the common law rule by extending the
writ of habeas corpus to
"all cases where any person may be restrained of his or her
liberty in violation of the constitution, or of any treaty or law
of the United States,"
and providing for inquiry into the facts of detention. 14 Stat.
385. In commenting on the 1867 Act, this Court has said:
"The effect is to substitute for the bare legal review that
seems to have been the limit of judicial authority under the common
law practice, and under the act of 31 Car. II, chap. 2, a more
searching investigation, in which the applicant is put upon his
oath to set forth the truth of the matter respecting the causes of
his detention, and the court, upon determining the actual facts, is
to 'dispose of the party as law and justice require.'"
"
* * * *"
". . . a prisoner in custody pursuant to the final judgment of a
. . . court of criminal jurisdiction may have a judicial inquiry in
a court of the United States into the very truth and substance of
the causes of his detention, although it may become necessary to
look behind and beyond the record of his conviction to a sufficient
extent to test the jurisdiction of the . . . court to proceed to
judgment against him. . . . [
Footnote 10] "
Page 342 U. S. 212
Under the 1867 Act, [
Footnote
11] United States District Court have jurisdiction to determine
whether a prisoner has been deprived of liberty in violation of
constitutional rights, although the proceedings resulting in
incarceration may be unassailable on the face of the record. Under
that Act, a variety of allegations have been held to permit
challenge of convictions on facts dehors the record. [
Footnote 12]
One aftermath of these developments in the law has been a great
increase in the number of applications for habeas corpus filed in
the federal courts by state and federal prisoners. The annual
volume of applications had nearly tripled in the years preceding
enactment of Section 2255. [
Footnote 13] In addition to the problems raised by a
large volume of applications for habeas corpus that are repetitious
[
Footnote 14] and patently
frivolous, serious administrative problems developed in the
consideration of applications which appear meritorious on their
face. Often, such applications
Page 342 U. S. 213
are found to be wholly lacking in merit when compared with the
records of the sentencing court. But, since a habeas corpus action
must be brought in the district of confinement, [
Footnote 15] those records are not readily
available to the habeas corpus court.
Walker v. Johnston, 312 U. S. 275,
illustrates a further practical problem presented when an
application for habeas corpus alleges a meritorious claim not
controverted by the records of the trial court. In the Northern
District of California, Walker alleged that he had been denied
counsel and coerced into pleading guilty by the United States
Attorney, his assistant, and a deputy marshal in the Northern
District of Texas. The District Court for the Northern District of
California refused to grant the writ after receiving
ex
parte affidavits from the federal officers denying the
allegations. This Court reversed, finding that Walker's application
raised material issues of fact and holding that the District Court
must determine such issues by the taking of evidence, not by
ex
parte affidavits. [
Footnote
16] Granting the need for such a hearing to resolve the factual
issues, the required hearing had to be held in the habeas corpus
court in California although the federal officers involved were
stationed in Texas and the facts occurred in Texas. [
Footnote 17]
These practical problems have been greatly aggravated by the
fact that the few District Courts in whose territorial jurisdiction
major federal penal institutions are located
Page 342 U. S. 214
were required to handle an inordinate number of habeas corpus
actions far from the scene of the facts, the homes of the witnesses
and the records of the sentencing court solely because of the
fortuitous concentration of federal prisoners within the district.
[
Footnote 18]
Second. The Judicial Conference of the United States,
[
Footnote 19] addressing
itself to the problems raised by the increased habeas corpus
business in 1942, created a committee of federal judges "to study
the entire subject of procedure on applications for habeas corpus
in the federal courts." [
Footnote 20] At the next session of the Conference, the
Committee on Habeas Corpus Procedure submitted its report. After
extensive consideration, the Judicial Conference recommended
Page 342 U. S. 215
adoption of two proposed bills, a "procedural bill" containing
provisions designed to prevent abuse of the habeas corpus writ and
a "jurisdictional bill," Section 2 of which established a procedure
whereby a federal prisoner might collaterally attack his conviction
in the sentencing court. [
Footnote 21] The Judicial Conference repeatedly
reaffirmed its approval of this forerunner of Section 2255.
[
Footnote 22]
In 1944, the two bills approved by the Judicial Conference were
submitted to the Congress on behalf of the Conference. In the
letter of transmittal and accompanying memorandum, Section 2 of the
"jurisdictional bill" was described as requiring prisoners
convicted in federal courts to apply by motion in the sentencing
court "instead of making application for habeas corpus in the
district in which they are confined." [
Footnote 23] At the request of the Chairmen of the
House and Senate Judiciary Committees, a "Statement" describing the
necessity and purposes of the bills was submitted to Congress on
behalf of the Judicial
Page 342 U. S. 216
Conference Committee on Habeas Corpus Procedure. In this
Statement, Congress was furnished statistics showing in detail the
increased volume of applications for habeas corpus. [
Footnote 24] The Statement, stressing the
practical difficulties encountered in hearings held in the district
of confinement, rather than the district of sentence, described
Section 2 of the "jurisdictional bill" as follows:
"This section applies only to Federal sentences. It creates a
statutory remedy consisting of a motion before the court where the
movant has been convicted. The remedy is in the nature of, but
much
Page 342 U. S. 217
broader than,
coram nobis. The motion remedy broadly
covers all situations where the sentence is 'open to collateral
attack.' As a remedy, it is intended to be as broad as habeas
corpus. [
Footnote 25] "
Page 342 U. S. 218
While the bills proposed by the Judicial Conference were
pending, the Committee on Revision of the Laws of the House of
Representatives had drafted a bill revising the entire Judicial
Code. Portions of this bill dealing with habeas corpus were drafted
to conform with the bills approved by the Judicial Conference,
[
Footnote 26] including
Section 2255, modeled after Section 2 of the "jurisdictional bill"
approved by the Judicial Conference. According to the Reviser's
Note on Section 2255:
"This section restates, clarifies and simplifies the procedure
in the nature of the ancient writ of error
coram nobis. It
provides an expeditious remedy for correcting erroneous sentences
without resort to habeas corpus. It has the approval of the
Judicial Conference of the United States. Its principal provisions
are incorporated in H.R. 4233, Seventy-ninth Congress (the
so-called jurisdictional bill). [
Footnote 27]"
After the House of Representatives had passed the bill revising
the Judicial Code, the Judicial Conference reconsidered the two
bills drafted by its Committee on Habeas Corpus Procedure. The
Conference noted the importance of securing legislation along the
lines of its proposals, approved the habeas corpus chapter of the
Judicial Code revision bill with two amendments not affecting
Section 2255 and directed that Congress be informed of
Page 342 U. S. 219
the interest of the Conference in the enactment of the habeas
corpus provisions of the revised Judicial Code. [
Footnote 28]
This review of the history of Section 2255 shows that it was
passed at the instance of the Judicial Conference to meet practical
difficulties that had arisen in administering the habeas corpus
jurisdiction of the federal courts. Nowhere in the history of
Section 2255 do we find any purpose to impinge upon prisoners'
rights of collateral attack upon their convictions. On the
contrary, the sole purpose was to minimize the difficulties
encountered in habeas corpus hearings by affording the same rights
in another and more convenient forum. [
Footnote 29]
Third. The crucial issue of fact presented by
respondent's motion under Section 2255 was whether his attorney
appeared as counsel for Juanita Jackson "with the knowledge and
consent" of respondent. The Court of Appeals found, and the
Government now agrees, that respondent's presence at a hearing on
this issue is required if the Section 2255 procedure is to be
adequate and effective in this case. In holding that Section 2255
should be treated as a nullity in this case, the court below found
that the Section contemplated and permitted the
ex parte
investigation conducted by the District Court without notice to
respondent and without respondent's presence.
We do not find in Section 2255 the disturbing inadequacies found
by the court below. The issues raised by respondent's motion were
not determined by the "files and records" in the trial court. In
such circumstances, Section 2255 requires that the trial court act
on the motion as follows:
". . . cause notice thereof to be served upon the United States
attorney,
grant a prompt hearing
Page 342 U. S. 220
thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto."
(Emphasis supplied.) In requiring a "hearing," the Section "has
obvious reference to the tradition of judicial proceedings."
[
Footnote 30] Respondent,
denied an opportunity to be heard, "has lost something
indispensable, however convincing the
ex parte showing."
[
Footnote 31] We conclude
that the District Court did not proceed in conformity with Section
2255 when it made findings on controverted issues of fact relating
to respondent's own knowledge without notice to respondent and
without his being present.
The court below also held that the sentencing court could not
hold the required hearing, because it was without power to order
the presence of a prisoner confined in another district. This want
of power was thought to follow from our decision in
Ahrens v.
Clark, 335 U. S. 188
(1948), where we held that the phrase "within their respective
jurisdictions" in the habeas corpus statute [
Footnote 32] required the presence of the
prisoner within the territorial jurisdiction of the District Court
as a prerequisite to his filing an application for habeas corpus.
This is not a habeas corpus proceeding. The sentencing court in the
Southern District of California would not be issuing an original
writ of habeas corpus to secure respondent's presence from another
district. Issuance of an order to produce the prisoner is auxiliary
to the jurisdiction of the trial court over respondent granted in
Section 2255 itself and invoked by respondent's filing of a motion
under that Section.
The very purpose of Section 2255 is to hold any required hearing
in the sentencing court because of the inconvenience of
transporting court officials and other necessary
Page 342 U. S. 221
witnesses to the district of confinement. The District Court is
not impotent to accomplish this purpose, at least so long as it may
invoke the statutory authority of federal courts to issue "all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law."
[
Footnote 33] An order to
secure respondent's presence in the sentencing court to testify or
otherwise prosecute his motion is "necessary or appropriate"
[
Footnote 34] to the
exercise of its jurisdiction under Section 2255, and finds ample
precedent in the common law. [
Footnote 35] The express language of Section 2255 that a
"court may entertain and determine such motion without requiring
the production of the prisoner at the hearing" negatives any
purpose to leave the sentencing court powerless to require
production of the prisoner in an appropriate case. [
Footnote 36] Other federal courts
conducting Section 2255
Page 342 U. S. 222
proceedings have not encountered difficulties in securing the
presence of prisoners confined outside the district. [
Footnote 37]
The existence of power to produce the prisoner does not, of
course, mean that he should be automatically produced in every
Section 2255 proceeding. This is in accord with procedure in habeas
corpus actions. [
Footnote
38] Unlike the criminal trial, where the guilt of the defendant
is in issue and his presence is required by the Sixth Amendment, a
proceeding under Section 2255 is an independent and collateral
inquiry into the validity of the conviction.
Page 342 U. S. 223
Whether the prisoner should be produced depends upon the issues
raised by the particular case. Where, as here, there are
substantial issues of fact as to events in which the prisoner
participated, the trial court should require his production for a
hearing. [
Footnote 39]
Fourth. Nothing has been shown to warrant our holding
at this stage of the proceeding that the Section 2255 procedure
will be "inadequate or ineffective" if respondent is present for a
hearing in the District Court on remand of this case. In a case
where the Section 2255 procedure is shown to be "inadequate or
ineffective," the Section provides that the habeas corpus remedy
shall remain open to afford the necessary hearing. [
Footnote 40] Under such circumstances, we
do not reach constitutional questions. This Court will not pass
upon the constitutionality of an act of Congress where the question
is properly presented unless such adjudication is unavoidable,
[
Footnote 41] much less
anticipate constitutional questions. [
Footnote 42]
We conclude that the District Court erred in determining the
factual issues raised by respondent's motion under Section 2255
without notice to respondent and without his presence. We hold that
the required hearing can be afforded respondent under the procedure
established in Section 2255. The Court of Appeals correctly
reversed
Page 342 U. S. 224
the order of the District Court, but should have remanded the
case for a hearing under Section 2255 instead of ordering that
respondent's motion be dismissed. Accordingly, we vacate the
judgment of the Court of Appeals and remand the case to the
District Court for further proceedings in conformity with this
opinion.
Vacated and remanded.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS concur in the
result.
MR. JUSTICE MINTON took no part in the consideration or decision
of this case.
[
Footnote 1]
"A prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to
vacate, set aside or correct the sentence."
"A motion for such relief may be made at any time."
"Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the
court shall cause notice thereof to be served upon the United
States attorney, grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with
respect thereto. If the court finds that the judgment was rendered
without jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or that
there has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable to
collateral attack, the court shall vacate and set the judgment
aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate."
"A court may entertain and determine such motion without
requiring the production of the prisoner at the hearing."
"The sentencing court shall not be required to entertain a
second or successive motion for similar relief on behalf of the
same prisoner."
"An appeal may be taken to the court of appeals from the order
entered on the motion as from a final judgment on application for a
writ of habeas corpus."
"An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion pursuant
to this section, shall not be entertained if it appears that the
applicant has failed to apply for relief, by motion, to the court
which sentenced him, or that such court has denied him relief,
unless it also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention."
[
Footnote 2]
Respondent is now confined at Alcatraz in the Northern District
of California.
[
Footnote 3]
The judgment of conviction was affirmed by the Court of Appeals
for the Ninth Circuit.1947, 163 F.2d 1018.
[
Footnote 4]
The appeal was timely. Appeals from orders denying motions under
Section 2255 are governed by the civil rules applicable to appeals
from final judgments in habeas corpus actions.
See Mercado v.
United States, 183 F.2d 486.
[
Footnote 5]
"The Privilege of the Writ of Habeas Corpus shall not be
suspended unless when, in Cases of Rebellion or Invasion, the
public Safety may require it."
U.S.Const. Art. I, § 9, cl. 2.
[
Footnote 6]
Martin v. Hiatt, 174 F.2d 350 (1949), and
Barrett
v. Hunter, 180 F.2d 510 (1950), have held expressly that
Section 2255 is constitutional. Habeas corpus was also denied on
the basis of Section 2255 in the following cases in other circuits
without any suggestion that the Section was invalid:
Smith v.
Reid, 89 U.S.App.D.C. ___, 191 F.2d 491 (1951);
Meyers v.
Welch, 179 F.2d 707 (1950);
Weber v. Steele, 185 F.2d
799 (1950). And, in the following cases, other circuits remanded
Section 2255 proceedings for hearing without suggesting that the
Section was unconstitutional or inadequate:
United States v.
Paglia, 190 F.2d 445 (1951);
Howard v. United States,
186 F.2d 778 (1951);
United States v. Von Willer, 181 F.2d
774 (1950).
[
Footnote 7]
3 Blackstone's Commentaries 129. The ancient origins of habeas
corpus are traced in 9 Holdsworth, History of English Law (1926)
108-125; Jenks, The Story of Habeas Corpus, 18 L.Q.Rev. 64 (1902);
Longsdorf, Habeas Corpus: A Protean Writ and Remedy, 1948, 8 F.R.D.
179.
[
Footnote 8]
Ex parte
Bollman, 4 Cranch 75 (1807).
[
Footnote 9]
Ex parte
Watkins, 3 Pet.193 (1830).
[
Footnote 10]
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 466
(1938) (federal prisoner);
Frank v. Mangum, 1915,
237 U. S. 309,
237 U. S.
330-331 (state prisoner).
[
Footnote 11]
Now incorporated in 28 U.S.C. (Supp. IV) § 2241
et
seq.
[
Footnote 12]
Moore v. Dempsey, 261 U. S. 86 (1923)
(mob domination of trial);
Mooney v. Holohan, 294 U.
S. 103 (1935) (knowing use of perjured testimony by
prosecution);
Johnson v. Zerbst, 304 U.
S. 458 (1938) (no intelligent waiver of counsel in
federal court);
Waley v. Johnston, 1942,
316 U.
S. 101 (coerced plea of guilty);
United States ex
rel. McCann v. Adams, 320 U. S. 220 (no
intelligent waiver of jury trial in federal court);
House v.
Mayo, 324 U. S. 42 (1945)
(denial of right to consult with counsel).
[
Footnote 13]
During 1936 and 1937, an annual average of 310 applications for
habeas corpus were filed in the District Courts and an annual
average of 22 prisoners were released. By 1943, 1944, and 1945,
however, the annual average of filings reached 845, although an
average of only 26 prisoners were released per year. Figures from
tables submitted to the Chairmen of the House and Senate Judiciary
committees.
See pp.
342 U. S.
215-216,
infra.
These figures do not include the District Court for the District
of Columbia, where a similar increase in the volume of applications
for habeas corpus had been reported.
See Dorsey v. Gill,
80 U.S.App.D.C. 9, 14, 148 F.2d 857, 862 (1945).
[
Footnote 14]
In several districts, up to 40% of all applications for habeas
corpus filed during the years 1943, 1944, and 1945 were so-called
repeater petitions. Speck, Statistics on Federal Habeas Corpus, 10
Ohio St.L.J. 337, 352 (1949).
See also Price v. Johnston,
334 U. S. 266
(1948);
Dorsey v. Gill, note 13 supra; Goodman, Use and Abuse of the
Writ of Habeas Corpus, 1947, 7 F.R.D. 313.
[
Footnote 15]
Ahrens v. Clark, 335 U. S. 188.
[
Footnote 16]
Nor can the factual issues be heard before a commissioner.
Holiday v. Johnston, 313 U. S. 342.
[
Footnote 17]
It was to meet this problem that the Advisory Committee on the
Federal Rules of Criminal Procedure proposed that a motion for new
trial on the ground that a defendant has been deprived of a
constitutional right might be made at any time after judgment.
Report of the Advisory Committee (1944) Rule 35. This proposal was
not included in the Rules as finally promulgated.
See
Dession, The New Federal Rules of Criminal Procedure: II, 56 Yale,
L.J.197, 233 (1947).
[
Footnote 18]
Of all habeas corpus applications filed by federal prisoners,
63% were filed in but five of the eighty-four District Courts. And,
although habeas corpus trials average only 3% of all trials in all
districts, the proportion of habeas corpus trials in those five
districts has run from 20% to as high as 65% of all trials
conducted in the district.
The basic data, compiled by Speck,
note 14 supra, covers the six years immediately
preceding enactment of Section 2255 in 1948. Again, the figures do
not include the District Court for the District of Columbia. The
five districts are: Northern California (Alcatraz); Northern
Georgia (Atlanta); Kansas (Leavenworth); Western Washington (McNeil
Is.), and Western Missouri (Springfield Medical Center).
[
Footnote 19]
The Judicial Conference of the United States, established by
Congress in 1922, 42 Stat. 838, is a conference of the chief judges
of the judicial circuits and the Chief Justice of the United
States. It is the function of the Judicial Conference to make a
comprehensive survey of the condition of business in the courts of
the United States. Its proceedings, together with its
recommendations for legislation, are submitted to Congress. 28
U.S.C. (Supp. IV) § 331.
[
Footnote 20]
Report of the Judicial Conference (1942) 18.
[
Footnote 21]
Report of the Judicial Conference (1943) 22-24.
[
Footnote 22]
Report of the Judicial Conference (1944) 22;
id. (1945)
18.
[
Footnote 23]
Letter of transmittal, dated March 2, 1944. The complete
description of Section 2 of the jurisdictional bill in the
memorandum is as follows:
"Section two of the jurisdictional bill refers to prisoners who
have been convicted in a federal court, and requires them, instead
of making application for habeas corpus in the district in which
they are confined, to apply by motion to the trial court to vacate
or set aside the judgment. That court is then required to grant a
prompt hearing and render its decision on the motion, from which an
appeal lies to the circuit court of appeals. If it appears that it
is not practicable for the prisoner to have his motion determined
in the trial court because of his inability to be present at the
hearing, 'or for other reasons,' then he has the right to make
application to the court in the district where he is confined. Such
an instance might occur where a dangerous prisoner, who had been
convicted in the Southern District of New York, was confined in
Alcatraz Penitentiary. The bill expressly provides that no circuit
or district judge of the United States shall entertain an
application for a writ in behalf of any prisoner unless it appears
that his right to discharge cannot be determined by motion made in
the trial court."
As submitted to Congress, Section 2 of the jurisdictional bill
provided:
"No circuit or district judge of the United States shall
entertain an application for writ of habeas corpus in behalf of any
prisoner who is authorized to apply for relief by motion pursuant
to the provisions of this section, unless it appears that it has
not been or will not be practicable to determine his rights to
discharge from custody on such a motion because of his inability to
be present at the hearing on such motion, or for other reasons.
Where the prisoner has sought relief on such a motion, if the
circuit or district judge concludes that it has not been
practicable to determine the prisoner's rights on such motion, the
findings, order, or judgment on the motion shall not be asserted as
a defense to the prisoner's application for relief on habeas
corpus."
H.R. 4232 and S. 1452, 79th Cong., 1st Sess. (procedural bill);
H.R. 4233 and S. 1451, 79th Cong., 1st Sess. (jurisdictional bill)
were introduced in 1945, but no action was taken by Congress.
H.R. 6723, 79th Cong., 2d Sess., introduced as a substitute for
the jurisdictional bill, would have placed a time limit within
which motion to vacate sentences could be filed by federal
prisoners. The substitute bill was considered by the Judicial
Conference, and ordered circulated among the federal judges. Report
of the Judicial Conference (1946) 21. No action was taken by
Congress on this substitute bill.
[
Footnote 24]
This statistical data is summarized in
note 13 supra.
[
Footnote 25]
The Statement, prepared by Circuit Judge Stone and approved by
Chief Justice Stone, described the practical considerations as
follows:
"Most habeas corpus cases raise fact issues involving the trial
occurrences or the alleged actions of judges, United States
attorneys, marshals or other court officials. Obviously, it
involves interruption of judicial duties if the trial judge, the
United States attorney, the court clerk or the marshal (one or all
of them) are required to attend the habeas corpus hearing as
witnesses. Such attendance is sometimes necessary to refute
particular testimony which the prisoner may give and, obviously,
such attendance is the safest course. This is so because experience
has demonstrated that often petitioner will testify to anything he
may think useful, however false, and, without the witnesses present
to refute such, he is encouraged to do so, and may make out a case
for discharge from merited punishment. Some realization of the
possible extent of this burden on Court officials may be gained
from the bare statement that, while convictions occur in all of the
Districts throughout the country, federal prisoners are confined in
a very small number of penal institutions, and habeas corpus must
now be brought in the District where the petitioner is confined.
Even if the testimony of these officials is taken by deposition,
the interference and interruption is merely lessened in degree and
the above danger is risked."
"The main disadvantages of the motion remedy are as follows: the
risk during or the expense of transporting the prisoner to the
District where he was convicted, and the incentive to file baseless
motions in order to have a 'joy ride' away from the prison at
Government expense."
"Balancing these as well as less important considerations, the
Conference is of opinion that the advantages outweigh, and that the
motion remedy is preferable. As to the risk (escape or delivery)
while transporting the prisoner to the District of conviction, the
difference is only one of degree -- of distance and, therefore, of
opportunity. As to the expense, it is highly probable that it would
be more expensive for the Government witnesses to go from the
District where sentence was imposed and return than for the
prisoner to be brought to such District and returned. As to the
incentive to file petitions, the difference is between a longer and
a shorter trip to the Court. It is thought that the provision in
Section 2 providing for habeas corpus (in the District of
confinement) where it is not 'practicable to determine his rights .
. . on such a motion' will furnish a sufficient discretion in the
judge or court before whom habeas corpus is filed to evaluate and
defeat the above 'disadvantages' to a large degree."
[
Footnote 26]
H.R.Rep.No.2646, 79th Cong., 2d Sess. (1946) 7.
[
Footnote 27]
H.R.Rep.No.2646, 79th Cong., 2d Sess. (1946) A172;
H.R.Rep.No.308, 80th Cong., 1st Sess. (1947) A180.
[
Footnote 28]
Report of the Judicial Conference (1947) 17-18.
See
S.Rep.No.1559, 80th Cong., 2d Sess. (1948) 8-10.
[
Footnote 29]
Parker, Limiting the Abuse of Habeas Corpus, 1948, 8 F.R.D. 171,
175. Judge Parker served as Chairman of the Judicial Conference
Committee on Habeas Corpus Procedure.
[
Footnote 30]
See Morgan v. United States, 298 U.
S. 468,
298 U. S. 480
(1936).
[
Footnote 31]
Snyder v. Massachusetts, 291 U. S.
97,
291 U. S. 116
(1934).
[
Footnote 32]
28 U.S.C. § 452 (now 28 U.S.C. (Supp. IV) § 2241).
[
Footnote 33]
28 U.S.C. (Supp. IV) § 1651(a).
[
Footnote 34]
See Adams v. United States ex rel. McCann, 317 U.
S. 269,
317 U. S.
272-273 (1942).
[
Footnote 35]
In determining what auxiliary writs are "agreeable to the usages
and principles of law," we look first to the common law.
See
Price v. Johnston, 334 U. S. 266,
334 U. S. 281
(1948). In addition to "the great and efficacious writ," habeas
corpus
ad subjiciendum, other varieties of the writ were
known to the common law. Blackstone described the writs of habeas
corpus
"
ad prosequendum, testificandum, deliberandum, etc.,
which issue when it is necessary to remove a prisoner, in order to
prosecute or bear testimony in any court, or to be tried in the
proper jurisdiction wherein the fact was committed."
3 Blackstone's Commentaries 129-130.
See
Ex parte
Bollman, 4 Cranch 75,
8 U. S. 97-98
(1807).
[
Footnote 36]
It is argued that the reference to the common law writ of error
coram nobis in the Reviser's Note on Section 2255 shows an
intention to adopt an
ex parte investigation in lieu of a
hearing in the usual sense. Congress did not adopt the
coram
nobis procedure as it existed at common law, the Reviser's
Note merely stating that the Section 2255 motion was "in the nature
of" the
coram nobis writ in the sense that a Section 2255
proceeding, like
coram nobis, is an independent action
brought in the court that entered judgment.
Note 27 supra. Further, it by no means
follows that an issue of fact could be determined in a
coram
nobis proceeding without the presence of the prisoner, the New
York Court of Appeals recently holding that his presence was
required under the common law.
People v. Richetti, 302
N.Y. 290, 297-298, 97 N.E.2d 908, 911, 912 (1951).
[
Footnote 37]
Among the reported cases are:
United States v. Parker,
91 F. Supp. 996 (1950),
aff'd, 184 F.2d 488 (1950);
Jones v. United States, 179 F.2d 303 (1950);
Sturgeon
v. United States, 187 F.2d 9 (1951);
Foster v. United
States, 184 F.2d 571 (1950);
United States v.
Woolard, 83 F. Supp.
521 (1949),
aff'd, 178 F.2d 84 (1949);
United
States v. Jones, 177 F.2d 476 (1949);
Cherrie v. United
States, 179 F.2d 94 (1949),
rev'd for hearing, 90 F.
Supp. 261 (1950),
aff'd, 184 F.2d 384 (1950);
Hurst v.
United States, 180 F.2d 835 (1950);
Moss v. United
States, 177 F.2d 438 (1949);
Doll v. United States,
175 F.2d 884 (1949);
Payne v. United States, 85 F. Supp.
404 (1949);
United States v. Bowen, 94 F. Supp. 1006
(1951);
United States v. Kratz, 97 F. Supp.
999 (1951).
The Court of Appeals for the Second Circuit has ordered in a
Section 2255 proceeding that a "hearing" be held in open court with
the prisoner present and free to testify.
United States v.
Paglia, 190 F.2d 445, 448 (1951).
[
Footnote 38]
Walker v. Johnston, supra, at
312 U. S. 284.
According to the Reviser's Note, 28 U.S.C. (Supp. IV) § 2243,
governing the requirements for presence of a prisoner in habeas
corpus actions, was drafted to conform with the practice described
in the
Walker case.
[
Footnote 39]
See Barrett v. Hunter, 180 F.2d 510, 514 (1950).
[
Footnote 40]
If Section 2255 had not expressly required that the
extraordinary remedy of habeas corpus be withheld pending resort to
established procedures providing the same relief, the same result
would have followed under our decisions.
Stack v. Boyle,
342 U. S. 1,
342 U. S. 6-7
(1951);
Johnson v. Hoy, 227 U. S. 245
(1913);
Ex parte Royall, 117 U. S. 241
(1886).
[
Footnote 41]
Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.
S. 129 (1946);
Ashwander v. Tennessee Valley
Authority, 297 U. S. 288,
297 U. S. 347
(1936) (Brandeis, J., concurring).
[
Footnote 42]
Rescue Army v. Municipal Court, 331 U.
S. 549,
331 U. S.
568-569 (1947);
Ashwander v. Tennessee Valley
Authority, note 41
supra, at
297 U. S.
346-347, and cases cited therein.