In a Federal District Court, petitioners were convicted of
violating certain federal criminal statutes and were sentenced to
imprisonment. Their convictions were affirmed by the Court of
Appeals, but their cases were remanded for resentencing. They were
resentenced, and the judgments were affirmed by the Court of
Appeals. Several years later, petitioners moved in the District
Court that their sentences be vacated and that they be resentenced,
on the ground that they had not been given an opportunity to make
statements in their own behalves, as required by Federal Rule of
Criminal Procedure 32(a), either when they were originally
sentenced or when they were resentenced. Finding this to be true,
the District Court granted their motions and ordered that
petitioners be returned to it for resentencing. Without waiting for
them to be resentenced, the Government appealed to the Court of
Petitioners' motions should be considered as
having been made in collateral proceedings under 28 U.S.C. § 2255;
the District Court's orders were interlocutory, not final; and the
Court of Appeals did not have jurisdiction of the Government's
appeal. Pp. 373 U. S.
301 F.2d 376, judgment set aside and cases remanded.
Page 373 U. S. 335
MR. JUSTICE STEWART delivered the opinion of the Court.
The two petitioners and a codefendant were convicted in a
Federal District Court upon a three-count indictment charging that
they had (1) assaulted a Post Office employee with intent to rob in
violation of 18 U.S.C. § 2114, (2) put the life of the Post Office
employee in jeopardy by the use of a dangerous weapon in violation
of 18 U.S.C. § 2114, and (3) conspired together to violate the
aforesaid statute in violation of 18 U.S.C. § 371. The district
judge sentenced each defendant to concurrent prison terms of 25
years on Count 2 and five years on Count 3. [Footnote 1
] None of the defendants was asked
before the sentences were imposed whether he had anything to say in
his own behalf. On appeal, the convictions were affirmed, but the
cases were remanded to the District Court for resentencing on Count
2 on the ground that the trial judge had been in error in thinking
that, under the statute, [Footnote
] he was without power to suspend sentence and grant probation
on that count. United States v. Donovan,
242 F.2d 61. Upon
remand, the District Court suspended the 25-year sentence which had
been imposed on the petitioners' codefendant, but resentenced the
Page 373 U. S. 336
petitioners to 25-year prison terms. Again, neither petitioner
was afforded an opportunity to speak in his own behalf before the
sentences were imposed. The Court of Appeals reaffirmed the
convictions. United States v. Donovan,
252 F.2d 788.
The proceedings now before us began when the petitioner Donovan
filed a motion in the District Court requesting that his sentence
"be vacated and he be resentenced" on the ground that, contrary to
Rule 32(a) of the Federal Rules of Criminal Procedure, he had been
afforded no opportunity to make a statement in his own behalf
either at the time of the original sentence or when the sentence
was reimposed. [Footnote 3
District Court granted the motion and ordered that Donovan "be
returned to this district for resentencing." The petitioner Andrews
then wrote to Judge Murphy, the district judge who had acted on
Donovan's motion, pointing out that "the identical circumstances
exist with me," and asking for similar relief. Judge Murphy ordered
that Andrews too be returned to the District Court for
resentencing. The Government filed a notice of appeal from both
orders, and the resentencing of the petitioners was stayed upon the
Government's motion. The Court of Appeals ruled that its appellate
jurisdiction had been properly invoked, and on the merits reversed
the orders of the District Court, holding that, under this Court's
decisions in Hill v. United States, 368 U.
, and Machibroda v. United States,
368 U. S. 487
sentencing court's failure to comply with Rule 32(a) did not
constitute a ground for collateral relief. 301 F.2d 376. We granted
certiorari, 371 U.S. 812.
As to the merits of the issue decided by the Court of Appeals,
the petitioners contend that there was here not
Page 373 U. S. 337
a mere failure to comply with the formal requirements of Rule
32(a), as in Hill
but that a
number of aggravating circumstances accompanied the sentencing
court's denial of the petitioners' right of allocution. And the
Court's opinions in Hill
petitioners, clearly implied that collateral relief would be
available in a case where such circumstances were shown to exist.
Cf. United States v. Taylor,
303 F.2d 165, 167-168. But
the petitioners argue preliminarily that the Government had no
right of appeal in these cases. We agree with the petitioners that
the Court of Appeals did not have appellate jurisdiction, and
accordingly, without reaching the merits, we set aside the judgment
of the Court of Appeals and remand the cases to the District Court
so that the petitioners may be resentenced in accordance with the
District Court's orders.
The motion which Donovan filed in the sentencing court was
denominated by him as one made under Rule 35 of the Federal Rules
of Criminal Procedure. [Footnote
] Anderson's letter did not mention Rule 35, but, in an
affidavit opposing Anderson's request, an Assistant United States
Attorney conceded that the "factual and legal posture of this
application therefore is identical to the similar motion of Robert
L. Donovan." Both applications were filed in the District Court
under the docket number of the original criminal case.
In view of this treatment of the motions by the parties and the
trial court, the Court of Appeals was asked to consider the motions
also as filed in the original criminal cases under Rule 35, and to
hold that the trial court's rulings could not be appealed by the
Government because they did not come within the limited purview of
the Criminal Appeals Act. [Footnote
] This reasoning the Court of Appeals
Page 373 U. S. 338
declined to adopt, treating the motions instead as having been
brought under the provisions of 28 U.S.C. § 2255.
The court was correct in regarding Hill v. United States,
as requiring this view, in the case of a prisoner in
custody under the sentence he is attacking. Cf. United States
v. Morgan, 346 U. S. 502
in this area of the law, as the Court of Appeals pointed out,
"adjudication upon the underlying merits of claims is not hampered
by reliance upon the titles petitioners put upon their documents."
301 F.2d at 378. See Heflin v. United States, 358 U.
. Section 2255 explicitly authorizes a prisoner in
custody under a sentence imposed by a federal court to attack such
a sentence collaterally upon the ground that the sentence "was
imposed in violation of the . . . laws of the United States," by
moving the trial court "to vacate, set aside or correct the
sentence." [Footnote 6
An action under 28 U.S.C. § 2255 is a separate proceeding,
independent of the original criminal case. United States v.
Hayman, 342 U. S. 205
Criminal Appeals Act has no applicability to such a proceeding.
Instead, § 2255 itself provides that
"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. "
Page 373 U. S. 339
We cannot agree with the Court of Appeals, however, that, under
this provision, the Government had a right to take appeals at the
time it sought to do so in these cases, because we think it clear
that the orders were interlocutory, not final. For a federal
prisoner, § 2255 can perform the full service of habeas corpus by
effecting the immediate and unconditional discharge of the
prisoner. Sanders v. United States, 372 U. S.
(1963). But the provisions of the statute make clear
that, in appropriate cases, a § 2255 proceeding can also be
utilized to provide a more flexible remedy. In the present cases,
neither of the petitioners ever asked for his unconditional
release. What they asked, and were granted, was the vacation of the
sentences they were serving so that they might be returned to the
trial court to be resentenced in proceedings in which their right
to allocution would be accorded them. Such a remedy is precisely
authorized by the statute. Under § 2255, a petitioner may "move the
court which imposed the sentence to vacate, set aside or correct
the sentence." [Footnote 7
And, in response to such a motion, a District Court is expressly
authorized to "discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate."
Page 373 U. S. 340
Where, as here, what was appropriately asked and appropriately
granted was the resentencing of the petitioners, it is obvious that
there could be no final disposition of the § 2255 proceedings until
the petitioners were resentenced. Cf. Parr v. United
States, 351 U. S. 513
351 U. S.
The long established rule against piecemeal appeals in federal
cases and the overriding policy considerations upon which that rule
is founded have been repeatedly emphasized by this Court. See,
e.g., DiBella v. United States, 369 U.
; Carroll v. United States, 354 U.
; Cobbledick v. United States,
309 U. S. 323
standards of finality to which the Court has adhered in habeas
corpus proceedings have been no less exacting. See, e.g.,
Collins v. Miller, 252 U. S. 364
There, the Court said that the rule as to finality
"requires that the judgment to be appealable should be final not
only as to all the parties, but as to the whole subject matter and
as to all the causes of action involved."
252 U.S. at 252 U. S.
The basic reason for the rule against piecemeal interlocutory
appeals in the federal system is particularly apparent in the cases
before us. Until the petitioners are resentenced, it is impossible
to know whether the Government will be able to show any colorable
claim of prejudicial error. The District Court may, as before,
sentence the petitioners to the same 25 years' imprisonment; it may
place one or both of them on probation; it may make some other
disposition with respect to their sentences. But until the court
acts, none of the parties to this controversy will have had a final
adjudication of his claims by the trial court in these § 2255
The judgment of the Court of Appeals is set aside, and the cases
are remanded to the District Court for the Southern District of New
York for further proceedings consistent with this opinion.
It is so ordered.
* Together with No. 494, Donovan v. United States,
on certiorari to the same Court.
No sentence was imposed on Count 1, because the court concluded
that the conviction under this court had merged with the conviction
under Count 2.
"Whoever assaults any person having lawful charge, control, or
custody of any mail matter or of any money or other property of the
United States, with intent to rob, steal, or purloin such mail
matter, money, or other property of the United States, or robs any
such person of mail matter, or of any money, or other property of
the United States, shall, for the first offense, be imprisoned not
more than ten years; and if in effecting or attempting to effect
such robbery he wounds the person having custody of such mail,
money, or other property of the United States, or puts his life in
jeopardy by the use of a dangerous weapon, or for a subsequent
offense, shall be imprisoned twenty-five years."
18 U.S.C. § 2114.
Rule 32(a), Federal Rules of Criminal Procedure, provides in
pertinent part as follows:
"Before imposing sentence, the court shall afford the defendant
an opportunity to make a statement in his own behalf and to present
any information in mitigation of punishment."
Rule 35 provides in pertinent part as follows: "The court may
correct an illegal sentence at any time."
18 U.S.C. § 3731. The Government makes no claim of a right to
appeal under the Criminal Appeals Act. No question as to the
availability of a writ of mandamus is presented by this case.
See United States v. Smith, 331 U.
. Cf. United States v. Mayer,
235 U. S. 55
The first paragraph of 28 U.S.C. § 2255 provides:
"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."
See note 6
The third paragraph of § 2255 provides:
"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."