In a Federal District Court, petitioner was convicted of two
federal crimes and sentenced to imprisonment. He was represented by
counsel both at the trial and when sentence was imposed, but,
before imposing sentence, the judge failed to comply with the
requirement of Rule 32(a) of the Federal Rules of Criminal
Procedure that he afford petitioner an opportunity to make a
statement in his own behalf. Petitioner took no appeal; but five
years later he moved under 28 U.S.C. § 2255 to vacate the sentence
because of the judge's failure to comply with Rule 32(a).
Held:
1. Failure to follow the formal requirements of Rule 32(a) is
not of itself an error that can be raised by collateral attack
under 28 U.S. C. § 2255. Pp. 425-429.
2. Though petitioner denominated his motion as one brought under
28 U.S.C. § 2255, it may be considered as a motion to correct an
illegal sentence under Rule 35 of the Federal Rules of Criminal
Procedure; but the narrow function of that Rule is to permit
correction of an illegal sentence, not to reexamine errors
occurring at the trial or other proceedings prior to the imposition
of sentence. P.
368 U. S.
430.
282 F.2d 352 affirmed.
MR. JUSTICE STEWART delivered the opinion of the Court.
In 1954, a jury in a Federal District Court found the petitioner
guilty of transporting a kidnapped person in interstate commerce in
violation of 18 U.S.C. § 1201, and
Page 368 U. S. 425
of transporting a stolen automobile in interstate commerce in
violation of 18 U.S.C. § 2312. The petitioner was represented by
court-appointed counsel at his trial. When, with counsel, he
appeared before the District Judge for sentencing, the petitioner
was not asked whether he wished to make a statement in his own
behalf. The District Judge, after noting his familiarity with the
petitioner's character and history, imposed consecutive prison
sentences of twenty years and three years for the two offenses of
which the jury had found the petitioner guilty. There was no
appeal. [
Footnote 1]
The present litigation began in 1959 with the filing of a motion
to vacate sentence under 28 U.S.C. § 2255. Among various grounds
for relief asserted, the motion alleged that the petitioner at the
time of sentencing had been
"denied the right under Rule 32(a) of Federal Rules of Criminal
Procedure, Title 18 U.S.C., to have the opportunity to make a
statement in his own behalf and to present any information in
mitigation of punishment."
The District Court denied the motion without explicitly
discussing the Rule 32(a) claim. 186 F. Supp. 441. The Court of
Appeals affirmed, per curiam, 282 F.2d 352. We granted
certiorari
"limited to the question of whether petitioner may raise his
claim under Federal Criminal Rule 32(a) in the proceeding which he
has now brought."
365 U.S. 841.
Rule 32(a) in pertinent part provides:
"Before imposing sentence, the court shall afford the defendant
an opportunity to make a statement in his own behalf and to
Page 368 U. S. 426
present any information in mitigation of punishment."
The meaning of this Rule was before the Court last Term in
Green v. United States, 365 U. S. 301.
Although there was no Court opinion in the
Green case,
eight members of the Court concurred in the view that Rule 32(a)
requires a district judge before imposing sentence to afford every
convicted defendant an opportunity personally to speak in his own
behalf. There thus remains no doubt as to what the Rule commands.
Moreover, the present record makes clear that this petitioner was
not given an express opportunity to make a personal statement at
the time he was sentenced. This case, therefore, is totally
unembarrassed by any such factual controversy as divided the Court
in
Green. The only issue presented is whether a district
court's failure explicitly to afford a defendant an opportunity to
make a statement at the time of sentencing furnishes, without more,
grounds for a successful collateral attack upon the judgment and
sentence. [
Footnote 2] We hold
that the failure to follow the formal requirements of Rule 32(a) is
not, of itself, an error that can be raised by collateral attack,
and we accordingly affirm the judgment of the Court of Appeals.
Section 2255 of Title 28 U.S.C. provides that a prisoner in
custody under sentence of a federal court may file a motion in the
"court which imposed the sentence to vacate, set aside or correct
the sentence." The statute states four grounds upon which such
relief may be claimed: (1) "that the sentence was imposed in
violation of the Constitution or laws of the United States," (2)
"that the court was without jurisdiction to impose such sentence,"
(3) "that the sentence was in excess of the
Page 368 U. S. 427
maximum authorized by law," and (4) that the sentence "is
otherwise subject to collateral attack." [
Footnote 3]
The circumstances which led Congress in 1948 to enact this
legislation were reviewed in detail by Chief Justice Vinson,
writing for the Court in
United States v. Hayman,
342 U. S. 205. It
is unnecessary to review again here this legislative history, with
which Chief Justice Vinson, as Chairman of the Judicial Conference
of the United States, was particularly familiar. Suffice it to say
that it conclusively appears from the historic context in which §
2255 was enacted that the legislation was intended simply to
provide in the sentencing court a remedy exactly commensurate with
that which had previously been available by habeas corpus in the
court of the district where the prisoner was confined. [
Footnote 4]
See Heflin v. United
States, 358 U. S. 415,
358 U. S. 421
(concurring opinion).
"[A] 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
Page 368 U. S. 428
another and more convenient forum."
United States v. Hayman, 342 U.S. at
342 U. S. 219.
(Emphasis added.) [
Footnote
5]
The failure of a trial court to ask a defendant represented by
an attorney whether he has anything to say before sentence is
imposed is not, of itself, an error of the character or magnitude
cognizable under a writ of habeas corpus. It is an error which is
neither jurisdictional nor constitutional. It is not a fundamental
defect which inherently results in a complete miscarriage of
justice, nor an omission inconsistent with the rudimentary demands
of fair procedure. It does not present "exceptional circumstances
where the need for the remedy afforded by the writ of habeas corpus
is apparent."
Bowen v. Johnston, 306 U. S.
19,
306 U. S. 27.
See Escoe v. Zerbst, 295 U. S. 490;
Johnston v. Zerbst, 304 U. S. 458;
Walker v. Johnston, 312 U. S. 275;
Waley v. Johnston, 316 U. S. 101.
In
Sunal v. Large, 332 U. S. 174, the
Court held that the remedy of habeas corpus was unavailable in
circumstances far more compelling than are presented here. There,
the petitioners, at their criminal trial, had been denied an
opportunity to present a defense which subsequent decisions of this
Court had held should clearly have been available to them. What was
said in that case is apposite here:
"We are dealing here with a problem which has radiations far
beyond the present cases. The courts which tried the defendants had
jurisdiction over their persons and over the offense. They
committed an error of law. . . . That error did not go to the
jurisdiction of the trial court. Congress, moreover,
Page 368 U. S. 429
has provided a regular, orderly method for correction of all
such errors by granting an appeal to the Circuit Court of Appeals
and by vesting us with certiorari jurisdiction. It is not uncommon,
after a trial is ended and the time for appeal has passed, to
discover that a shift in the law or the impact of a new decision
has given increased relevance to a point made at the trial but not
pursued on appeal. . . . If, in such circumstances, habeas corpus
could be used to correct the error, the writ would become a delayed
motion for a new trial, renewed from time to time as the legal
climate changed. Error which was not deemed sufficiently adequate
to warrant an appeal would acquire new implications. . . . Wise
judicial administration of the federal courts counsels against such
course, at least where the error does not trench on any
constitutional rights of defendants nor involve the jurisdiction of
the trial court."
332 U.S. at
332 U. S.
181-182.
It is to be noted that we are not dealing here with a case where
the defendant was affirmatively denied an opportunity to speak
during the hearing at which his sentence was imposed. Nor is it
suggested that, in imposing the sentence, the District Judge was
either misinformed or uninformed as to any relevant circumstances.
Indeed, there is no claim that the defendant would have had
anything at all to say if he had been formally invited to speak.
Whether § 2255 relief would be available if a violation of Rule
32(a) occurred in the context of other aggravating circumstances is
a question we therefore do not consider. We decide only that such
collateral relief is not available when all that is shown is a
failure to comply with the formal requirements of the Rule.
[
Footnote 6]
Page 368 U. S. 430
It is suggested that, although the petitioner denominated his
motion as one brought under 28 U.S.C. § 2255, we may consider it as
a motion to correct an illegal sentence under Rule 35 of the
Federal Rules of Criminal Procedure. [
Footnote 7] This is correct.
Heflin v. United
States, 358 U. S. 415,
358 U. S. 418,
358 U. S. 422.
But, as the Rule's language and history make clear, the narrow
function of Rule 35 is to permit correction at any time of an
illegal sentence, not to reexamine errors occurring at the trial or
other proceedings prior to the imposition of sentence. [
Footnote 8] The sentence in this case
was not illegal. The punishment meted out was not in excess of that
prescribed by the relevant statutes, multiple terms were not
imposed for the same offense, nor were the terms of the sentence
itself legally or constitutionally invalid in any other respect.
[
Footnote 9]
Affirmed.
[
Footnote 1]
In an earlier motion filed under 28 U.S.C. § 2255, the
petitioner claimed that he had been prevented by government agents
from appealing the judgment of conviction. The District Court
denied the motion. The Court of Appeals set aside the District
Court's order and directed that a hearing be had on the motion. 256
F.2d 957. After a hearing before a different district judge, the
motion was again denied. The Court of Appeals affirmed. 268 F.2d
203.
[
Footnote 2]
The majority of the Court in the
Green case did not
decide whether the issue of a Rule 32(a) violation could be raised
on collateral attack, or whether such a violation "would constitute
an error
per se rendering the sentence illegal." 365 U.S.
at
365 U. S.
303.
[
Footnote 3]
"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."
28 U.S.C. § 2255.
[
Footnote 4]
See Parker, Limiting the Abuse of Habeas Corpus, 8
F.R.D. 171.
[
Footnote 5]
The Courts of Appeals, at least since the
Hayman
decision, appear to have consistently understood the substantive
scope of § 2255 to be the same as that of habeas corpus.
See,
e.g., Larson v. United States, 275 F.2d 673 (C.A.5th Cir.);
Black v. United States, 269 F.2d 38 (C.A.9th Cir.);
Taylor v. United States, 229 F.2d 826, 832 (C.A.8th Cir.);
Kreuter v. United States, 201 F.2d 33, 35 (C.A.10th
Cir.).
[
Footnote 6]
See Van Hook v. United States, 365 U.
S. 609, for the relief afforded on direct appeal in a
case where the sentencing judge disregarded the mandate of Rule
32(a).
[
Footnote 7]
Rule 35 provides in pertinent part: "The court may correct an
illegal sentence at any time."
[
Footnote 8]
As has been pointed out, Rule 35
"was a codification of existing law, and was intended to remove
any doubt created by the decision in
United States v.
Mayer, 235 U. S. 55,
235 U. S.
67, as to the jurisdiction of a District Court to
correct an illegal sentence after the expiration of the term at
which it was entered."
Heflin v. United States, 358 U.S. at
358 U. S. 422
(concurring opinion).
[
Footnote 9]
Compare Heflin v. United States, supra. In that case,
Rule 35 was invoked in a situation where we unanimously recognized
that the only issue was whether "the sentence imposed was illegal
on its face." 358 U.S. at
358 U. S. 418
(Court opinion),
358 U. S. 422
(concurring opinion).
Heflin involved the imposition of
separate consecutive sentences for a single offense.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS and MR. JUSTICE BRENNAN concur, dissenting.
The petitioner James Hill brought this proceeding to vacate two
sentences under which he is imprisoned in a federal penitentiary,
alleging that the sentences are
Page 368 U. S. 431
illegal because the trial judge who imposed them had not given
him the opportunity required by Rule 32(a) of the Federal Rules of
Criminal Procedure "to make a statement in his own behalf and to
present any information in mitigation of punishment." Conceding
that the sentences thus challenged were imposed without according
petitioner his right to speak, the Court nonetheless denies relief
under Rule 35's provision for the correction of "illegal" sentences
on the ground that the sentences, though imposed in flat violation
of Rule 32(a), were not "illegal" within the special meaning which
the majority now ascribes to that word for the purposes of Rule 35.
[
Footnote 2/1] The basic
explanation offered for this drastic contraction of the ordinary
meaning of the word "illegal" is this single statement in the
Court's opinion:
"The punishment meted out was not in excess of that prescribed
by the relevant statutes, multiple terms were not imposed for the
same offense, nor were the terms of the sentence itself legally or
constitutionally invalid in any other respect."
That statement, to me, amounts to something less than an
entirely satisfactory justification for such a begrudging
interpretation of Rule 35.
The Court's holding certainly finds no support in the language
of Rule 35. That Rule, although painstakingly drawn by lawyers and
approved both by Judges and by the Congress, simply provides for
the correction of an "illegal sentence," without regard to the
reasons why that sentence is illegal, and contains not a single
word to support
Page 368 U. S. 432
the Court's conclusion that only a sentence illegal by reason of
the punishment it imposes is "illegal" within the meaning of the
Rule. I would have thought that a sentence imposed in an illegal
manner -- whether the amount or form of the punishment method out
constitutes an additional violation of law or not -- would be
recognized as an "illegal sentence" under any normal reading of the
English language. [
Footnote 2/2]
And precisely this sort of common sense understanding of the
language of Rule 35 has prevailed generally among the lower federal
courts that deal with questions of the proper interpretation and
application of these Rules as an everyday matter. Those courts have
expressed their belief that, even where the punishment imposed upon
a defendant is entirely within the limits prescribed for the crime
of which he was convicted, a sentence imposed in a prohibited
manner -- as, for example, a sentence imposed upon an absent
defendant in violation of the command of Rule 43 that a defendant
be present at sentencing [
Footnote
2/3] -- is an "illegal sentence" subject to correction under
Rule 35. [
Footnote 2/4]
Page 368 U. S. 433
The Court's contrary decision today, however, was perhaps
foreshadowed last Term by the narrow scope given to Rule 32(a) when
the issue of the meaning of that Rule came before us for the first
time in
Green v. United States. [
Footnote 2/5] That case, like this one, involved an
attempt to vacate a sentence as "illegal" under Rule 35 on the
ground that the trial judge had failed to accord the defendant his
right to make a statement before sentencing. The record there
showed merely that the trial judge, in the presence of both the
defendant and his counsel, had asked generally, "Did you want to
say something?" and that, in response to this question, the
attorney, rather than the defendant, had spoken. Recognizing that
the right accorded by Rule 32(a) is a personal right which must be
extended to the defendant himself, the Court nonetheless denied
relief, largely upon the view expressed by four members of the
Court that:
"A record, certainly this record, unlike a play, is
unaccompanied with stage directions which may tell the significant
cast of the eye or the nod of the head. It may well be that the
defendant himself was recognized and sufficiently apprised of his
right to speak, and chose to exercise this right through his
counsel. [
Footnote 2/6]"
This conclusion was reached in spite of the fact that the
Government's brief before this Court expressly conceded that Green
had not been personally afforded an opportunity to speak.
But, even in
Green, not one member of the Court went so
far as even to intimate -- unless such an intimation was implicit
in the concurring opinion of MR. JUSTICE STEWART [
Footnote 2/7] -- that a sentence undeniably imposed
in disregard
Page 368 U. S. 434
of the legal right of a defendant to speak for himself would not
be an "illegal sentence." Four members of the Court -- THE CHIEF
JUSTICE, MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN and I --
expressly stated the view that such a sentence could be corrected
under Rule 35's provision for the correction of "illegal"
sentences. And four other members of the Court, in an opinion
written by MR. JUSTICE FRANKFURTER, emphasized the importance of
the right of the defendant to speak for himself, saying:
"The most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence, speak for
himself. [
Footnote 2/8]"
Although it is true that these latter four members of the Court
joined in refusing to set aside the sentence in that case, their
stated ground was:
"The defendant has failed to meet his burden of showing that he
was not accorded the personal right which Rule 32(a) guarantees,
and we therefore find that his sentence was not illegal. [
Footnote 2/9]"
In the light of all these statements, it is not surprising that
the Courts of Appeals for both the First and the Fifth Circuits
have regarded the combined opinions in
Green as requiring
the correction of sentences as illegal when the defendant is able
"to meet his burden of showing that he was not accorded the
personal right which Rule 32(a) guarantees." [
Footnote 2/10]
I think that a due observance of the requirements of Rule 32(a),
resting as they do upon the anciently recognized right of a
defendant to speak to the court before sentence is imposed, is
important to the proper administration of justice in the federal
courts. And it seems to me that the Court is mistaken in thinking
that the importance of that right is not reflected in this very
case, for I cannot agree with the Court's conclusion that "there
is
Page 368 U. S. 435
no claim that the defendant would have had anything at all to
say if he had been formally invited to speak." According to the
petitioner's brief, the denial of his right to speak was
particularly injurious to him here because he had several previous
convictions which presumably were known to the sentencing judge.
[
Footnote 2/11] In this
connection, he says:
"Petitioner has been and is presently seeking collateral relief
from those judgments, and, indeed, has already had one set aside.
This mitigating evidence, if known to the sentencing court, might
have a profound impact upon the sentence imposed."
More importantly, however, whether the right to speak before
sentence would have been of value to petitioner in this particular
case or not, the right is one recognized by a rule which has the
force of law, and a sentence imposed in violation of law is plainly
"illegal." If the Court is unhappy with the wording of Rule 35 -- a
wording adopted by the Court itself and submitted to Congress for
approval as required by law -- whatever change is necessary to
bring the Rule into conformity with the Court's present preferences
should be incorporated into the explicit language of the Rule and
submitted to Congress for its approval. I would reverse this case
and remand it to allow the District Court to resentence petitioner
after granting him his right to speak under Rule 32(a).
[
Footnote 2/1]
Petitioner's attack upon his sentences was originally brought as
a motion under 28 U.S.C. § 2255. Since I agree with the Court that
a motion under § 2255 must, where appropriate, also be considered
as a motion under Rule 35, and because I think petitioner is
plainly entitled to relief under that Rule, I find it unnecessary
to consider the question discussed by the Court as to whether
petitioner is also entitled to relief under § 2255.
[
Footnote 2/2]
This does not, of course, mean that Rule 35 permits attack upon
a sentence based upon mere trial errors. Rule 35 applies to any
"illegal sentence," not to any illegal conviction, and thus, by its
terms, the Rule protects only those rights which a defendant
retains even if the judgment of guilt against him is proper.
See Cook v. United States, 171 F.2d 567, 570-571.
[
Footnote 2/3]
Rule 43 provides:
"The defendant shall be present at the arraignment at every
stage of the trial including the impaneling of the jury and the
return of the verdict, and at the imposition of sentence, except as
otherwise provided by these rules. . . ."
[
Footnote 2/4]
See Cook v. United States, 171 F.2d 567;
Crowe v.
United States, 200 F.2d 526.
Cf. Williamson v. United
States, 265 F.2d 236, 239. Similarly, it has also been held
that Rule 35's corrective force extends to a sentence illegal by
reason of the fact that the defendant upon whom it was imposed was
insane at the time of sentencing.
Byrd v. Prescor, 163
F.2d 775.
See also Duggins v. United States, 240 F.2d 479,
483-484.
[
Footnote 2/5]
365 U. S. 365 U.S.
301.
[
Footnote 2/6]
Id. at
365 U. S.
304-305.
[
Footnote 2/7]
But cf. MR. JUSTICE STEWART's concurring opinion in
Heflin v. United States, 358 U. S. 415,
358 U. S. 420,
in which the four other members of the present majority
concurred.
[
Footnote 2/8]
365 U.S. at
365 U. S.
304.
[
Footnote 2/9]
Id. at
365 U. S.
305.
[
Footnote 2/10]
Domenica v. United States, 292 F.2d 483;
Jenkins v.
United States, 293 F.2d 96.
[
Footnote 2/11]
Rule 32(c) provides for a presentence investigation and report
to the trial judge for use in imposing sentence which "shall
contain any prior criminal record of the defendant. . . ." Since
this is not the sort of information which normally finds its way
into the record at the trial itself, a defendant's only chance to
explain or rebut such evidence will often be by exercise of his
right under 32(a).