Arrested on a charge of robbing a federally insured bank in
violation of 18 U.S.C. § 2113 (a) and brought into a Federal
District Court, petitioner declined assistance of counsel, signed a
waiver of indictment, pleaded guilty, and was sentenced to
imprisonment. Subsequently, he filed in the sentencing Court a
motion under 28 U.S.C. § 2255 for his release, alleging that the
"indictment" was invalid, that he had been denied assistance of
counsel, and that he had been intimidated and coerced into pleading
guilty without counsel and without knowledge of the charges against
him. This motion was denied without a hearing, on the ground that
it stated only conclusions, and no facts upon which conclusions
could be based; but the Court added that the files and records
showed conclusively that petitioner was entitled to no relief.
Later, petitioner filed a second motion under § 2255, alleging that
at the time of his trial and sentence, he had been mentally
incompetent as a result of narcotics administered to him while he
was in jail pending trial, and he alleged specific facts in support
of this claim. This motion was denied without a hearing on the
ground that petitioner should have raised the issue of mental
incompetency at the time of his first motion.
Held: The Court should have granted a hearing on the
second motion. Pp.
373 U. S.
2-23.
(a) Controlling weight may be given to denial of a prior
application for relief under § 2255 only if (1) the same ground
presented
Page 373 U. S. 2
in the subsequent application was determined adversely to the
applicant on the prior application, (2) the prior determination was
on the merits, and (3) the ends of justice would not be served by
reaching the merits of the subsequent application. Pp.
373 U. S.
15-17.
(b) No matter how many prior applications for relief under §
2255 a prisoner has made, controlling weight may not be given to
denial of prior applications if they were not adjudicated on the
merits or if a different ground is presented by the new
application. In such circumstances, consideration of the merits of
the new application can be avoided only if there has been an abuse
of the remedy, and this must be pleaded by the Government. Pp.
373 U. S.
17-19.
(c) In this case, the Court should have granted a hearing on the
second application, because the first application was not
adjudicated on the merits and the facts on which the second
application was predicated were outside the record. Pp.
373 U. S.
19-20.
(d) On remand, a hearing will be required, but it will not
automatically become necessary to produce petitioner at the hearing
to enable him to testify. The Court will have discretion to
ascertain whether the claim is substantial before granting a full
evidentiary hearing, and it will be open to respondent to attempt
to to show that petitioner's failure to claim mental incompetency
in his first motion was an abuse of the motion remedy. Pp.
373 U. S.
20-22.
297 F.2d 735, reversed and case remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
We consider here the standards which should guide a federal
court in deciding whether to grant a hearing on a motion of a
federal prisoner under 28 U.S.C. § 2255. [
Footnote 1]
Page 373 U. S. 3
Under that statute, a federal prisoner who claims that his
sentence was imposed in violation of the Constitution or laws of
the United States may seek relief from the sentence by filing a
motion in the sentencing court stating the facts supporting his
claim. "[A] prompt hearing" on the motion is required "[u]nless the
motion and the files
Page 373 U. S. 4
and records of the case conclusively show that the prisoner is
entitled to no relief. . . ." The section further provides that
"[t]he sentencing court shall not be required to entertain a second
or successive motion for similar relief on behalf of the same
prisoner."
The petitioner is serving a 15-year sentence for robbery of a
federally insured bank in violation of 18 U.S.C. § 2113(a). He
filed two motions under § 2255. The first alleged no facts, but
only bare conclusions in support of his claim. The second, filed
eight months after the first, alleged facts which, if true, might
entitle him to relief. Both motions were denied, without hearing,
by the District Court for the Northern District of California. On
appeal from the denial of the second motion, the Court of Appeals
for the Ninth Circuit affirmed. 297 F.2d 735. We granted leave to
proceed
in forma pauperis and certiorari. 370 U.S.
936.
On January 19 , 1959, petitioner was brought before the United
States District Court for the Northern District of California, and
was handed a copy of a proposed information charging him with the
robbery. He appeared without counsel. In response to inquiries of
the trial judge, petitioner stated that he wished to waive
assistance of counsel and to proceed by information, rather than
indictment; [
Footnote 2] he
signed a waiver of indictment, and then pleaded guilty to the
charge in the information. On February 10, he was sentenced. Before
sentence was pronounced, petitioner said to the judge: "If
possible, your Honor, I would like to go to Springfield or
Lexington for addiction cure. I have been using narcotics off and
on for quite a while." The judge replied that he was "willing to
recommend that."
Page 373 U. S. 5
On January 4, 1960, petitioner, appearing
pro se, filed
his first motion. He alleged no facts, but merely the conclusions
that (1) the "Indictment" was invalid, (2) "Appellant was denied
adequate assistance of Counsel as guaranteed by the Sixth
Amendment," and (3) the sentencing court had "allowed the Appellant
to be intimidated and coerced into intering [
sic] a plea
without Counsel, and any knowledge of the charges lodged against
the Appellant." He filed with the motion an application for a writ
of habeas corpus
ad testificandum requiring the prison
authorities to produce him before the court to testify in support
of his motion. On February 3, the District Court denied both the
motion and the application. In a memorandum accompanying the
denial, the court explained that the motion,
"although replete with conclusions, sets forth no facts upon
which such conclusions can be founded. For this reason alone, this
motion may be denied without a hearing."
Nevertheless, the court stated further that the motion
"sets forth nothing but unsupported charges, which are
completely refuted by the files and records of this case. Since the
motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief, no hearing on the motion is
necessary."
No appeal was taken by the petitioner from this denial.
On September 8 petitioner, again appearing
pro se,
filed his second motion. This time, he alleged that at the time of
his trial and sentence, he was mentally incompetent as a result of
narcotics administered to him while he was held in the Sacramento
County Jail pending trial. He stated in a supporting affidavit that
he had been confined in the jail from on or about January 16, 1959,
to February 18, 1959; that, during this period and during the
period of his "trial," he had been intermittently under the
influence of narcotics; and that the narcotics had been
administered to him by the medical authorities in attendance at the
jail because of his being a known addict. The District Court
Page 373 U. S. 6
denied the motion without hearing, stating:
"As there is no reason given, or apparent to this Court, why
petitioner could not, and should not, have raised the issue of
mental incompetency at the time of his first motion, the Court will
refuse, in the exercise of its statutory discretion, to entertain
the present petition."
(Footnote omitted.) The court also stated that "petitioner's
complaints are without merit in fact." On appeal from the order
denying this motion, the Court of Appeals for the Ninth Circuit
affirmed. 297 F.2d 735 (1961). The Court of Appeals said in a per
curiam opinion:
"Where, as here, it is apparent from the record that at the time
of filing the first motion, the movant knew the facts on which the
second motion is based, yet, in the second motion, set forth no
reason why he was previously unable to assert the new ground, and
did not allege that he had previously been unaware of the
significance of the relevant facts, the district court, may, in its
discretion, decline to entertain the second motion."
297 F.2d at 736-737.
We reverse. We hold that the sentencing court should have
granted a hearing on the second motion.
I
The statute in terms requires that a prisoner shall be granted a
hearing on a motion which alleges sufficient facts to support a
claim for relief unless the motion and the files and records of the
case "conclusively show" that the claim is without merit. This is
the first case in which we have been called upon to determine what
significance, in deciding whether to grant a hearing, the
sentencing court should attach to any record of proceedings on
prior motions for relief which may be among the files and records
of the case, in light of the provision that "[t]he sentencing court
shall not be required to entertain a second or successive motion
for similar relief on behalf of the same prisoner." This provision
has caused uncertainty
Page 373 U. S. 7
in the District Courts,
see Bistram v. United
States, 180 F.
Supp. 501 (D.C.D.N.Dak.),
aff'd, 283 F.2d 1 (C.A.8th
Cir. 1960), and has provoked a conflict between circuits:
with the decision of the Court of Appeals for the Ninth
Circuit in the instant case,
compare, e.g., Juelich v. United
States, 300 F.2d 381 (C.A.5th Cir. 1962);
Smith v. United
States, 106 U.S.App.D.C. 169, 270 F.2d 921 (1959). We think
guidelines to the proper construction of the provision are to be
found in its history.
At common law, the denial by a court or judge of an application
for habeas corpus was not
res judicata. King v.
Suddis, 1 East 306, 102 Eng.Rep. 119 (K.B.1801);
Burdett
v. Abbot, 14 East 1, 90, 104 Eng.Rep. 501, 535 (K.B.1811);
Ex parte Partington, 13 M. & W. 679, 153 Eng.Rep. 284
(Ex.1845); Church, Habeas Corpus (1884), § 386; Ferris and Ferris,
Extraordinary Legal Remedies (1926), § 55. [
Footnote 3] "A person detained in custody might thus
proceed from court to court until he obtained his liberty."
Cox
v. Hakes, 15 A.C. 506, 527 (H.L., 1890). [
Footnote 4] That this was a principle of our law
of habeas corpus as well as the English was assumed to be the case
from the earliest days of federal habeas corpus jurisdiction.
Cf. 7 U. S. 3
Cranch 448 (Chief Justice Marshall). Since then, it has become
settled in an unbroken line of decisions.
Ex parte Kaine,
3 Blatchf. 1, 5-6 (Mr. Justice Nelson in
Page 373 U. S. 8
Chambers);
In re Kaine,
14 How. 103;
Ex parte Cuddy, 40 F. 62, 65
(Cir.Ct.S.D.Cal.1889) (Mr. Justice Field);
Frank v.
Mangum, 237 U. S. 309,
237 U. S. 334;
Salinger v. Loisel, 265 U. S. 224,
265 U. S. 230;
Waley v. Johnston, 316 U. S. 101;
United States ex rel. Accardi v. Shaughnessy, 347 U.
S. 260,
347 U. S. 263,
n. 4;
Heflin v. United States, 358 U.
S. 415,
358 U. S. 420
(opinion of Mr. Justice Stewart) (dictum);
Powell v.
Sacks, 303 F.2d 808 (C.A.6th Cir. 1962). Indeed, only the
other day, we remarked upon "the familiar principle that
res
judicata is inapplicable in habeas proceedings."
Fay v.
Noia, 372 U. S. 391,
372 U. S.
423.
It has been suggested,
see Salinger v. Loisel, supra,
at
265 U. S.
230-231, that this principle derives from the fact that
at common law habeas corpus judgments were not appealable. But its
roots would seem to go deeper. Conventional notions of finality of
litigation have no place where life or liberty is at stake and
infringement of constitutional rights is alleged. If "government
[is] always [to] be accountable to the judiciary for a man's
imprisonment,"
Fay v. Noia, supra, at
372 U. S. 402,
access to the courts on habeas must not be thus impeded. The
inapplicability of
res judicata to habeas, then, is
inherent in the very role and function of the writ.
A prisoner whose motion under § 2255 is denied will often file
another, sometimes many successive motions. We are aware that, in
consequence, the question whether to grant a hearing on a
successive motion can be troublesome -- particularly when the
motion is prepared without the assistance of counsel and contains
matter extraneous to the prisoner's case. But the problem is not
new, and our decisions under habeas corpus have identified
situations where denial without hearing is proper even though a
second or successive application states a claim for relief. One
such situation is that involved in
Salinger v. Loisel,
supra. There, a first application for habeas corpus had been
denied, after hearing, by one District Court, and the
Page 373 U. S. 9
denial was affirmed by the Court of Appeals. The prisoner then
filed subsequent applications, all identical to the first, in a
different District Court. We indicated that the subsequent
applications might properly have been denied simply on the basis
that the first denial had followed a full hearing on the merits. We
there announced a governing principle; while reaffirming the
inapplicability of
res judicata to habeas, we said:
"each application is to be disposed of in the exercise of a
sound judicial discretion guided and controlled by a consideration
of whatever has a rational bearing on the propriety of the
discharge sought. Among the matters which may be considered, and
even given controlling weight, are . . . a prior refusal to
discharge on a like application."
265 U.S. at
265 U. S. 231.
The Court quoted approvingly from Mr. Justice Field's opinion in
Ex parte Cuddy, supra, 40 F. at 66:
"The action of the court or justice on the second application
will naturally be affected to some degree by the character of the
court or officer to whom the first application was made, and the
fullness of the consideration given to it."
265 U.S. at
265 U. S.
231-232. The petitioner's successive applications were
properly denied because he sought to retry a claim previously fully
considered and decided against him. Similarly, nothing in § 2255
requires that a sentencing court grant a hearing on a successive
motion alleging a ground for relief already fully considered on a
prior motion and decided against the prisoner.
Another such situation is that which was presented in
Wong
Doo v. United States, 265 U. S. 239. In
Wong Doo, the prisoner, in his first application for
habeas corpus, tendered two grounds in support of his position. A
hearing was held, but the petitioner offered no proof of his second
ground, even though the return to the writ had put it in issue.
Relief was denied, and the denial affirmed by the Circuit Court of
Appeals. Later, he filed a second application relying exclusively
on the second ground.
Page 373 U. S. 10
Relief was denied. We upheld the denial:
"The petitioner had full opportunity to offer proof of [the
second ground] at the hearing on the first petition, and, if he was
intending to rely on that ground, good faith required that he
produce the proof then. To reserve the proof for use in attempting
to support a later petition, if the first failed, was to make an
abusive use of the writ of habeas corpus. No reason for not
presenting the proof at the outset is offered. It has not been
embodied in the record, but what is said of it there and in the
briefs shows that it was accessible all the time."
265 U.S. at
265 U. S. 241.
Similarly, the prisoner who, on a prior motion under § 2255, has
deliberately withheld a ground for relief need not be heard if he
asserts that ground in a successive motion; his action is
inequitable -- an abuse of the remedy -- and the court may, in its
discretion, deny him a hearing.
The interaction of these two principles -- a successive
application on a ground heard and denied on a prior application,
and abuse of the writ -- was elaborated in
Price v.
Johnston, 334 U. S. 266,
334 U. S.
287-293. The petitioner had, for the first time in his
fourth application, alleged the knowing use of perjured testimony
by the prosecution. But the Court held that, regardless of the
number of prior applications, the governing principle announced in
Salinger v. Loisel could not come into play, because the
fourth application relied on a ground not previously heard and
determined.
Wong Doo was distinguished on the ground that
there, the proof had been "accessible at all times" to the
petitioner, which demonstrated his bad faith, 334 U.S. at
334 U. S. 289;
in
Price, by contrast, for aught the record disclosed,
petitioner might have been justifiably ignorant of newly alleged
facts or unaware of their legal significance. The case also decided
an important procedural question with regard to abuse of remedy as
justification for denial of a hearing, namely, that the burden is
on the Government
Page 373 U. S. 11
to plead abuse of the writ.
"[I]f the Government chooses not to deny the allegation [of
knowing use of perjured testimony] or to question its sufficiency,
and desires instead to claim that the prisoner has abused the writ
of habeas corpus, it rests with the Government to make that claim
with clarity and particularity in its return to the order to show
cause."
Id. at
334 U. S. 292.
The Court reasoned that it would be unfair to compel the habeas
applicant, typically unlearned in the law and unable to procure
legal assistance in drafting his application, to plead an elaborate
negative.
Very shortly after the
Price decision, as part of the
1948 revision of the Judicial Code, the Court's statement in
Salinger of the governing principle in the treatment of a
successive application was given statutory form. 28 U.S.C. § 2244.
[
Footnote 5] There are several
things to be observed about this codification.
First, it plainly was not intended to change the law as
judicially evolved. Not only does the Reviser's Note disclaim any
such intention, but language in the original bill which would have
injected
res judicata into federal habeas corpus was
deliberately eliminated from the Act as finally passed.
See S.Rep.No.1559, 80th Cong., 2d Sess. 9; Moore,
Commentary on the United States Judicial Code (1949), 436-438.
Moreover, if construed to derogate from the traditional liberality
of the writ of habeas corpus,
Page 373 U. S. 12
see pp.
373 U. S. 7-8,
supra, § 2244 might raise serious constitutional
questions. [
Footnote 6]
Cf.
Fay v. Noia, supra, at
372 U. S.
406.
Second, even with respect to successive applications on which
hearings may be denied because the ground asserted was previously
heard and decided, as in
Salinger, § 2244 is faithful to
the Court's phrasing of the principle in
Salinger, and
does not enact a rigid rule. The judge is permitted, not compelled,
to decline to entertain such an application, and then only if he
"is satisfied that the ends of justice will not be served" by
inquiring into the merits.
Third, § 2244 is addressed only to the problem of successive
applications based on grounds previously heard and decided. It does
not cover a second or successive application containing a ground
"not theretofore presented and determined," and so does not touch
the problem of abuse of the writ. In
Wong Doo,
petitioner's second ground had been presented but not determined on
his prior application; § 2244 would be inapplicable in such a
situation. On the other hand, § 2244 was obviously not intended to
foreclose judicial application of the "abuse of writ" principle as
developed in
Wong Doo and
Price.
Section 2255 of the Judicial Code, under which the instant case
arises, is, of course, also a product of the 1948 revision --
enacted, in the language of the Reviser's Note, to provide "an
expeditious remedy for correcting erroneous sentences [of federal
prisoners] without resort to habeas corpus." It will be noted that,
although § 2255 contains a parallel provision to § 2244, there is
an apparent verbal discrepancy. Under § 2255, it is enough, in
order to invoke the court's discretion to decline to reach the
Page 373 U. S. 13
merits, that the prisoner is seeking "similar relief" for the
second time. This language might seem to empower the sentencing
court to apply
res judicata virtually at will, since, even
if a second motion is predicated on a completely different ground
from the first, the prisoner ordinarily will be seeking the same
"relief." Note, 59 Yale L.J. 1183, 1188, n. 24 (1950). But the
language cannot be taken literally. In
United States v.
Hayman, 342 U. S. 205, the
prisoner vigorously contended that § 2255 was an unconstitutional
suspension of the writ of habeas corpus. [
Footnote 7] The Court avoided the constitutional
question by holding that § 2255 was as broad as habeas corpus:
"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."
342 U.S. at
342 U. S. 219.
(Emphasis supplied.)
Accord, United States v. Morgan,
346 U. S. 502,
346 U. S. 511;
Smith v. United States, 88 U.S.App.D.C. 80, 187 F.2d 192
(1950);
Heflin v. United States, 358 U.
S. 415,
358 U. S. 421
(opinion of Mr. Justice Stewart).
Page 373 U. S. 14
As we said just last Term,
"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."
Hill v. United States, 368 U.
S. 424,
368 U. S.
427.
Plainly, were the prisoner invoking § 2255 faced with the bar of
res judicata, he would not enjoy the "same rights" as the
habeas corpus applicant, or "a remedy exactly commensurate with"
habeas. Indeed, if he were subject to any substantial procedural
hurdles which made his remedy under § 2255 less swift and
imperative than federal habeas corpus, the gravest constitutional
doubts would be engendered, as the Court in
Hayman
implicitly recognized.
And cf. p.
373 U. S. 11-12,
supra. We therefore hold that the "similar relief"
provision of § 2255 is to be deemed the material equivalent of §
2244.
See Smith v. United States, 106 U.S.App.D.C. 169,
173, 270 F.2d 921, 925 (1959); Longsdorf, The Federal Habeas Corpus
Acts Original and Amended, 13 F.R.D. 407, 424 (1953). We are helped
to this conclusion by two further considerations.
First, there is no indication in the legislative history to the
1948 revision of the Judicial Code that Congress intended to treat
the problem of successive applications differently under habeas
corpus than under the new motion procedure, and it is difficult to
see what logical or practical basis there could be for such a
distinction.
Second, even assuming the constitutionality of incorporating
res judicata in § 2255, such a provision would probably
prove to be completely ineffectual, in light of the further
provision in the section that habeas corpus remains available to a
federal prisoner if the remedy by motion is "inadequate or
ineffective." A prisoner barred by
res judicata would seem
as a consequence to have an
Page 373 U. S. 15
"inadequate or ineffective" remedy under § 2255, and thus be
entitled to proceed in federal habeas corpus -- where, of course, §
2244 applies.
See Smith v. United States, supra, 106
U.S.App.D.C. at 174, 270 F.2d at 926.
II
We think the judicial and statutory evolution of the principles
governing successive applications for federal habeas corpus and
motions under § 2255 has reached the point at which the formulation
of basic rules to guide the lower federal courts is both feasible
and desirable.
Compare Townsend v. Sain, 372 U.
S. 293,
372 U. S. 310.
Since the motion procedure is the substantial equivalent of federal
habeas corpus, we see no need to differentiate the two for present
purposes. It should be noted that these rules are not operative in
cases where the second or successive application is shown, on the
basis of the application, files, and records of the case alone,
conclusively to be without merit. 28 U.S.C. §§ 2243, 2255. In such
a case, the application should be denied without a hearing.
A. SUCCESSIVE MOTIONS ON GROUNDS PREVIOUSLY
HEARD AND DETERMINED.
Controlling weight may be given to denial of a prior application
for federal habeas corpus or § 2255 relief [
Footnote 8] only if (1) the same ground presented in
the subsequent application was determined adversely to the
applicant on the prior application, (2) the prior determination was
on the merits, and (3) the ends of justice would not be served by
reaching the merits of the subsequent application.
Page 373 U. S. 16
(1) By "ground," we mean simply a sufficient legal basis for
granting the relief sought by the applicant. For example, the
contention that an involuntary confession was admitted in evidence
against him is a distinct ground for federal collateral relief. But
a claim of involuntary confession predicated on alleged
psychological coercion does not raise a different "ground" than
does one predicated on alleged physical coercion. In other words,
identical grounds may often be proved by different factual
allegations. So also, identical grounds may often be supported by
different legal arguments,
cf. Wilson v. Cook,
327 U. S. 474,
327 U. S. 481;
Dewey v. Des Moines, 173 U. S. 193,
173 U. S. 198,
or be couched in different language,
United States v.
Jones, 194 F.
Supp. 421 (D.C.D.Kan.1961) (dictum),
aff'd mem., 297
F.2d 835 (C.A.10th Cir. 1962), or vary in immaterial respects,
Stilwell v. United States Marshals, 192 F.2d 853 (C.A.4th
Cir. 1951) (per curiam). Should doubts arise in particular cases as
to whether two grounds are different or the same, they should be
resolved in favor of the applicant.
(2) The prior denial must have rested on an adjudication of the
merits of the ground presented in the subsequent application.
See Hobbs v. Pepersack, 301 F.2d 875 (C.A.4th Cir. 1962).
This means that, if factual issues were raised in the prior
application, and it was not denied on the basis that the files and
records conclusively resolved these issues, an evidentiary hearing
was held.
See Motley v. United States, 230 F.2d 110
(C.A.5th Cir. 1956);
Hallowell v. United States, 197 F.2d
926 (C.A.5th Cir. 1952).
(3) Even if the same ground was rejected on the merits on a
prior application, it is open to the applicant to show that the
ends of justice would be served by permitting the redetermination
of the ground. If factual issues are involved, the applicant is
entitled to a new hearing upon showing that the evidentiary hearing
on the prior application
Page 373 U. S. 17
was not full and fair; we canvassed the criteria of a full and
fair evidentiary hearing recently in
Townsend v. Sain,
supra, and that discussion need not be repeated here. If
purely legal questions are involved, the applicant may be entitled
to a new hearing upon showing an intervening change in the law or
some other justification for having failed to raise a crucial point
or argument in the prior application. Two further points should be
noted. first, the foregoing enumeration is not intended to be
exhaustive; the test is "the ends of justice" and it cannot be too
finely particularized. Second, the burden is on the applicant to
show that, although the ground of the new application was
determined against him on the merits on a prior application, the
ends of justice would be served by a redetermination of the
ground.
B. THE SUCCESSIVE APPLICATION CLAIMED TO BE
AN ABUSE OF REMEDY.
No matter how many prior applications for federal collateral
relief a prisoner has made, the principle elaborated in Subpart A,
supra, cannot apply if a different ground is presented by
the new application. So too, it cannot apply if the same ground was
earlier presented but not adjudicated on the merits. In either
case, full consideration of the merits of the new application can
be avoided only if there has been an abuse of the writ or motion
remedy; and this the Government has the burden of pleading.
See p.
373 U. S. 11,
supra.
To say that it is open to the respondent to show that a second
or successive application is abusive is simply to recognize
that
"habeas corpus has traditionally been regarded as governed by
equitable principles.
United States ex rel. Smith v.
Baldi, 344 U. S. 561,
344 U. S.
573 (dissenting opinion). Among them is the principle
that a suitor's conduct in relation to the matter at hand may
disentitle him to the relief he seeks. Narrowly circumscribed,
in
Page 373 U. S. 18
conformity to the historical role of the writ of habeas corpus
as an effective and imperative remedy for detentions contrary to
fundamental law, the principle is unexceptionable."
Fay v. Noia, supra, at
372 U. S. 438.
Thus, for example, if a prisoner deliberately withholds one of two
grounds for federal collateral relief at the time of filing his
first application, in the hope of being granted two hearings,
rather than one, or for some other such reason, he may be deemed to
have waived his right to a hearing on a second application
presenting the withheld ground. The same may be true if, as in
Wong Doo, the prisoner deliberately abandons one of his
grounds at the first hearing. Nothing in the traditions of habeas
corpus requires the federal courts to tolerate needless piecemeal
litigation, to entertain collateral proceedings whose only purpose
is to vex, harass, or delay.
We need not pause over the test governing whether a second or
successive application may be deemed an abuse by the prisoner of
the writ or motion remedy. The Court's recent opinions in
Fay
v. Noia, supra, at
372 U. S.
438-440, and
Townsend v. Sain, supra, at
372 U. S. 317,
deal at length with the circumstances under which a prisoner may be
foreclosed from federal collateral relief. The principles developed
in those decisions govern equally here.
A final qualification, applicable to both A and B of the
foregoing discussion, is in order. The principles governing both
justifications for denial of a hearing on a successive application
are addressed to the sound discretion of the federal trial judges.
Theirs is the major responsibility for the just and sound
administration of the federal collateral remedies, and theirs must
be the judgment as to whether a second or successive application
shall be denied without consideration of the merits. Even as to
such an application, the federal judge clearly has the power --
and, if the ends of justice demand, the duty -- to
Page 373 U. S. 19
reach the merits.
Cf. Townsend v. Sain, supra, at
372 U. S. 312,
372 U. S. 318.
We are confident that this power will be soundly applied.
III
Application of the foregoing principles to the instant case
presents no difficulties. Petitioner's first motion under § 2255
was denied because it stated only bald legal conclusions, with no
supporting factual allegations. The court had the power to deny the
motion on this ground,
see Wilkins v. United States, 103
U.S.App.D.C. 322, 258 F.2d 416 (1958), although the better course
might have been to direct petitioner to amend his motion,
see
Stephens v. United States, 246 F.2d 607 (C.A.10th Cir. 1957)
(per curiam). But the denial, thus based, was not on the merits. It
was merely a ruling that petitioner's pleading was deficient. To be
sure, the district judge stated in a footnote to his
memorandum:
"The Court has reviewed the entire file . . . which includes the
previous proceeding, and a transcript of the proceedings at the
time petitioner entered his plea, and . . . is of the view that
petitioner's complaints are without merit in fact."
But the "files and records of the case," including the
transcript, could not "conclusively show" that the claim alleged in
the second motion entitled the petitioner to no relief. The crucial
allegation of the second motion was that petitioner's alleged
mental incompetency was the result of administration of narcotic
drugs during the period petitioner was held in the Sacramento
County Jail pending trial in the instant case. However regular the
proceedings at which he signed a waiver of indictment, declined
assistance of counsel, and pleaded guilty might appear from the
transcript, it still might be the case that petitioner did not make
an intelligent and understanding
Page 373 U. S. 20
waiver of his constitutional rights.
See Machibroda v.
United States, 368 U. S. 487;
Moore v. Michigan, 355 U. S. 155;
Pennsylvania ex rel. Herman v. Claudy, 350 U.
S. 116;
Taylor v. United States, 193 F.2d 411
(C.A. 10th Cir. 1952).
Cf. Von Moltke v. Gillies,
332 U. S. 708. For
the facts on which petitioner's claim in his second application is
predicated are outside the record. This is so even though the judge
who passed on the two motions was the same judge who presided at
the hearing at which petitioner made the waivers, and the later
hearing at which he was sentenced. Whether or not petitioner was
under the influence of narcotics would not necessarily have been
apparent to the trial judge. Petitioner appeared before him without
counsel, and but briefly. That the judge may have thought that he
acted with intelligence and understanding in responding to the
judge's inquiries cannot "conclusively show," as the statute
requires, that there is no merit in his present claim.
Cf.
Machibroda v. United States, supra, at
368 U. S. 495.
If anything, his request before sentence that the judge send him to
a hospital "for addiction cure" cuts the other way. Moreover, we
are advised in the Government's brief that the probation officer's
report made to the judge before sentence (the report is not part of
the record in this Court) disclosed that petitioner received
medical treatment for withdrawal symptoms while he was in jail
prior to sentencing.
On remand, a hearing will be required. This is not to say,
however, that it will automatically become necessary to produce
petitioner at the hearing to enable him to testify. Not every
colorable allegation entitles a federal prisoner to a trip to the
sentencing court. Congress, recognizing the administrative burden
involved in the transportation of prisoners to and from a hearing
in the sentencing court, provided in § 2255 that the application
may be entertained and determined "without requiring
Page 373 U. S. 21
the production of the prisoner at the hearing." This does not
mean that a prisoner can be prevented from testifying in support of
a substantial claim where his testimony would be material. However,
we think it clear that the sentencing court has discretion to
ascertain whether the claim is substantial before granting a full
evidentiary hearing. In this connection, the sentencing court might
find it useful to appoint counsel to represent the applicant.
Cf. Coppedge v. United States, 369 U.
S. 438,
369 U. S. 446.
Also, it will be open to the respondent to attempt to show that
petitioner's failure to claim mental incompetency in his first
motion was an abuse of the motion remedy, within the principles of
Wong Doo and
Price v. Johnston, disentitling him
to a hearing on the merits. We leave to the District Court, in its
sound discretion, the question whether the issue of abuse of the
motion remedy, if advanced by respondent, or the issue on the
merits, can under the circumstances be tried without having the
prisoner present. As we said only last Term:
"What has been said is not to imply that a movant (under § 2255)
must always be allowed to appear in a district court for a full
hearing if the record does not conclusively and expressly belie his
claim, no matter how vague, conclusory, or palpably incredible his
allegations may be. The language of the statute does not strip the
district courts of all discretion to exercise their common sense.
Indeed, the statute itself recognizes that there are times when
allegations of facts outside the record can be fully investigated
without requiring the personal presence of the prisoner. Whether
the petition in the present case can appropriately be disposed of
without the presence of the petitioner at the hearing is a question
to be resolved in the further proceedings in the District Court.
"
Page 373 U. S. 22
"There will always be marginal cases, and this case is not far
from the line. But the specific and detailed factual assertions of
the petitioner, while improbable, cannot at this juncture be said
to be incredible. If the allegations are true, the petitioner is
clearly entitled to relief. . . ."
Machibroda v. United States, supra, at
368 U. S.
495-496. (Footnote omitted.)
The need for great care in criminal collateral procedure is well
evidenced by the instant case. Petitioner was adjudged guilty of a
crime carrying a heavy penalty in a summary proceeding at which he
was not represented by counsel. Very possibly, the proceeding was
constitutionally adequate. But, by its summary nature, and because
defendant was unrepresented by counsel, a presumption of adequacy
is obviously less compelling than it would be had there been a full
criminal trial. Moreover, the nature of the proceeding was such as
to preclude direct appellate review. In such a case, it is
imperative that a fair opportunity for collateral relief be
afforded. An applicant for such relief ought not to be held to the
niceties of lawyers' pleadings or be cursorily dismissed because
his claim seems unlikely to prove meritorious. That his application
is vexatious or repetitious, or that his claim lacks any substance,
must be fairly demonstrated.
Finally, we remark that the imaginative handling of a prisoner's
first motion would, in general, do much to anticipate and avoid the
problem of a hearing on a second or successive motion. The judge is
not required to limit his decision on the first motion to the
grounds narrowly alleged, or to deny the motion out of hand because
the allegations are vague, conclusional, or inartistically
expressed. He is free to adopt any appropriate means for inquiry
into the legality of the prisoner's detention in order to ascertain
all possible grounds upon which the prisoner might claim to be
entitled to relief. Certainly
Page 373 U. S. 23
such an inquiry should be made if the judge grants a hearing on
the first motion and allows the prisoner to be present. The
disposition of all grounds for relief ascertained in this way may
then be spread on the files and records of the case. Of course, to
the extent the files and records "conclusively show" that the
prisoner is entitled to no relief on any such grounds, no hearing
on a second or successive motion, to the extent of such grounds,
would be necessary.
The judgment of the Court of Appeals is reversed, and the case
is remanded to the District Court for a hearing consistent with
this opinion.
It is so ordered.
MR. JUSTICE WHITE concurs in the result.
[
Footnote 1]
Section 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."
"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]
Petitioner makes no claim that the procedure employed by the
District Court was not adequate to advise him of his constitutional
rights to assistance of counsel, grand jury indictment, and trial
by jury.
[
Footnote 3]
"This case has already been before the Court of Queen's Bench,
on the return of a habeas corpus, and before my Lord Chief Baron at
chambers, on a subsequent application for a similar writ. In both
instances, the discharge was refused. The defendant, however, has a
right to the opinion of every court as to the propriety of his
imprisonment, and therefore we have thought it proper to examine
attentively the provisions of the statute, without considering
ourselves as concluded by these decisions."
Ex parte Partington, supra, 13 M. & W. at 683-684,
153 Eng.Rep. at 286.
[
Footnote 4]
See also Church, supra, § 389. The traditional English
practice has recently been curtailed by statute. Administration of
Justice Act, 1960, 8 & 9 Eliz. II, c. 65, § 14(2).
[
Footnote 5]
Section 2244 provides:
"No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the
detention of a person pursuant to a judgment of a court of the
United States, or of any State, if it appears that the legality of
such detention has been determined by a judge or court of the
United States on a prior application for a writ of habeas corpus
and the petition presents no new ground not theretofore presented
and determined, and the judge or court is satisfied that the ends
of justice will not be served by such inquiry."
[
Footnote 6]
Article I, § 9, cl. 2, of the Federal Constitution provides:
"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."
[
Footnote 7]
The Court of Appeals in
Hayman had held § 2255
unconstitutional. 187 F.2d 456 (C.A.9th Cir. 1950), amended,
id. at 471 (1951). The same position had been taken in a
Note in the Yale Law Journal, "Section 2255 of the Judicial Code:
The Threatened Demise of Habeas Corpus," 59 Yale L.J. 1183 (1950).
In this Court, a powerful constitutional attack was mounted by
respondent's assigned counsel, Mr. Paul A. Freund.
[
Footnote 8]
The discussion in this opinion relates, of course, solely to the
problem of successive applications for federal collateral relief.
For the principles which govern where the prior application is not
for federal collateral relief,
see Fay v. Noia, supra, and
Townsend v. Sain, supra.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins,
dissenting.
This case, together with
Townsend v. Sain, 372 U.
S. 293, and
Fay v. Noia, 372 U.
S. 391, form a trilogy of "guideline" decisions in which
the Court has undertaken to restate the responsibilities of the
federal courts in federal post-conviction proceedings.
Sain and
Noia relate to federal habeas corpus
proceedings arising out of state criminal convictions. The present
case involves successive § 2255 applications (and similar habeas
corpus proceedings under § 2244, which the Court finds sets the
pattern for § 2255) arising out of federal convictions.
The over-all effect of this trilogy of pronouncements is to
relegate to a back seat, as it affects state and federal criminal
cases finding their way into federal post-conviction proceedings,
the principle that there must be some end to litigation.
While, contrary to the Court, I think the District Court's
denial without hearing of a second § 2255 application in this case
was entirely proper in the circumstances
Page 373 U. S. 24
shown by the record, the more serious aspect of the Court's
opinion is the impact it is likely to have in curbing the ability
of the Federal District Courts to cope efficiently, as well as
fairly, with successive applications by federal prisoners,
[
Footnote 2/1] the number of which
will doubtless increase as a result of what is said today. The net
of it is that the Court has come forth with a new § 2255 of its own
which bears little resemblance to the statute enacted by Congress.
And, in the process, the Court has even gone so far as to suggest
that any tampering with its new composition may run afoul of the
Constitution.
I
At the outset, there is one straw man that should be removed
from this case. The Court is at great pains to develop the theme
that denial of a prisoner's application for collateral relief is
not
res judicata. But the Government recognizes, as indeed
it must in view of the decisions, that strict doctrines of
res
judicata do not apply in this field. The consequences of
injustice -- loss of liberty and sometimes loss of life -- are far
too great to permit the automatic application of an entire body of
technical rules whose primary relevance lies in the area of civil
litigation.
This is not to suggest, however, that finality, as distinguished
from the particular rules of
res judicata, is without
significance in the criminal law. Both the individual criminal
defendant and society have an interest in
Page 373 U. S. 25
insuring that there will at some point be the certainty that
comes with an end to litigation, and that attention will ultimately
be focused not on whether a conviction was free from error, but
rather on whether the prisoner can be restored to a useful place in
the community. It is with this interest in mind, as well as the
desire to avoid confinements contrary to fundamental justice, that
courts and legislatures have developed rules governing the
availability of collateral relief.
Thus it has long been recognized that not every error that may
have occurred at a criminal trial may be raised in collateral
proceedings. For many years after the Constitution was adopted, and
even down to the present century, such proceedings were generally
confined to matters of personal and subject matter jurisdiction.
Cf. Fay v. Noia, 372 U. S. 391,
372 U. S.
450-455 (dissenting opinion of this writer). And while
the scope of collateral review has expanded to cover questions of
the kind raised by petitioner here, the Court has consistently held
that neither habeas corpus nor its present federal counterpart §
2255 is a substitute for an appeal.
See, e.g., Sunal v.
Large, 332 U. S. 174;
Hill v. United States, 368 U. S. 424;
see also, e.g., Franano v. United States, 303 F.2d
470.
Similarly, the Court has held that not all questions that were
or could have been raised in an initial application for collateral
relief must necessarily be entertained if raised in a successive
application. A District Court, for example, has discretion to deny
a successive application if the claim asserted was heard and
determined on a prior application,
Salinger v. Loisel,
265 U. S. 224.
Indeed, the Court has stated that it would be an abuse of
discretion to entertain a second application if the claim raised
had been raised before, a hearing had been held, and no proof in
support of the claim had been offered at the hearing.
Wong Doo
v. United States, 265 U. S. 239.
And, in the same year that § 2255 was adopted, the decision in
Price v.
Page 373 U. S. 26
Johnston, 334 U. S. 266,
made it clear that a successive application could be denied for
abuse of the remedy even if the prisoner's claim had not been
raised in any prior application, unless there were some acceptable
excuse for the failure to do so.
It is in light of this history that § 2255, and the related §
2244, dealing with successive applications for writs of habeas
corpus, must be considered. Concern with existing and potential
abuse of the remedy by prisoners who made a pastime of filing
collateral proceedings led to proposals that successive
applications for habeas corpus on grounds previously available
would be wholly barred, except in the form of petitions for
rehearing to the same judge, and that applications under what
became § 2255 would have to be submitted within one year after
discovery of the facts or a change in the law.
E.g., H.R.
4232, 79th Cong., 1st Sess.; H.R. 6723, 79th Cong., 2d Sess. These
proposals were rejected in favor of the traditional discretion
exercised by courts with respect to successive applications, and it
was made clear that this discretion extended to a case in which an
applicant asserted for the first time a ground that could have been
raised before. Thus, the final wording of § 2244 provided that the
court shall not be required to entertain a petition
". . . if it appears that the legality of such detention has
been determined . . . on a prior application . . . and the petition
presents no
new ground not theretofore presented and
determined. . . ."
(Emphasis added.)
The word "new," a word ignored by the Court in its discussion of
this provision, is of cardinal importance. A memorandum by Circuit
Judge Stone, adopted in a Senate Report (S.Rep.No. 1527, 80th
Cong., 2d Sess.), noted that two of the purposes of an earlier
version of this
Page 373 U. S. 27
provision were "to compel petitioner to state in his petition
all of the grounds for the writ then known to him" and "to afford
unlimited opportunity to present any grounds which petitioner may
thereafter discover at any time." (Emphasis added.) This
latter purpose was "brought about by allowing presentation of a
subsequent petition based upon
new' grounds `not theretofore
presented and determined.'" [Footnote
2/2] Thus, a "new ground," within the meaning of § 2244, is one
that has not previously been asserted and had not previously been
known. The Court is manifestly in error in its conclusion,
ante, pp. 373 U. S. 11-13,
that the discretion provided for in § 2244 is limited to petitions
relying on grounds previously heard and decided.
Although the wording of § 2255 is more general, it is clearly
directed to the same end:
"The sentencing court shall not be required to entertain a
second or successive motion for similar relief on behalf of the
same prisoner."
The "relief" sought is the setting aside of the sentence; the
statute contains no reference to the nature of the grounds urged in
support of the motion, and there can be little doubt that the
discretion vested in the court was intended to extend to cases in
which a particular ground was urged for the first time.
Further, it would appear from the language of § 2255 -- the
"sentencing court" is not "required to entertain" successive
motions -- that the court was given discretion
Page 373 U. S. 28
to deny a second motion, on grounds of abuse, on its own
initiative and without waiting for the Government to raise the
point in its return. The provision, to this extent, departed from
the rule of pleading declared in the year of its adoption in
Price v. Johnston, supra, at
334 U. S. 292
-- that in habeas corpus applications, "it rests with the
Government to make that claim (of abuse) with clarity and
particularity in its return to the order to show cause." Such a
departure was amply justified by the fact that on a § 2255 motion,
unlike a habeas corpus application, the prisoner's claim is
presented to the sentencing court (usually the trial judge
himself), which has ready access to the record of the original
conviction and of the prior motions. Moreover, Congress could
certainly have reasonably concluded, as did the dissenters in
Price, that:
"It is not too much to ask the petitioner to state, however
informally, that this . . . petition is based on newly discovered
matter, or, in any event, on a claim that he could not fairly have
been asked to bring to the court's attention in his . . . prior
petitions. Such a requirement certainly does not narrow the broad
protection which the writ . . . serves."
334 U.S. at
334 U. S. 294.
[
Footnote 2/3]
The Court in
Price held only that the burden is on the
Government to plead abuse of the writ; the burden of proving an
adequate excuse was explicitly placed on the prisoner:
"Once a particular abuse has been alleged, the prisoner has the
burden of answering that allegation and of proving that he has not
abused the writ."
334 U.S. at
334 U. S.
292.
Page 373 U. S. 29
The Court today, however, leaves the crucial question of burden
of proof up in the air. If it means to suggest that this burden
also rests with the Government, then it is going far beyond the
holding of the sharply divided Court in
Price. The
relevant facts on the question of abuse would almost always lie
within the exclusive possession of the prisoner, and any
evidentiary burden placed on the Government would therefore be one
that it could seldom meet.
It is startling enough that the Government may now be required
to establish, in a collateral attack on a prior conviction, that a
successive application is an abuse of the remedy. It is at least
equally startling to learn that the question whether or not there
has been abuse of the remedy may turn on whether the prisoner had
"deliberately" withheld the ground now urged or had "deliberately"
abandoned it at some earlier stage.
Ante, p.
373 U. S. 18. The
established concept of inexcusable neglect is apparently in the
process of being entirely eliminated from the criminal law,
cf.
Fay v. Noia, 372 U. S. 391, and
the standard that seems to be taking its place will, I am afraid,
prove wholly inadequate and in the long run wholly
unsatisfactory.
I must also protest the implication in the Court's opinion that
every decision of this Court in the field of habeas corpus -- even
one like
Price v. Johnston, dealing with a purely
procedural question on which reasonable men surely may differ --
has become enshrined in the Constitution because of the guarantee
in Article I against suspension of the writ. This matter may
perhaps be brought back into proper perspective by noting again
that at the time of the adoption of the Constitution, and for many
years afterward, a claim of the kind asserted by Price, or asserted
here by petitioner, was not cognizable in habeas corpus at all.
See p.
373 U. S. 25,
supra.
Page 373 U. S. 30
II
Section 2255, read against the background of this Court's
decisions and the history of the related provision § 2244, is
surely designed to vest in the District Court a sound discretion to
deny a successive motion, on its own initiative, for abuse of the
remedy. At the very least, this exercise of discretion should be
upheld in a case in which there has been no adequate explanation of
the earlier failure to make the claim and in which the whole
record, including that of the prior motion, casts substantial
doubts on the merit of that claim. This is such a case.
In the affidavit filed in support of his second motion, the
petitioner asserted that he "did not understand trial proceeding
owing to his mental incompetency cause[d] by the administration of
a drug." The judge who denied this motion was the same judge who
presided at the trial, and the record not only shows that the judge
took pains to make certain Sanders was aware of all of his rights,
but also indicates that Sanders did indeed understand the nature of
the proceedings. After the judge explained at some length Sanders'
right to force the Government to proceed by indictment, the
following questions were asked:
"Having in mind all that I have told you, do you wish to have
the matter heard by the grand jury?"
"THE DEFENDANT. No, your honor, I waive it."
"THE COURT. I didn't hear that."
"THE DEFENDANT. I waive that right."
"THE COURT. You waive that right?"
"THE DEFENDANT. Yes."
"THE COURT. You understand you do have the right, though?"
"THE DEFENDANT. Yes. "
Page 373 U. S. 31
"THE COURT. And you now want to proceed without indictment and
by way of information?"
"THE DEFENDANT. Yes."
In response to further questions, Sanders said he was acting
freely and voluntarily. He then signed a waiver of indictment, and,
after the information was read to him, pleaded guilty.
Sentencing followed some three weeks after, and about one year
later, Sanders filed a § 2255 motion alleging,
inter alia,
that the court had allowed him to be "intimidated and coerced into
intering [
sic] a plea without Counsel, and any knowledge
of the charges." This motion was denied on the merits, not simply
for insufficiency, the trial judge correctly stating that the
charges were "completely refuted by the files and records of this
case."
The motion before us now was filed some nine months after the
initial application. In addition to commenting that he was "not
required to entertain a second motion for similar relief," the
trial judge said that he had "reviewed the entire file," and was
"of the view that petitioner's complaints are without merit in
fact." In support of this conclusion, in addition to whatever
inferences the judge may properly have drawn from his own
observation of Sanders at the trial, there is:
"(1) the record of the original trial, which strongly indicates
that, contrary to his sworn allegation, petitioner did understand
precisely what was going on and responded promptly and
intelligently;"
"(2) an initial application under § 2255 which not only failed
to mention the claim now urged -- a lack of mental competence to
understand -- but indeed advanced a wholly inconsistent claim --
that the court allowed him to be 'intimidated and coerced' into
pleading guilty; and "
Page 373 U. S. 32
"(3) a second application, not filed for another nine months,
without any explanation why a point which was obviously known to
petitioner before, and which would so clearly have been relevant,
had not previously been raised."
In the light of the whole record, including the prior
application, the second motion rested on an assertion of fact that
was highly suspect, if not self-refuting. If the assertion had been
made in the initial application, or if a valid excuse had been
offered for the failure to do so, a hearing would doubtless have
been necessary. But to require a hearing under the present
circumstances, and to tell the trial court that it has abused its
discretion, is to sanction manifest abuse of the remedy.
III
I seriously doubt the wisdom of these "guideline" decisions.
They suffer the danger of pitfalls that usually go with judging in
a vacuum. However carefully written, they are apt in their
application to carry unintended consequences which once
accomplished are not always easy to repair. Rules respecting
matters daily arising in the federal courts are ultimately likely
to find more solid formulation if left to focused adjudication on a
case-by-case basis, or to the normal rulemaking processes of the
Judicial Conference, rather than to
ex cathedra
pronouncements by this Court, which is remote from the arena.
In dealing with cases of this type, I think we do better to
confine ourselves to the particular issues presented, and on that
basis, I would affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
According to the reports of the Administrative Office of the
United States Courts, 538 § 2255 proceedings were commenced in
1960, 560 in 1961, and 546 in 1962. Annual Report of the Director,
1960, p. 231;
id., 1961, p. 239; Preliminary Annual Report
of the Director, 1962, Division of Procedural Studies and
Statistics, p. 23. The Government, in referring to these figures in
its brief, has stated that even they "do not . . . appear to be
complete in light of the Department's experience with petitions for
writs of certiorari in this Court."
[
Footnote 2/2]
The memorandum of Circuit Judge Stone was written at a time when
the proposal was to bar successive applications except in the form
of petitions for rehearing to the same judge that had passed on the
prior application. But the language in issue here, defining those
applications considered to be successive,
i.e., those
presenting "no new ground not theretofore presented and
determined," was the same as that contained in § 2244 as ultimately
enacted.
[
Footnote 2/3]
It seems clear that the actual decision in
Price v.
Johnston could not have entered into Congress' deliberations
on §§ 2244 and 2255, since the decision was handed down only one
month before formal enactment, and well after study and formulation
of the proposals.