Motion to Vacate under 28 U.S.C. Section 2255: Part One

MOTION TO VACATE UNDER 28 U.S.C.SECTION 2255: PART ONEt

LESTER B. ORFIELD*

I. HISTORY

In 1948 Congress enacted the following statute:

A prisoner in custody under sentence of a court es-tablished by Act of Congress claiming the right to bereleased upon the ground that the sentence was imposedin violation of the Constitution or laws of the UnitedStates, or that the court was without jurisdiction to imposesuch sentence, or that the sentence was in excess of themaximum authorized by law, or is otherwise subject tocollateral attack, may move the court which imposed thesentence 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 tono relief, the court shall cause notice thereof to be servedupon the United States attorney, grant a prompt hearingthereon, determine the issues and make findings of factand conclusions of law with respect thereto. If the courtfinds that the judgment was rendered without jurisdic-tion, or that the sentence imposed was not authorized bylaw or otherwise open to collateral attack, or that therehas been such a denial or infringement of the constitu-tional rights of the prisoner as to render the judgmentvulnerable to collateral attack, the court shall vacate andset the judgment aside and shall discharge the prisoneror resentence him or grant a new trial or correct the sen-tence as may appear appropriate.

A court may entertain and determine such motionwithout requiring the production of the prisoner at thehearing.

The sentencing court shall not be required to enter-tain a second or successive motion for similar relief onbehalf of the same prisoner.

An appeal may be taken to the court of appeals fromthe order entered on the motion as from a final judgmenton application for a writ of habeas corpus.

An application for a writ of, habeas corpus in behalfof a prisoner who is authorized to apply for relief bymotion pursuant to this section, shall not be entertained

t Part Two, which will deal with grounds for the motion to vacate,will appear in the Spring 1969 issue of the CREIGHTON LAW REVIEW.

* Professor of Law, Indiana University; author, CRIMINAL PROCE-

DURES UNDER THE FEDERAL RULES, 6 Vols. and Index Volume (1966-1968).

CREIGHTON LAW REVIEW

if it appears that the applicant has failed to apply forrelief, by motion, to the court which sentenced him, or thatsuch court has denied him relief, unless it also appears thatthe remedy by motion is inadequate or ineffective to testthe legality of his detention.'

The statute went into effect on September 1, 1948.2

The number of motions to vacate has risen sharply, from 102in 1949 to 546 in 1962.3 During the same period, applications forhabeas corpus by federal prisoners increased from 481 in 1949 to866 in 1962. The year ending June 30, 1966 appeared to mark areversal of the trend, however, with motions to vacate decliningalmost 37 per cent.

Courtwork has been equally prolific. As of November 1, 1966,there were more than 2,000 published decisions, of which morethan 1,000 were reported in the years from 1962 to 1965. Moreover,many cases go unreported.

Procedures similar to the federal motion to vacate have beenadopted in a number of states. 4 Rules of court for postconvictionrelief based upon the federal statute have been promulgated inFlorida,5 Missouri,6 and Arkansas7 by the supreme courts of thosestates. The Florida rule has been construed like the federal stat-ute.s Furthermore, legislation has been enacted in Nebraska 9 andKansas. 10

II. CONSTITUTIONALITY

Section 2255 was upheld in 1948 by a federal district courtas not violative of the constitutional right of habeas corpus, onthe ground that the statute merely prescribes a remedial procedure

1. 28 U.S.C. § 2255 (1964).2. Wong v. Vogel, 80 F. Supp. 723, 724 (E.D. Ky. 1948).3. Note, 62 MicH. L. REV. 903, 907 (1964). For other statistics see

Smith, Motion to Vacate, Set Aside or Correct Sentence, 40 NOTRE DAMELAWYER 171, 175-76 (1965).

4. See State v. Thompson, 324 S.W.2d 133, 135 (Mo. 1959).5. See Gideon v. Wainwright, 153 So. 2d 299 (Fla. 1963).6. Witt v. Nash, 342 F.2d 791 (8th Cir. 1965); Hooper v. Swenson,

249 F. Supp. 280, 282 (W.D. Mo. 1965); State v. Worley, 371 S.W.2d 221,224 (Mo. 1963).

7. Brown v. Stephens, 246 F. Supp. 1009, 1014 (E.D. Ark. 1965).8. United States v. Leppig, 256 F. Supp. 881, 888 (S.D. Fla. 1966);

State v. Weeks, 166 So. 2d 892 (Fla. 1964); Archer v. State, 166 So. 2d 163(Fla. Dist. Ct. App. 1964); Dickens v. State, 165 So. 2d 811, 813 (Fla. Dist.Ct. App. 1964); Pitts v. State, 158 So. 2d 763 (Fla. Dist. Ct. App. 1963).

9. Ellenson v. Fugate, 346 F.2d 151 (8th Cir. 1965); State v. Losieau,180 Neb. 671, 677, 144 N.W.2d 406, 410 (1966).

10. Blair v. Crouse, 360 F.2d 28 (10th Cir. 1966); Smith v. Kansas, 356F.2d 654 (10th Cir. 1966); Hanes v. State, 196 Kan. 404, 411 P.2d 643, 645(1966); Perrin v. State, 196 Kan. 228, 410 P.2d 298, 302 (1966); State v.Richardson, 194 Kan. 471, 399 P.2d 799, 801 (1965).

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as a prerequisite to application for federal habeas corpus." In1952 the Supreme Court reversed a decision of the Ninth Circuit 12

which had held the statute unconstitutional, and upheld the statuteafter a rather broad construction of it,13 thereby ending the contro-versy in the lower courts, which have since treated the statute asconstitutional. 14 It has been held, moreover, that the fact that de-nial of a motion to vacate renders the court without jurisdiction toissue habeas corpus does not render the statute unconstitutional. ' 5

In this connection it should be noted that until the passage ofthe Act of February 5, 1867,16 habeas corpus was not availablein the federal courts as a vehicle for collateral attack by personsconvicted of crime.'7

III. PURPOSES

It has been said that the purpose of the statute was to providean exclusive vehicle for the final determination of the legality ofa prisoner's detention, except in cases where the remedy is in-adequate or ineffective, in the court which imposed the sentence,where the matter can be most readily and conveniently heard.'8

11. Wong v. Vogel, 80 F. Supp. 723 (E.D. Ky. 1948). See also Barrettv. Hunter, 180 F.2d 510, 516 (10th Cir.), cert. denied, 340 U.S. 897 (1950);Martin v. Hiatt, 174 F.2d 350 (5th Cir. 1949); Hart v. Hunter, 89 F. Supp.153, 155 (D. Kan. 1950); St. Clair v. Hiatt, 83 F. Supp. 585 (N.D. Ga.),aff'd, 177 F.2d 374 (5th Cir.), cert. denied, 339 U.S. 967 (1949); Note, 59YALE L.J. 1183 (1950).

12. Hayman v. United States, 187 F.2d 456, 471 (9th Cir. 1951), vacatedon other grounds, 342 U.S. 205 (1952). One judge dissented. The case isnoted at 64 HARV. L. REV. 856 (1951); 37 VA. L. REV. 1001 (1951).

13. United States v. Hayman, 342 U.S. 205 (1952), noted, 66 HARV. L.REV. 167 (1953); 27 NOTRE DAME LAWYER 465 (1952); 100 U. PA. L. REV.1054 (1952).

14. Cantu v. Markley, 353 F.2d 696, 698 (7th Cir. 1965); Stirone v.Markley, 345 F.2d 473, 475 (7th Cir. 1965), United States v. Anselmi, 207F.2d 312 (3d Cir. 1953), cert. denied, 347 U.S. 902 (1954); Close v. UnitedStates, 198 F.2d 144, 146 (4th Cir.), cert. denied, 344 U.S. 879 (1952).

15. Madigan v. Wells, 224 F.2d 577 (9th Cir. 1955).16. 14 Stat. 385.17. United States v. Anselmi, 207 F.2d 312, 314 (3d Cir. 1953). As

to the law prior to the enactment of the present statute of 1948, see Holi-day v. Johnston, 313 U.S. 342, 349 (1941); Barber v. United States, 142 F.2d805 (4th Cir.), cert. denied, 322 U.S. 741 (1944); Bell v. United States, 129F.2d 290 (5th Cir.), cert. denied, 317 U.S. 665 (1942); Burke v. UnitedStates, 103 A.2d 347, 351 (D.C. Mun. Ct. App. 1954). For other discussionof the prior law, see HART & WECHSLER, THE FEDERAL COURTS AND THEFEDERAL SYSTEM, 1232-1312, especially 1299-1312 (1953); Holtzoff, Collat-eral Review of Convictions in Federal Courts, 25 BOSTON U. L. REV. 26(1945); Peters, Collateral Attack by Habeas Corpus Upon Federal Judg-ments in Criminal Cases, 23 WASH. L. REV. 87 (1948); Notes, 61 HARV. L.REV. 657 (1948); 111 U. PA. L. REV. 788, 789 (1963).

18. Kreuter v. United States, 201 F.2d 33, 35 (10th Cir. 1952); Barrett

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In 1949 Judge John J. Parker stated that three important thingsare accomplished by the statute as to federal prisoners:

(1) repeated application for the writ by persons con-victed of crime are taken care of by a provision estab-lishing the principle of res judicata in a modified form;(2) a simplified procedure is provided for cases which areto be heard; (3) ... provision is made for relief bymotion before the sentencing judge and the right to habeascorpus in such cases is greatly limited. . . .19

Denying that there was any purpose to "impinge upon pris-oner's rights of collateral attack upon their convictions," the Su-preme Court has stated by Chief Justice Vinson that the solepurpose of the statute was "to minimize the difficulties encounteredin habeas corpus hearings by affording the same rights in anotherand more convenient forum.12 0

IV. SCOPE OF THE REMEDY

The making of a motion to vacate under section 2255 is saidto commence a new proceeding which is independent of that inwhich the judgment attacked is entered.2 1 While the motion pro-ceeding has been characterized as a sort of hybrid, at least forthe purposes of docketing the action in the district court, it istreated as a civil proceeding. 22 Citing Rule 79(a) of the FederalRules of Civil Procedure, the Third Circuit has stated that "sincethe motion is a civil action . . the clerk's office should haveopened a civil docket thereon. '28 The procedure indicated wasformalized by a resolution of the Judicial Conference of the UnitedStates in September 1962.

v. Hunter, 180 F.2d 510, 513 (10th Cir.), cert. denied, 340 U.S. 897 (1950).This approach is favored in A.B.A., REPORT ON POST-CONVICTION REMEDIES28-31 (1967).

19. Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 173-74(1949).

20. United States v. Hayman, 342 U.S. 205, 219 (1952). See Goodman,Use and Abuse of the Writ of Habeas Corpus, 7 F.R.D. 313 (1948); Longs-dorf, The Federal Habeas Corpus Acts Original and Amended, 13 F.R.D.407, 421-24 (1953); Longsdorf, Habeas Corpus, A Protean Writ and Remedy,8 F.R.D. 179, 191-92 (1949); Parker, Limiting the Abuse of Habeas Corpus,8 F.R.D. 171 (1949).

21. United States v. Stevens, 224 F.2d 866, 868 (3d Cir. 1955); Brunov. United States, 180 F.2d 393, 395 (D.C. Cir. 1950).

22. Green v. United States, 158 F. Supp. 804, 808 (D. Mass. 1958). Cf.United States v. Green, 24 F.R.D. 130, 131 (D. Mass. 1959). See criticism inA.B.A., REPORT ON POST-CoNVIcTIoN REMEDIES 25-27 (1967).

23. Jenkins v. United States, 325 F.2d 942, 944 n.11 (3d Cir. 1963).See 5 ORFIELD, CRIMINAL PROCEDURES UNDER THE FEDERAL RULES 399 (1967)(hereinafter cited as ORIELD).

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While the prisoner has a right to be brought to the sen-tencing court under certain circumstances by a writ of habeascorpus ad testificandum or prosequendum, the existence of otherrights is thus far questionable. Perhaps the prisoner has a rightto have witness fees paid by the Government as required byRule 17(b) of the Federal Rules of Criminal Procedure and tosubpoena witnesses from outside the district. He may also havethe right to counsel under certain circumstances.

The remedy provided by section 2255 is available only tofederal prisoners.24 Relief under the statute does not, however,extend to cases where the prisoner was sentenced by a militarycourt-martial,25 nor may it be used to correct the actions of aparole board. 26

While the statute has been held to be applicable to the DistrictCourt of the Virgin Islands'2 7 the remedy provided therein maynot be used in the Juvenile 28 nor Municipal 29 Court of the Districtof Columbia.

Although it has been said that a motion to vacate cannot besubstituted for a motion for a new trial,80 in several cases amotion for a new trial has been treated as a motion to vacatewhere the grounds for the remedies overlap.3 ' In one case, how-ever, the court denied a motion to vacate made on the groundsof newly discovered evidence, where the evidence was uncoveredtwo years after the entry of a final judgment, since the remediesdo not overlap in this area.8 2

While the motion to vacate "is not a motion in arrest ofjudgment," 83 a late motion in arrest of judgment alleging failureto charge an offense may be treated as a motion to vacate,8 4 except

24. Parker v. Ellis, 362 U.S. 574, 586 n.18 (1960).25. Palomera v. Taylor, 344 F.2d 937 (10th Cir. 1965).26. United States v. Patti, 291 F.2d 745 (3d Cir. 1961); United States

v. Hock, 275 F.2d 726 (3d Cir. 1960).27. United States v. Davis, 212 F.2d 681, 684 (3d Cir. 1954).28. Burke v. United States, 103 A.2d 347 (D.C. Mun. Ct. App. 1954).29. Ingols v. District of Columbia, 103 A.2d 879 (D.C. Mun. Ct. App.

1954).30. Taylor v. United States, 229 F.2d 826, 833 (8th Cir.), cert. denied,

351 U.S. 986 (1956); United States v. Monti, 100 F. Supp. 209, 211 (E.D.N.Y.1951).

31. Williams v. United States, 290 F.2d 217 (5th Cir. 1961); Rubensteinv. United States, 227 F.2d 638, 643 (10th Cir.), cert. denied, 350 U.S. 993(1955); Brant v. United States, 210 F.2d 470 (5th Cir. 1954).

32. United States v. Kaplan, 101 F. Supp. 7, 11, 13 (S.D.N.Y. 1951).See 5 ORFIELD 346 (1967).

33. United States v. Monti, 100 F. Supp. 209, 211 (E.D.N.Y. 1951).34. Finn v. United States, 256 F.2d 304, 306 (4th Cir. 1958); Marteney

v. United States, 216 F.2d 760, 762 (10th Cir. 1954). See 5 ORFEIj 435(1967).

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when the defendant is not in custody.3 5

The motion procedure provided in section 2255 is not a sub-stitute for appeal, and therefore, appeal is the proper remedyfor errors occurring during the trial, even though the errors relateto constitutional rights.3 6 Where, however, there is a denial ofthe substance of a fair trial, the issue may properly be raised bymotion to vacate. In this same connection, it should be notedthat errors of the court of appeals in affirming the original con-viction are not properly raised in a motion proceeding. "7 Further-more, the district court is without jurisdiction over a motion tovacate made while an appeal from the original judgment of con-viction88 or a petition for certiorari39 is pending, unless the casehas been remanded for the purpose of hearing the motion.

In Hodges v. United States,40 the Court of Appeals for theDistrict of Columbia held that even if the failure to appeal from ajudgment of conviction is excusable, the issue of admissibility inevidence of a coerced confession may not be raised in a motionproceeding, where no appeal has been taken from the originalconviction. Three judges dissented. Citing prior cases 41 whichhad allowed collateral attack notwithstanding a failure to appealwhere important unsettled questions of law or denials of basicconstitutional rights were involved, the dissenting judges wouldhave allowed the motion on the ground of excusable neglect toappeal. The case was taken to the Supreme Court, which, how-ever, dismissed the writ of certiorari as improvidently grantedon the ground that, although the district court had in fact con-ducted a hearing on the prisoner's motion to vacate, the files and

35. United States v. McDonough Co., 180 F. Supp. 511, 515 (S.D. Ohio1959).

36. Howell v. United States, 172 F.2d 213, 215 (4th Cir. 1949); Ex parteAtkinson, 84 F. Supp. 300, 303 (E.D.S.C. 1949). Appeal is the proper rem-edy as to insufficiency of the evidence and errors of law or fact. Davil-man v. United States, 180 F.2d 284 (6th Cir. 1950); Taylor v. United States,177 F.2d 194 (4th Cir. 1949). See also Campbell v. United States, 355 F.2d394 (7th Cir. 1966); Sanders v. United States, 230 F.2d 127 (4th Cir.),cert. denied, 351 U.S. 955 (1956); United States v. Walker, 197 F.2d 287, 288(2d Cir.), cert. denied, 344 U.S. 877 (1952); United States v. Cornett, 142F. Supp. 764, 769 (W.D. Ky. 1956).

37. United States v. Sanders, 142 F. Supp. 638, 640 (D. Md. 1956).38. United States v. Kobey, 109 F. Supp. 687 (S.D. Cal. 1953).39. Nemec v. United States, 184 F.2d 355 (9th Cir. 1950).40. 282 F.2d 858 (D.C. Cir. 1960), noted, 29 GEo. WASH. L. REV. 593

(1961); 59 MICH. L. REV. 975 (1961). See 3 ORFIELD 764 (1966). See alsoWilliams v. United States, 307 F.2d 366, 368 (9th Cir. 1962); Mirra v. UnitedStates, 255 F. Supp. 570, 573 (S.D.N.Y. 1966).

41. Bowen v. Johnston, 306 U.S. 19 (1939); Johnston v. Zerbst, 304U.S. 458 (1938); Council v. Clemmer, 165 F.2d 249 (D.C. Cir. 1947). SeeNote, 59 MIcH. L. REv. 975, 977 (1961).

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records of the case conclusively showed that the prisoner wasentitled to no relief.42 The Court neither approved nor disap-proved the holding of the court of appeals. Mr. Justice Douglas,however, in an opinion concurred in by the Chief Justice andMr. Justice Black, stated his view that the motion should beallowed despite a failure to appeal where the motion seeks toraise a constitutional defect, such as the admittance of a coercedconfession into evidence in the original proceedings.

More recently, in Fay v. Noia,48 the Court has stated by Mr.Justice Brennan:

In Sunal v. Large, 332 U.S. 174, the Court held thatfederal prisoners who did not appeal their convictionscould not be released on habeas. However, the Court ex-pressly excluded errors so grave that they "cross the ju-risdictional line," 332 U.S., at 179, and implied that theclaimed errors were not even of constitutional dimension,id., at 182-183.The Fifth Circuit has held in a recent case that where a

defendant failed to appeal from his original conviction, he waivedresort to postconviction relief based upon grounds raised at theoriginal trial and overruled by the trial court, since the defendantwas represented by competent counsel, and there was no explana-tion or excuse for his failure to appeal. 4 4

In some cases, for example where the application is filed inthe district of sentencing,45 an application for habeas corpus maybe treated as a motion to vacate. 4

, The rules applicable to thescope of habeas corpus apply to the motion procedure undersection 2255, since the scope of relief available is the same underboth remedies.4 7 The motion procedure is in the nature of, but

42. Hodges v. United States, 368 U.S. 139 (1961), noted, 76 HARV. L.REv. 83 (1963); 60 MIcH. L. REV. 1168 (1962).

43. 372 U.S. 391, 424 n.35 (1963). But see United States v. Lovely,319 F.2d 673, 682 (4th Cir. 1963).

44. Nash v. United States, 342 F.2d 366 (5th Cir. 1965). See alsoLarson v. United States, 275 F.2d 673, 679 (5th Cir.), cert. denied, 363 U.S.849 (1960).

45. Hilderbrand v. Taylor, 327 F.2d 205 (10th Cir. 1964); Yeaman v.United States, 326 F.2d 293 (9th Cir. 1963).

46. Ray v. United States, 295 F.2d 416 (10th Cir.), cert. denied, 369U.S. 875 (1961); Miller v. United States, 239 F.2d 407 (4th Cir. 1956);United States v. McGann, 161 F. Supp. 629, 633 (D. Md. 1958); White v.Taylor, 164 F. Supp. 433 (M.D. Pa. 1958); United States v. Williams, 127 F.Supp. 420 (W.D. Pa. 1955).

47. Hill v. United States, 368 U.S. 424, 427 (1962); Taylor v. UnitedStates, 193 F.2d 411 (10th Cir. 1952); United States v. Lowrey, 84 F. Supp.804, 807 (W.D. Pa. 1949), atf'd, 179 F.2d 964 (3d Cir.), cert. denied, 339U.S. 969 (1950); Ex parte Atkinson, 84 F. Supp. 300, 303-04 (E.D.S.C. 1949).

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broader than, a writ of error coram nobis. 48 Although the major-ity of the Court reserved opinion on the question, Justice Clark,in a dissenting opinion, has asserted that collateral attack by aproceeding under section 2255 is not available to test the validityof consecutive sentences when the facts are in dispute.49

The Tenth Circuit has held that the record is open to attackin proceedings upon a motion to vacate, since the motion "is not aproceeding in habeas corpus in which the judgment in the criminalcase is being attacked collaterally. It is a motion lodged in thecriminal case in which the judgment is being subjected to directattack."50 The more usual view, however, is that the motion is"limited to matters that may be raised by collateral attack." 51

The remedy ought not to be viewed as a static one. Indeed,as Judge Friendly has stated, the wording of the statute leavesconsiderable room for expansion:

Section 2255 is not limited to cases where the sentencewas imposed "in violation of the Constitution or laws ofthe United States" but includes the more general phrase"or is otherwise subject to collateral attack," the bound-aries of which have not been defined, save, of course, that"mere error" is not enough.5 2

In one case the Second Circuit assumed arguendo that amotion to vacate lies if the prisoner has shown (1) a significantdenial of a constitutional right, even though he could have raisedthe point on appeal and there was no sufficient reason for notdoing so; or (2) a defect seriously affecting his trial, even thoughnot of constitutional magnitude, if it was not correctible on appealor there were exceptional circumstances excusing the failure toappeal.

53

Since the remedy by motion is not limited to cases wherethe facts showing unlawful detention are dehors the record, it isavailable to a prisoner who has been sentenced in excess of thestatutory maximum.5 4 Moreover, a defendant who has been de-prived of his right to appeal from his conviction by deception prac-

48. Taylor v. United States, 229 F.2d 826, 832 (8th Cir.), cert. denied,352 U.S. 963 (1956); Curran v. State, 122 A.2d 126, 128 (Del. 1956). See50RFIELD 399-400 (1967); Orfield, The Writ of Error Coram Nobis in Fed-eral Criminal Cases, 14 S. DAK. L. REV. - (1969).

49. Ladner v. United States, 358 U.S. 169, 183 (1958).50. Snell v. United States, 174 F.2d 580, 582 (10th Cir. 1949).51. Hurst v. United States, 177 F.2d 894 (10th Cir. 1949). See also

Bruno v. United States, 180 F.2d 393, 395 (D.C. Cir. 1950).52. Kyle v. United States, 297 F.2d 507, 511 n.1 (2d Cir. 1961).53. United States v. Sobell, 314 F.2d 314, 322-23 (2d Cir. 1963).54. Robinson v. Swope, 197 F.2d 633 (9th Cir. 1952).

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ticed upon him by his attorney may move to vacate for errors ordi-narily cognizable on appeal.55

While normally the motion to vacate is used to effectuate thedischarge of a prisoner, and the statute "does not provide for anamendment of sentence,""6 the motion procedure may be used toset aside a sentence so that the prisoner may be properly resen-tenced,5 7 and the court may in appropriate cases grant a new trial.58

Because of the similarity of the remedies, a petition for writof error coram nobis may be treated as a motion for vacation,59

and conversely, a motion may be treated as a request for a writ oferror coram nobis.6 0 In 1954, upholding a similar ruling in theSecond Circuit,61 the Supreme Court held in a five-to-four decisionthat the statute providing for motion to vacate does not supersedeall other remedies in the nature of coram nobis. 62 The four dis-senting Justices were of the opinion that all remedies in thenature of coram nobis were superseded by the statute and byRule 60(b) of the Federal Rules of Civil Procedure. Concludingbroadly that the motion statute has occupied the entire field ofcollateral attack, excepting only that coram nobis is available totest the validity of sentences completely served or yet to beserved, one district court has held that coram nobis does not liewhere the procedure provided by section 2255 is available.63

It has been held that the law to be applied by the court when

55. Desmond v. United States, 333 F.2d 378 (1st Cir. 1964). See alsoLyles v. United States, 362 F.2d 1010 (5th Cir. 1966).

56. Jenkins v. United States, 325 F.2d 942, 945 (3d Cir. 1963).57. Andrews v. United States, 373 U.S. 334, 339 (1963).58. This has been thought to be incongruous by Longsdorf, The Fed-

eral Habeas Corpus Acts Original and Amended, 13 F.R.D. 407, 422 (1953).59. United States v. Johnson, 359 F.2d 845 (3d Cir. 1966); Perry v.

United States, 332 F.2d 369 (9th Cir. 1964); Bell v. United States, 269 F.2d419 (9th Cir. 1959); Stephens v. United States, 246 F.2d 607 (10th Cir. 1957);United States v. Rutkin, 212 F.2d 641, 643 (3d Cir. 1954); United States v.Spadafora, 200 F.2d 140 (7th Cir. 1952); United States v. Malfetti, 125 F.Supp. 27, 28 (D.N.J. 1954); United States v. Mierzanka, 89 F. Supp. 573(W.D. Mich. 1949); United States v. Morris, 83 F. Supp. 970 (D.D.C. 1949).

60. Kyle v. United States, 288 F.2d 440 (2d Cir. 1961); Pledger v.United States, 272 F.2d 69, 70 (4th Cir. 1959); Thomas v. United States, 271F.2d 500 (D.C. Cir. 1959); United States v. Capsopa, 260 F.2d 566 (2d Cir.1958); Jones V. United States, 258 F.2d 420 (D.C. Cir. 1958); Shelton v.United States, 242 F.2d 101, 112 (5th Cir. 1957); United States v. DeMario,246 F. Supp. 786 (E.D. Mich. 1965).

61. United States v. Morgan, 202 F.2d 67 (2d Cir. 1953), noted, 53COLUM. L. REV. 737 (1953); 66 HARV. L. REV. 1137 (1953); 63 YALE L.J.115 (1954).

62. United States v. Morgan, 346 U.S. 502, 510-11 (1954), noted, 42GEo. L.J. 461 (1954); 53 MIcH. L. REV. 144 (1955); 28 ST. JOHN'S L. REV. 295(1954). See 5 ORFIELD 383-92 (1967).

63. Burns v. United States, 210 F. Supp. 528, 531 (W.D. Mo. 1962).

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hearing a motion to vacate is that in existence at the time of thedecision on the motion, and not the law at the time of theoriginal sentence 4 Where, however, the action of the trial courtin refusing a requested instruction to the jury was affirmed onoriginal appeal from the conviction and the Supreme Court deniedcertiorari, the district court lacked jurisdiction to vacate the sen-tence imposed under the conviction, even though in the timebetween the exhaustion of remedies for direct review and themaking of the motion, the Supreme Court, in another case, hadtaken a view of the question that was favorable to the defendant.' 5

To the contrary, however, where there has been a change in thelaw of discovery, 6 and where a new rule providing for a bifurcatedtrial when the defense of insanity was pleaded has been adoptedby judicial decision,6 the jurisdiction of the district court to vacatea sentence following conviction under prior law has been upheld.But it has also been said that a change by the Supreme Court inthe definition of obscenity is not a ground sufficient to support amotion to vacate.6 8

V. CUSTODY

Pointing out that "convictions may entail collateral legal dis-advantages in the future," the Supreme Court in 1957 allowed amotion under section 2255, even though the prisoner had servedhis term and been discharged from custody. 69 In 1959, however, amajority of the Court held that the statute applies only to aprisoner in custody, stating that while there might be relief underRule 35 of the Federal Rules of Criminal Procedure, where theprisoner is in custody under an admittedly valid sentence, hecannot challenge by motion procedure another sentence which isto commence at a later time and run concurrently with the validsentence. 70 Moreover, it has generally been held that a motion tovacate does not lie on behalf of a defendant who has served hissentence. 71

64. Griffin v. United States, 175 F.2d 192 (6th Cir. 1949).65. United States v. Meyers, 84 F. Supp. 766 (D.D.C. 1949), aff'd, 181

F.2d 802 (D.C. Cir.), cert. denied, 339 U.S. 983 (1950).66. United States v. Gandia, 255 F.2d 454 (2d Cir. 1958).67. Holmes v. United States, 363 F.2d 281, 283 (D.C. Cir. 1966). See

A.B.A., REPORT ON POST-CoNvIcTioN REMEDIES 37-38 (1967).68. United States v. Heinecke, 209 F. Supp. 526, 528 (D.D.C. 1962)

(but no change was found). The case was affirmed, 316 F.2d 685 (D.C.Cir.), cert. denied, 375 U.S. 846 (1963).

69. Pollard v. United States, 352 U.S. 354, 358 (1957).70. Heflin v. United States, 358 U.S. 415, 418 (1959). See also Calla-

nan v. United States, 364 U.S. 587, 589 n.3 (1961); 5 ORFIELD 399-400 (1967).71. United States v. Roth, 283 F.2d 765 (2d Cir. 1960); Jamison v.

United States, 279 F.2d 892 (6th Cir. 1960).

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MOTION TO VACATE

The traditional view of the Court with regard to the restric-tiveness of the "in custody" limitation in section 2255 was statedin a 1960 case, Parker v. Ellis,72 where the Court dismissedcertiorari on the ground that, since the petitioner had been releasedafter having served his sentence before the case could be heard,the case was moot and the Court was deprived of jurisdiction.While the Parker case arose out of the petitioner's application forfederal habeas corpus, in the course of its opinion the Courtpointed out that the motion to vacate under 28 U.S.C. section 2255was likewise limited to use by persons in custody.73 Signaling theevents of the October 1967 term, four Justices dissented on theground that convictions for crime had collateral consequences, suchas inability to vote in state elections, and that therefore thepetitioner's case was not moot.74

Historically, the "in custody" limitation has meant that "onemust be in custody to have the remedy. One out on conditionalrelease is not in custody. '75 Section 2255 proceedings were notavailable to a defendant who was out on bond, since such defendantwas not considered to be in custody.76 Nor was a defendantconsidered to be in custody merely because a commitment hadbeen issued, unless he had actually been taken into custody. 77

The Tenth Circuit has held that the fact that a defendant hasbeen granted an unconditional pardon does not entitle him tosecure relief on a section 2255 motion, and the court will notexpunge from the records the indictment, verdict of guilty, andorder placing the defendant on probation.78

72. 362 U.S. 574 (1960), noted, 29 GEo. WASH. L. REv. 166 (1961);21 LA. L. REV. 260 (1961); 59 MICH. L. REV. 312 (1961); 45 MINN. L. REV.453 (1961); 28 U. Cm. L. REV. 363 (1961); 109 U. PA. L. REV. 1018 (1961).See also Jamison v. United States, 279 F.2d 892 (6th Cir. 1960); Notes, 46BOSTON U. L. REV. 269, 271-72 (1966); 41 N.C. L. REV. 847 (1963). Forcriticism of the doctrine of mootness see A.B.A., REPORT ON POsT-CoN-VICTION REMEDIES 44 (1967).

73. Parker v. Ellis, 362 U.S. 574, 575 n. (1960). The Heflin case wasfollowed, and the Pollard case rejected. But see Robinson v. California, 371U.S. 905 (1962), wherein the Court considered the appeal of a state criminalafter his death. The case is noted at 41 N.C. L. REV. 847 (1963).

74. 362 U.S. at 593-94. See Note, 45 MINN. L. REV. 453, 468 n.83 (1961).75. Owens v. United States, 174 F.2d 469, 470 (5th Cir.), cert. denied,

338 U.S. 906 (1949) (parole) (concurring opinion). The question was leftopen in West v. United States, 222 F.2d 774, 780-81 (D.C. Cir. 1954).

76. Allen v. United States, 349 F.2d 362 (1st Cir. 1965); Matysek v.United States, 339 F.2d 389 (9th Cir. 1964); United States v. McDonoughCo., 180 F. Supp. 511, 515 (S.D. Ohio 1959); United States v. West, 170 F.Supp. 200, 204 (N.D. Ohio 1959), aff'd, 274 F.2d 885 (6th Cir. 1960), cert.denied, 365 U.S. 819, 875 (1961).

77. Allen v. United States, 245 F. Supp. 107 (D.N.H. 1965).78. Viles v. United States, 193 F.2d 776 (10th Cir.), cert. denied, 343

U.S. 915 (1952).

1968]

CREIGHTON LAW REVIEW[

In Holiday v. Johnston,79 decided in 1941, the Supreme Courtheld that a prisoner serving a valid sentence cannot by habeascorpus attack a second sentence for the same offense, which wasnot to commence until the end of the sentence presently beingserved, notwithstanding the fact that parole would not be availableto the defendant until he had served one-third of the consecutivesentences, so long as the second sentence stood. The Court sug-gested that "[h]is remedy is to apply for vacation of the sentenceand a resentence in conformity to the statute under which hewas adjudged guilty." In this connection it should be noted thatRule 35 of the Federal Rules of Criminal Procedure provides forcorrection of an illegal sentence at any time and that "a motionfor such relief may be made at any time. '8 0

It was held in 1953 that a prisoner may not move to set asidea sentence if he is serving a sentence concurrent with the sentenceunder attack.81 Moreover, since the motion procedure was notavailable where a defendant was being held under a valid sentenceother than the sentence under attack, a defendant who hadreceived consecutive sentences on separate counts of an indictmentand had not yet completed serving an unchallenged sentence onthe first count was traditionally not allowed to attack the secondcount by motion to vacate. 82 The same reasoning was applied tothe case of a prisoner who had served his sentence, even thoughhe was on probation under consecutive sentences.8 " A contraryresult, however, was generally reached where the movant was aparolee, since the parole statute referred to him as "in legal

79. 313 U.S. 342, 349 (1941). See also Roberts v. United States, 365F.2d 251 (9th Cir. 1966); Johnson v. United States, 344 F.2d 401, 409 (5thCir. 1965); Brown v. United States, 268 F.2d 118 (9th Cir. 1959); Miller v.United States, 256 F.2d 501 (9th Cir. 1958); Williams v. United States, 236F.2d 894, 897 (9th Cir. 1956); Oughton v. United States, 215 F.2d 578 (9thCir. 1954); Holloway v. United States, 191 F.2d 504, 507 (D.C. Cir. 1951);Lopez v. United States, 186 F.2d 707 (9th Cir. 1950); Crow v. United States,186 F.2d 704, 706 (9th Cir. 1950); Williams v. United States, 148 F.2d 923(5th Cir.), cert. denied, 325 U.S. 888 (1945); Wilson v. Bell, 137 F.2d 716,721 (6th Cir. 1943); United States v. Morgan, 39 F.R.D. 323, 325 (N.D. Miss.1966); United States v. Greco, 141 F. Supp. 829 (M.D. Pa. 1956); UnitedStates v. Young, 93 F. Supp. 76 (W.D. Wash. 1950).

80. See Kernick v. United States, 285 F.2d 529, 531 (8th Cir. 1961).81. Winhoven v. United States, 209 F.2d 417 (9th Cir. 1953).82. Willis v. United States, 289 F.2d 581, 583 (8th Cir.), cert. denied,

368 U.S. 856 (1961). See also Johnson v. United States, 334 F.2d 880,882 (6th Cir. 1964); Kistner v. United States, 332 F.2d 978 (8th Cir. 1964);Migdol v. United States, 298 F.2d 513, 514 (9th Cir. 1961).

83. United States v. Bradford, 194 F.2d 197, 200 (2d Cir.), cert. denied,343 U.S. 979 (1952). The opinion was by Learned Hand. See also UnitedStates v. Lavelle, 194 F.2d 202 (2d Cir. 1952).

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MOTION TO VACATE

custody. '8 4 There is also some authority that a person on proba-tion is a "prisoner in custody."85

The rule in the Second Circuit has been that "the remediesopen to a convict who is not in custody are limited to an appealfrom the judgment, and to a motion made under Rules 33, 34,and 35."86 Conceivably, the situation might have been differentif the defendant was in state custody, where the duration of hisstate sentence depended upon the validity of a federal judgment.87

Likewise, if there were hazards of deportation or loss of civilrights, relief might have been granted under the old rule, notwith-standing lack of proper federal custody.88

It has been held that the motion procedure is not available toprisoners in state custody.8 9 The Third,90 Fourth,9' and Fifth92

84. United States v. Glass, 317 F.2d 200 (4th Cir. 1963); Hoptowit v.United States, 274 F.2d 936, 938 (9th Cir. 1960); United States v. Brilliant,274 F.2d 618, 620 (2d Cir.), cert. denied, 363 U.S. 806 (1960); United Statesv. DeMario, 246 F. Supp. 786, 787 (E.D. Mich. 1965); United States v. Kap-lan, 101 F. Supp. 7, 11 n.3 (S.D.N.Y. 1951). See Donnelly, Unconvicting theInnocent, 6 VAND. L. REV. 20, 30 (1952). In Jones v. Cunningham, 371 U.S.236 (1963), the Court held that, in view of the restraints and conditionsof the parole order, a state parolee was in custody of the parole board.The case is noted at 51 CALiF. L. REV. 228 (1963); 17 RUTGERS L. REV. 808(1963).

85. United States v. DeGregory, 220 F. Supp. 249, 251 (E.D. Pa. 1963)(citing Jones v. Cunningham, 371 U.S. 236 (1963) ); United States v. Kap-lan, 101 F. Supp. 7, 11 n.3 (S.D.N.Y. 1951). See Donnelly, Unconvicting theInnocent, 6 VAND. L. REV. 20, 30 (1952). Contra, Strand v. Schmittroth,251 F.2d 590, 602 (9th Cir. 1957); United States v. Bradford, 194 F.2d 197(2d Cir.), cert. denied, 343 U.S. 979 (1952); Curtis v. United States, 150A.2d 473, 475 (D.C. Mun. Ct. App. 1959). In Karrell v. United States, 247F.2d 706 (9th Cir. 1957), the court dismissed as moot a motion proceedingbrought before probation expired, where the movant was released fromprobation before the hearing. Id. at 710.

86. United States v. Bradford, 194 F.2d 197, 201 (2d Cir. 1952).87. But see Webster v. United States, 211 F.2d 958 (4th Cir. 1954);

United States V. Kerschman, 201 F.2d 682 (7th Cir. 1953).88. United States v. Oddo, 129 F. Supp. 564 (S.D.N.Y. 1955).89. Ramsey v. United States, 351 F.2d 31 (8th Cir. 1965); Blair v.

United States, 349 F.2d 405 (10th Cir. 1965); Young v. United States, 337F.2d 753 (5th Cir. 1964) (one judge dissented); Booth v. United States,209 F.2d 183 (9th Cir. 1953), cert. denied, 347 U.S. 923 (1954); United Statesv. Kerschman, 201 F.2d 682 (7th Cir. 1953); Sansbury v. Peppersack, 179F. Supp. 649, 650 (D. Md. 1959); United States v. Oddo, 129 F. Supp. 564(S.D.N.Y. 1955); United States v. Kobey, 109 F. Supp. 192 (S.D. Cal. 1952).In United States v. Schurman, 84 F. Supp. 411 (S.D.N.Y. 1949), a motionwas allowed to a state prisoner about to come into federal custody. TheSixth Circuit has allowed the motion as to a sentence already served,because it would aid the defendant in computation of good-time allowanceon other sentences and might furnish a basis for further proceedings bywhich the time for commencement of sentence for escape might be cor-rected. Griffin v. United States, 173 F.2d 909 (6th Cir. 1949). See also

1968]


Circuits have all refused to allow the motion on grounds of lackof proper federal custody.

Where the "in custody" limitation bars relief by motion, undercertain circumstances the writ of error coram nobis is the properremedy, since a defendant need not be in custody to seek relief inthe nature of coram nobis. 3

There were a few cases departing from the traditional view.A case in the District of Columbia appears to have allowed attackby motion even though the defendant was not in custody,94 butthe case does not appear to have been followed.9 5 Also, in 1965the Fourth Circuit held that where a prisoner's escape and larcenyconvictions barred his eligibility for parole, he was in custody forthe purpose of attacking such convictions by federal habeas corpus,even though he had not yet begun to serve the sentences. 6 Thecourt pointed out that the Oregon Legislature had abandoned therequirement of custody in its Post-Conviction Act and that theMaryland courts had construed the Maryland Act to reach asimilar result.97

The body of decisional law construing the "in custody" require-ment of section 2255, along with the cases considering the similarrequirement in the federal habeas corpus statute,98 appears nolonger to be viable. In three cases decided in 1968, the SupremeCourt abrogated its traditional narrow view of the "in custody"

Ellison v. United States, 263 F.2d 395 (10th Cir. 1959); Griffin v. UnitedStates, 175 F.2d 192 (6th Cir. 1949); United States v. Kline, 98 F. Supp. 325,328 (E.D.N.Y. 1951). But the Sixth Circuit later required that the prisoneractually be in custody. Juelich v. United States, 257 F.2d 424 (6th Cir.),cert. denied, 358 U.S. 847 (1958); Wingo v. United States, 244 F.2d 800(6th Cir. 1957); Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957).

90. United States ex rel. Bogish v. Tees, 211 F.2d 69 (3d Cir. 1954);United States v. Greco, 159 F. Supp. 830 (M.D. Pa. 1958).

91. Webster v. United States, 211 F.2d 958 (4th Cir. 1954); UnitedStates v. Witherspoon, 167 F. Supp. 297, 300 (D. Md. 1958).

92. Fooshee v. United States, 203 F.2d 247 (5th Cir. 1953).93. United States v. Marcello, 202 F. Supp. 694, 696 (E.D. La. 1962);

United States v. Harris, 155 F. Supp. 17, 19 (S.D. Cal. 1957). A.B.A.,REPORT ON POST-CONVICTION REMEDIES 40-45 (1967) would remove the cus-tody limitation.

94. Holloway v. United States, 191 F.2d 504, 507 (D.C. Cir. 1951). Seealso Martin v. United States, 248 F.2d 651, 653 (D.C. Cir. 1957).

95. Toliver v. United States, 249 F.2d 804 (9th Cir. 1957).96. Martin v. Virginia, 349 F.2d 781 (4th Cir. 1965), noted, 46 BOSTON

U. L. REV. 269 (1966).97. See also State v. Losieau, 180 Neb. 696, 701, 144 N.W.2d 435, 437

(1966).98. 28 U.S.C. § 2241 (1964), as amended, 28 U.S.C.A. § 2241(d) (Supp.

1967).

[Vol. 2

MOTION TO VACATE

concept.99 As a result of these cases, it is believed that a defendantmay properly move for vacation of his sentence under section 2255,even though a favorable decision will not result in his immediaterelease because he still must serve another sentence.10 0 More-over, since a prisoner who is serving consecutive sentences is incustody under any of them, a motion may be appropriate toattack one of two sentences being served consecutively.10 1 Finally,the remedy should be available where, at the time of his hearing,the movant has completed his sentence, provided that the motionis made prior to his final release.10 2

While it is too early to determine the exact scope which willbe given to the "in custody" limitation as a result of these decisions,some indication has been provided by the First Circuit, whichhas held that where the defendant has long been out of custodyof any authority of the state, the remedy of habeas corpus is notavailable.

0 3

VI. TIME TO MAKE THE MOTION

According to the earlier cases, long delay before making amotion under section 2255 may preclude a hearing thereon.Accordingly, a motion alleging lack of representation by counselin the original proceedings, which was made 18 years after con-viction, came too late. 04 The same result was reached as to asimilar motion which was made 23 years after conviction,10 5 and

99. Carafas v. LaVallee, 391 U.S. 234 (1968); Peyton v. Rowe, 391U.S. 54 (1968); Walker v. Wainwright, 390 U.S. 335 (1968). For a discus-sion of the impact of the decisions upon the "in custody" limitation inhabeas corpus proceedings, see Comment, Walker, Rowe, and Carafas: TheExpanding Concept of "In Custody," 2 CREIGHTON L. REV. 171 (1968). Whilethe three cases deal with the scope of the "in custody" requirement in thehabeas corpus statute, 28 U.S.C. § 2241(c) (1964), there is no reason to be-lieve that the scope of the requirement is any different in motion proceed-ings than in habeas corpus actions. See cases cited note 47 supra.

100. Walker v. Wainwright, 390 U.S. 335 (1968).101. Peyton v. Rowe, 391 U.S. 54 (1968), overruling McNally v. Hill,

293 U.S. 131 (1934).102. Carafas v. LaVallee, 391 U.S. 234 (1968), overruling Parker v.

Ellis, 362 U.S. 574 (1960).103. In re Thoresen, 395 F.2d 466 (1st Cir. 1968), cert. denied, 37

U.S.L.W. 3135 (U.S. October 15, 1968) (No. 348). The court of appeals ren-dered its original opinion in the case on May 13, 1968, three days beforeRowe and Carafas came down. After those opinions, the court reaffirmedits original position, 395 F.2d 468 (1968).

104. United States v. Morris, 83 F. Supp. 970 (D.D.C. 1949). The de-fendant did not contend that he was innocent. He had pleaded guilty.See also United States v. Rayborn, 149 F. Supp. 821 (W.D. Ky. 1957)(ten years).

105. United States v. Bice, 84 F. Supp. 290 (D. Md.), aff'd, 177 F.2d 843(4th Cir. 1949). It made no difference that the accused became a habitualoffender under state law.

1968]


where the motion was made 18 years later and no original ap-peal was taken.10 6 There are, however, cases holding that delayis not a bar to a section 2255 motion. It has been said that de-lay is immaterial where a constitutional issue is raised, and theprisoner is still confined. 10 7 Accordingly, in 1952 a federal dis-trict court granted a motion to vacate made by a defendant whohad been denied counsel in the original proceedings in 1933.108The Fifth Circuit has held that the fact that seven years hadelapsed since the movant's conviction did not bar use of the motionprocedure, notwithstanding that the only substantiation of themotion was the prisoner's affidavit. 10 9 A defendant who hadoriginally been sentenced in 1946, and who had in 1951 soughtrelief from his sentence, was not precluded from asserting thathis confession had been coerced and that he had not been advisedof his constitutional rights at the original preliminary hearing, bymotion to vacate made in 1963.110 Moreover, this result was heldto follow notwithstanding the fact that the defendant was unableto show that a retrial would result in a different judgment."'Although the Supreme Court has held that neither a statute oflimitations nor laches applies to the motion, 1 2 lapse of time hasbeen held to affect the good faith and credibility of the movingparty.

11

VII. FORMA PAUPERIS AND FREE TRANSCRIPT

A section 2255 motion may properly be made in forma pau-peris." 4 Although it has been held that the government neednot furnish a free transcript of the record to the prisoner in sucha proceeding," 5 there is recent contrary authority.116 However,

106. Bowen v. United States, 192 F.2d 515 (5th Cir. 1951), cert. denied,343 U.S. 943 (1952).

107. McKinney v. United States, 208 F.2d 844 (D.C. Cir. 1953).108. Allen v. United States, 102 F. Supp. 866 (N.D. Ill. 1952).109. Juelich v. United States, 300 F.2d 381 (5th Cir. 1962).110. Haier v. United States, 334 F.2d 441 (10th Cir. 1964).111. Id. See also United States v. Tateo, 214 F. Supp. 560, 564

(S.D.N.Y. 1963).112. Heflin v. United States, 358 U.S. 415, 420 (1959). See United

States v. Tateo, 214 F. Supp. 560 (S.D.N.Y. 1963); A.B.A., REPORT ON POST-CONVICTION REMEDIES 45-48 (1967).

113. United States v. Wiggins, 184 F. Supp. 673, 676 (D.D.C. 1960);United States v. Bostic, 206 F. Supp. 855, 856-57 (D.D.C. 1962). See Parkerv. United States, 358 F.2d 50, 54 n.4 (7th Cir. 1965).

114. But if the motion is without merit the court may refuse in formapauperis procedure. United States v. Shailer, 124 F. Supp. 221 (D. Vt.1954).

115. Dorsey v. United States, 333 F.2d 1015 (6th Cir. 1964); UnitedStates v. Stevens, 224 F.2d 866, 868 (3d Cir. 1955); United States v. New-

[Vol. 2

MOTION TO VACATE

a free transcript need not be provided where no motion to vacateis actually pending.117 On the other hand, it has been held thatif funds are not made available to provide a free transcript for anindigent prisoner who has made a motion to vacate under section2255, the court may order the prisoner released if he is not givena new trial within 30 days.' 18

If the request for permission to proceed in forma pauperis isnot granted, the clerk must collect a docket fee."19

VIII. PLEADING

A motion to vacate under section 2255 should be made to thecourt which originally sentenced the prisoner, and not to thecourt of another jurisdiction. 20 This is true even though thesentencing judge is dead.' 2' Moreover, the prisoner may notevade the requirement that the motion be made to the sentencingcourt by applying for a declaratory judgment in another districtand there asserting grounds properly raisable by motion. 1 22

The remedy provided in section 2255 is not available whilethe defendant continues to prosecute his appeal from the convic-tion. Accordingly, it has been held that a motion to vacate willnot be considered while the movant is in the process of petitioningthe Supreme Court for writ of certiorari.'2 3 Likewise, the FifthCircuit has held that there may be no joinder of a motion tovacate with an appeal from the conviction. 12 4 However, the factthat the conviction was affirmed on direct appeal does not require

some, 257 F. Supp. 201 (N.D. Ga. 1966); in re Johnson, 129 F. Supp.,758(S.D. Cal. 1955) (no necessity shown); Cohen v. United States, 123 F.Supp. 717 (E.D. Mich. 1954); United States v. Bernett, 92 F. Supp, 26 (D.Md.), aff'd sub nom. Mann v. United States, 183 F.2d 1024 (4th Cir. 1950);United States v. Carter, 88 F. Supp. 88 (D.D.C. 1950).

116. United States v. Glass, 317 F.2d 200 (4th Cir. 1963); Henderson v.United States, 231 F. Supp. 177 (N.D. Cal. 1964); Poe v. United States, 229F. Supp. 6 (D.D.C. 1964). See Sokol, The Availability of Transcripts forFederal Prisoners, 2 AM. CRnvim. L.Q. 63 (1963).

117. United States v. Shoaf, 341 F.2d 832 (4th Cir. 1964); Ketchersidev. United States, 317 F.2d 807 (6th Cir. 1963).

118. Henderson v. United States, 231 F. Supp. 177 (N.D. Cal. 1964).119. Martin v. United States, 273 F.2d 775, 778 (10th Cir. 1960).120. Howell v. United States, 172 F.2d 213, 216 (4th Cir. 1949); Lowe

v. Humphrey, 80 F. Supp. 442 (M.D. Pa. 1948).121. Johnson v. Swope, 109 F. Supp. 702 (N.D. Cal. 1953).122. Tuckson v. Clemmer, 231 F.2d 658 (4th Cir. 1956); Clark v. Mem-

olo, 174 F.2d 978, 981 (D.C. Cir. 1949).123. Bilderback v. United States, 159 F. Supp. 713, 715 (M.D. Ga. 1957).

See also Masters v. Eide, 353 F.2d 517 (8th Cir. 1965); Larson v. UnitedStates, 275 F.2d 673, 679 (5th Cir. 1960); United States v. Kobey, 109 F.Supp. 192, 194 (S.D. Cal. 1952).

124. Bilderback v. United States, 249 F.2d 271, 276 (5th Cir. 1957).

19681


the prisoner to obtain the consent of the court of appeals beforemoving to vacate. 121

Several cases have treated a letter from the prisoner as amotion to vacate, 126 and it has been held that the prisoner shouldbe allowed to elaborate upon the issues raised therein. 127 Whilegenerally the motion must allege facts and not merely conclusionsof law,128 where the motion is not prepared by a lawyer, someleeway is allowed. Thus, in one case a motion was allowed eventhough it was unverified and did not descend to any particulars. 2

In a recent case, the Eighth Circuit held that a prisoner's allega-tions of personal beatings and withholding of medical attentionand that his plea of guilty was made in order to obtain medicalattention promptly were sufficiently specific and entitled theprisoner to a hearing.10

While prisoners have frequently been permitted to amendmotions made pursuant to section 2255,'3' amendment may berefused if there has been a series of inadequate motions.13 2 Help-ful forms have been developed by rule of court in the Northern

125. United States v. Fleenor, 177 F.2d 482 (7th Cir. 1949).126. United States v. O'Brien, 349 F.2d 375 (4th Cir. 1965); United

States v. Gerson, 302 F.2d 430 (6th Cir. 1962); Riffle v. United States, 299F.2d 802 (5th Cir. 1962); United States v. Ramsey, 202 F. Supp. 493 (D.Mass. 1962); United States v. Holland, 170 F. Supp. 83, 84 (D.D.C. 1959).

127. United States v. Smith, 309 F.2d 144 (2d Cir. 1962).128. Martinez v. United States, 344 F.2d 325 (10th Cir. 1965); United

States v. Orlando, 327 F.2d 185 (6th Cir. 1964); Rivera v. United States, 318F.2d 606, 608 (9th Cir. 1963); Davis v. United States, 311 F.2d 495 (7th Cir.1963); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961); UnitedStates v. Angelet, 255 F.2d 383 (2d Cir. 1958); United States v. Trumblay,234 F.2d 273 (7th Cir.), cert. denied, 352 U.S. 931 (1956); Taylor v. UnitedStates, 229 F.2d 826, 832 (8th Cir.), cert. denied, 351 U.S. 986 (1956);Walker v. United States, 218 F.2d 80 (7th Cir. 1955); United States v.Spadafora, 200 F.2d 140 (7th Cir. 1952); United States v. Pisciotta, 199 F.2d603, 606 (2d Cir. 1952); United States v. Sturm, 180 F.2d 413, 414 (7th Cir.),cert. denied, 339 U.S. 986 (1950); United States v. Daniels, 191 F. Supp. 129(E.D. Pa. 1961); Deem v. Aero Mayflower Transit Co., 24 F.R.D. 16, 18n.2 (S.D. Cal. 1959); United States v. Comulada, 155 F. Supp. 266 (S.D.N.Y.1957); United States v. Cope, 144 F. Supp. 799, 800 (W.D. Mo. 1956).See Note, 111 U. PA. L. REV. 788, 790-99 (1963).

129. See Smith v. United States, 259 F.2d 125, 127 (9th Cir. 1958); Deemv. Aero Mayflower Transit Co., 24 F.R.D. 16, 18 n.2 (S.D. Cal. 1959). SeeA.B.A., REPORT ON POST-CONVICTION REMEDIES 57-59 (1967).

130. Burleson v. United States, 340 F.2d 387 (8th Cir. 1965).131. Sanders v. United States, 373 U.S. 1, 19 (1963); Rivera v. United

States, 318 F.2d 606, 608 (9th Cir. 1963); Stephens v. United States, 246 F.2d607 (10th Cir. 1957); Swepston v. United States, 227 F. Supp. 429, 431 (W.D.Mo. 1964); Hamby v. United States, 217 F. Supp. 318 (W.D. Mo. 1963);Burleson v. United States, 205 F. Supp. 331, 335 (W.D. Mo. 1962).

132. Turner v. United States, 206 F. Supp. 261, 262 (W.D. Mo. 1962).

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MOTION TO VACATE

District of Illinois. 133

The First Circuit has stated that a motion "containing manifestperjury, or otherwise displaying manifest bad faith should bebrought to the attention of the parole authorities as part of theprisoners' record.1 34

Applying Rule 41 (a) (2) of the Federal Rules of Civil Procedure,the Fifth Circuit has held that where the government had filedits opposition to a motion to vacate and to issuance of subpoenas,the court may deny a later motion on behalf of the prisoner towithdraw the motion to vacate.13 5

In regard to the collateral consequences of the making of amotion to vacate, it has been held that, where the defendant haspleaded guilty, the filing of a motion does not affect the grantingof a divorce based upon final conviction of a felony.136 Moreover,the fact that a physician who had been convicted of income taxevasion intended to move to vacate his sentence on the groundthat the acts which he had committed amounted only to a mis-demeanor, has been held not to entitle the physician to a rehearingin a mandamus proceeding in a state court to set aside an ordersuspending his physician's license for a period of one year.'3 7

IX. HEARING

Pursuant to the express terminology of the statute, it hasgenerally been held that where the allegations of the motion andthe files and records show the accused is not entitled to relief,there need be no hearing."38 Nor must a hearing be had wherethe assertions of the moving party are incredible. 139 Likewise,there need be no hearing where only a question of law is in-

133. See 33 F.R.D. 382-84, 391-93, 404-08 (1964). Similar rules havebeen adopted in both the Northern and Southern Districts of Indiana.See Smith, Motion to Vacate, Set Aside or Correct Sentence, 40 NOTRE DAMELAWYER 171, 189 (1965)

.134. Cruz Rivera v. United States, 341 F.2d 746, 747 (lst Cir. 1965).See A.B.A., REPORT ON POST-CONVICTION REMEDIES 53-54 (1967).

135. Estep v. United States, 251 F.2d 579, 582 (5th Cir. 1958).136. Katz v. Katz, 136 A.2d 261 (D.C. Mun. Ct. App. 1957).137. Furnish v. Board of Med. Exam'rs, 149 Cal. App. 2d 326, 309 P.2d

493, cert. denied, 355 U.S. 827, 879 (1957).138. Lynott v. United States, 360 F.2d 586 (3d Cir. 1966); Daniels v.

United States, 246 F.2d 194 (9th Cir. 1957); Pettway v. United States, 216F.2d 106 (6th Cir. 1954); United States v. Bernett, 92 F. Supp. 26 (D. Md.),aff'd, 183 F.2d 1024 (4th Cir. 1950); United States v. Maher, 89 F. Supp.289, 295 (D. Me. 1950); United States v. Cameron, 84 F. Supp. 289 (S.D.Miss. 1949).

139. United States v. Catalano, 281 F.2d 184 (2d Cir.), cert. denied,364 U.S. 845 (1960); Scott v. United States, 190 F. Supp. 470 (E.D. Ky.),dff'd, 292 F.2d 49 (6th Cir.), cert. denied, 368 U.S. 879 (1961).

19681


volved.1 40 Beyond this the Fifth Circuit has held that whencounsel appointed by the court to represent the defendant on amotion to vacate held a pretrial conference, investigated the filesand records, and advised the court of his conclusion that anevidentiary hearing would serve no purpose, the court mayproperly deny the motion without a hearing."'

On the other hand, there must be a hearing where the filesand records do not conclusively show that the defendant is entitledto no relief.142 Accordingly, the courts have ordered hearings onmotions to vacate raising the issue of representation by counsel,both in cases where the defendant has been sentenced after hisguilty plea was entered,' 43 and where there has been a trial.1 44

Although the defendant is entitled to a hearing when the Govern-ment does not deny the allegations of the motion,' 45 the merefact that the United States Attorney denies the allegations doesnot dispense with the need for a hearing. 46 The same resultfollows when some of the facts challenged are not of record.147

Likewise, where the offense is grave, such as second degree mur-der, there should be a hearing.148 There should be a hearing asto factual issues raised concerning the defendant's mental compe-tency at the time of the trial,'1 4 9 as well as his competency at

140. Finley v. United States, 296 F.2d 238 (5th Cir. 1961).141. Johnson v. United States, 339 F.2d 2d 29 (5th Cir., 1964). See

the valuable discussion of pretrial conference in A.B.A., REPORT ON POST-CONVICTION REMEDIES 74-75 (1967).

142. Andrews v. United States, 286 F.2d 829 (5th Cir. 1961); Lindsey v.United States, 273 F.2d 77 (D.C. Cir. 1959); Parks v. United :States, 233 F.2d 321 (5th Cir. 1956); United States v. Swope, 232 F.2d 853 (5th Cir. 1956);United States v. Davis, 212 F.2d 264 (7th Cir. 1954); Davis v. United States,210 F.2d 118, 120 (8th Cir. 1954); Taylor v. United States, 193 F.2d 411(10th Cir. 1952); Ziebart v. United States, 185 F.2d 124 (5th Cir. 1950);United States v. Von Willer, 181 F.2d 774 (7th Cir. 1950);, Cherrie v.United States, 179 F.2d 94, 96 (10th Cir. 1949); Buono v. United States,.126F. Supp. 644 (S.D.N.Y. 1954).

143. Del Piano v. United States, 362 F.2d 931 (3d Cir. 1966); Reed v.United States, 291 F.2d 856 (4th Cir. 1961); United States v. Salerno, 290 F.2d 105 (2d Cir. 1961); McGuire v. United States, 289 F.2d 405, 409 (9thCir. 1961); Smith v. United States, 223 F.2d 750, 753 (5th Cir. 1955); Maysv. United States, 216 F.2d 186 (10th Cir. 1954); Howard v. United States,186 F.2d 778 (6th Cir. 1951). See Harvey, 28 U. S. C. 2255: From HabeasCorpus to Coram Nobis, 1 WASHBURN L.J. 381, 396-98 (1961).

144. Frand v. United States, 289 F.2d 693 (10th Cir. 1961).145. Porter v. United States, 298 F.2d 461 (5th Cir. 1962); Hill v

United States, 256 F.2d 957 (6th Cir. 1958); Bailey v. United States, 246 F.2d698 (D.C. Cir. 1957); Dunn v. United States, 245 F.2d 407 (6th Cir. 1957).

146. Motley v. United States, 230 F.2d 110 (5th Cir. 1956).147. Steinberg v. United States, 256 F.2d 143 (5th Cir. 1958).148. Gregory v. United States, 233 F.2d 907 (5th Cir. 1956).149. Nelms v. United States, 318 F.2d 150, 154 (4th Cir. 1963); Puckett

v. United States, 314 F.2d 298 (10th Cir. 1963); Bostic v. United States,

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MOTION TO VACATE

the time of a guilty plea. 150 Likewise, the defendant is en-titled to a hearing upon his allegations that he was induced bypolice officers to plead guilty and to waive his right to counsel. 15'While the general rule is that a hearing is necessary where themotion presents factual issues, the records of prior proceedingsmay so completely rebut the prisoner's contentions or demon-strate that the prisoner had prior opportunities to urge his claimsand failed to do so, thereby rendering a hearing unnecessary. 52

Judge Carter has concluded that the usual grounds whichrequire a hearing, and usually the presence of the prisoner, areas follows:

1. That the defendant was insane or incompetent at arraign-ment, plea, trial, or sentence;2. lack of effective assistance of counsel so that the trial wasa farce and a mockery;3. that the United States Attorney knowingly used perjuredtestimony, or suppressed evidence showing innocence of thedefendant; and4. that the plea of guilty was not entered voluntarily. 15'

Where the court has erroneously refused a hearing on thefirst motion, it must entertain a second motion and grant a hear-ing.5 4 Moreover, it is reversible error for the court to refuse togive a hearing on a second motion, even though it raises thesame grounds as the earlier motion, where new evidence suffi-ciently alters the situation and establishes a stronger case forrelief.

155

It has been held that there is no improper delay in hearing amotion to vacate where the judge first finishes an importantcriminal trial lasting several weeks.15 6

298 F.2d 678 (D.C. Cir. 1961); Corbett v. United States, 296 F.2d 131 (5thCir. 1961); Taylor v. United States, 282 F.2d 16, 21 (8th Cir. 1960).

150. Dickey v. United States, 345 F.2d 508 (5th Cir. 1965); Praylow v.United States, 298 F.2d 792 (5th Cir. 1962); Callahan v. United States, 297F.2d 79 (5th Cir. 1961); Meadows v. United States, 282 F.2d 942 (5th Cir.1960).

151. Watson v. United States, 262 F.2d 33 (D.C. Cir. 1958). See alsoRomero v. United States, 327 F.2d 711 (5th Cir. 1964). See Note, 111U. PA. L. REV. 788, 808-13 (1963).

152. Cain v. United States, 271 F.2d 337, 338 (8th Cir. 1959).153. Carter, Pre-Trial Suggestions for Section 2255 Cases Under Title

28 United States Code, 32 F.R.D. 391, 395 (1963).154. Andrews v. United States, 286 F.2d 829 (5th Cir. 1961).155. Kyle v. United States, 297 F.2d 507 (2d Cir. 1961).156. Reiff v. United States, 299 F.2d 366 (9th Cir. 1962). For a dis-

cussion favoring a prompt hearing, see A.B.A., REPORT ON POsT-CONVIC-TION REMEDIES 61 (1967).

1968]


In any event the hearing must be held in the district ofsentencing, and not in the district of confinement.'5 7 The samejudge who tried the case may properly hear the motion tovacate,' 18 but if the sentencing judge is to testify, another judgeshould hear the motion.159 Prejudice of the judge which wouldbar his sitting on a motion to vacate is not shown by a complaintof adverse ruling.'"

The extent and scope of the hearing is in the discretion of thecourt, 161 and the hearing may be restricted to particular issues. 6 2

However, the hearing should be in open court. 6 3

There is authority to the effect that a judgment will not beset aside in the absence of a showing that retrial would result in adifferent judgment. 6 4 While normally the burden of proof is onthe prisoner to sustain his contentions by a preponderance of theevidence, 6 5 the rule is otherwise where it is shown that thedistrict court has not complied with Rule 11 requiring that the

157. Baker v. United States, 287 F.2d 5 (9th Cir. 1961).158. Rogers v. United States, 350 F.2d 297 (10th Cir. 1965); United

States v. Smith, 337 F.2d 49, 51 (4th Cir. 1964); United States v. Davis,212 F.2d 681, 684 (3d Cir. 1954); Carvell v. United States, 173 F.2d 348(4th Cir. 1949); Williams v. United States, 246 F. Supp. 970 (E.D.N.C. 1965).

159. Gilliam v. United States, 269 F.2d 770, 773 (D.C. Cir. 1959). SeeA.B.A., REPORT ON POST-CONVICTION REMEDIES 76 (1967).

160. Palmer v. United States, 249 F.2d 8 (10th Cir. 1957).161. Sanders v. United States, 373 U.S. 1 (1963); Vinson v. United

States, 235 F.2d 120 (6th Cir. 1956); United States v. Paglia, 190 F.2d 445,447 (2d Cir. 1951); State ex rel. Dinneen v. Tahash, 272 Minn. 7, 136 N.W.2d847, 852 (1965).

162. United States v. Paglia, 190 F.2d 445, 448 (2d Cir. 1951).163. Id.164. Bistram v. United States, 237 F.2d 243, 246 (8th Cir. 1956); United

States v. Bremer, 207 F.2d 247, 250 (9th Cir. 1953); Ziebart v. UnitedStates, 192 F.2d 804 (5th Cir. 1951); United States v. Bowen, 94 F. Supp.1006, 1009 (N.D. Ga.), aff'd, 192 F.2d 515 (5th Cir. 1951), cert. denied, 343U.S. 943 (1952).

165. Smith v. United States, 339 F.2d 519, 526 (8th Cir. 1964); McNairv. United States, 235 F.2d 856 (D.C. Cir. 1956); United States v. Trumblay,234 F.2d 273 (7th Cir.), cert. denied, 352 U.S. 931 (1956); Taylor v. UnitedStates, 229 F.2d 826, 832 (8th Cir.), cert. denied, 351 U.S. 986 (1956); UnitedStates v. Bremer, 207 F.2d 247, 250 (9th Cir. 1953); Ryles v. United States,198 F.2d 199 (10th Cir. 1952); Voltz v. United States, 196 F.2d 298 (5thCir.), cert. denied, 344 U.S. 859 (1952); Hearn v. United States, 194 F.2d647 (7th Cir. 1952); Padgett v. United States, 252 F. Supp. 772, 775 (E.D.N.C.1965); Hayes v. United States, 208 F. Supp. 178, 182 (E.D.N.C. 1962); Smithv. United States, 141 F. Supp. 245, 248 (S.D. Tex. 1956); United States v.Sumpter, 111 F. Supp. 507, 509 (S.D.N.Y. 1953); United States v. Shepherd,108 F. Supp. 721 (D.N.H. 1952); Allen v. United States, 102 F. Supp. 866, 869(N.D. Ill. 1952); United States v. Kline, 98 F. Supp. 325, 328 (E.D.N.Y1951); United States v. DeJordan, 86 F. Supp. 770, 774 (D. Minn. 1949),aff'd, 187 F.2d 263 (8th Cir.), cert. denied, 341 U.S. 942 (1951). See A.B.A.,REPORT ON POST-CONVICTION REMEDIES 77 (1967); 3 ORFIELD 36 (1967).

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MOTION TO VACATE

court shall not accept a guilty plea without determining that it isvoluntary and intelligent. 166 The rule placing the burden of proofupon the prisoner is particularly applicable if a long time haselapsed since trial.167

The motion to vacate does not give the prisoner the right totry the facts bearing upon his guilt or innocence over again, 6"and evidence bearing on that issue is not admissible. It has beenheld, however, that evidence of guilt may be admitted wherethe prisoner himself injects the issue. 6 Moreover, it is generallyheld that the sufficiency of the evidence to sustain the defendant'sconviction may not be attacked.1 70

At the hearing on a section 2255 motion, affidavits may not beused as a substitute for testimony.'7 ' In one case it was held thathearsay evidence in the form of the prisoner's statement of whathis co-defendant had said to a third person was inadmissible.' 72

Furthermore, a defendant may be prosecuted for perjury com-mitted at the hearing on his motion to vacate.1'73

Where a defendant raised the issue of improper conduct byhis attorney by a motion to vacate, the attorney has been allowedto testify.174 Beyond this one federal district court has permittedattorneys who had represented the defendants in the state courtto testify for the Government over the objection of attorney-clientprivilege, on the issue of the bona fides of the defendants' conten-tions and the weight to be given to their testimony.1'7

In regard to rehearing of a motion to vacate, the rule appearsto be that a motion for rehearing made after the denial of a motion

166. Rimanich v. United States, 357 F.2d 537 (5th Cir. 1966).167. United States v. Bostic, 206 F. Supp. 855, 856-57 (D.D.C. 1962).168. Frierson v. United States, 223 F.2d 255 (6th Cir. 1955); United

States v. Spadafora, 207 F.2d 291, 293 (7th Cir. 1953); United States v.Skoog, 165 F. Supp. 397 (D. Colo. 1958); Sehon Chinn v. United States,85 F. Supp. 561 (S.D. W. Va. 1948).

169. Jones v. United States, 364 F.2d 502 (4th Cir. 1966); Davis v.United States, 123 F. Supp. 407, 413 (D. Minn. 1954).

170. Evans v. United States, 346 F.2d 512 (8th Cir. 1965); Armstead v.United States, 318 F.2d 725 (5th Cir. 1963); Curry v. United States, 292 F.2d576 (10th Cir. 1961); Crawford v. United States, 219 F.2d 478 (6th Cir.1955); United States v. Tunstell, 196 F. Supp. 60, 62 (D. Hawaii 1961).

171. Legg v. United States, 350 F.2d 945 (6th Cir. 1965). That normalrules of evidence be applied is urged in A.B.A., REPORT ON POST-CONVIC-TION REMEDIES 75 (1967).

172. D'Ercole v. United States, 361 F.2d 211 (2d Cir. 1966).173. Williams v. United States, 239 F.2d 748 (5th Cir. 1957). See

A.B.A., REPORT ON POST-CONVICTION REMEDIES 54 (1967).174. United States v. Wiggins, 184 F. Supp. 673, 677 (D.D.C. 1960);

United States v. Monti, 100 F. Supp. 209, 212 (E.D.N.Y. 1951).175. Mahoney v. United States, 48 F. Supp. 212, 215 (W.D. La. 1943).

See also United States v. Kendrick, 331 F.2d 110, 113 (4th Cir. 1964).

1968]


to vacate will be denied where it contains nothing new ormeritorious.

176

X. PRESENCE OF DEFENDANT AT HEARING

It has been held that the presence of the defendant at thehearing upon a section 2255 motion lies within the discretion ofthe court.177 While the prisoner need not be present to testifywhere only issues of law are involved, 17 where there are sub-stantial issues of fact as to events in which he participated, heshould be before the court. 79 In this connection the SupremeCourt has stated:

Whether the prisoner should be produced depends uponthe issues raised by the particular case. Where, as here,there are substantial issues of fact as to events in whichthe prisoner participated, the trial court should require hisproduction for a hearing. 80

In accordance with foregoing rules it has been held that aprisoner who claimed that he was mentally incompetent to standtrial because of drugs administered by the jail physician duringthe course of his trial, when the prisoner was outside of thecourtroom, is entitled to be present at the hearing upon his motionto vacate.'18 The prisoner, however, has no right to appear per-sonally before the court hearing his motion to vacate where therecord conclusively shows that the prisoner is entitled to norelief, 8 2 nor need the defendant be present at a hearing of asecond motion under section 2255 involving the same issues aswere raised by a previous motion. 8 3 It has also been held, in theFifth Circuit, that the defendant may properly be excluded fromthe courtroom during testimony of psychiatrists in a hearing uponhis motion to vacate which raises issues respecting his mentalcompetency.8 4 Moreover, in some cases the testimony of the

176. United States v. Rosario, 147 F. Supp. 434, 439 (S.D.N.Y. 1956).177. Machibroda v. United States, 368 U.S. 487, 495 (1962); Carvell v.

United States, 173 F.2d 348 (4th Cir. 1949). See 6 ORFIELD 46 (1967); Note,111 U. PA. L. REV. 788, 813-18 (1963).

178. Newman v. United States, 212 F.2d 450 (6th Cir. 1954).179. Guy v. United States, 287 F.2d 393 (6th Cir. 1961); Andrews v.

United States, 286 F.2d 829, 831 (5th Cir. 1961).180. United States v. Hayman, 342 U.S. 205, 223 (1952). See also

United States v. Pisciotta, 199 F.2d 603, 606 (2d Cir. 1952); Slack v. UnitedStates, 196 F.2d 493 (6th Cir. 1952); Clark v. United States, 194 F.2d 528(7th Cir. 1952); A.B.A., REPORT ON POST-CONVICTION REMEDIES 73 (1967).

181. Juelich v. United States, 316 F.2d 726 (5th Cir. 1963).182. Garcia v. United States, 197 F.2d 687 (9th Cir. 1952).183. Lipscomb v. United States, 226 F.2d 812, 816 (8th Cir. 1955), cert.

denied, 350 U.S. 971 (1956).184. Johnson v. United States, 293 F.2d 100 (5th Cir. 1961).

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MOTION TO VACATE

prisoner can be taken by deposition at the prison in which he isincarcerated, in lieu of his personal appearance before the courthearing his motion. 8 5

XI. DISCOVERY

It has been held that the civil discovery rules, such as thoseproviding for discovery by the use of interrogatories, may not beused in connection with a motion to vacate under section 2255.186However, the Fifth Circuit has upheld the use of a request foradmissions under Rule 36 of the Federal Rules of Civil Procedurein a habeas corpus proceeding brought by a state prisoner, 1 87 andthe Sixth Circuit has upheld the use by a federal prisoner ofinterrogatories under Rule 33 of the Federal Rules of Civil Pro-cedure. s8 The Fifth Circuit has also held, however, that thedistrict court has discretion to refuse to issue a subpoena inconnection with a motion to vacate. 1 9 Likewise, where theprisoner fails to show what the requested witnesses would testifyto,190 and where the prisoner does not name particular witnesses,' 9 'the district court need not summon witnesses for a hearing upona motion to vacate pursuant to the prisoner's request. The EighthCircuit has upheld a district court's action in refusing the takingof a second deposition from the movant's brother who was incar-cerated in a federal prison, where the movant had already beenallowed to take one deposition.192

XII. FINDINGS OF FACT

The statutory requirement that the court make findings offact and conclusions of law is similar to that embodied in Rule 52 (a)of the Federal Rules of Civil Procedure. 193 Its purpose is to enable

185. Kimbrough v. United States, 226 F.2d 485 (5th Cir. 1955).186. United States v. Marcello, 202 F. Supp. 694, 696 (E.D. La. 1962);

Sullivan v. United States, 198 F. Supp. 624 (S.D.N.Y. 1961).187. United States v. Wiman, 304 F.2d 53, 63-65 (5th Cir. 1962), cert.

denied, 372 U.S. 915 (1963).188. Schiebelhut v. United States, 318 F.2d 785 (6th Cir. 1963). See

Carter, Pre-Trial Suggestions for Section 2255 Cases, 32 F.R.D. 391, 396(1963). For a discussion favoring a wide use of discovery, see A.B.A.,REPORT ON POST-CONVICTION REMEDIES 67-71 (1967).

189. Estep v. United States, 251 F.2d 579, 582 (5th Cir. 1958). See 2ORFIELD 658 (1966).

190. Smith v. United States, 252 F.2d 369 (5th Cir. 1958).191. Cathcart v. United States, 311 F.2d 214 (5th Cir. 1962).192. Bistram v. United States, 248 F.2d 343, 347 (8th Cir. 1957).193. Michener v. United States, 177 F.2d 422 (8th Cir. 1949). See also

Thomas v. United States, 217 F.2d 494 (6th Cir. 1954); United States v.Cook, 208 F.2d 114 (7th Cir. 1953).

1968]


the appellate court to determine the grounds upon which the trialcourt reached its decision, to enable the defeated party to determinewhether the case presents a question worthy of appeal, and tospare the appellate court the necessity of searching the record inorder to supply findings of fact. The rule requiring findings offact has been held to be mandatory, and if no findings are made,the court of appeals will reverse and direct the making of suchfindings.10 4 In one case arising out of the District of Columbia,it was held that the trial judge should have made an expressfinding on the question of whether or not the defendant hadwaived his right to counsel knowingly and intelligently, wherethe defendant, who had pleaded guilty, raised the issue in a motionproceeding. The judge's statement that he had no actual recol-lection of the facts, but that he was certain that the defendanthad been informed of his right to counsel was not sufficient. 195

A number of cases have held that the district court need makeno findings of fact and conclusions of law where it conclusivelyappears from the face of the motion and the files and records thatthe prisoner is entitled to no relief.196 In such a case, it is betterprocedure to recite, in the language of the statute, that the motion,files, and records conclusively show that the prisoner was entitledto no relief.197 Where, however, the case is not such that itconclusively appears that the prisoner is entitled to no relief, thedistrict court may not, without notice to the prisoner and withouta hearing, make findings on controverted issues of fact. 198

Notwithstanding the requirements noted above, formal find-ings of fact may be unnecessary where the judge's commentclearly indicates the essential findings. 99

XIII. APPEAL

A prisoner who has been denied relief upon his motion tovacate may appeal, just as he may from a denial of habeascorpus.2 0 0 The court of appeals, however, will not itself hear an

194. United States v. Cook, 208 F.2d 114 (7th Cir. 1953).195. Daniel v. United States, 274 F.2d 768 (D.C. Cir. 1960).196. United States v. Lawrence, 216 F.2d 570 (7th Cir. 1954); Smith v.

United States, 213 F.2d 730 (6th Cir. 1954); Brown v. United States, 212F.2d 589 (6th Cir. 1954); Birtch v. United States, 173 F.2d 316 (4th Cir.),cert. denied, 337 U.S. 944 (1949).

197. Adams v. United States, 222 F.2d 45, 48 (D.C. Cir. 1955); Mar-shall v. United States, 217 F.2d 467, 469 (6th Cir. 1954).

198. Machibroda v. United States, 368 U.S. 487, 494 (1962).199. Papalia v. United States, 333 F.2d 620 (2d Cir.), cert. denied, 379

U.S. 838 (1964).200. Hoover v. United States, 268 F.2d 787, 789 (10th Cir. 1959); United

States v. Hall, 176 F.2d 163, 167 (2d Cir.), cert. denied, 338 U.S. 851 (1949).

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MOTION TO VACATE

original motion to vacate,20 1 and where no appeal is taken fromdenial of the motion, the proceedings on the motion cannot bereviewed on appeal from the original conviction. 202 Several caseshave upheld the right of the Government to appeal to the courtof appeals from an adverse ruling on a motion to vacate. 20 3 Theappeal, whether by the prisoner or by the Government, may bedismissed unless a notice of appeal is filed in the district court.20 4

A timely motion for leave to appeal in forma pauperis, however,mailed to the clerk of the court of appeals, has been treated as anotice of appeal from denial of a motion to vacate, even thoughnormally such notice should be filed in the district court.20 5 Thisresult follows, even though the petition to appeal in forma pauperisis denied.20 6 Moreover, a letter to a member of the court ofappeals has been treated as notice of appeal from denial of amotion to vacate, 20 7 as has the filing of a mandamus proceeding onbehalf of the prisoner. 20 8 In one case, where the district court afterdenying a motion to vacate without a hearing later entered an ordergranting a hearing, the court of appeals was not deprived of juris-diction to hear an appeal from the original order on the grounds ofmootness.20 9 It has also been held that where the court's journalentries show otherwise, the defendant is in no position to claimthat the district court failed to adjudicate the issues raised by hismotion. 210.

The court of appeals may refuse to grant leave to appeal informa pauperis, 21

1 or dismiss such an appeal,21 2 where the appealis without merit and not taken in good faith.

An appeal from an order denying a motion to vacate is timelywhen brought within 60 days from the entry of the order.21 3 The

201. Flynn v. United States, 222 F.2d 541 (9th Cir. 1955); Davis v.United States, 175 F.2d 19 (9th Cir. 1949).

202. Bruno v. United States, 180 F.2d 393, 395 (D.C. Cir. 1950).203. Dorsey v. United States, 358 F.2d 142 (7th Cir. 1966); United States

v. Poe, 352 F.2d 639 (D.C. Cir. 1965); United States v. Marchese, 341 F.2d782 (9th Cir. 1965); United States v. Donovan, 301 F.2d 376 (2d Cir. 1962);United States v. Kelly, 269 F.2d 448, 451 (10th Cir. 1959), cert. denied,362 U.S. 904 (1960); United States v. Williamson, 255 F.2d 512, 515 (5thCir. 1958), cert. denied, 358 U.S. 941 (1959).

204. Williams v. United States, 219 F.2d 300 (9th Cir. 1955).205. Gerringer v. United States, 213 F.2d 346, 352 (D.C. Cir. 1954).206. Burdix v. United States, 231 F.2d 893 (9th Cir.), cert. denied, 351

U.S. 975 (1956).207. Riffle v. United States, 299 F.2d 802 (5th Cir. 1962).208. Hartman v. United States, 310 F.2d 447 (6th Cir. 1962).209. Williams v. United States, 227 F.2d 48 (5th Cir. 1955).210. Morales v. United States, 187 F.2d 518 (1st Cir. 1951).211. Davis v. United States, 214 F.2d 594 (7th Cir. 1954).212. Hamilton v. United States, 194 F.2d 1011 (4th Cir. 1952).213. Gill v. United States, 357 F.2d 334 (5th Cir. 1966); Klink v. United

19681


time limitation is governed by Rule 73 of the Federal Rules ofCivil Procedure and 28 U.S.C. section 2102, and not by Rule 37(a) (2)of the Federal Rules of Criminal Procedure. An untimely appealfrom denial of a motion to vacate may be dismissed.214 In onecase it was held that where a notice from the clerk of the court,which was dated October 20, did not inform the defendant thatOctober 13 was the date of the denial of his motion to vacate, thedefendant, an indigent layman, could rely on October 20 as thedate of denial for purposes of computing time to appeal. Thecourt held that the provision of Rule 73 that lack of notice ofentry of an order by the district court does not affect the time toappeal was not applicable. 215 The Ninth Circuit, however, hasheld that where an order denying a motion to vacate is not final,the denial of defendant's motion for rehearing and new trial startsthe appeal time running.216

Where such action is justified by the circumstances, a court ofappeals may properly grant an extension of time to file the recordon appeal from denial of a motion to vacate, and the court may inaddition grant permission to be heard on typewritten records andbriefs.217 The Fifth Circuit has held that it would deny a motionto dismiss the appeal, where the defendant was not representedby counsel and his failure to file the record on an appeal from adenial of a motion to vacate was due to ignorance of legal pro-cedure, if it appeared that the defendant was entitled to anyrelief.

218

The scope of review on appeal from a denial of a motion tovacate is the same as that in habeas corpus cases.21 9 Accordingly,findings of fact made by the court on motion to vacate will not beoverturned unless they appear to be clearly erroneous. 220 If theaverments of the prisoner in his motion are contradicted by the

States, 308 F.2d 775 (10th Cir. 1962); Martin v. United States, 263 F.2d 516(10th Cir. 1959); Kirksey v. United States, 219 F.2d 499 (D.C. Cir. 1954);United States v. Scarlata, 214 F.2d 807, 808 n.1 (3d Cir. 1954); Mercado v.United States, 183 F.2d 486 (1st Cir. 1950). See 5 ORFIELD 399 (1967).

214. Corcoran v. United States, 231 F.2d 449, 452 (7th Cir. 1956); For-gona v. United States, 221 F.2d 794 (9th Cir. 1955); Gregory v. UnitedStates, 219 F.2d 809 (5th Cir. 1955).

215. West v. United States, 222 F.2d 774, 779 (D.C. Cir. 1954).216. Munich v. United States, 330 F.2d 774 (9th Cir. 1964).217. United States v. Branch, 238 F.2d 577 (2d Cir. 1956).218. Watley v. United States, 221 F.2d 476 (5th Cir. 1955).219. Smith v. United States, 187 F.2d 192, 195 (D.C. Cir. 1950), cert.

denied, 341 U.S. 927 (1951).220. Todd v. United States, 362 F.2d 531 (10th Cir. 1966); Jackson v.

United States, 353 F.2d 862, 865 n.4 (D.C. Cir. 1965) (citing many cases);Lipscomb v. United States, 209 F.2d 831, 834 (8th Cir.), cert. denied, 347U.S. 962 (1954).

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MOTION TO VACATE

record, the appellate court must accept the record as truthful andaccurate in its recital of what occurred at the time of the arraign-ment and sentencing of the defendant.2 21 When the appeal isfrom a denial of the motion without a hearing, the appellate courtmust accept the averment of facts in the motion as being true tothe extent that they are not inconsistent with the record, and onthat basis decide whether or not the allegations entitle the defend-ant to a hearing.2 22 It has been held, however, that a recital inthe clerk's minutes or in the judgment and sentence of the courtthat the defendant has been apprised of his right to counsel andhas waived his right is not conclusive when that issue is raised inproceedings upon a motion to vacate. 223

As in other cases, the court of appeals need not considerissues not raised in the briefs,2 24 nor need it consider those notraised in the district court.225 However, in cases of manifestinjustice, the court may consider a point not raised below.226

Where the court in which the motion was made has ruledagainst the defendant without a hearing upon the issues raisedby the motion, the court of appeals must determine whether therewas such a conclusive showing of lack of merit that the defendantwas not entitled to a hearing.22 7

Mandamus, not habeas corpus, is the proper remedy wherethe trial judge has declined to accept a filing of a motion tovacate,228 but an application for mandamus has sometimes beentreated as an appeal. 229 The Ninth Circuit in one case refused

221. Carroll v. United States, 174 F.2d 412 (6th Cir.), cert. denied, 338U.S. 874 (1949).

222. Taylor v. United States, 238 F.2d 409, 412 (9th Cir. 1956), cert.denied, 353 U.S. 938 (1957); United States v. Sturm, 180 F.2d 413, 414 (7thCir.), cert. denied, 339 U.S. 986 (1950).

223. Taylor v. United States, 193 F.2d 411 (10th Cir. 1952). See alsoSmith v. United States, 216 F.2d 724, 726 (5th Cir. 1954).

224. Michener v. United States, 181 F.2d 911, 917 (8th Cir. 1950).225. Weed v. United States, 360 F.2d 568 (5th Cir. 1966); Bush v. United

States, 347 F.2d 231 (6th Cir. 1965); Austin v. United States, 334 F.2d 75(6th Cir. 1964); Eller v. United States, 327 F.2d 639 (9th Cir. 1964);Lampe v. United States, 288 F.2d 881 (D.C. Cir. 1961), cert. denied, 368U.S. 958 (1962); Smith v. United States, 287 F.2d 270, 273 (9th Cir.), cert.denied, 366 U.S. 946 (1961); Bartholomew v. United States, 286 F.2d 779,781 (8th Cir. 1961); Johnston v. United States, 254 F.2d 239, 241 (8th Cir.1958); Williams v. United States, 239 F.2d 748 (5th Cir. 1957); Flores v.United States, 238 F.2d 758, 760 (9th Cir. 1956); Stern v. United States, 219F.2d 263, 265 (4th Cir. 1955); Walker v. United States, 218 F.2d 80 (7thCir. 1955); Hornbrook v. United States, 216 F.2d 112 (5th Cir. 1954).

226. United States v. Barillas, 291 F.2d 743 (2d Cir. 1961).227. United States v. Rutkin, 212 F.2d 641, 644 (3d Cir. 1954).228. Madsen v. Hinshaw, 237 F.2d 370 (9th Cir. 1956).229. Jordan v. United States District Court, 233 F.2d 362, 364-65 (D.C.

Cir.), vacated on other grounds, 352 U.S. 904 (1956).

1968]


to issue a mandamus to compel a district judge to act upon amotion made under section 2255, where the issue became mootwhen the judge in the lower court finally acted. 23 0 In anothercase the Ninth Circuit held that where the prisoner has beendenied participation in the hearing upon his motion, and the orderdenying the motion to vacate is therefore void for violation ofthe due process clause of the Fifth Amendment, the defendantmay move under Rule 60(b) of the Federal Rules of Civil Procedureto set aside the order without appealing therefrom.231

In a proper case, an appeal from denial of a motion to vacatemay be dismissed as frivolous.23 2

In one case a federal district court denied a motion to vacatethe defendant's sentence, where the defendant's case had beenconsolidated for trial with that of a co-defendant. On appeal bythe co-defendant from the original conviction, it was determinedthat illegal evidence had been received in the trial against bothdefendants, requiring a reversal as to the co-defendant. Althoughthe illegal evidence was the crux of the case against both defend-ants, the motion was denied. 233

It is interesting to note that the First Circuit has adopted arule that there is to be no oral argument by the Government onappeal unless the prisoner is given a similar opportunity.2 34

XIV. RIGHT TO COUNSEL

The Fourth Circuit held in 1949 that there is no constitutionalright to counsel on motion to vacate. 235 Several cases have heldthat assignment of counsel to the movant is in the discretion ofthe court. 23 1 In one case it has been held that the court need

230. Truman v. McCarrey, 221 F.2d 799 (9th Cir. 1955).231. Winhoven v. United States, 201 F.2d 174 (9th Cir. 1952).232. Perry v. United States, 314 F.2d 52 (8th Cir. 1963); Williams v.

United States, 292 F.2d 157 (8th Cir. 1961); Turner v. United States, 275F.2d 307 (8th Cir.), cert. denied, 364 U.S. 841 (1960).

233. United States v. Byrd, 166 F. Supp. 350 (D.D.C. 1958).234. Kent v. United States, 272 F.2d 795, 796 (1st Cir. 1959).235. Crowe v. United States, 175 F.2d 799, 801 (4th Cir. 1949), cert.

denied, 338 U.S. 950 (1950). See also Dillon v. United States, 307 F.2d 445,446 (9th Cir. 1962); In re Dinerstein, 258 F.2d 609 (9th Cir. 1958); Tubbs v.United States, 249 F.2d 37 (10th Cir. 1957); United States v. Caufield, 207F.2d 278, 280 (7th Cir. 1953); Richardson v. United States, 199 F.2d 333(10th Cir. 1952); A.B.A., REPORT ON POsT-CoNvICTION REMEDIES 64-67(1967); 6 ORFIELD 139-41 (1967).

236. Baker v. United States, 334 F.2d 444, 447 (8th Cir. 1964); McCart-ney v. United States, 311 F.2d 475 (7th Cir. 1963); United States v. Pruitt,121 F. Supp. 15, 21 (S.D. Tex.), aff'd, 217 F.2d 648 (5th Cir. 1954), cert.denied, 349 U.S. 907 (1955).

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MOTION TO VACATE

not appoint counsel for an absent defendant on the hearing of amotion.

237

In 1951 the Second Circuit stated by Learned Hand that whenthere is a hearing upon a section 2255 motion, the prisoner "mustbe represented by counsel."238 The mandate that an indigentprisoner is entitled to appointed counsel in motion proceedings hasbeen said to grow out of the due process clause of the FifthAmendment, rather than the Sixth Amendment right to counsel incriminal prosecutions.2 3 9 It has been held that counsel shouldbe appointed in the district court when the motion presents a tri-able issue of fact, the clear presentation of which requires an abilityto recognize factual data and to call witnesses and elicit testimonyin a logical fashion. 240 Likewise, counsel should be appointed toconduct motion proceedings where the ground for the motion ismental incompetency at the time when the defendant entered aplea of guilty. 241

The Second, 24 2 Third,243 Sixth,244 Seventh,245 and Ninth246

Circuits have held that the prisoner is entitled to counsel onmotion to vacate. However, both the Tenth247 and the Fifth24

1

Circuits have left the question to the discretion of the court hear-ing the motion. In several cases courts have appointed counselto represent defendants at hearings on section 2255 motions.24

9

237. In re Davis, 92 F. Supp. 524, 526 (D. Mont. 1949).238. United States v. Paglia, 190 F.2d 445, 448 (2d Cir. 1951). The

court appointed counsel in Clark v. United States, 194 F.2d 528 (7th Cir.1952).

239. Green v. United States, 158 F. Supp. 804, 808 (D. Mass.), aff'd,256 F.2d 483 (1st Cir.), cert. denied, 358 U.S. 854 (1958).

240. Dillon v. United States, 307 F.2d 445 (9th Cir. 1962).241. Pike v. United States, 330 F.2d 53 (5th Cir. 1964).242. United States v. Paglia, 190 F.2d 445 (2d Cir. 1951). See Smith,

Motion to Vacate, Set Aside or Correct Sentence, 40 NOTRE DAME LAWYER171, 184-87 (1965); Comments, Right to Counsel in Criminal Post-ConvictionReview Proceedings, 51 CALIF. L. REV. 970, 981-84 (1963); Right to Counselin Federal Collateral Attack Proceedings, 30 U. Cm. L. REV. 583 (1963);Note, 62 MIcH. L. REV. 1246 (1964). See also Note, 52 MINN. L. REV. 553(1967).

243. United States v. Keller, 284 F.2d 800 (3d Cir. 1960).244. Thomas v. United States, 217 F.2d 494 (6th Cir. 1954). But see

United States v. Kelley, 134 F. Supp. 582, 587 (W.D. Mich. 1955).245. Milani v. United States, 319 F.2d 441 (7th Cir. 1963); Campbell v.

United States, 318 F.2d 874 (7th Cir. 1963) (one judge dissenting), noted,62 MIcH. L. REV. 1246 (1964). But see Mitchell v. United States, 359 F.2d833, 835 (7th Cir. 1966).

246. Dillon v. United States, 307 F.2d 445 (9th Cir. 1962).247. Hayes v. United States, 194 F. Supp. 807 (D. Colo. 1960), aff'd,

292 F.2d 272 (10th Cir. 1961).248. Ford v. United States, 363 F.2d 437 (5th Cir. 1966); Putt v. United

States, 363 F.2d 369 (5th Cir. 1966).249. Lamm v. United States, 235 F.2d 45 (4th Cir. 1956); United States

1968]


While appointment of counsel to assist the prisoner in hisappeal from a denial of his motion to vacate has been said to be amatter of discretion, in several cases counsel has been appointedfor appeal purposes.250 Other cases, however, have denied appoint-ment of counsel on appeal. 25 1

Where counsel has been appointed by the court, it is his dutyhonorably to present his client's contentions in the light mostfavorable to his client. Accordingly, where appointed counselpresumed to advise the court by letter as to the sufficiency andvalidity of his client's motion, the client was without effectiveassistance of counsel and the judgment was vacated. 52

In 1963 the Judicial Conference Committee on Habeas Corpusconcluded that "it would promote orderly procedure if . . . appro-priate legal assistance" were provided "for inmates of Federalpenal institutions in the preparation of their § 2255 petitions. '253

Following the suggestions of the committee's report only in part,one district court has stated: "The more desirable procedurewould seem to be appointment of counsel in all § 2255 cases,except where the motion is completely groundless or utterly andhopelessly frivolous. '25 4

Leaving open the question whether there could otherwise berecovery, one court has stated that if a petition for habeas corpusis equivalent to procedure under Rules 12 and 48 of the Federal

v. Langston, 204 F. Supp. 323 (W.D. Pa. 1962); United States v. Wiggins, 184F. Supp. 673, 679 (D.D.C. 1960); United States v. Sheffield, 179 F. Supp. 634(D.D.C. 1959); United States v. Morris, 178 F. Supp. 694 (E.D. Pa. 1959);United States v. Robinson, 143 F. Supp. 286, 293 (W.D. Ky. 1956); UnitedStates v. Trumblay, 141 F. Supp. 80, 81 (N.D. Ind. 1956); Buono v. UnitedStates, 126 F. Supp. 644 (S.D.N.Y. 1954); United States v. Lancaster, 114F. Supp. 753 (W.D. Pa. 1953).

250. Kistner v. United States, 332 F.2d 978 (8th Cir. 1964); Sinks v.United States, 297 F.2d 490 (7th Cir. 1961); Mason v. United States, 290 F.2d742 (D.C. Cir. 1961); Krupnick v. United States, 264 F.2d 213 (8th Cir. 1959);Butler v. United States, 260 F.2d 574 (4th Cir. 1958); Mitchell v. UnitedStates, 259 F.2d 787 (D.C. Cir.), cert. denied, 358 U.S. 850 (1958); La Feverv. United States, 257 F.2d 271 (7th Cir. 1958); United States v. Foster, 253F.2d 457, 459 (7th Cir. 1958); United States v. Jazorek, 226 F.2d 693 (7thCir. 1955); Taylor v. United States, 226 F.2d 337 (D.C. Cir. 1955); Piner v.United States, 222 F.2d 199 (7th Cir. 1955); Hodge v. United States, 217 F.2d716 (4th Cir. 1954); Gerringer v. United States, 213 F.2d 346, 348 (D.C. Cir.1954); United States v. Wantland, 199 F.2d 237 (7th Cir. 1952).

251. Vinson v. United States, 235 F.2d 120, 122 (6th Cir. 1956); UnitedStates v. Caufield, 207 F.2d 278, 280 (7th Cir. 1953) (no appointment made).

252. McCartney v. United States, 343 F.2d 471 (9th Cir. 1965). See alsoDoyle v. United States, 366 F.2d 394 (9th Cir. 1966).

253. Report of the Committee on Habeas Corpus, 33 F.R.D. 367, 385(1963).

254. Cerniglia v. United States, 230 F. Supp. 932, 936 (N.D. Ill. 1964).See also Farrar v. United States, 233 F. Supp. 264, 268 (W.D. Wis. 1964).

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MOTION TO VACATE

Rules of Criminal Procedure, court-appointed counsel is entitledto compensation under the Criminal Justice Act of 1964.255 Indeed,it has been argued that the Act 2

16 covers collateral proceedings,257

although the question is not at all clear. 258 In 1965 the JudicialConference took the position that the Act covers neither habeascorpus nor section 2255 proceedings.25 9 This view has been adoptedin the Fifth Circuit.260

In a 1964 case, a federal district court held that the dueprocess clause of the Fifth Amendment required that a lawyerwho is appointed to represent an indigent prisoner on a motionto vacate be compensated therefor by the Government. 261 Whenthe question was raised in the court of appeals, however, thedistrict court was reversed on the ground that, as an officer of thecourt, an appointed attorney has assented to donating hisservices.

2 62

XV. BAIL

One court has granted bail on the prisoner's motion to vacate,pending a decision of the Supreme Court on a petition for writ ofcertiorari. 263 There appears to be a diversity of opinion on thequestion, however, and some cases have denied bail pending appealfrom a denial of a motion to vacate, 264 while there is other au-thority supporting the granting of bail in such instance.26 5

255. In re Hagler, 246 F. Supp. 716 (D. Hawaii 1965). But see UnitedStates v. Boyden, 248 F. Supp. 291 (S.D. Cal. 1965); Comment, AdequateRepresentation for Defendants in Federal Criminal Cases, 41 N.Y.U. L. REV.758, 763-64 (1966).

256. 18 U.S.C. § 3006A (1964).257. Comment, Adequate Representation for Defendants in Federal

Criminal Cases, 41 N.Y.U. L. REV. 758, 763-64 (1966).258. Dillon v. United States, 230 F. Supp. 487, 491 n.3 (D. Ore. 1964);

Notes, 13 KAN. L. REV. 423, 424 (1965); 49 MINN. L. REV. 553, 558 n.30(1965); 11 WAYNE L. REV. 537, 543 (1965).

259. JUDICIAL CONFERENCE OF THE UNITED STATES, REPORT ON THE

CRIMINAL JUSTICE ACT, 36 F.R.D. 277, 287 (1965).260. Ford v. United States, 363 F.2d 437 (5th Cir. 1966); Juelich v.

United States, 342 F.2d 29, 32 n.3 (5th Cir. 1965).261. Dillon v. United States, 230 F. Supp. 487 (D. Ore. 1964), noted,

14 CATHOLIC U. L. REV. 113 (1965); 53 GEO. L.J. 498 (1965); 13 KAN. L.REV. 423 (1965); 25 MD. L. REV. 77 (1965); 49 MINN. L. REV. 553 (1965);36 Miss. L.J. 95 (1964); 19 Sw. L.J. 407 (1965); 12 U.C.L.A. L. REV. 688(1965); 11 WAYNE L. REV. 537 (1965).

262. United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), noted, 42N. DAK. L. REV. 55 (1967).

263. United States v. Thompson, 152 F. Supp. 292 (S.D.N.Y. 1957).264 Reiff v. United States, 288 F.2d 887 (9th Cir. 1961); Bruce v. United

States, 256 F. Supp. 28 (D.D.C. 1966) (unusual circumstances not shown).See 6 ORFIELD 278 (1967).

265. Allen v. United States, 349 F.2d 362 (1st Cir. 1965). But see the

19681


XVI. SUCCESSIVE MOTIONS

The denial of a writ of habeas corpus is not res judicata on alater motion to vacate. 266 Nevertheless, previous rulings on ques-tions presented in habeas corpus proceedings are persuasive whenthe questions are presented by motion.2 1

7 Likewise, prior rulingsin proceedings for writ of error coram nobis are entitled to greatweight in subsequent habeas corpus proceedings.2 8 It should benoted that questions raised on appeal from the original convictioncannot be raised again in proceedings under section 2255.269 It hasbeen held that the denial of a motion to vacate before the enact-ment of the motion statute does not prevent consideration of amotion made under the statute seeking substantially identicalrelief.2 7 0 In addition it has been held that a court may properlydeny habeas corpus, where a prior motion under section 2255 hasbeen denied for failure to state statutory grounds for relief.2 7 1

Moreover, questions not raised in the motion to vacate may notbe raised on habeas corpus.27 2

While there may be an appeal from the denial of a successivemotion,27 3 a defendant who has failed to appeal from the firstorder denying his motion to vacate may not complain that thecourt denied his third motion based upon substantially the sameground,27 4 since if the grounds of a second or subsequent motionare identical, the motion may be denied. 27 5 Where new grounds

concurring opinion of Chief Judge Lumbard. For a discussion favoringbail, see A.B.A., REPORT ON POST-CONVICTION REMEDIES 59, 63 (1967).

266. United States v. Coy, 57 F. Supp. 661 (W.D. Ky. 1944), aff'd, 156F.2d 293 (6th Cir.), cert. denied, 328 U.S. 841 (1946). See also UnitedStates v. Provoo, 124 F. Supp. 185, 191 (S.D.N.Y. 1954) (jurisdiction beforetrial; dismissal of prior habeas corpus application is a factor to be con-sidered).

267. Owens v. United States, 174 F.2d 469 (5th Cir.), cert. denied, 338U.S. 906 (1949).

268. Cobb v. Hunter, 167 F.2d 888 (10th Cir.), cert. denied, 335 U.S.832 (1948).

269. Owens v. United States, 174 F.2d 469 (5th Cir., cert. denied, 338U.S. 906 (1949); United States v. Reade, 113 F. Supp. 113 (D.N.J. 1953).

270. Martin v. United States, 199 F.2d 279 (8th Cir. 1952); UnitedStates v. Gebhart, 90 F. Supp. 509, 510 (D. Neb. 1950).

271. Barnes v. Hunter, 188 F.2d 86 (10th Cir. 1951), cert. denied, 342U.S. 920 (1952).

272. Owens v. Hinds, 189 F.2d 518 (10th Cir. 1951).273. Smith v. United States, 270 F.2d 921, 923 (D.C. Cir. 1959).274. Burns v. United States, 229 F.2d 87, 89 (8th Cir.), cert. denied,

351 U.S. 910 (1956).275. United States v. De Fillo, 319 F.2d 956 (2d Cir. 1963) (tenth mo-

tion); Stoneking v. United States, 286 F.2d 421 (8th Cir. 1961) (fourthmotion); Trumblay v. United States, 278 F.2d 229, 232 (7th Cir.), cert.denied, 364 U.S. 840 (1960); Belton v. United States, 259 F.2d 811, 818(D.C. Cir. 1958) (dissenting opinion); Burden v. United States, 253 F.2d 951

[Vol. 2

MOTION TO VACATE

are added, however, the court should grant relief. 6 It shouldbe noted in this connection that where there has been a previousmotion, the court has discretion to deny relief as to allegationswhich could have been, but were not, raised in the previousmotion, unless the accused has some justifiable reason why hewas previously unable to assert his rights, or unless he was un-aware of the significance of relevant facts. 277

The problem of successive motions was discussed in the caseof Sanders v. United States.2 7 8 The prisoner had filed two succes-sive motions to vacate, both of which were denied without hear-ing, although the second motion alleged a new factual groundwhich, if substantiated, would have entitled the prisoner to relief.The court of appeals affirmed the trial court's action, holding thatthe second motion, even though supported by a new ground, wasa motion for "similar relief," which the sentencing court mayproperly dismiss without a hearing.2 79 The Supreme Court re-versed, with two Justices dissenting. A successive motion is for"similar relief" only when the same ground was decided against

(5th Cir. 1958) (third motion); Jackson v. United States, 224 F.2d 556 (5thCir. 1955), cert. denied, 350 U.S. 924 (1956); Shobe v. United States, 220 F.2d928 (8th Cir. 1955); Johnson v. United States, 213 F.2d 492 (5th Cir. 1954);United States v. Brown, 207 F.2d 310 (7th Cir. 1953) (fifth motion); Ham-ilton v. United States, 204 F.2d 927 (4th Cir. 1953); Gebhart v. Hunter, 184F.2d 644 (10th Cir. 1950); Martyn v. United States, 176 F.2d 609 (8th Cir.1949); McGann v. United States, 200 F. Supp. 633 (D. Md. 1961) (fifth mo-tion); United States v. Smith, 160 F. Supp. 256, 260 (D.D.C. 1958); UnitedStates v. Sanders, 138 F. Supp. 192 (D. Md. 1955); Lucas v. United States,114 F. Supp. 584, 590 (N.D. W. Va. 1953); United States v. Bickford, 109 F.Supp. 154 (D. Ariz. 1952), aff'd, 206 F.2d 395 (9th Cir. 1953); United Statesv. Sehon Chinn, 87 F. Supp. 364 (S.D. W. Va. 1949).

276. Juelich v. United States, 300 F.2d 381 (5th Cir. 1962); UnitedStates v. Barillas, 291 F.2d 743 (2d Cir. 1961); Hassell v. United States,287 F.2d 646 (9th Cir. 1961); Smith v. United States, 270 F.2d 921, 924 (D.C.Cir. 1959), noted, 73 HARV. L. REV. 1225 (1960); Smith v. United States, 223F.2d 750, 753 (5th Cir. 1955); Hallowell v. United States, 197 F.2d 926 (5thCir. 1952); Green v. United States, 158 F. Supp. 804, 808 (D. Mass. 1958);United States v. Sanders, 142 F. Supp. 638 (D. Md. 1956). See Note, 111U. PA. L. REV. 788, 802, 805 (1963).

277. Price v. Johnston, 334 U.S. 266 (1948); Sanders v. United States,297 F.2d 735 (9th Cir. 1961); Moore v. United States, 278 F.2d 459 (D.C.Cir. 1960); Belton v. United States, 259 F.2d 811, 824 (D.C. Cir. 1958) (dis-senting opinion); Turner v. United States, 258 F.2d 165 (D.C. Cir. 1958);Dunn v. United States, 234 F.2d 219, 221 (6th Cir. 1956); Lipscomb v.United States, 226 F.2d 812, 816 (8th Cir. 1955); Johnson v. United States,213 F.2d 492, 494 (5th Cir. 1954).

278. 373 U.S. 1 (1963), noted, 62 MIcH. L. REV. 903 (1964); 42 N.C. L.REV. 368 (1964); 5 WM. & MARY L. REV. 150 (1964). See the discussion ofthe case by Judge Becker, 33 F.R.D. 452, 478-84 (1963). See also TheSupreme Court 1963 Term, 77 HARV. L. REV. 62, 146-49 (1963).

279. Sanders v. United States, 297 F.2d 735 (9th Cir. 1961).

1968]


the prisoner on the merits in a prior proceeding. In the course ofits opinion, the Court suggested a method of avoiding successivemotions. The district court should, at the first hearing, inquirebroadly into the legality of detention, so as to discover and disposeof all possible grounds:

Controlling weight may be given to relief of a priorapplication for federal habeas corpus or § 2255 relief onlyif (1) the same ground presented in the subsequent ap-plication was determined adversely to the applicant on theprior application, (2) the prior determination was on themerits, and (3) the ends of justice would not be servedby reaching the merits of the subsequent application. 28 0

Since the Sanders decision, it has been held that a secondmotion would not lie where the prisoner deliberately withheld aknown ground on his first motion, in which case the making of asecond motion was an abuse of the remedy.281 The Eighth Circuithas held that where the court of appeals on appeal from the originalconviction rejected the defendant's claim of inadequate representa-tion by counsel, the defendant could again raise the issue onmotion to vacate. 28 2 Furthermore, a federal district court hasheld that the denial of a prior motion to vacate because of ineffec-tive assistance of counsel does not bar a second motion, where nohearing has been held on the prior motion, although factual issueswere presented thereby. The prisoner was without counsel al-though he had requested that counsel be appointed, and the courtdisagreed with the prior conclusion that the prisoner had receivedeffective assistance of counsel.28 3

In one case the Court of Appeals for the Second Circuit re-manded a case to allow the defendant to amend his motion to makea new allegation, since the district court need not entertain a sec-ond or successive motion. 28 4

XVII. HABEAS CORPUS

Mandamus, not habeas corpus, is the proper remedy wherethe district court has refused to permit filing of a motion tovacate. 2 5 Moreover, the mere fact that the district court hasdenied a motion to vacate under section 2255 does not entitle the

280. Sanders v. United States, 373 U.S. 1, 15 (1963).281. 'Haith v. United States, 221 F. Supp. 379 (E.D. Pa. 1963). See

A.B.A., REPORT ON POST-CONVICTION REMEDIES 91 (1967).282. Butler v. United States, 340 F.2d 63 (8th Cir. 1965). See also

Sykes v. United States, 341 F.2d 104 (8th Cir. 1965).283. United States v. Yodock, 224 F. Supp. 877, 882 (M.D. Pa. 1963).284. United States v. Page, 229 F.2d 91 (2d Cir. 1956).285. Madsen v. Hinshaw, 237 F.2d 370 (9th Cir. 1956).

[Vol. 2

1968] MOTION TO VACATE

prisoner to pursue the remedy of habeas corpus, since habeascorpus is only available after the prisoner has appealed from thedenial of a motion to vacate. 2 6 Accordingly, habeas corpus willbe denied if no appeal has been taken from the denial of a motionto vacate, 2 7 and where appeal is still pending.288 Furthermore,habeas corpus cannot be used to set aside the denial of a motion tovacate, or to review a decision of the court of appeals affirmingthe denial of a motion.289

The mere failure to obtain relief under 28 U.S.C. section 2255does not establish the fact that such remedy is inadequate orineffective, 290 and where the motion is both adequate and effective,habeas corpus is not available. 291 Moreover, if the motion is notmade, the prisoner may not resort to habeas corpus if the issuesraised may properly be dealt with in a section 2255 proceeding.292

Several cases have held that the fact that the prisoner wasdenied the right to appeal in forma pauperis from a denial of amotion to vacate does not render the remedy by motion so inade-quate that the prisoner may avail himself of the remedy of habeascorpus.293 The Tenth Circuit has held that the motion procedure

286. Arrington v. Willingham, 362 F.2d 803 (10th Cir. 1966); In rePierce, 246 F.2d 902 (9th Cir. 1957); Kaufman v. Wilkinson, 237 F.2d 519(5th Cir. 1956); Mills v. Kearney, 228 F.2d 101 (5th Cir. 1955), cert. denied,351 U.S. 954 (1956); Scozzafava v. United States, 223 F.2d 254 (9th Cir.1955); Weber v. Steele, 191 F.2d 815 (8th Cir. 1951); Meyers v. UnitedStates, 181 F.2d 802 (D.C. Cir.), cert. denied, 339 U.S. 983 (1950); Martin v.Hiatt, 174 F.2d 350, 352 (5th Cir. 1949). See Note, 111 U. PA. L. REV. 788,805-06 (1963).

287. Trice v. United States, 218 F.2d 588 (9th Cir. 1955); United Statesex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954); United Statesex rel. Josey v. Humphrey, 210 F.2d 826 (3d Cir. 1954); De Normand v.Swope, 207 F.2d 66 (9th Cir. 1953); Bozell v. Welch, 203 F.2d 711 (4th Cir.1953); Meyers v. Welch, 179 F.2d 707 (4th Cir. 1950); Cagle v. Humphrey,112 F. Supp. 846 (M.D. Pa. 1953).

288. Meyers v. Welch, 179 F.2d 707, 708 (4th Cir. 1950).289. Hart v. Hunter, 89 F. Supp. 153 (D. Kan. 1950).290. Barkan v. United States, 341 F.2d 95 (10th Cir. 1965).291. Davis v. Humphrey, 80 F. Supp. 513 (M.D. Pa. 1948). This seems

to be the first reported case on 28 U.S.C. § 2255 (1964). See also Klink v.Looney, 262 F.2d 119 (10th Cir. 1958); Hildebrandt v. Swope, 229 F.2d 582(9th Cir. 1956); King v. United States, 214 F.2d 712 (10th Cir. 1954);Tacoma v. Hiatt, 184 F.2d 569 (5th Cir. 1950).

292. Dial v. United States, 295 F.2d 339 (7th Cir. 1961); United States v.Davis, 212 F.2d 681, 683 (3d Cir. 1954); Woods v. United States, 201 F.2d 739(10th Cir. 1953); Pappas v. Welch, 199 F.2d 419 (4th Cir. 1952); Sorrentinov. Swope, 198 F.2d 789 (9th Cir. 1952); Duquesne v. Steele, 197 F.2d56 (8th Cir. 1952); Donnelly v. Steele, 180 F.2d 1019 (8th Cir. 1950); Curranv. Shuttleworth, 180 F.2d 780 (6th Cir. 1950); Cline v. Hiatt, 174 F.2d 822(5th Cir. 1949); Cupp v. Byington, 179 F. Supp. 669 (S.D. Ind. 1960); Robin-son v. Swope, 96 F. Supp. 98 (N.D. Cal. 1951).

293. In re Pierce, 246 F.2d 902 (9th Cir. 1957); Scott v. Welch, 192 F.2d


under section 2255 and direct appeal are the exclusive remedies forraising the issue of the constitutionality of the statute under whichthe prisoner is prosecuted, and that therefore habeas corpus doesnot lie following a denial of a motion to vacate wherein the issuewas raised.29 4

It has been said that while an individual Justice of theSupreme Court may grant habeas corpus, in the absence of ab-normal circumstances, relief will be refused where the defendanthas not exhausted his remedies by appeal and application forcertiorari after a denial of his motion to correct the sentence andby conventional habeas corpus proceedings.295 In one case theTenth Circuit held that the defendant failed to show inadequacy ofthe motion proceedings so as to justify his use of the remedy ofhabeas corpus, where he asserted that the sentencing court, afterdenial of a motion to vacate, had ordered a transcript of the hear-ing to be furnished him to aid him on appeal, but that the orderwas not complied with.29 6 An early case held that habeas corpusis available to the defendant, since the motion procedure is inade-quate, where the distance between the place of imprisonment andthe sentencing court is upwards of 1,500 miles, inviting great delayin making the motion and appealing therefrom. 2 17 The Eighth Cir-cuit, however, has refused to follow this precedent and has heldthat a federal prisoner is not entitled to habeas corpus beforeexhausting his remedy by motion in spite of a geographical separa-tion of 1,500 miles between the prisoner and the sentencing court.298

In the absence of extraordinary and exceptional circumstances,a district court should not review in habeas corpus proceedingsthe actions of a coordinate district court, a court of appeals ofanother circuit, or of the Supreme Court with respect to a priormotion to vacate a sentence.2 9

A section 2255 motion need not be made prior to the institutionof a habeas corpus proceeding where the motion of a co-defendant

676 (4th Cir. 1951); Clough v. Hunter, 191 F.2d 516, 518 (10th Cir. 1951);Neigut v. Kearney, 131 F. Supp. 25 (E.D. Tex. 1954), aff'd, 221 F.2d 803(5th Cir.), cert. denied, 350 U.S. 939 (1955).

294. Wright v. Looney, 212 F.2d 186 (10th Cir. 1954).295. United States ex rel. Norris v. Swope, 72 S. Ct. 1020 (1952).296. Anderson v. Taylor, 337 F.2d 943 (10th Cir. 1964).297. Stidham v. Swope, 82 F. Supp. 931 (D. Cal. 1949). See also Hay-

man v. United States, 187 F.2d 456, 462 (9th Cir. 1950), vacated on othergrounds, 342 U.S. 205 (1952).

298. Smith v. Settle, 302 F.2d 142 (8th Cir. 1962). See also Cantu v.Markley, 353 F.2d 696 (7th Cir. 1965); Adam v. Hagan, 325 F.2d 719(5th Cir. 1963).

299. Haynes v. Ciccone, 248 F. Supp. 898, 903 (W.D. Mo. 1965).

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predicated upon the same ground as is asserted by the petitionerin the habeas corpus proceeding was denied, and the decision wasaffirmed on appeal300 Likewise, where the prisoner does notattack the validity of his conviction or the sentence imposedthereunder, but claims that the warden has improperly construedthe sentence and is holding him for an overly long period, habeascorpus lies without the necessity of a prior motion to vacate,30 1

since the section 2255 procedure is not available in such cases.30 2

One district court has found the motion procedure inadequatewhere the sentencing court and the court of appeals had deniedrelief to a prisoner who had pleaded guilty when advised that themaximum penalty was imprisonment for five years, but never-theless was thereafter sentenced as a youthful offender, withoutbeing told of a possible six-year sentence under supervision, andthere was no reason to anticipate that either court would changeits view, so that the district court in which the application forhabeas corpus was made, being in another circuit which adheredto the contrary view, could grant habeas corpus.30 3

The Tenth Circuit has allowed the remedy of habeas corpus tobe utilized by a federal prisoner whose right to appeal his con-viction was lost or frustrated by the unlawful conduct of Govern-ment officials.3 0 4 Habeas corpus, not a motion to vacate, may beused by an accused who has been committed prior to trial formental incompetency to test the continuance of his detention.3 0 5

Likewise, one confined in prison without any judgment of a courtcan have federal habeas corpus without first resorting to motionprocedure.

30 6

It should be noted that the denial of a motion to vacate andfor new trial which has been affirmed by the court of appeals doesnot preclude consideration of the petitioner's claims on habeas

300. Mugavero v. Swope, 86 F. Supp. 45 (N.D. Cal. 1949), reversed onother grounds, 188 F.2d 601 (9th Cir. 1951).

301. Paccione v. Heritage, 323 F.2d 378 (5th Cir. 1963); Halprin v.United States, 295 F.2d 458 (9th Cir. 1961); Payne v. Madigan, 274 F.2d702 (9th Cir. 1960), aff'd by an equally divided Court, 366 U.S. 761(1961); Gardner v. United States, 274 F.2d 380 (5th Cir. 1960); Freeman v.United States, 254 F.2d 352, 353 (D.C. Cir. 1958); Henry v. Madigan, 241F.2d 659 (9th Cir. 1957); Butterfield v. Wilkinson, 215 F.2d 320 (9th Cir.1954). See A.B.A., REPORT ON POST-CONVICTION REMEDIES 24 (1967).

302. Allen v. United States, 327 F.2d 58 (5th Cir. 1964) (action of pa-role board or Bureau of Prisons).

303. Rawls v. United States, 236 F. Supp. 821 (W.D. Mo. 1964).304. Brown v. Looney, 249 F.2d 61 (10th Cir. 1957).305. Pavlick v. Settle, 203 F. Supp. 42 (W.D. Mo. 1962).306. Brown v. Hunter, 187 F.2d 543 (10th Cir. 1951).

19681


corpus. 30 7 Accordingly, in one case, habeas corpus was grantedafter a denial of a motion to vacate, where consecutive sentenceshad been imposed upon a count of entering a bank to commit afelony and a count charging an aggravated form of the sameoffense. The court ruled that only the sentence on the greateroffense was valid.3 08

307. Miller v. Sanford, 59 F. Supp. 812, 816 (N.D. Ga.), aff'd, 150F.2d 637 (5th Cir. 1945), cert. denied, 330 U.S. 830 (1947).

308. Wells v. Swope, 121 F. Supp. 718 (N.D. Cal. 1954).

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Motion to Vacate under 28 U.S.C. Section 2255: Part One