HAYMAN v. UNITED STATES, 187 F.2d 456

DENMAN, Chief Judge. This is an appeal from an order denying appellant’s motion to set aside the district court’s sentence of twenty years’ imprisonment on findings of guilt on six counts of an indictment. The order appealed from was made in a proceeding under 28 U.S.C.A. § 2255. Appellant is confined in the federal prison at McNeil Island, Washington. His motion was filed with the clerk of the district court in Los Angeles, California. Appellant’s motion tendered three issues. One required a trial of facts dehors the record of the trial on which he was convicted.

As to the other two, I am in agreement with Judge Pope’s opinion disposing of them as without merit, as conclusively shown from the files and records of the case.

Section 2255, par. 3. The extended consideration of this opinion deals with two questions: (

A) Whether the motion and the proceedings thereunder "show that an issue was tendered respecting the denial to the appellant of the effective assistance of counsel, in that his counsel, without appellant’s knowledge and consent, was attorney for a prosecution’s witness, who was convicted of a crime and waiting sentence thereon, and (

B) whether the motion of

Section 2255 made in a court of a district other than that in which the moving prisoner is confined is an “inadequate or ineffective” remedy for the proof of facts dehors the record, showing a wrong done him in his conviction for a crime in a trial in which he did not “enjoy” the effective assistance of counsel of the Sixth Amendment of the Constitution, or which has not accorded him the due process of the Fifth Amendment. Such an extended consideration is necessary. Since under (

A) it appears that such an issue was tendered and under (

B) that the

Section 2255 motion is inadequate and ineffective, for this court to affirm the judgment appealed from would require us ’ to ignore the claimed infringement of a' fundamental constitutional right. A reversal would return his case to a court which, as later shown, had not the power to give due process in the consideration of the issue tendered, nor the prompt consideration necessary in a proceeding in the nature of a habeas corpus. Hence dismissal is the proper remedy to free him to apply for his writ of habeas corpus. It is not questioned that the appellant is a layman, not versed in the law here involved.

Appellant did not appear and had no counsel either here or below. The question of “inadequacy and ineffectiveness” of the remedy he invoked was not appreciated by him and it was raised by this court sua sponte at the hearing before it, and there argued. Where error of a fundamental nature is concerned, this court may properly notice it even though not assigned. Sibbach v. Wilson, 312 U.S. 1, 16, 61 S.Ct. 422, 85 L.Ed. 479. This is true a fortiori in litigation involving

Section 2255, an attempted substitute for a habeas corpus proceeding. This opinion does no more than construe that statute. It does not determine its constitutionality. However, were we to hold it to violate the Constitution, it is within our power, and we should exercise it in this case, involving a man’s liberty. This proceeding, brought by such a layman, differs from cases involving mere property rights such as those discussed in Ashwander v. T. V.

A., 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688, where the Supreme Court, although recognizing its power to do so," refused to consider the constitutionality of a statute which had been invoked in favor of the party later challenging it. A. The motion- properly tendered the issue that appellant was convicted in a trial in which he did not enjoy the effective assistance of coumsel.

The pertinent portion of the motion reads: “The defendant further claims that he was deprived of the right to have the assistance of counsel for his defense, in that the defendant was not adequately represented by competent counsel, to-witOn introduction in evidence of one Juanita Jackson, code-fendant statements incriminating defendant, attorney for defendant was also attorney for codefendant ‘Juanita Jackson,’ attorney * * * [for defendant] did not tell defendant that he was also defending Juanita Jackson, and defendant had no way of knowing until after his trial was over.

Juanita Jackson, codefendant, and government witness, accused defendant of guilt, thus creating conflict of interest, is not ‘qualified’ to give efficient representation to any of such clients, as affecting constitutional right of qualified counsel for accused. U.S.C.A.Const. Amends. 5, 6. Johnson v. Zerbst, 304 U.S. 458, 461, 58 S.Ct 1019, 82 L.Ed. 1461, 146 A.L.R. 357. Wright v. Johnston, D.C., 77 F.Supp. 687.” The motion also sought a writ of habeas corpus to bring appellant from McNeil Island, Washington, to Los Angeles, California, for the trial.

With no more before it than the motion, the district court, following the proceeding of the third paragraph of

Section 2255, notified the United States Attorney of a hearing thereon, without advising appellant of its date or even that there was to be a hearing, and appointing no counsel to represent him. It was admitted by the government’s attorney at the hearing here that the court, in an extended hearing 'before it, taking three trial days, received the evidence of the government witnesses who testified to the court, among them the United States Attorney and appellant’s • attorney.

In considering the motion and taking evidence thereon, the court recognized the rule that in such a proceeding a layman’s pleading should be liberally construed. Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392.

On consideration of the evidence adduced at the three-day trial, the court found that on December 9, 1946, Juanita Jackson, though not a defendant with appellant, had pleaded guilty before a different judge to violating the same statute as appellant, and was awaiting sentence thereon when appellant was tried on the succeeding January 7, 1947; that while so awaiting sentence Juanita Jackson was represented by the same attorney who represented appellant at his trial, and that the government offered her as a witness against this attorney’s other client, the appellant.

Appellant was found guilty on January 7, 1947, and on January 20, 1947, sentences were imposed on both Juanita Jackson and appellant. The transcript of the trial upon which appellant was convicted was before the lower court and is before us in the appeal taken here. Hayman v. United States, 9 Cir., 163 F.2d 1018, Kelly v. Johnston, 9 Cir., 111 F.2d 613, 614; Criscuolo v. Atlas Co., 9 Cir., 84 F.2d 273, 275. It appears that the prosecution in its opening statement disclosed that it proposed to offer Juanita Jackson as a witness against appellant.

Appellant’s attorney thus knew before any testimony was offered that his client Juanita Jackson, so convicted and awaiting sentence, was to be a witness against fiis client the appellant. - The transcript further shows that in appellant’s attorney’s cross-examination of Juanita Jackson he failed to ask her whether she, a government witness, had been recently convicted and was awaiting sentence, and this fact was nowhere disclosed on the trial either by the prosecution or by appellant’s attorney,- though he was careful to do so with another woman witness for the prosecution.

Appellant’s attorney put appellant on the stand and his questioning brought a denial by appellant of substantially all the statements of Juanita Jackson and another woman adverse to him. In effect, his testimony is that he was framed by Jackson and others. As in Wright v.

Johnston, D.C., 77 Supp. 687, appellant’s attorney was not in a position to- argue that “my convicted client Jackson, for whom I am soon to plead for an amelioration of her sentence, is a monumental liar seeking to convict my honest and innocent client Hayman.”' These facts disclose a conflict of interests similar to that considered in Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680; Wright v. Johnston, supra, and like that in Johnson v. Zerbst, 304 U.S. 458, 461, 58 S.Ct. 1019, 82 L.Ed. 1461. The likely prejudice to his client seems apparent.

Were it not so clear, the language of the Glasser case, supra, 315 U.S. at page 75, 62 S.Ct. at page 467, 86 L.Ed. 680, is applicable.: “To determine the. precise degree of prejudice sustained by Glasser as a result of -the court’s appointment of Stewart as counsel for Kretske is at once difficult and unnecessary.

The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” The district court, in the instant proceeding, recognized this inconsistency but made a further finding that appellant’s attorney represented his client Jackson “with the knowledge and consent and at the instance and request of the defendant herein, Herman Hayman.” This finding was made though the absent appellant was an essential witness in the trial of the question of his “knowledge and consent,” and should have been given the opportunity to cross-examine the witnesses against him. - In the Glasser case, supra, unlike the present case, the trial judge appointed the attorney representing the adverse interests.

However, the Sixth Amendment does not restrict the right to a deprivation by the judge. The Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” (Emphasis supplied.) Hayman’s motion shows he did not “enjoy” the right here, nor was he given any opportunity to prove that he had not.

If, unknown to the court, the accused’s counsel were bribed by an enemy of the accused to throw his case and the accused learned of it after conviction, the fact that the court had nothing to do with the wrong done, does not deprive him of his right to the writ. It is erroneous to contend that the Court of Appeals for the District of Columbia holds that it is only where the court appoints his attorney that the accused may claim that he has not enjoyed the effective assistance of counsel. On the contrary, in Jones v.

Huff, 80 U.S.App.D.C. 254, 152 F.2d 14, 15, that court reversed the dismissal of an. application for a writ of habeas corpus which alleged that the attorney chosen by the convicted man so had conducted the trial that it became a “farce and a m.ockery of justice.”' It held that the accused was not given the “effective representation” required for the fair trial of the Fifth Amendment within the broad principles established in the Glasser case and in Mr. Justice Frankfurter’s opinion in Malinski v. People of State of New York, 324 U.S. 401, 416, 65 S.Ct. 781, 89 L.Ed. 1029. In Walker v.

Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830, Walker, as here, was convicted of a federal crime where, he claimed, in the conduct of the trial, he did not have the effective assistance of counsel, and hence the Sixth Amendment was involved. It is 'held that where-not by the judge, but “by the conduct of the District Attorney [an officer of the court], he was deceived and coerced into pleading guilty when his real desire was to plead not guilty or at least to be advised by counsel as to his course. If he did not voluntarily waive his right to counsel [citing Johnson v.

Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461], or if he was deceived or coerced by the prosecutor into entering a guilty plea [citing Mooney v. Holahan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791], he was deprived of a constitutional right.” (Emphasis supplied.) ' If it were necessary to trace the deprivation of those rights to action or inaction on the part of the “court,”' there is at hand the rule that attorneys are officers of the court. In Johnson v. Zerbst, considered infra, it is held that the court is as much composed of its counsel as of its judge.

One of the officers composing the court, the United States Attorney, is also of the executive branch of the government, the Department of Justice. As such, it was incumbent, in the circumstances of this case, for those officers to see that the constitutional rights of the accused were either protected or intelligently waived. Cf. McFarland v. United States, 80 U.S.App.D.C. 196, 150 F.2d 593, 594. A failure so to do might well be deemed a deprivation, chargeable to the court, of the effective assistance of counsel. Further, sole reliance need not be placed on the Sixth Amendment.

Where the prosecution chooses to utilize as one of its principal witnesses one awaiting sentence, knowing that such witness is represented by counsel who is also counsel for the accused, I think the requirement of the due process clause that the accused shall have a fair trial makes it mandatory that the prosecution inform the trial judge of the situation so that the judge may take appropriate steps to protect the rights of the accused. Were the question properly before us, we would have to decide whether an attorney could thus represent two such clients, even at the request of one of them.

For reasons later stated, I think it is not before us. Sufficient here to state that the motion made under

Section 2255 of 28 U.S.C.A. is what it claimed on its face. That is, it is one upon which the relief “sought herein is to bring to the attention of this Honorable [District] Court facts which were not fully known to this Honorable Court at the time judgment and sentence was entered herein which, if fully known would have resulted in a different verdict and judgment.” All this three-day trial and its findings of fact and judgment were in the absence of the appellant, who was not notified of the hearing.

So far as concerns appellant, he waited in his .McNeil Island penitentiary, hearing nothing of his motion until it was decided against him in such an ex parte proceeding. In Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, the question, as here, was whether Johnson was properly represented by counsel. The trial court denied habeas corpus on the ground that the application did not show facts which made the trial “void,” — that is to say, on absence of the constitutional jurisdiction to render the judgment.

The Supreme Court reversed on the constitutional ground that the trial court, without such representation of the defendant, was without jurisdiction to convict him, saying, “ * * * If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.

A court’s jurisdiction at the beginning of trial may be lost ‘in the course of the proceedings’ due to failure to complete the court — as the Sixth Amendment requires — by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed.

The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. [Citing Hans Nielsen, Petitioner, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118.] A judge of the United States — to whom a petition for habeas corpus is addressed — should be alert to examine ‘the facts for himself when if true as alleged they make the trial absolutely void.’ ” (Emphasis supplied.) It is arguable that since the Sixth Amendment was adopted in 1791 it at once became tied to the constitutional writ of ha-beas corpus of

Article I,

Section 9, — that is to say, the absence of such jurisdiction as a ground for the constitutional writ recognized in Johnson v. Zerbst in 1938 existed in 1791. If this argument be correct, the applicant’s right to the writ then required no action of Congress such as in the subsequent habeas corpus provisions of the Act of February 5, 1867, and in

Section 2255 to make it effective. Nor could any act of Congress diminish that right. However, assuming that the constitutional right to the writ does not cover the right to counsel of the Sixth Amendment and that the writ on the latter ground could not be granted until the habeas corpus act of 1867, the question remains: Did Congress intend in

Section 2255 to wipe out the rights established in Johnson v. Zerbst, supra, and substitute therefor ah ex parte proceeding? I prefer to place our decision on the answer to this question. It must be admitted that

Section 2255 accomplishes this in cases involving facts de-hors the record if we omit its last qualification “unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” Just pri- or to this qualification is the provision that the application for the writ “shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief”. (Emphasis supplied.) It is obvious that if the motion provided, in the third .paragraph of the

section is granted, no application for the writ will be made. Hence, the alternative, the denial of the motion, shown as an alternative by the word “or,” deprives all the prisoners sentenced by a court of the United States of their right to seek the writ. . That is to say, all the elaborate provisions of the eleven sections 2241 to 2250 and 2253 of Title 28 were not written for any person convicted in a federal court. Can it be that in enacting all these provisions Congress was such an “Indian giver”? B. The procedure by motion under

Section 2255 is “inadequate or ineffective to test the legality of his detention” where the moving party is confined in a district other than that of his conviction, and the issue tendered requires testimony as to facts not appearing in the record of the proceedings of the trial leading to such conviction. I think that as to such tendered issues of fact the motion procedure has such ináde-quacy and ineffectiveness. The third paragraph provides for a hearing on the issues of fact ex parte the imprisoned man, of which he is given no notice and at which his body need not be produced. This appears from the following provisions of

Section 2255: “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the Court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. * * * “A court may entertain and determine such motions without requiring the production of the prisoner at the hearing.” Here is the denial of procedural due process in a case involving liberty, which as well could be a case involving the moving party’s life.

The only notice of the hearing is to be given to the attorney of his opponent on the motion, the United States, and even if such notice is given to the moving party, what value would it have to a man confined in McNeil Island? Undoubtedly under

Section 2255 the United States, opposing the motion, could produce testimony viva voce, as it did. Hence the presence of the applicant was necessary to present and examine his own witnesses and to cross-examine those of the government. In addition he may want to testify himself. Prior to- the trial and during it the prisoner, a thousand miles away, cannot seek subpoenas for witnesses to controvert those of the government, if he could guess what the opposing witnesses would say — an ironical situation where under

Section 2255 there is to be a “prompt hearing” of the motion. It may be contended that the provision of

Section 2255 that “a court may entertain and determine such motion without requiring the production of the prisoner at the hearing”, though negative in character, affirmatively gives the court the power of issuance of its writ of habeas corpus for such production and that it is a reversible abuse of discretion to fail so to bring him over the one thousand miles of travel from the Washington penitentiary to Los Angeles, California. Hence it may be argued that we return the case to the district court for such production of the applicant. The answer to this is that an order to bring in the prisoner to present his witnesses and conduct his case is itself a writ of habeas corpus. Under

Section 2241 the court’s writ does not run outside the Southern District of California. The Attorney General is not made a party by

Section 2255. Even if he were and could be served with such process, the absence of the prisoner from the district makes the writ unavailing, though in a broad sense the Attorney General has the prisoner in his custody. Ah-rens v. Clark, 335 U.S. 188, 191, 68 S.Ct. 1443, 1444, 92 L.Ed. 1898.

That decision is based in large part upon the expense and difficulty of bringing the prisoner “perhaps thousands of miles from the District Court that issued the writ.” It is also apparent that a government subpoena to him to testify would be no substitute for the writ, for he may desire not to testify but to be present solely to present his own witnesses and cross-examine the government’s, as in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, where the case was one of later discovered subornation of perjury by the prosecution.

It may be suggested that since the coram nobis procedure is civil we could return the case to the district court and, ignoring the provision solely for notice to the United States Attorney, attempt to obtain procedural due process by requiring that court to appoint an attorney practicing in that court to represent the prisoner in McNeil Island and have the motion submitted on depositions or affidavits.

So to proceed would require us to make the doubtful assumption that in a proceeding which is a substitute for habeas corpus, the prisoner could' be denied the right to confront the opposing witnesses and to testify viva voce on his own behalf. Such a procedure would require each party to submit interrogatories on the direct and cross and redirect examination of the witnesses. For the Southern California attorney there would be, first, the time consumed in the preliminary correspondence with his client in McNeil Island to discover his client’s case, a clumsy process by correspondence, and his witnesses.

Then would follow the preparation of the affidavits of the. prisoner. When these are served on the United States there would be the time consumed in preparing the cross-interrogatories. Then well could be considered by the court the admissibility of certain of the cross-interrogatories. When decided, they would have to be mailed to the prisoner at McNeil Island. What they adduce will be returned to the Southern California attorney, who well may have further redirect interrogatories required by the testimony in response to the cross-examination.

Additional similar consumption of time would be certain in the affidavits of other witnesses on behalf of the prisoner. In a matter of life or liberty procedural due process could not require less. The case would at last have reached the point where the United States could prepare its responsive affidavits. As to each of these there well may be the same extended delays. Then, quite likely, a similar time would elapse for the prisoner’s affidavits to meet the government’s testimony.

If the moving party is entitled to his release, every day of his imprisonment so added to the constitutionally prompt process is robbed from the prisoner’s life. Such a proceeding is an “inadequate or ineffective” substitute for the eleven provisions for the writ itself and would not satisfy even the requirement of the “prompt hearing thereon” of the third paragraph of

Section 2255. It is thus apparent that

Section 2255, when such questions of fact are presented, may be construed as a substitute for the writ only when the court of the prisoner’s conviction is of the district where he is confined. It is also apparent that where the motion requires a decision on such facts in the court of a distant district it lacks the effectiveness required by the last clause of the section. With regard to the motion’s other tendered issue, that the sentencing judgment shows on its face that two of the sentences imposed are beyond the court’s jurisdiction, it well may be argued that it presents a contention for the right to the constitutional writ, which

Article I,

Section 9 provides cannot be suspended by any act of Congress. The application for the constitutional writ must be presented to a judge or a court having the power to issue it. It is that judge or court which must first decide whether the application has allegations warranting the writ’s issuance. If it does so direct the court orders the writ to issue and the prisoner to be produced, as was done in 1833 in Ex parte Watkins, 7 Peters 568, 579, 8 L.Ed. 786. That case dealt with the constitutional writ long before the Act of 1867, when the question, as here, was whether the trial court’s order gave the jailor jurisdiction to hold the prisoner. Here in

Section 2255, by permitting a distant sentencing court so to dispose of the jurisdictional question, where it cannot issue the writ, Congress, it may be contended, is suspending it in violation of the Constitution. However, if the motion be deemed a sufficient procedure to determine such a question of jurisdiction shown in the judgment roll, a further question arises.

This is whether, since we have decided that the appellant has the right to file his writ of habe-as corpus involving such questions of fact in the district court of the district wherein he is confined, we are required to consider on this appeal from the motion the questions of law decided by the court below. To do so means that Congress intended that there should be two proceedings for an imprisoned man having both questions of law and questions of fact such as here presented, one in the court of sentence outside the district of confinement and the other in a court of the district where he is confined.

We know that Congress enacted

Section 2255 to' relieve the courts of the 'heavy burden of the great number of habeas corpus applications annually filed, referred to by the Supreme Court in Price v. Johnston, 334 U.S. 266, 293, 68 S.Ct 1049, 92 L.Ed. 1356, and cases there cited. A construction, placing the judicial burden on issues of fact in the district of the imprisoned man, would severely increase that burden in all cases also presenting other issues of law if we held the motion of

Section 2255 to-be validly exercised by the sentencing court on the law issues. I think thát such doubling of the judicial tribunals also lacks the effectiveness required by the last clause of the section. Even if the last paragraph of

Section 2255 were susceptible of the construction that one is entitled to seek the writ though the motion be denied, it is apparent that the period of delay during which the motion is tried and, on denial, during the appeal provided in the sixth paragraph of the section, a step necessary to complete the judicial process, •will cover months of litigation. This is shown in the time consumed in disposing of scores of such motions already considered by the federal courts, whose volume discloses that

Section 2255 has brought little, if any, relief of the judicial burden of considering the great numbers of applications for the writ annually made. One of the prime essentials of the imprisoned man to his right to seek the writ of habeas corpus is the prompt consideration of his application. Every day of wrongful imprisonment is that much taken from the free life of the prisoner. In determining the essential requirements of the writ of habeas corpus as with other essential provisions of the Constitution, we are required to examine the English law as it was in 1789.

As stated in 1807 by Chief Justice Marshall in Ex parte Bollman, 4 Cranch 75, 94, 2 L.Ed. 554, “for the meaning of the term habeas corpus resort unquestionably may be had to the common law.” Thus the act of the 31 Car. II, c. 2 (1679), is to be examined for the character of the relief granted by this high prerogative writ. 10 Halsbury’s Laws of England, 57 (1909 Ed.) states that its

preamble “recited that great delays had been used in making returns to writs of habeas corpus in criminal or supposed criminal cases.

To remedy this s. 1 of the statute enacted that in such cases the return should be made within three days after the service of the writ if the place where the prisoner is detained is within twenty miles from the court, and if beyond the distance of twenty miles and not above one hundred miles, then within the space of ten days, and if beyond the distance of one hundred miles, then within the space of twenty days after the delivery of the writ, and not longer * * * ” Congress embodied this constitutional requirement of celerity in its Act of February 5, 1867, and codified it in

Section 756 of the Revised Statutes by providing “Any person to whom such writ [of habeas corpus] is directed shall make due return thereof within three days thereafter, unless the party be detained beyond the distance of twenty miles; and if beyond that distance and not beyond a distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days.” Of this the Supreme Court in Ex parte Baez, 177 U.S. 378, 388, 20 S.Ct. 673, 677, 44 L.Ed. 813, said “This

section was taken almost literally from the habeas corpus act, chap. 2 of the 31st Car. II., which was designed to remedy procrastination and trifling with the writ.” The 31 Car. II provision is again codified in 28 U.S.C.A. § 2243 providing that the writ shall be granted “forthwith” and that it “shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.” Clearly, if a necessary condition precedent to an application for the writ,

Section 2255 destroys the application’s immediate and forthwith consideration required by the Constitution and the laws and decisions interpreting it. A further absurdity is that

Section 2255 is described by the revisers of Title 28 as one which “restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis.” The motion’s decision adverse to the prisoner, unlike habeas corpus, is res judicata of the issues presented. Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 86 L.Ed. 1302; Robinson v. Johnston, 9 Cir., 118 F.2d 998, 1000. When, after such months of delay, the application for the writ it presented, the warden will have it denied because the issues presented have been decided against the applicant in the 2255 proceeding!

If, on the other hand, we could treat the decision on such issues of fact as not res judicata because ex parte and as a mere preliminary to the application for the writ, the judicial burden in such proceedings would be doubled by

Section 2255, instead of giving the relief to the courts which Congress was seeking. In Barrett v. Hunter, 10 Cir., 180 F.2d 510,

Section 2255 is held valid on the assumption that the court in a district other than the one of the prisoner’s incarceration has the power to bring the prisoner’s body before it. The opinion does not consider such cases as Ahrens v. Clark, discussed above, where the writ is 'held not to run outside the district of the prisoner’s confinement.

I cannot agree with the decision’s statement 180 F.2d on page 514 that “where the motion and any response thereto present material and substantial issues of fact requiring a hearing, generally, in the exercise of a sound discretion, the Court should require the production of the prisoner.” Even in the cases in which the motion is made in the district where the prisoner is confined, it is my opinion that wherever evidence of new facts is to be presented, the requirement of appearance is a right of the prisoner and not subject to the court’s discretion.

The dissent of Circuit Judge Hux-man 180 F.2d at page 516 is closely in accord with the view I here take of

Section 2255. There are cases in other circuits which hold contra to the above view of

Section 2255, such as Crowe v. United States, 4 Cir., 175 F.2d 799. Here exist the opposing decisions of circuits referred to in Supreme Court Rule 38, par. 5(b), 28 U.S.C.A. I am inclined to agree with Judge Stephens’ opinion for a reversal on the ground that

Section 2255 is unconstitutional in its entirety. However, I think we are required to dispose of the appeal without determining such a constitutional question, since the decision may be disposed of on words of the statute which present a non-constitutional ground. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688. It well may be that, in a case where the motion to the court of a district in which the prisoner is not confined is solely on questions of law, the provision that he may ■not be brought before the court is not unconstitutional. The third paragraph of

Section 2255 may be construed as requiring notice to- the prisoner in such law cases, despite the absence of such a specific provision. . On this the dictum of the Supreme Court in Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, should be considered. At page 778 of 339 U.S., at page 944 of 70 S.Ct. the Court, in a footnote, recognizes the provision of

Section 2243, stating: “Unless the ■application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.” (Emphasis supplied.) As seen, this opinion, while stating the possible un-constitutionality of

Section 2255 where the motion is confined to questions of law, is grounded on its “inadequacy and ineffectiveness” where the motion tenders both an issue of fact and one of law. In view of Judge Stephens’ concurrence in the result, the judgment is reversed and the motion below is ordered-dismissed.

See admission of the United States in the succeeding opinion rendered on the petition for rehearing'. . “Unless the motion and the files and records of the ease conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact an'd conclusions of law with respect thereto.

If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” (Emphasis supplied.) .

It is not for us to consider whether these witnesses did or did not frame the case against the appellant, however strong the evidence may appear. As stated in McCandless v. United States, 298 U.S. 342, 347-348, 56 S.Ct. 764, 766, 80 L.Ed. 1205, “an erroneous ruling which relates to the substantial rights of a party is ground for reversal unless it affirmatively appears from the whole record that it was not prejudicial.”' Where the error is prejudicial, we cannot ignore it because from the “dead record” guilt is otherwise proved. Bollenback v. United States, 326 U.S. 607, 615, 66 S.Ct. 402, 90 L.Ed. 350.

These were jury cases, but here the trial judge was ignorant of the dual representation and is in the same position as a jury. . The opinion continues: “The Government’s contention that his allegations are improbable and unbelievable cannot serve to deny him an opportunity to support them by evidence.” . 14 Stat. 385. . The last paragraph of

Section 2255 provides: “An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” (Emphasis supplied.) .

If the provision could be interpreted to be merely a condition precedent to granting the writ, a matter considered later, the language falls within Mr. Justice Frankfurter’s statement in Sunal v. Large, 332 U.S. 174, 184, 67 S.Ct. 1588, 1594, 91 L.Ed. 1982, that “it is fair to say that the scope of habeas corpus in the federal courts is an untidy area of our law”. (Emphasis supplied.) . Discussed infra. . Judge Huxman in his dissent in Barrett v. Hunter, 10 Cir., 180 F.2d 510, 516, a case hereafter considered, states that “The. following cases seem to hold that compliance with the

section is a prerequisite: Wong v. Vogel, D.C., 80 F.Supp. 723; Stidham v. Swope, D.C., 82 F.Supp. 931; U. S. v. Calp, D.C., 83 F.Supp. 152; St. Clair v. Hiatt, D.C., 83 F.Supp. 585; Burchfield v. Hiatt, D.C., 86 F.Supp. 18; Fugate v. Hiatt, D.C., 86 F.Supp. 22; Parker v. Hiatt, D.C., 86 F.Supp. 27; Mugavero v. Swope, D.C., 86 F.Supp. 45. “The following cases seem to hold that it is a substitute remedy for habeas corpus: Taylor v. U. S., 4 Cir., 177 F.2d 194; Birtch v. U. S., 4 Cir., 173 F.2d 316; Howell v. U. S., 4 Cir., 172 F.2d 213; United States v. Meyers, D.C., 84 F.Supp. 766; United States v.

Lowery, D.C., 84 F.Supp. 804. Remark: In a • number of the cases the court’s pronouncement is in the form of dicta and is of value only as it shows the inclination of the court.” . Typical of these are Adelman v. United States, 9 Cir., 174 F.2d 283, six months; Davis v. United States, 9 Cir., 175 F.2d 19, nine months; Byers v. United States, 10 Cir., 175 F.2d 654, six months; Crowe v. United States, 4 Cir., 175 F.2d 799, four months. . Reviser’s Note, 28 U.S.C.A. following § 2255.