SANDERS v. UNITED STATES

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Argument of Fred M. Vinson, Jr.

Chief Justice Earl Warren: Number 202, Charles Edward Sanders, Petitioner, versus United States.

Mr. Vinson.

Mr. Fred M. Vinson, Jr.: Mr. Chief Justice, may it please the Court.

The question here presented for decision today involves the extent of the right of a prisoner to be heard on a second or successive motion under Section 2255 of Title 28 of the United States Code.

The facts in the case are simple and undisputed and quite important to determination herein.

On January 19, 1959, the petitioner appeared before the United States District Court for the Northern District of California where he was charged with having taken three days prior thereto, approximately $220 from a federally insured bank.

After explanation by the Court at this hearing, the petitioner waived his right to counsel, waived his right to indictment, consented to proceed by way of information.

The information was then filed and read and the petitioner entered a guilty plea.

Several weeks later, in February of 1959, the petitioner again appeared before the sentencing court.

He was asked before a sentence was pronounced if he had anything to say.

An exchange then ensued between the petitioner and the judge.

The petitioner reported to the judge that he had been a narcotics addict on and off for quite awhile, and he requested that he'd be sent to Springfield or to Lexington for treatment.

The judge accepted his statement and recommended that the petitioner be sent to a medical facility for treatment.

Thereupon, the petitioner was sentenced to a 15-year term and he is now incarcerated in a federal penitentiary in the State of Washington.

Justice Potter Stewart: He was in Alcatraz for a while, isn't it?

Mr. Fred M. Vinson, Jr.: Yes, Mr. Justice.

He was transferred in January, I believe.

Justice Potter Stewart: And then he -- does the record show that he ever did go to a -- to a place for treatment of his narcotics addiction?

Mr. Fred M. Vinson, Jr.: His -- the first place he was incarcerated was McNeil Island in Washington.

I am not certain whether they have medical facilities there or not.

Justice Potter Stewart: It doesn't show why the recommendation of the sentencing judge wasn't carried out, does it?

Mr. Fred M. Vinson, Jr.: No, it does not.

The record does not.

Petitioner, appearing in proper person, filed a 2255 motion in January of 1960, asking that the Court vacate his sentence.

As grounds therefore, he alleged only very broad conclusions and they were largely conclusions of law or they were mixed conclusions of law and fact.

The District Court in California, quite properly I might add a very little attention to this petition, the Court said that defendant's motion, although replete with conclusions, sets forth no facts upon which these conclusions can be founded, and for this reason alone, the Court may deny the motion.

The Court then went on to state that they had inspected the files and records, and these conclusively showed that the petitioner was entitled to no relief and so the motion was denied.

Some seven months later, the petitioner again appearing in proper person filed the 2255 motion which is before this Honorable Court today.

In this intervening seven-month period, the petitioner took to heart what the Court said in its first decision about his failure to allege any basic facts and he very carefully drafted another pro se petition supported by a memorandum and buttressed by an affidavit in which he clearly alleges that he was deprived of substantial constitutional rights and that during the proceedings when he waived his right to counsel and so forth, and when he was sentenced, that he was under the influence of narcotic drugs.

His affidavit very specifically details this ground.

He states that he was confined in the Sacramento County Jail from January 16 until February 18, 1959, that during this period, he received narcotic drugs, administered by medical authorities, attendant at the jail, and this was due to the fact that he was a known addict, that he was under the influence of a drug during the time of what he refers to as his trial, obviously the proceeding I referred to before.

In concluding his memorandum, in support of his motion, he requested that a hearing be held to enable him to present evidence.

Justice John M. Harlan: Mr. Vinson, was the -- were the two succeeding 2255 applications before the same district judge who sentences -- who sentenced this man?

Mr. Fred M. Vinson, Jr.: I believe so, Mr. Justice.

Justice Hugo L. Black: (Inaudible)

Mr. Fred M. Vinson, Jr.: Separate and distinct motion, seven months apart.

The District Court refused to entertain his second motion.

The Court stated that no reason was given or was apparent to the Court while the petitioner could not and should not have raised the issue of mental incompetency at the time of his first motion, the first motion that alleged only conclusions.

So the Court refused to entertain the petition, but in a footnote to that decision, the Court again made the boiler plate assertion that it had reviewed the entire files and records and it found there was no merit in petitioner's claim.

Of course, this is a real bootstrap operation because the claims made by petitioner were completely involving matters outside the record and on which the record could cast no light.

Justice Potter Stewart: Except the -- not the record but the -- but the judge's own recollection of the trial and of the -- and of the petitioner's demeanor at the time of sentencing.

Mr. Fred M. Vinson, Jr.: Yes, Your Honor, but the record includes a complete recital of the judge's recitation of prisoner's rights and the petitioner's response thereto.

Justice Hugo L. Black: Was he known (Inaudible)

Mr. Fred M. Vinson, Jr.: There is no indication in the record that he would have.

However, the probation officer's report went before the judge at the time of sentencing.Now this -- in this jurisdiction, at least, that is a confidential report.

The Government in its brief --

Chief Justice Earl Warren: We'll recess now, Mr. Vinson.

Mr. Vinson, you may continue your argument.

Mr. Fred M. Vinson, Jr.: Mr. Chief Justice, may it please the Court.

Just prior to the luncheon recess, I had almost completed the statement of facts of the case at which time Mr. Justice Stewart, I believe, inquired as to whether the judge who entertained the -- the judge who sentenced the prisoner and the judge who entertained the successive motions was aware of the fact that the -- that the petitioner had received narcotics.

On the record before this Court, there is no indication for such awareness but in a footnote 11 of the Government's brief, the Government goes outside the record and points out that the probation report, which was before the judge at the time of sentence, confirms the fact that the petitioner was a known addict and did, in fact, receive medical treatment at the time of his incarceration in the Sacramento Jail.

After the denial -- rather the refusal to entertain the second 2255 motion, the petitioner duly appealed to the Ninth Circuit which, in essence, denied the appeal on the same ground stated in the District Court's opinion and this procedure before this Honorable Court then followed.

The relief sought here by the petitioner involves a reversal and a remand to the sentencing court with a hearing to be ordered before that court.

This is a procedural matter only but I would like to point out that it concerns the procedural right to be heard on a very substantial constitutional question.

We should first turn to the statute involved.

And without laboring the statute, I do wish to call two sentences to the Court's attention.

First, the statute states that unless the motion and the files and records of the case “conclusively show” that the petitioner is entitled to no relief, the Court shall grant a prompt hearing.

The statute also states, and this is crucial language in this matter, that the sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

It is petitioner's view that this statutory language with reference to successive motions, does not give the sentencing court the power to refuse to entertain a successive 2255 motion when new uncontroverted grounds for relief are raised.

This Court has never passed directly upon this question of successive motions and the sentencing court's exercise of jurisdiction to entertain them.

We should first turn to the landmark case of United States v. Hayman, decided by this Court in 1952.

In that case, the Court goes very exhaustively into the genesis of Section 2255.

The Court quotes with approval, a report of the judicial conference, which was submitted to the appropriate congressional committees where the judicial conference stated in reference to 2255, that as a remedy, this Section was intended to be as broad as habeas corpus.

Further in Hayman, this Court held that nowhere in the history of Section 2255 was there any evidence that there was any purpose to impinge or limit petitioner's right of collateral attack.

And I quote from Hayman, “On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum”, that forum being the sentencing court.

With this guidepost and in the absence of this Court's treatment of the precise subject, we must look to some of the landmark cases involving the great writ, habeas corpus, that this Court has decided.

First, there is the case of Salinger v. Loisel, where this Court held that previous applications were proper for the courts to consider in exercising their judicial discretion involving successive habeas corpus applications.

But immediately following that enunciation in Salinger, the Court quotes from Ex parte Cuddy, with approval, and in Ex parte Cuddy, Mr. Justice Field said, and I quote, “The action of the court or justice on the second application will naturally be affected to some degree by the character of the Court or officer to whom the first application was made, and the fullness of the consideration given to it.”

I call to the Court's attention the fact that in this case, no consideration, no area in Court has ever been given to petitioner's allegations with respect to his deprivation of constitutional right.

Next -- the next landmark of habeas corpus case is the case of Waley v. Johnston, decided by this Court in 1942, when the Court said that on petitioner's earlier application for a writ of coram nobis, the same issue was not raised as that which was here presented.

The earlier application was denied for insufficiency upon its face and without a hearing.

There is thus no basis for the holding of the District Court, and the Supreme Court, thereupon, vacated the appellate court's judgment and remanded for a hearing.

This case -- these facts are also present in this case for new allegations were made in the second motion by petitioner upon which no hearing has been afforded.

The case of Price v. Johnston was decided by this Court in 1948 at a time when what ultimately became 2255 was pending in the Congress of the United States.

I feel that language in the Price v. Johnston case, when viewed in the framework of Hayman, may be determinative in this case.

In Price v. Johnston, the Court was dealing with the fourth successive application of a prison.

And the Court stated that there's been no proper occasion prior to this fourth application for the matters raised to be decided.

I quote, “But here, the three prior applications did not raise the issue now under consideration, and the three prior refusals to discharge petitioner can have no bearing or weight on the disposition to be made of the new matter raised in the fourth petition.”

If Hayman means what it says that relief under 2255 is as broad as that afforded by habeas corpus, this language in Price v. Johnston is determinative of the case.

I have not gone into any exhaustive analysis of the various decisions involving this point.

In the circuit courts of our land, I have not done this frankly because I believe they cast more confusion than light on the subject.

I would like to, however, to call your attention to one case decided by the United States Court of Appeals for the District of Columbia sitting en banc.

This is a case of Smith versus United States, cited in my brief, where the Court meet head on the problem of interpreting the statutory language involving the Court's jurisdiction, the Court's discretion rather in entertaining successive motions for the same relief.

In dealing with the 2255 motion, the Court of Appeals in this Circuit, sitting en banc, held that such a motion, and I quote, “is required to be entertained by the sentencing court when it presents ground not theretofore presented and determined,” such as the case here.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Fred M. Vinson, Jr.: Mr. Justice, I believe that these prisoners have very little access or limited access to lawyers and they probably both have the same lawyer.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Fred M. Vinson, Jr.: Yes.

I believe and its petitioner's principal position that a judge is required to look at such a petition to entertain it if there are clear factual allegations supporting a claim that there's a deprivation of constitutional rights and if, again referring to statutory language, the files and records of the case do not conclusively show that the petitioner is entitled to no relief.

In this case, the files and records cannot conclusively show that the petitioner is entitled to no relief for his relief is grounded upon matters that are completely outside the record, matters that occurred in the jail house.

Justice Potter Stewart: We have held, I think though Mr. Vinson, have we not, that in addition to the files and the records, the district judge may draw upon his own recollection --

Mr. Fred M. Vinson, Jr.: Indeed, yes, sir.

Justice Potter Stewart: -- of what happened.

And in this case, the second -- the second petition under 2255, the one which is now before us, alleged basically that he was mentally incompetent and incapable of participating intelligently at the time of his plea and sentence.

And as the previous application as the Court's memorandum in the previous application had shown, the Court was there during the sentencing procedure and he sent out the transcript in which the man, so far as one can see from the record, and apparently so far as the trial judge's impression went, was intelligently knowingly proceeding in the whole sentencing procedure.

And I noticed from page 23 of the record in a little footnote, that the Court on this second application said that he'd gone over all those things again and then on the merits of this second application, on the merits, he was satisfied from what had actually happened at the sentencing proceedings that this man was in fact -- in fact not incompetent.

And the transcript of those proceedings indicates that he was not incompetent.

Is that -- isn't that true?

Mr. Fred M. Vinson, Jr.: Well, your question, Mr. Justice, I think --

Justice Potter Stewart: It's a long question.

It's (Voice Overlap)

Mr. Fred M. Vinson, Jr.: -- boils down into two parts.

Justice Potter Stewart: Yes.

Mr. Fred M. Vinson, Jr.: First, of course, the judge is entitled to take into consideration his physical observation of the prisoner at the time of sentencing, at the time of plea, waiver of plea.

However, this begs the question in the factual context of this case of whether a judge is able to determine the competency of a prisoner where his incompetency is alleged to arise from the administration by the police of narcotics.

Justice Potter Stewart: However, it arose whether it'd be from congenital defectiveness or from intoxication or from the administration of drugs or, however, it allegedly arose, whether or not it existed, it would have been something which the judge could determine from the -- from his observation of the demeanor of the man.

Wouldn't that be true?

Mr. Fred M. Vinson, Jr.: I would question that statement, Mr. Justice.

For instance in the Townsend v. Sain case that is presently before you, this point is raised in a more substantive fashion than here.

In that case, it was pointed out that scopolamine was the drug which was used on that prisoner when he was incarcerated.

That, as we know, is the so-called truth serum.

That question whether a judge is confident to look upon a prisoner across the bench and determine whether he -- and to what extent the truth serum has affected him.

The second part of your question in regard to determination on the merits, I think that footnote in the decision of the -- of the case is completely a bootstrap operation because where the allegations concerned factors completely outside the record, an examination of the record cannot operate without a hearing testament -- and testimony given cannot operate as a -- as a determination on the merits.

Chief Justice Earl Warren: Mr. Vinson, does -- does your argument carry us so far as to say that the defendant may split up his constitutional claims and make them the basis for his many successive proceedings as he chooses to start provided he -- that he only named one at a time.

Mr. Fred M. Vinson, Jr.: My principal argument could carry the Court that far.

Yes, sir.

Assuming two things assuming that the records in filing the case don't conclusively rebut his allegations; and secondly, I -- I think the Court might possibly place a limitation upon the number of successive motions predicated on the petitioner having had a full day in Court, an opportunity to be heard and perhaps counsel appointed.

In this case, petitioner has never had any day in Court.

Chief Justice Earl Warren: And of course, I'm speaking about claims that were known to him at the time his first -- his first claim was (Voice Overlap) --

Mr. Fred M. Vinson, Jr.: Yes, Your Honor.

There has been an attempt in --

Chief Justice Earl Warren: -- to make no distinction between that and this case where -- whereas -- as a prisoner, he merely made a shotgun approach to it on his first -- on his first try and then learned little something by experience and pinpointed the facts.

You make no distinction between those two.

Mr. Fred M. Vinson, Jr.: The principal argument could carry us as far as the Chief Justice suggests, however, it does not have to.

Chief Justice Earl Warren: Yes.

Well, I understand that.

Mr. Fred M. Vinson, Jr.: Approximately three of the circuits have attempted to graft the test upon these successive motions that involved whether there's any excuse given by the prisoner for failing to raise issue earlier or whether there's any indication that he was unaware previously of the significance of the facts there now raised for the first time.

Well, I submit that the first such grafting places an intolerable burden upon pro se prisoners who are unlearned in the law.

The second is a much too subjective test to say there's no indication of an awareness that he was not -- there's no indication of a lack of awareness of the significance of the facts now alleged.

Justice Hugo L. Black: But what you asked in that relief is to (Inaudible) amendment of the case.

Mr. Fred M. Vinson, Jr.: That is possible in these facts but my principal argument is based upon the contention that where prisoner has been given no day in Court and he raises clear and uncontroverted factual issues involving the deprivation of constitutional rights that he is entitled to a hearing thereon.

Contrary to --

Justice William J. Brennan: (Inaudible) had they done the same thing that (Inaudible) have given all those.

Mr. Fred M. Vinson, Jr.: Oh no, Your Honor, then the clerk -- the Court under the statutory language would clearly have the right.

Justice William J. Brennan: He has no (Inaudible) on the appeals, on the first or second?

Mr. Fred M. Vinson, Jr.: No, Your Honor, none.

And in the second motion --

Justice William J. Brennan: (Voice Overlap) relate the first and the second where the raising the same question or the because of the conclusive (Inaudible) to say that he hasn't have a hearing in fact he has complied with.

Mr. Fred M. Vinson, Jr.: And he has for the first time clearly raised factual issues --

Justice William J. Brennan: And that's the same answer -- did I understand you to say (Inaudible) about the footnote.

Mr. Fred M. Vinson, Jr.: Yes, Your Honor.

I think the footnote is completely illusory.

There was, in fact, no opportunity for a determination on the merits.Contrary to this principal position, the Government contends that the statutory language gives the sentencing court a very broad discretion with respect to denial of successive motions.

In support, the Government cites much legislative history but unfortunately almost all of it concerns Section 2244 rather than the Section we are here faced with.

However, I call your attention to the fact that what became 2255 in its second draft in the Congress contained a one year limitation.

A prisoner had only one year from the time of sentencing to bring a motion hereunder.

The Judicial Conference Committee on Habeas Corpus headed by Chief Judge Parker in 1947 submitted a report to the conference which was made known to the Congress in which they disapproved this one year limitation.

Thereafter, the statutory language we're here interpreting involving successive motions appeared in the statute as a substitute for the one year limitation with no explanatory or clarifying material with respect to it.

But I think it's very obvious that legislatively the Congress drops the one year limitation because it did not want to limit by a very mechanical means of prisoner in asserting constitutional rights.

In portions of its brief, the Government treats this case as a problem primarily involving judicial administration and court congestion, both of which are matters of great concern to the mentioned bar.

However, they are not primary considerations here.

Our primary consideration is to see that the prisoner who raises clear issues involving deprivation of constitutional rights is afforded a hearing.

For purposes of this argument, let us assume that the Government is correct and the statutory language as to successive motions.

I beg your pardon on this.

Chief Justice Earl Warren: Finish your -- finish your statement on that subject, Mr. Vinson please.

Mr. Fred M. Vinson, Jr.: Assuming for the purposes of this motion that Government's contention is correct that the statute gives the sentencing court very broad discretion, even under these circumstances, it is an abusive judicial discretion for the Court to refuse entertaining petitioner's motion and to afford him a hearing.

This is true because he has clear and uncontroverted allegations which are presumptively correct and the files and records of the case do not controvert them.

Thank you.

Chief Justice Earl Warren: Ms. Rosenberg.

Argument of Beatrice Rosenberg

Ms Beatrice Rosenberg: May it please the Court.

In any question involving collateral remedies, the fundamental issue before district judge is, is there anything in the petition in the light of the files and records in the case which call into question fundamental fairness particularly specifically here a plea of guilty so that the matter should be explored further.

That's the first question he has to decide.

This Court has emphasized that this is a broad inflexible remedy, designed for that linear occasion when somehow there's been a breakdown despite all the safeguards that we have, there had somehow been some breakdown in the judicial machinery.

And so the question as to second petition as we see it must remain flexible much as the lower courts sometimes strive for fixed rules and much as I'm sure, we in the Government side, would like to have them.

Congress found itself unable to formulate them.

And I doubt at least we're not prepared to offer in a very specific way.

All we say about the second petition is that the fact that it is a second one is irrelevant fact to be considered like everything else in the record.

It's part of the files and records of the case that this is a second petition.

And the way to be given to it must necessarily depend on the particular facts of a case.

I think this explains some of the confusion that my opponent has talked to in the Court of Appeals and the decisions are confusing, they're not even consistent within a circuit.

But in the case of Smith against the United States which he mentioned in the District of Columbia Circuit, it was then in a second petition some substantial basis for the allegation of the prisoner, so reasonably that it was possible, that the prisoner at the time he had not -- at the time he made his plea had not really been mentally competent.

And on that basis, although the court en banc split for its reasons, there was almost agreement that the petition should be heard because there was something that really pulled into question the fundamental fairness of proceeding.

And so we think that largely, this has to be decided on a case to case basis on the -- in relation to files and records of particular case.

Let's see what the record shows here.

As of this second petition in which about a year and nine months after he pleaded guilty, this prisoner said he didn't know what he was doing because he was under the influence of narcotics at the time.

Well, first thing the record shows was that the prisoner was arraigned on Friday, January the 16th on a very same -- given a preliminary hearing I should say, on Friday the -- January 16th, the same day as the robbery, bank robbery.

That afternoon -- and that afternoon, he indicated to the United States Attorneys that he was ready to proceed by a waiver of indictment.

The only reasonable inference from that record is that he was caught in the act.

Any case on Monday, January the 19th, he came before the district judge.

And if you read the record at pages 1 to 5, I think the judge was this here for as you can expect the judge today in trying to make sure that the defendant knew what he was doing and knew what his rights were.

He started out.

Now, this is a typical defendant had no lawyer.

The judge made absolutely certain to understand to have a right to have a lawyer that if you don't have enough money, I'll appoint a lawyer for you and then he said, he made the defendant say, “You understand, you have that right.

You're waiving that right here in open court.”

And he went on and said “In addition, Mr. Sander, that's at the bottom of page 2.”

You have a right to have your case heard by the grand jury.

And you -- if you have any idea that you are innocent, you should have the case heard before the grand jury, because I can accept only a guilty plea from you if you think you are not guilty of this charge, you should have the matter heard by the grand jury to determine whether or not you should even be brought to trial.

And he said to the defendant, “You want to have the case heard by the grand jury”, and then the defendant said, “No, I waived.”

The judge didn't hear him and he said, “What was that?”

And the defendant repeated, “No, I waived.”

And the judge went on again and said, “Has anybody made any promises to you?”

And the defendant said, “No.”

He said, “Does anybody made any threats?”

And he said, “No.”

And then only after all this had been gone through, did the judge accept a guilty plea.

Now, I don't know how long this took when you read it.

But when a judge is that careful, when the defendant is continually giving the right answers, he went over to have to sign the waiver of information, it's hard to believe that a judge who was as very careful as this judge was whether he accepted a guilty plea.

We have at the slightest reason to doubt, the defendant knew what he was doing.

After the plea was accepted, judge did not sentence the defendant immediately.

He asked for probation of the Court.

And let me say now that I think this is a fact that has been somewhat neglected in relation to this question of whether to hold a hearing or not, probably because the probation reports are not sent up as part of the records in the case.

But in a probation situation particularly with the plea of guilty, where it's taken as in this case three weeks to get up a probation report before the defendant is brought back for sentencing, where the defendant has interviewed other people who know and are interviewed.

If there are issues which tend to pass out on the voluntariness of the plea or on the ability of a defendant to enter a plea, they are likely to show up.

And there have been occasions where judges have said, “I don't think I will accept this plea.

I think there is a question of innocence and done it.”

Justice Arthur J. Goldberg: (Inaudible)

Ms Beatrice Rosenberg: No, it's --

Justice Arthur J. Goldberg: (Inaudible)

Ms Beatrice Rosenberg: No.

What I am saying is that where a judge has before him a probation report which would raise a question of mental competence for example.

A probation report would tend to reflect that not necessarily.

I'm not saying it's conclusive.

I'm saying it's another factor in the record, because if a probation report for example which show a long history of mental incompetence, it would be the duty of a judge, I think to say, no matter what this man says about vacate -- about waiving counsel, I don't -- I am not certain that he has a mental capacity probation.

Justice Arthur J. Goldberg: So it thus required investigation or probation report.

Ms Beatrice Rosenberg: Yes, I -- well, I do know what's in the probation report, Your Honor.

The -- and I think the record indicates at least something about what was in the probation report on page -- on the sentencing procedure which is on page 7 of the record, you see the probation officer was present and the judge asked the probation officer, if he had anything to add to his report and I say his attorney was present, they had nothing to report and then the petitioner was asked if he has anything to say and then he said, I have been using narcotics off and on for quite a while.

I would like to go to Springfield.

Now, this is what the probation officer present.

The judge accepts this and says, “I think that he ought to be given this consideration and before I sentence him.”

I think it is evident from that and that the Solicitor General has stated the Court have said that the fact that petitioner was a narcotic user off and on was reflected in the report.

Now, in the same from that, when you have a judge who is, as I think clearly, interested in seeing that the defendant knows his rights, is aware of them, is making any waiver he wants to make voluntarily, a judge would not go ahead and sentence the report, it seems to us, unless he had no reason to believe that this was not done voluntarily.

In other words, unless he was convinced that it was a voluntary action.

And so on the face of this record, if you consider both petitioner's responses, the fact that he was before the judge then, the fact that the fact of narcotics addiction was in the record and then let me also say that the decision and testimony of experts is that the mere fact that one have taken narcotics normally does not affect one's mental facility.

This is recorded in the decision in the Juelich case, the testimony of the experts on the Lipscomb case in 209 F2d. at 831, and the same thing is testified to by a -- expert from public health service in the Cox case which it doesn't show up in the opinion but it's in the record that was before this Court and this is generally reflected in the jury, that it takes either an extraordinary dose of narcotics or the pains of withdrawal symptoms are the two things that tend to affect ability so that we have that record at the sentence procedure.

Then the next thing that we have in the record is the petition filed a year later in which it has been characterized as the shotgun approach, in which he stated that his plea of guilty was involuntary because it was entered without handful.

Well, it's true this is an indigent petitioner and one can call denied the tooth of pleading.

But our statement about the relevancy of the first petition, our position with respect to that is that once a prisoner know that he has a remedy for a plea of guilty that was obtained wrongly, feeling that he'd been overreached that he'd been had in applying the phrase, once he knows that if there's any real basis in that or such an attitude, the real facts are going to be alleged inarticulately, not very artistically but if a man says they promised me something I didn't get it, he can say that if it's true.

It's when he's trying to fit his case to the facts of other cases which you get allegations that may well be is absolutely contradicted by the record as this one was, this first petition.

So that our position roughly is this about the second petition that we are not saying that the mere fact that one was filed was conclusive, if it were true as petitioner alleges that the first one was dismissed merely because it was generalized and that this was a mere -- this was a particularization of the first.

We wouldn't be arguing if the first was entitled to any waiver at all.

But that isn't the case here.

In the first place, the second one wasn't filed to about nine months later from a different prison.

In the second place, the second petition is in the sense, inconsistent with the first because the first says, “I knew what I was doing but I was coerced.”

The second one says, “I didn't know what I was doing at all.”

Now, when you have, we say, the combination of factors that you have here, a district judge is justified looking at the whole record before him including the fact that it was the second petition in denying the second motion on the grounds that there is nothing in the record before him which passed enough doubt on the voluntariness of the petition to justify a hearing.

And let me see if I can just summarize all --

Justice William J. Brennan: (Inaudible)

Ms Beatrice Rosenberg: Right.

And also on the peti -- on the position which expresses a general congressional attitude that the Court is not required to entertain a second successive motion for relief.

Justice William J. Brennan: (Inaudible)

Ms Beatrice Rosenberg: Conclusive must be read in the light of all the factors and I think that conclusive means -- conclusive is conclusive enough so as not to shed a doubt on the voluntariness of the plea.

The question is not, Mr. Justice Brennan, whether this man did or did not receive narcotics.

The question is, is there anything in his allegation in the light of the files and records which is to show that he did not knowingly and competently enter a plea of guilty.

And in the late -- in the light of this record, as to the careful resentment which the judge went over every step of the way with him in the light of the fact that he didn't know he had a remedy.

And then at that time, he did not even mentioned narcotics, although it was known at the time of sentencing that he was a narcotics user.

I think that it can be said in the face of all these that the files and records conclusively show that the plea of guilty was entered competently and knowingly.

Justice William J. Brennan: With this I gathered (Inaudible)

Ms Beatrice Rosenberg: Well, I think the District Court had the right to consider that.

There is no -- I will say that there is nothing in his opinion on the second motion to show that he did.

What is significant even on the basis of the record here is that it is clear that having had a probation report which -- having had a probation report and having had the prisoner's statement that he was a narcotics user, nevertheless at the time of sentence, the judge saw no reason not to continue with the sentencing in the light of the plea of guilty which he had accepted three weeks before.

Justice William J. Brennan: (Inaudible)

Ms Beatrice Rosenberg: I think that on the basis -- I do think that on the basis of this record and the care of the judge plus the fact that all the petitioner alleges is that between the date he was arrested and the date he was sentenced is very unspecific as today that he was given narcotics which is as I say per se does not establish incompetence.

There's nothing in the -- in the literature.

The opinions are to the contrary, that in the light of that fact, and in the light of what the record shows about how intelligently he did answer the question, about the facts that the judge did want him of his right, about the fact that he had already talked about pleading guilty the minute he was arrested, I would say that even at the first application, but I say this that the motion could be denied but I say that the denial on the basis of the files and records is even more supported when it is realized that a year later, a year after sentence, and seven to nine months before the second application, petitioner who was aware that he had a remedy for a involuntary or unknowing plea of guilty with -- let's put it -- with the way that if he had been overreached by the Government, he had a remedy.

With that knowledge, he nevertheless made no contention that he didn't know what he was doing.

Justice William J. Brennan: May I ask you (Inaudible)

Ms Beatrice Rosenberg: Well, I think so as we point out in our brief, there is no legislative history specifically on this clause.

Such legislative history as there is comes in connection with 2244, the habeas corpus cases which are -- is raised a little different.

He says, the Court shall not be required to entertain a motion unless it offers new grounds not determined.

Now, that's almost -- that's not much clear as in 2255.

What the legislative history shows is that the judicial conference, when they were considering this motion, decided that they would wanted to have the petitioner assert every grounds that they have.

But -- and so originally, it was raised that the Court should not be allowed to consider something unless it raised new grounds.

There were various judges who objected to that saying it's never too late to do justice.

And so it ended up legislative history showing that the judge could consider it but did not have to.

And I think this is what -- I think that -- I think as I said in the beginning that if one tries to make rules too rigidly, that you will end up not protecting the one group that this is really designed to reach, which is that rare person who has really been overreached.

This is rare.

We have also at the state courts that have been built in to avoid this.

But if it could well be that the one person who should have a hearing may not make his allegations the first time he's heard about it, I think that we have to judge this in the light of experience and common sense and reality.

Justice William J. Brennan: Ms. Rosenberg, may I ask you (Inaudible)

Ms Beatrice Rosenberg: Not necessarily.

Not necessarily --

Justice John M. Harlan: But your --

Ms Beatrice Rosenberg: -- except that obviously we think it is relevant that he didn't raise it before.

It might not be conclusive.

That is, I would say that if a claim of purged testimony even though it was not holding new but if the only phrase I can use is has the ring of reality as a right it alleges.

I think that -- that one must look at this in a normally pragmatic way and say our interest is -- our interest is to do justice.

It's not to hold hearings.

It's not to sort out allegations.

Our interest is to -- is there anything here that casts doubt, if there were troubling doubt, this is all I think that someone can say, and in judging whether there is a troubling doubt, it is significant that this is the second time we've heard about it, because --

Justice John M. Harlan: Putting a -- putting a legal label on it, does your position come down to this that in a successive petition, 2255 petition, the judge must exercise a discretion but his scope of discretion is broader than it is on an initial application.

Ms Beatrice Rosenberg: Yes and that he is entitled to view the second petition with somewhat more degree of skepticism than he does the first.

Justice John M. Harlan: Skepticism is part of discretion, isn't it?

Ms Beatrice Rosenberg: Yes.

I think this is so.

And in a few minutes that I have left, maybe I want to say something a little more general on this question.

It sounds easy and it sounds simple to say, well why don't we settle all this at a half hour hearing.

But it isn't that simple.

And it isn't -- it isn't just the time of the Court and it isn't just the expense of transporting prisoners.

I don't think that's really the problem.

The thing that worries me most about too easy a hearing in the light of the experiences we have seen of doing this too easily is that, we will in a sense, negate the remedy, cheapened the remedy.

“Wolf!

Wolf!” is a fable of human that reflects human experience and it applies to a class as well as to a person.

And I think it's happening, I suppose I have read more of these petitions than almost any person in the Government, and it gets to a point where it gets very difficult to assort the real -- the ones that really troubled you from the ones that sounds troublesome and then turn out not to be.

And if we have many experiences that the courts have been having lately with this allegation of the use of narcotics, I think the danger is that when we get the special, the odd, a very extraordinary case and it is the extraordinary case in our federal system where we ought to have a remedy there is always the danger if we have too many hearings, the one person that ought to be believe won't.

And I ask the Court to consider one happened in the case of Catalano in the Second Circuit, where the Court said this in its decision in 292 F.2d has said this may be incredible allegation as to a man who claims to be under narcotics for two and a half weeks at his trial, no -- not noticed by the Court and not noticed by his lawyers.

He made very specific allegations, the Court said, “Let us be careful, we must have a hearing just to settle this down.”

And then the sequel to that is reported now in 311 F.2d 186.

And I think that we have much more of this.

If we have prisoners having hearings too often, that this will not in the end work to the fundamental justice for that rare case, that it will serve as a detriment rather than helping in the end.

Now, this definitely means of course that we're going to have some unnecessary hearings where prisoners will not be let loose.

But I think that we cannot simply --

Justice Potter Stewart: I didn't get though what the sequel to the Catalano case was.

Ms Beatrice Rosenberg: It's at 311 F.2d 186 has just been reported and the District Court's opinion --

Unknown Speaker: 186.

Ms Beatrice Rosenberg: 186, and the District Court opinion is that 204 F.2d supplement 881.

This is a problem of judicial administration.

It's a problem of doing justice but it is not -- it cannot be solved so simply as to say, well, whenever there's any kind of a question, let's have a hearing.

We think you have to look at each case on the record.

We have not been able to formulate what we think is a fixed rule, what we say about the second petition is that it is relevant to consider the fact that it is a second and that therefore in the words of Justice Harlan, there is more discretion at the time of the second in determining whether to hold a hearing.

Justice Arthur J. Goldberg: (Inaudible) in the trial, the practical matter is the denial of this?

Ms Beatrice Rosenberg: No, I don't.

I'm sorry.

I think that more hearings will simply encourage more -- more allegations.

This is for a prisoner a hearing.

This man was out of Alcatraz for five weeks.

This has advantages whatever happens in the end.

Justice John M. Harlan: What's the current figure of 2255 of the 2255 petition being filed all over the country?

Ms Beatrice Rosenberg: Your Honor, the administrative office of the United States hold at least 560 for 1961 and 546, I think, for 1962.

The 1962 figure was not there at the time we wrote our brief.

I know that that is not an accurate figure because it depends on the way that clerks keep their records and sometimes it also lists, I think about 600 habeas corpus petitions which cover all sorts of other things, federal, not state.

We tried to check it, improve impossible.

To check that there are at least 560 but I'm sure there would be more.

I have found it unable to get the feeling, the figures on the number of hearing that have been held.

We got responses from some districts and not from others and we just couldn't get accurate set of figures on this field.

Justice John M. Harlan: What's the most accurate 2255 district?

Ms Beatrice Rosenberg: Well, you see one of the difficulties is that because one of things that happened, one of the reforms that 2255 accomplished was to spread the work throughout the country because it is filed in the district of trial rather than the district of confinement.

Now, I should say that the most -- most active petition came out of Alcatraz but they do spread throughout the country and it is hard to say -- well in theory, it's hard to say.

It really depends on prisons and Alcatraz and Leavenworth and probably McNeil are the most active.

I think that most of the petitions that we see that come to this Court, at least, come from those penitentiaries.

I think Particularly Alcatraz and Leavenworth is understandable.

Obviously, it's a long-term sentence person who is most likely to resort to the remedy.

I also have no figures on releases that are -- oh I suppose I should qualify that Your Honor.

The District of Columbia is probably the most active.

Chief Justice Earl Warren: Mr. Vinson, before we call the next case, I would like to take this opportunity to thank you for having accepted the assignment to this Court to represent this indigent defendant.

The Court is always confident by the fact that there are lawyers who are willing to give their time and energy to represent those who do not have the means to represent themselves and we're very much indebted to you for your service in this case.

And Ms. Rosenberg, we're indebted to you as always for your fair and earnest representation of the Government in these matters.

Ms Beatrice Rosenberg: Thank you.

Rebuttal of Fred M. Vinson, Jr.

Mr. Fred M. Vinson, Jr.: Thank you, Mr. Chief Justice.

It's my pleasure to appear before the Court.

Chief Justice Earl Warren: Thank you.