ANDREWS v. UNITED STATES

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Argument of E. Barrett Prettyman, Jr.

Chief Justice Earl Warren: Number 491, Albert Andrews versus United States and Number 494, Robert L. Donovan versus United States.

Mr. Prettyman.

Mr. E. Barrett Prettyman, Jr.: Mr. Chief Justice, may it please the Court.

This case, and I will treat it as a single case for most purposes, raises the question whether the Government, prior to the resentencing of two defendants in a criminal case, may appeal the orders directing that the resentencing take place.

This case originated in 1954 when three men were arrested in connection with an attempted mail robbery.

These men were Albert Andrews, Robert Donovan, and Hyman Cohen.

Mr. Cohen is no long in -- no longer involved in this proceeding.

They were convicted on all three counts in a trial before Judge Lawrence Walsh in the Southern District of New York.

They were convicted, that is, of assaulting a post office employee with an attempt to rob with putting the life of the same post office employee in jeopardy by the use of a dangerous weapon and of conspiracy.

Now immediately upon conviction and apparently without any presentence required of law and without asking the defendants whether they had anything to say either in mitigation of sentence or on their own behalf, Judge Walsh sentenced all three of them.

Counts 1 and 2 merged so there was no sentence on those -- on the first count.

On the second count, he gave them the mandatory 25 years, and on the third count, he gave them five years to run concurrently with the 25-year sentence.

Justice John M. Harlan: What year was this, Mr. Prettyman?

Mr. E. Barrett Prettyman, Jr.: This was 1954, Your Honor.

Justice John M. Harlan: I don't know why it should take this long?

Mr. E. Barrett Prettyman, Jr.: Well, the appeal on the case was not heard until 1957.

The record doesn't show why there was that delay.

I have inquired of both Mr. Healey and Mr. Friedman to determine and their answer is that due to some difficulties about payments in the in forma pauperis petitions and various other things, it simply drifted on that long.

Now, the Second Circuit affirmed the convictions, but remanded for resentencing because Judge Walsh had erroneously thought that he could not grant probation on the mandatory count.

Now notice that the remand for resentencing was specifically for the purpose of determining whether probation could be granted.

It was in the light of his right to grant probation that that remand took place.

The resentencing was first scheduled for May 15, 1957, deferred for five days so that one of the counsels could prepare legal memo.

On May 28th, it was called for resentencing.

Now note that this was almost two and a half years after the original sentence.

Judge Walsh again presided.

The defendants were not present, neither was Mr. Frank Healey, an attorney representing Mr. Donovan.

The proceedings nevertheless commenced.

Mr. Friedman made an argument.

Now Mr. Friedman's representation in this case is not entirely clear.

He told the -- he told Judge Walsh that at this particular point because Mr. Healey was not present that he represented all three defendants.

The docket entries show and the judgment show that he represented only Mr. Andrews and Mr. Cohen, and that Mr. Healey who was now absent represented Mr. Donovan.

In any event, he told Judge Walsh that he had not been able to prepare the memo which he had hoped he would and he then argued two points, remember now this is in the absence of the defendants.

He argued first a legal point.

That is that the first and second counts didn't merge and therefore the Court could grant some sort of sentence on Count 1.

Secondly, he argued a non-legal point.

He made a plea for clemency.

Now Mr. Mathews, the Assistant United States Attorney then presented an argument that the first and second counts did merge and Judge Walsh at that point called a recess.

After the recess, the defendants and Mr. Healey were present for the first time during this resentencing procedure.

Judge Walsh asked, “Is there anything you want to say?”

And this question was answered not by the defendant, not by Mr. Friedman, not by Mr. Healey, but by the Assistant United States Attorney, Mr. Mathews who then proceeded to give his version of the crime.

He said the Government did not have much background on these men but he noted that the Court at this point had a presentence report, apparently, the first one in the case.

When Mr. Mathews concluded, Mr. Friedman, without being asked then spoke up, saying that he was going to speak with respect to Andrews and Cohen and that Mr. Healey would speak with respect to Donovan.

Mr. Friedman made a plea for clemency for Andrews and Cohen, and Mr. Healey also without being asked by the Court spoke up and made a plea for Mr. Donovan.

When they were through, despite the fact that the whole purpose of the resentencing was to consider probation, that was the point of the remand, the Court did not ask any defendant whether he had anything to say either in litigation sentence or on his own behalf.

He simply proceeded to resentencing.

He suspended Mr. Cohen's sentence and put him on probation.

He ordered the prior 25-year sentences of Andrews and Donovan to remain in effect.

On April 17, 1961, Donovan filed a motion in the District Court.

He claimed that his right of allocution under Rule 32 (a) had been denied him and he prayed, “that the sentence aforesaid be vacated and he be resentenced.”

In three supporting papers, he specifically requested that this motion of his be treated as a Rule 35 motion.

Justice John M. Harlan: This is seven years after.

Mr. E. Barrett Prettyman, Jr.: Yes, sir.

Justice John M. Harlan: Fantastic to me.

How does that happen?

Mr. E. Barrett Prettyman, Jr.: Well, of course part of his delay was his fault in the sense that there was a delay between the resentencing and his filing of this motion.

I'd like to point out however, that I think that is accounted for by the fact that the Green case had not been decided at that time.

The Green case was decided four or five months before he filed his petition.

And I think frankly, this was the first time he knew he had any such right, and that's when he filed his -- his petition because up until this time, neither at the original sentencing nor at the resentencing did anybody ask him whether he had anything to say.

Now Rule 35, of course, reads in part, the Court may correct an illegal sentence at anytime.

The docket entry shows that Donovan's motion was entered as a Rule 35 motion.

The Court -- the Government stated twice in pleadings -- in pleading that it was a Rule 35 motion.

And Judge Murphy granted the motion as made ordering that Donovan “be returned to this District for resentencing”.

Now Andrews apparently heard of this because he wrote the Court a letter under date of January 25th, 1961, asking for what he understood to be the same treatment that had been accorded Donovan.

Judge Murphy treated this letter as a motion.

He granted it and he ordered that Andrews be resentenced.

Now, note that neither Andrews nor Judge Murphy, nor the docket clerk, made any mention of 28 U.S.C. Section 2255 in relation to this letter.

Justice Potter Stewart: All this was -- all of this was going on before this Court's decision in Hill against United States.

Mr. E. Barrett Prettyman, Jr.: Correct.

That's right.

Green had been decided, Hill had not.

Justice Potter Stewart: Had Van Hook been decided at per curiam, is it?

Mr. E. Barrett Prettyman, Jr.: Van Hook, Your Honor came down --

Justice Potter Stewart: As on direct appeal.

Mr. E. Barrett Prettyman, Jr.: After -- after -- you see, that was on direct appeal.

Justice Potter Stewart: Yes, I understand that.

Mr. E. Barrett Prettyman, Jr.: It came down at a time when Donovan then proceeded to file a motion and saying -- said in effect, “I want to add Van Hook as another reason for --

Justice Potter Stewart: So it -- it came down during the pendency of this (Voice Overlap) --

Mr. E. Barrett Prettyman, Jr.: Yes, that's right.

That's correct.

Yes, sir.

Justice Potter Stewart: This was in 1951 in this record.

Mr. E. Barrett Prettyman, Jr.: That's right, right.

If Your Honor will turn to page 39 of the record, you will see that Van Hook at this point came down and he has -- bringing this to the Court's attention.

This is all on his own now without benefit of counsel.

Justice Potter Stewart: That was the following -- it was the following January or February that Hill was mentioned, brought --

Mr. E. Barrett Prettyman, Jr.: Hill was not decided until January 22nd of 1962 which was after the case had reached the Court of Appeals.

Justice Potter Stewart: Yes.

Mr. E. Barrett Prettyman, Jr.: Now both Donovan's and Andrews' motions were filed in the original criminal case with the original criminal docket number.

The first mention of 2255 that got into this case at all was in a government affidavit filed one day after Andrews' motion had been granted and yet in that same affidavit, the Government conceded that the factual and legal posture of Andrews' motion was exactly the same as Donovan's motion.

Note too that when Andrews found out that the Government was treating his motion as a 2255 motion, he specifically protested in a pleading and claimed that his motion was also a Rule 35 motion.

The Government appealed from both of Judge Murphy's orders and obtained the stay pending appeal.

All of the Government's papers, all of the Government's papers as every other scrap of paper in this case that was filed in the District Court bore the original criminal docket numbers.

Andrews and Donovan were not allowed bail pending appeal.

They were not transferred to New York, to help prepare for their appeal, no counsel was appointed for them, they wrote their own briefs, there was no argument in the Court of Appeals, this case was submitted on papers, and the case was then decided.

The Court of Appeals held that it had jurisdiction because Judge Murphy could not grant any relief under Rule 35, that these were independent motions under 2255, and that the Government can appeal from adverse decisions under 2255.

On the merits, it held that Hill versus United States and Machibroda versus United States, both of which had now come down in the meantime required reversal.

Unfortunately, the Court of Appeals was under a misapprehension as to the facts involved.

Now I have three arguments.

I want to stress to you that each is independent of the other.

If the Court agrees with me on anyone of these, the Court of Appeals must be reversed.

First, whether petitioner's motions were civil or criminal, whether they were Rule 35 or 2255, whether Judge -- what Judge Murphy did was in the criminal case or in a separate proceeding, these were entirely interlocutory and non-final orders.

They were interlocutory in nature, in cause and effect, in form, in result, in any realistic sense, these were interlocutory orders. Now remember these orders were --

Justice John M. Harlan: Was there any -- was a sentence ever imposed?

Mr. E. Barrett Prettyman, Jr.: No, sir.

Justice John M. Harlan: Never reimposed.

Mr. E. Barrett Prettyman, Jr.: No, sir.

The Government appealed quickly you see, before these men can be brought back for resentencing.

They obtained a stay and immediately appealed.

The order --

Justice John M. Harlan: That the sen -- the old sentence have been vacated.

Mr. E. Barrett Prettyman, Jr.: That's right, that's right.

These men stood at this point --

Justice John M. Harlan: Well, these men are standing at the Bar now unsentenced.

Mr. E. Barrett Prettyman, Jr.: Right, but convicted.

Justice John M. Harlan: But convicted.

Mr. E. Barrett Prettyman, Jr.: But convicted.

Now these orders were in two parts.

They vacated the prior sentences and they ordered resentencing.

Justice William J. Brennan: Well, let's see Mr. Prettyman, you said there was a stay, a stay of what?

Mr. E. Barrett Prettyman, Jr.: A stay of both of Judge Murphy's orders as entered.

That is the prior convictions are --

Justice William J. Brennan: Well, technically, there was --

Mr. E. Barrett Prettyman, Jr.: Well, technically as of this moment, I suppose you could say that since those orders were stayed that they stand convicted and sentenced as originally.

Justice Byron R. White: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: That's right.

Justice Byron R. White: They may not act [Inaudible]

Mr. E. Barrett Prettyman, Jr.: That's correct, but as of the moment, he ruled in between then and the time that they obtained to stay, of course, they stood convicted but non -- not sentenced and the stay was based solely upon the right of the United States to appeal which is the very issue in question here.

Justice Byron R. White: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Yes, sir.

Now resentencing, as I said, has not taken place.

The criminal case is open and I again, with the exception of the fact that the stay was entered.

I think we can ignore that fact for the purposes of this situation because if the appeal will not lie, he had no right of course to grant a stay.

As of that time, a resentencing had not taken place.

The criminal case was open as the Government concedes.

The Government concedes that.

Justice Arthur J. Goldberg: Mr. Prettyman, am I right that the two orders [Inaudible] with the two cases starting at page 40 was a memorandum by Judge Murphy, it was [Inaudible]?

Mr. E. Barrett Prettyman, Jr.: Yes, the first one, Your Honor is on page 40, that's correct.

No settlement is --

Justice Arthur J. Goldberg: And the other one is on page 50, is that the [Inaudible]?

Mr. E. Barrett Prettyman, Jr.: And -- and the other one is just two lines on page 50.

That's correct.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: That's right.

Justice Arthur J. Goldberg: Those were the two orders --

Mr. E. Barrett Prettyman, Jr.: That's it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Exactly.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: That's correct.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Completely.

Justice Arthur J. Goldberg: [Inaudible] a motion to vacate the [Inaudible] the sentence?

Mr. E. Barrett Prettyman, Jr.: That's right.

These were self executing orders.

This Court on numerous occasions has made clear that final judgment in a criminal case means sentence.

There can be no question about that.

Now, I need not even pause over these situation if the orders were correctly Rule 35 orders, because the Government clearly cannot appeal even from final orders in a criminal case unless authorized by 18 U.S.C. Section 3731.

The Government doesn't even claim that right in this case, but the Government said, “What Judge Murphy did was to grant independent petitions under 2255.”

Now even if these were true, it doesn't follow that the Government could appeal as the Court of Appeals seems to have assumed.

2255 by its own terms, allows that appeal as from a final judgment on application for writ of habeas corpus and 2253 allows an appeal in habeas corpus only from final orders.

The Government doesn't claim that Judge Murphy's orders were -- had the effect of finality.

It concedes that the criminal case is now open but for the stay.

Justice Potter Stewart: Open or over?

Mr. E. Barrett Prettyman, Jr.: Open.

Justice Potter Stewart: Open.

Mr. E. Barrett Prettyman, Jr.: Open.

That is that it's incomplete, that orders still have to be entered.

What the Government says in effect that --

Justice Potter Stewart: But the function of 2255 as the function of habeas corpus is to secure the release from confinement of people and this -- that part of it has been done.

They've been released to -- ordered to be released from confinement to come back to the sentencing court to be resentenced.

Mr. E. Barrett Prettyman, Jr.: The 2255, Your Honor, gives -- in the first place, 2255 applies to a prisoner claiming to be -- claiming the right to be released.

Justice Potter Stewart: Right.

Mr. E. Barrett Prettyman, Jr.: Now these -- these --

Justice Potter Stewart: And that's the function of habeas corpus also.

Mr. E. Barrett Prettyman, Jr.: Yes, that's right.

Now these men are not claiming the right to be released.

These men have been -- claimed the right to be resentenced.

Justice Potter Stewart: Well, but one has to precede the other.

They have to be released from their present sentence and brought back to the sentencing court and resentenced.

Mr. E. Barrett Prettyman, Jr.: Well, in that sense released, but they're not released from custody.

I take this language to mean release from custody.

They're talking about getting out from under the cause of the Government and these men are not released from custody when they're simply transferred from Alcatraz and Louisburg under guard to the Court to be resentenced.

But further, note that the -- that 2255 allows the Court to vacate and set aside the judgment -- the judgment and it can discharge or it can resentence or it can grant a new trial or it can correct the sentence.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Exactly, and that's what is tradition.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Right.

It's traditionally been used for that.

Now, as I say, what the Government says in effect here, I think, is this.

Technically, since Judge Murphy properly could only vacate the sentence and since the resentencing will be in the criminal case, this is the last order that will be entered in the 2255 proceeding.

That's the way I interpret their brief as trying to call for some element of finality here.

Well, now first, let's assume that this is Rule 35 proceeding.

Rule 35 doesn't say the Court may vacate an illegal sentence.

It says the Court may correct an illegal sentence, and unless the correction is a reduction within 60 days, the defendants have to be present.

So that it reads as if it's to say -- as if it says, the Court may set aside and order resentencing.

Now under 2255, if that's what this is, the Court as I just pointed out specifically given the power both to correct and to resentence.

So I think there can be no question but that Judge Murphy had the power to vacate and to order resentencing in this case.

Now secondly, I don't concede that other things couldn't happen in this 2255 proceeding, assuming that that's what it was.

If his order for example were not followed -- were not followed up there could be new motions in the 2255 proceeding and thirdly, even if the 2255 proceeding, if that's what it is, were now over.

That is not what this Court has said the finality means.

In Collins versus Miller, final orders were entered in the sense asked for by the Government here.

But this Court held that they were not final, a further extradition hearing had to be held.

The whole subject matter, that was the -- that was the phrase used by the Court; the whole subject matter had not been disposed off.

Now, similar holdings had been made in cases citing on -- cited on pages 20 to 23 of my brief.

And so here, Judge Murphy's orders will not be final until what he ordered to be done is done.

Justice Byron R. White: You don't think [Inaudible]?

Mr. E. Barrett Prettyman, Jr.: Well --

Justice Byron R. White: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Well, first of course Your Honor, I don't think this is 2255.

You understand that --

Justice Byron R. White: As to either one --

Mr. E. Barrett Prettyman, Jr.: Yes.

Justice Byron R. White: If either rule are entitled [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Right.

Now assuming that is Rule -- that it's 2255, I don't concede that it is over necessarily.

Justice Byron R. White: Well, was the resentencing a part of the [Inaudible]?

Mr. E. Barrett Prettyman, Jr.: Well, he ordered it right in the same -- right in the same order.

He didn't just vacate the prior sentence.

He ordered that they'd be resentenced.

Now until that is done, I can easily visualize motions being filed, for example, if they -- if they refused to do it or if there was an undue delay, or other things.

It was the order entered in 2255 if that's what it was, it must still be carried out.

But finally, even --

Justice Byron R. White: But if the – the act doesn't say resentencing [Inaudible]?

Mr. E. Barrett Prettyman, Jr.: That would be my contention that they were.

That isn't the contention that the Government made.

The Government defeated bail on the ground that this was 2255.

Now even assuming however, Your Honor, that technically speaking, this was 2255 and 2255 is over in the sense that there's nothing more to be done in 2255, I certainly don't think that that is conclusive in any way because in Collins versus Miller, the Court refused to look at this type of situation in any technical legalistic sense of what is over and something else is opened up.

The whole subject matter here is the question of resentencing.

This is one ball of wax until the resentencing takes place necessarily the subject matter is still open.

Justice Byron R. White: Well, wouldn't the -- I suppose [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Well, I wasn't going to get to it, but I will.

I don't know that the Government could.

I have not taken a position on that because I would like to be in a position assuming that they tried to appeal following resentencing to say that they couldn't.

I would note that the Government obtained an appeal in Williamson, but I would say this.

When the resentencing takes place, it's clearly going to take place in the criminal case and it would be my view that the Government could not under 3731 appeal that, but Your Honor, let's assume that the Government totally loses the right to appeal now if it's not allowed to appeal.

That hasn't influenced this Court in cases like Carroll or DiBella that same argument, exactly the same argument is made by the Government there.

If we're not allowed to appeal these motions to suppress, now at this point, we will lose forever the right to appeal.

And the Court said in effect that's too bad.

That's just --

Justice Byron R. White: What the -- I suppose you would have the same argument if you take -- right after you had that motion granted [Inaudible].

Mr. E. Barrett Prettyman, Jr.: And then the Government tried to appeal from the resentencing.

Justice Byron R. White: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: You mean from --

Justice Byron R. White: But that part [Inaudible] the Government appeals the first sentence, is it over?

Mr. E. Barrett Prettyman, Jr.: Well, I don't think it could do that, Your Honor.

The order was that the -- that the prior sentence was vacated and that these men are now resentenced to 25 years.

In the first place, that would be illegal because it was done out of their presence.

But --

Justice Byron R. White: Assume -- assume they were there.

Mr. E. Barrett Prettyman, Jr.: Assume they were there.

Then Your Honor, I would say that they are not allowed to appeal because the re -- that part of it which resentenced was necessarily part of the criminal case.

You see, at that point, just in the flash of a moment before he resentenced, they're in the same position as if they have been convicted by the jury --

Justice Byron R. White: What would you think [Inaudible]?

Mr. E. Barrett Prettyman, Jr.: Well, that's this case up until the next day, that's this case.

Justice Byron R. White: Well, I know because the Government doesn't stay.

Mr. E. Barrett Prettyman, Jr.: Because the Government doesn't stay?

Justice Byron R. White: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Well, I practically don't think that the stay is determinative myself, Your Honor.

I mean I don't see that you -- that you convert this into a legal appeal because they walk in and get a stay of an order from which they cannot appeal.

Now, I'd like the Court to look at what the Government is really asking it to do here.

Let's suppose that the petitioners after they had been convicted by the jury, but before they had been sentenced, had rushed in with a habeas corpus petition attacking their conviction.

Now, is there any question but that an appellate court assuming that that was denied, let's assume it was denied so they try to take an appeal, they say it's the final order, is there any question but that an appellate court would dismiss the appeal on the ground that this was a non-final proceeding, that this was non-final in every way.

If that, I -- I think that is precisely what the Government is asking you to rule here in effect.

The Government says that even though had they -- have yet to be resentenced, it can rush in an appeal because an order has been entered in the 2255 proceeding.

If it can, if the Government can appeal here, I can assure you that there's going to be a great revision in collateral attack procedures, not only by the Government, but by petitioners, but by defendants.

The whole purpose -- the whole purpose and thrust of Carroll and DiBella is going to be diluted completely.

If the Government can appeal, the whole purpose of the finality rule to prevent piecemeal, truncated appeals, to prevent and let them put injustice will be frustrated.

Now remember Judge Murphy's orders were -- were entered in June and July of 1961.

Over a year and a half ago --

Justice William J. Brennan: [Inaudible] -- your thought is that that is -- if the Government made an appeal [Inaudible], prisoners granted under the 2255 [Inaudible] of habeas corpus?

Mr. E. Barrett Prettyman, Jr.: Well, they can't bring habeas corpus because they haven't been sentenced yet.

But let's -- let's assume they can bring -- they can't bring 2255 because they haven't been sentenced but they can bring -- let's assume, they rushed in with habeas corpus.

In other words, they've been convicted, they haven't been sentenced.

They come in and file habeas corpus attacking their conviction.

Justice Byron R. White: That's 2255 [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Well, 2255 would be ineffective in that situation because it wouldn't lie.

Justice Byron R. White: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: That's right.

So let's say they come in under habeas corpus and attack their conviction and say this was -- conviction was illegal for any number of reasons, denied, they haven't been sentenced yet.

Then they appeal.

Then they say that was a final order because it was a final order in habeas corpus and that's all there is to be done in habeas corpus.

Justice William J. Brennan: The prisoners could?

Mr. E. Barrett Prettyman, Jr.: The prisoner would.

I think there's no question but that an appellate court would say, “You are trying to appeal -- we will dismiss this appeal, this is non-final because you have not been sentenced.

You cannot --

Justice Byron R. White: Well, if they're out of bail [Inaudible]?

Mr. E. Barrett Prettyman, Jr.: Well, some are and some aren't, Your Honor.

Justice Byron R. White: But normally -- actually [Inaudible].

Mr. E. Barrett Prettyman, Jr.: Well, this Court is held Your Honor that as I understand it, that bail is a sufficient custody of the prisoner to allow and to file habeas corpus, tell that in a state case.

Justice William J. Brennan: And you -- what you're arguing here is that if that was the rule which requires a prisoner [Inaudible] appealing that habeas corpus, [Inaudible] reply to the Government, this is not [Inaudible].

Mr. E. Barrett Prettyman, Jr.: Much more so to the Government.

This Court has held obviously that this is a much more stringent rule applied to the Government in criminal cases than in the alike.

Now, as I pointed out, Judge Murphy's orders directing that these men be resentenced who were entered a year and a half ago.

Now, surely this is laden footed justice.

It's a denial, I think of the very right which Judge Murphy ordered that these men receive, the right to be legally resentenced.

Now, there is a second independent ground why the Court of Appeals should be reversed.

Totally, aside from any question of finality now, these were orders, I think, in the criminal case.

And Section 3731 does not allow the Government appeal to appeal from such orders.

The Government doesn't claim the right to appeal here if these were Rule 35 orders.

Now, clearly, the orders were treated as Rule 35 orders.

I can -- I think there can be no question about that.

They were treated by the parties and by the Court and by the docket clerk as Rule 35 orders, but the Government says the District Court had no jurisdiction to enter a Rule 35 order.

Now it's quite true that the concluding paragraph in Your Honors opinion in Hill versus United States intimates that Rule 35 is not the proper remedy even where they're aggravating circumstances to accompany the denial of the right of allocution, but even Hill doesn't suggest that Judge Murphy's orders were void.

Moreover with great respect, I think the Court should reconsider the question in Hill as to whether this should not be a Rule 35 order, a Rule 35 motion, whether Rule 35 doesn't properly lie here as a remedy.

Justice Potter Stewart: Your case doesn't depend on that though, does it? It doesn't --

Mr. E. Barrett Prettyman, Jr.: No.

No.

Justice Potter Stewart: -- depend at all in our (Voice Overlap) --

Mr. E. Barrett Prettyman, Jr.: No, it's an alternative ground completely.

Justice Potter Stewart: Yes.

Mr. E. Barrett Prettyman, Jr.: The position I take is that clearly, if it's a Rule 35 motion, they cannot appeal, they're going to complain that.

Justice Potter Stewart: As the Government concedes.

Mr. E. Barrett Prettyman, Jr.: That's right.

Justice Potter Stewart: The Government concedes that.

Mr. E. Barrett Prettyman, Jr.: No doubt.

And all I'm saying is that this -- this was treated --

Justice Potter Stewart: In this case either.

Mr. E. Barrett Prettyman, Jr.: -- as a Rule 35 motion, that he had jurisdiction under a Rule 35 motion.

He may have been mistaken but that's what he did.

He had jurisdiction to do it and that being the case, the Government can appeal from it.

Justice Potter Stewart: But the -- but our case is made it clear, don't they, Heflin and Hill itself that the labels don't count but the --

Mr. E. Barrett Prettyman, Jr.: Labels don't count.

The label in this case is being used to the -- in effect to defeat the right of resentencing.

A Rule 35 motion has been converted into a 2255 proceeding in order to try to make it civil so that they can appeal from what -- otherwise they would (Inaudible).

Justice Potter Stewart: Would be on that appeal?

Mr. E. Barrett Prettyman, Jr.: That's right.

Now, I point out on pages 33 to 34 of my brief and pages 8 to 9 of my reply brief, some of the consequences of such a ruling that Rule 35 is not available here including the fact that in some instances, it's got to be Rule 35 or nothing.

And I will not repeat those arguments here.

I want to add only this.

The majority in Hill seems to have assumed that Rule 35 traditionally has been used to attack only sentences void on their face whereas 2255 is traditionally been used in situations more akin to this one.

But Rule -- but 2255 as I've said by its own terms, doesn't apply to this situation because these men are not seeking to be released from custody.

Moreover, it's traditionally been used to attack the judgment of conviction which is not being attacked here.

There's no attack on the judgment.

There is no request for a new trial in this case.

Moreover, the Government itself does not dispute some cases where the absence of the defendant was a ground for Rule 35 relief, on page 14 of its brief.

It seems to me that the real rule in relation to Rule 35 is that strongly intimated in Heflin and that is that Rule 35 maybe used to attack the legality of any sentence unless, unless that the effect does not appear from the face of the record.

In other words, unless a hearing must be held to determine the true facts and no hearing was necessary here and none withheld.

If the Court finds it necessary to reach this question, as I hope it will not, I hope that it will reconsider its concluding paragraph in Hill at least where aggravating circumstances are present.

Rule 35, I contend was quite as appropriate a method as 2255 to do what was done here and as a matter of fact was so far neater and more expeditious method of doing it.

Now, there's a third independent ground for reversal here.

If the Court should find that Judge Murphy's orders were interlocutory, if it should find further that the orders were not entered in the criminal case, then and only then, we reach the question of whether his orders were correct.

Now, first, let me say that they were clearly correct at the time that they were entered because at that time, Green had been decided and eight members of this Court clearly thought that Rule 35 was the appropriate remedy because that was a Rule 35 case.

Now Hill had not been decided and even under Hill, which was later decided, Judge Murphy, I think was right in his result because this case contains a number of the so-called aggravating circumstances of a fundamental nature and Hill recognizes that some -- such circumstances came relay the sentence open to collateral attack.

With great respect, I suggest that the Court of Appeals did not suggest -- did not state actively what actually occurred here.

The Court of Appeals seems to have assumed that the question of, “Do you have something to say” was asked of a defense attorney which would bring the case more in line with Green.

Actually, the question was asked to the Assistant United States Attorney and no question was ever asked of the defendants or their attorneys at all, although they spoke.

Justice John M. Harlan: Either of the lawyers get up to say, they made --

Mr. E. Barrett Prettyman, Jr.: They did.

Justice John M. Harlan: -- make speech.

Mr. E. Barrett Prettyman, Jr.: They did.

The Assistant United States Attorney spoke and then Mr. Friedman spoke without being asked and then Mr. Healey spoke again without being asked.

I think the importance of the point is that I think in Green, the Court assumed that if the question had been directed to the defendants, even though it's been answered by his attorney, he at least knew that he had a right to speak and could presumably have spoken up.

In this case, where the only question asked is asked by the Assistant United States Attorney and then the two attorneys have to get up on their own to interject what they had to say.

Clearly, there's no way for the defendants to know that they have a right to speak.

Justice Potter Stewart: Is this am I right Mr. Prettyman in understanding that under Count 2 of these indictments that the Court's only choice is to impose a mandatory 25-year sentence?

Mr. E. Barrett Prettyman, Jr.: For probations.

Justice Potter Stewart: Or to impose a mandatory 25-year sentence and then put the man on probation through that period.

Mr. E. Barrett Prettyman, Jr.: Correct.

That's correct.

Justice Potter Stewart: Or --

Mr. E. Barrett Prettyman, Jr.: That's correct, which is exactly what he did to Mr. Cohen.

Justice Potter Stewart: Yes.

That's exactly what he did to Mr. Cohen.

In the first -- and the first reversal was on the basis that Judge Walsh didn't think he had any --

Mr. E. Barrett Prettyman, Jr.: Right.

Justice Potter Stewart: -- discretion to allow probation.

Mr. E. Barrett Prettyman, Jr.: That's correct.

Justice Potter Stewart: But there's no wrong for anything else except that 25 years or 25 years in probation.

Mr. E. Barrett Prettyman, Jr.: The defendants --

Justice Potter Stewart: Is that it?

Mr. E. Barrett Prettyman, Jr.: -- made a motion on resentencing if we ever reach resentencing in Your Honor that in fact they could be a sentenced to something else on a legal ground on the -- on the basis that would charge the jury perhaps on the basis of the merger of the first two counts (Voice Overlap) --

Justice Potter Stewart: I thought that had been decided in the merger.

Mr. E. Barrett Prettyman, Jr.: Well, it has.

I'm -- there's some question whether the whole thing wouldn't be opened up on resentencing and they might be able to plead that, but I think for our present purposes we can assume --

Justice Potter Stewart: That's what's been decided so far in this --

Mr. E. Barrett Prettyman, Jr.: That's right.

Justice Potter Stewart: -- subject to your -- right of course, making arguments with your clients.

Mr. E. Barrett Prettyman, Jr.: That is correct.

Justice Potter Stewart: They won't -- they want to.

Mr. E. Barrett Prettyman, Jr.: That's right.

Justice Arthur J. Goldberg: Mr. Prettyman, how do you conclude that the mark of the court that the [Inaudible] that the United States Attorney, that was on page 25 of the record, it has been decided [Inaudible].

Mr. E. Barrett Prettyman, Jr.: That's right.

Justice Arthur J. Goldberg: And then the Court says -- then the Court says that therefore [Inaudible].

Then the Court says, “Is there anything you want to say into that?” [Inaudible]

Mr. E. Barrett Prettyman, Jr.: It certainly is.

Your Honor, in Green, I think that the Court with great respect, I think it was sort of shall we say assuming quite a bit in terms of the question that was asked and who it was asked off.

But in Green at least the Court said, when you ask -- when you ask a question and it's answered by the defense attorney, it's easy to see how that attorn -- that question could be answered by defendants and then the attorneys in effect are saying, “We'll speak for them.”

But it seems to me it's inconceivable to assume that a question could be asked of the defendants, “Do you have anything to say” And the man who answers the question and who speaks up in effect on their behalf is the Assistant United States Attorney.

So that's what I base it on.

Now, I've covered in my brief and my reply brief and I will not reargue here such matters as Mr. Healey's absence during part of the resentencing procedure.

I'm now talking about aggravating circumstances.

Judge Walsh's mistake of fact as to Andrews' part in the crime, Mr. Donovan's record, the failure to grant the right of allocution at the first sentencing, and things of this sort.

I want to add here only a few remarks about the absence of the defendants during this resentencing procedure.

It seems to me that Rules 43 and 32 are not separate rules, but complementary.

Rule 43 provides that the defendant must be present at every stage of the trial and at the imposition of sentence.

Rule 32 guarantees him the right to speak in mitigation of sentence and in his own behalf.

Now I think that these rules recognize that there's no point in the defendant being present if he can't speak, and that his right to speak is meaningless if he wasn't present at every stage of what went before.

These petitioners were denied both rights.

They missed a legal argument.

They missed a plea for clemency.

They had never spoken at their original sentencing.

They have not spoken to this day more than eight years after they originally sentenced them.

Surely, I think that they're entitled to what Judge Murphy has ordered that they'd be given.

Now in conclusion, Your Honor, I just have one comment.

I pointed out on page 15 on my reply brief that according to the administrative office of the United States courts, of the almost 600 motions to set aside are correct sentences filed during fiscal 1962 under both 2255 and Rule 35, only 18 resulted in the granting of some form of relief.

Now subsequent to my reply brief, I have the administrative office check to determine how many Government appeals were taken or attempted in any of these actions and I might say that I have informed Mr. Barnett the results of that request.

There were 169 appeals taken during fiscal 1962.

Not a single one of them was taken or attempted by the Government.

Justice John M. Harlan: Maybe --

Mr. E. Barrett Prettyman, Jr.: I think --

Justice John M. Harlan: -- because they weren't represented by Mr. Barnett.

Mr. E. Barrett Prettyman, Jr.: It might be.

It might well be.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of E. Barrett Prettyman, Jr.

Chief Justice Earl Warren: -- Albert Andrews, Petitioner, versus United States, and Robert L. Donovan versus United States in Number 494.

Mr. Prettyman --

Mr. E. Barrett Prettyman, Jr.: Mr. Chief Justice --

Chief Justice Earl Warren: -- you may continue your argument.

Mr. E. Barrett Prettyman, Jr.: -- may it please the Court.

Unless the Court has questions, I would like to reserve the remainder of my time for rebuttal.

Chief Justice Earl Warren: You may do so.

Mr. Barnett?

Argument of Wayne G. Barnett

Mr. Wayne G. Barnett: Mr. Chief Justice, and may it please the Court.

I propose if I may to reverse Mr. Prettyman's order of argument into your first question on the merits and second with the question of appealability.

On the merits, we concede that the failure of Judge Walsh at the sentencing proceedings specifically to ask the defendants if they had anything to say before being sentenced was not inconformity with Rule 32 (a) and therefore, was reversible error under this Court's decisions in Green and Van Hook cases on direct appeal.

I might say -- I think it's pertinent to note that that was not clear at the time in 1957.

There was a considerable body of thought since the rule -- although the rule requires that the judge shall afford an opportunity that didn't necessarily require that he's specifically address each defendant, particularly where as here, they're represented by counsel and the counsel had made a full statement in their behalf.

Nevertheless, the Court so held and we don't challenge that.

Nor do we question as a fact that he'd failed to make that inquiry in this case.

I think in truth, the error occurred only at the second proceeding in 1957.

The first proceeding, Judge Walsh was acting under the appre -- misapprehensions as it turned out that this sentence was mandatory.

He had no choice about the matter and I doubt that a failure to afford an opportunity to the defendant to speak would even be a reversible error in the case of a mandatory sentence, but nevertheless on remand, he should have done it and did not, and we agree that that was error.

Justice Arthur J. Goldberg: When you say reversible error [Inaudible]

Mr. Wayne G. Barnett: Judge Walsh, at that time, believed not and so his error was in that belief and not in affording -- failing to afford an opportunity to speak.

Justice John M. Harlan: Is that an error --

Mr. Wayne G. Barnett: He was -- if he was right on the law, I don't think there was an error in it to say to let them speak.

He was wrong in the law and that's why it was reversed and he should have given an opportunity to speak at the second trial.

The only question here is having failed to raise that question on direct appeal even though they appealed from both sentencing procedures, can they in a collateral proceeding, brought some more than six years after the original sentence, more than four years after the reaffirmation of the sentence, can they then set aside the sentence in a collateral proceeding for that failure.

This Court held only last term, 14 months ago in Hill and Machibroda that they cannot that the mere failure to specifically invite the defendants to speak before sentencing is not such a basic fundamental defect in the proceedings as to warrant a collateral vacation of the sentence.

Now, I would deal with the question first in terms of Section 2255 and the Court acknowledged that Section 2255 was the proper procedure in which to question irregularities in the sentencing proceedings, but said that this was not a sufficient showing of the kind of fundamental error that would warrant the relief.

Now petitioners here suggest that there are additional circumstances present in the case which altogether do add up to a fundamental defect, a question which of course was left open in Hill.

They point basically to two circumstances.

The first are the events transpiring at pages 20 to 25 of the record.

The -- after the first sentence was remanded for reconsideration, the case was called on May 15th, 1957 and Mr. Friedlander -- Mr. Friedman representing as he then said, all three defendants and he said that by the way in the presence of Mr. Healey who was normally the attorney of record for Mr. Donovan and Mr. Donovan did not object, asked for a continuance so they might prepare a brief on the question of the Court's powers in the sentencing.

A continuance was granted to May 20th.

On May 20th, the case was called and after the attorneys of -- the United States Attorney and Mr. Friedman announced that they were ready, the Court asked if the defendants were present, Mr. Friedman said, “No, they're on their way up.”

The judge said, “Alright.”

Mr. Friedman then apologized for not having the brief he had promised to supply.

The Court said, “Yes” and at that point, Mr. Friedman, on his own without any other cue, proceeded to deliver an oral argument on the question initially of the Court's powers on resentencing.

Now during the course of that argument which the judge did not object to, he referred to several circumstances that would bear on the sentencing question namely that they've been in jail for two years and eight months and he hope the Court would take that into account, and secondly, that the Court had at the original sentencing expressed some dissatisfaction with having to give a 25-year sentence and perhaps having greater discretion wouldn't have.That's all that he said bearing on the question.

Now, I would point out that both things were fully developed later in the presence of the defendant.

The United States Attorney answered solely on the question of law, of the powers that the judge had.

At that point on page 25, the Court said, “Well, I think that's as far as we can go without the defendants,” and ordered a short recess to the defendants who were there.

Their first aggravating in circumstance, I say, that announced to a fundamental defect was the conduct of that short proceeding in the absence of the defendants.

First of all, and if the answers are many, many arguments on questions of law, of course, take place outside the hearing of the defendant at the Bar, in Chambers many of the times, and that is not the kind of thing that a defendant is required to be present for it.

He is required to be present for all the legally operative events in the trial: the sentencing, the admission of evidence, the verdict and those steps in the proceeding.

Secondly, this was initiated by Mr. Friedman who when to use the opportunity to make what he thought was an argument helpful to the defendants and how because the Government did not object to Mr. Friedman utilizing that opportunity he should now -- the sentence would be vacated.

I don't really understand.

In any event, even assuming that it was error, there's no possible suggestion that it was a basic error that it affected the outcome of the proceedings in any way.

The second circumstance that they offer as an aggravation is the assertion that the judge was acting under misapprehension at the time of sentencing, and that the defendants, have they spoken, might have removed the misapprehension.

The facts of the crime don't appear in this record.

From the record of the earlier proceedings, it appears that Mr. Donovan boarded a Post Office truck when it was stopped at the stoplight wearing a Post Office uniform that he had acquired and pointed a gun at the driver.

Now he boarded, it appears that he boarded the Post Office truck on a signal from Mr. Andrews, the other petitioner here who was standing nearby and the plan was to -- for Mr. Donovan to force the driver to turn into an alley where they would then remove the currency from the truck.

Now, Mr. Cohen's part in the transaction, he was the third defendant originally and he's not a petitioner here, was that he was a Post Office employee who informed them which truck would have the money and that was his only role.

He did not participate in the actual events.

Now, at the sentencing proceeding on page 25, United States Attorney very briefly summed up what had transpired.

He recalled the crime to the judge and said that the -- there was a holdup -- the actual attempted holdup with the revolver was performed by Donovan.

The person who planned and helped execute the holdup was the defendant Andrews and Mr. Cohen's part was that he was the Post Office employee who informed them.

That was all that was said about the crime upon by any counsel prior to the sentencing.

The -- Judge Walsh, after hearing the arguments presented by counsel and why a lesser sentence -- why it should suspend the mandatory sentence then rules on pages 30 and 31 said that he has given a great deal of thought to this since the Court of Appeals has reversely remanded it for reconsideration and says, I have concluded that I cannot, in connection with Donovan or Andrews do that, in other words, the two men who perpetrated the holdup of the truck.

Now petitioners say that he's confused there and more clearly later on in thinking that Andrews actually also got on the truck with Donovan rather than was simply at the scene signaling Donovan.

Now it seems to me perfectly clear that all the judge means is to distinguish Cohen who didn't participate at all from the other two who carried it out.

These are the two men who perpetrated the holdup and he explained that I do not think that I can suspend sentence and permit you to serve only the sentence that a person has to serve who was conspired, but did not carry out the crime.

And as -- he says, as to Mr. Cohen, he's unhappy with the choice he has but he would take the chance and says, “Frankly, if you had been with the other two on the truck, I would not suspend your sentence.”

And it's that phrase “on the truck” that the petitioners primarily rely upon to show a misapprehension by the judge i.e. that he thought that Andrews was physically on the truck itself rather than he should be at the scene of the crime.

Justice John M. Harlan: What page is that?

Mr. Wayne G. Barnett: That's at page 31 of the record.

It starts at page 30 and continues to page 31.

I might also say, I think there's no possible case that made out that he did in fact act under the misapprehension and I would add that this question was raised before in another application for relief under 2255, not based on the right of allocution but on the fact of misapprehension and that was denied at 170 that this was decided in our brief at page 1, 170 F. Supp. 380 and the Court of Appeals affirmed this Court denied certiorari raising the factual question whether the judge was under misapprehension.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: Well --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: I think the step --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: The step one takes in saying that it is a part of the constitutional guarantees would, I suppose equally control the availability of collateral remedies but that's a big step.

To take that step, you say that it's fundamentally unfair unless he's given that right and we agree that if the proceedings were fundamentally unfair, you can get relief under 2255.

Justice Arthur J. Goldberg: Is there a [Inaudible]

Mr. Wayne G. Barnett: Well, I would --

Justice John M. Harlan: Is it your view [Inaudible]

Mr. Wayne G. Barnett: The historical origins are somewhat cloudy.

I think as Justice Frankfurter noted that at one time, the defendant was not allowed to take the stand and at that time, his right to speak was really his right to make an unsworn statement in the nature of giving testimony and it was I then say it's been a very important right.

Justice Arthur J. Goldberg: Now this was of course [Inaudible]

Mr. Wayne G. Barnett: Well, but once he was given the right to take the stand and all of the other paraphernalia providing greater and greater protection, the right to counsel, of the assured right to be represented by counsel, it seems to me we now have to appraise the importance of the right to speak in terms of its present day context.

And in this case and I think in most cases under the federal rule -- federal system in which the defendant is automatically entitled to counsel or at least in cases where he in fact is represented by counsel and counsel not -- aren't simply listed, but participate actively and do address themselves to the question of sentencing.

And as here, make a full presentation of his background of all of the factors that normally would be called upon to invoke the discretion of the Court, the concern of his family, the fact that he is now contrived and proposes to reform, all of these were developed at length by counsel.

And certainly the most one I think could say is that, if the defendant asks to speak and were specifically denied the right, that perhaps would be a more serious error, but here, we're only talking about the failure of the judge specifically to address to the defendant ignoring his counsel as his representative a specific question, “Do you have anything to say?”

And I find it hard to think that that is a constitutional requirement.

This counsel --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: That is right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: That was --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: That's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: I don't want to prove it but he has the right.

He was specific.

He offered -- he wasn't specifically extending an invitation.

He was never denied the right in the sense --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: Not that he is --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: Not if he is actually in fact represented by counsel, I don't think it is a formal distinction.

By and large, most of your rights, if you're represented by counsel, are left for vindication by the diligence of counsel and we have no reason to suppose that these defendants wanted to speak and I take it myself, do defendants in fact speak.

Justice John M. Harlan: [Inaudible]

Mr. Wayne G. Barnett: Well, I think that may well be the case.

And --

Chief Justice Earl Warren: Why do you resolve these things -- like this against the defendant when the law says that the judge shall afford him an opportunity to say something?

Now, it's so simple for a judge to say that Mr. Jones and Mr. Andrews or whatever his name is have you anything to say before I sentence you.

Why do you try to support that to the extent of saying, “Well, he might have been able to stand up there and even though his attorney had said, “I'll do the talking for you”, or something else, why do you try to put that burden on the defendant --

Mr. Wayne G. Barnett: Well --

Chief Justice Earl Warren: -- when it's so simple for a judge to say is do you have anything to say before I sentence you to the penitentiary.

Mr. Wayne G. Barnett: I -- we're not in any way disagreeing with Green.

I think you're quite right that these are very simple things to do and certainly judges ought to do it, but --

Chief Justice Earl Warren: I know but you want us to say that if the judge doesn't do it, it doesn't make any difference that fellow will --

Mr. Wayne G. Barnett: It makes --

Chief Justice Earl Warren: -- will be without the benefit of that portion of the procedure.

Mr. Wayne G. Barnett: Well, it makes a difference with that which is a reversible error but we're here dealing with the problem within seven years later.

We should now set aside what we've done.

Chief Justice Earl Warren: Seven years.

Was that whole seven years attributable to him?

Mr. Wayne G. Barnett: The failure to raise this question is he was first sentenced in December 31, 1954.

Chief Justice Earl Warren: Yes.

Mr. Wayne G. Barnett: To his resentencing in 1957.

Chief Justice Earl Warren: As I understood from counsel, there were --

Mr. Wayne G. Barnett: But those delays have nothing to do with raising of this issue.

Chief Justice Earl Warren: I know but it has to do with the seven years that you're talking about.

Mr. Wayne G. Barnett: Well, no, no, no.

He could have raised this at the first trial and on appeal from the first sentencing as one of his assignments of error in the first sentencing.

Had he -- had he raised it, I'm sure that on the resentencing, he would have specifically been asked the question.

He could have raised it on appeal.

Chief Justice Earl Warren: Why are you so sure that it would have happened at that time, what if it didn't happen here?

Mr. Wayne G. Barnett: Well, because it is such a simple thing to do that I take this is not done only through oversight and I don't believe that any judge consciously decides so I'm not going to ask him to speak and certainly, I don't think Judge Walsh did that.

He heard the lawyers get up and give a full statement for them and assumed that was all that was to be presented in their behalf and not unreasonable assumption.

Now I agree that he ought not make the assumption.

Chief Justice Earl Warren: The law says --

Mr. Wayne G. Barnett: He must inquire.

Chief Justice Earl Warren: The law says he shall not.

Mr. Wayne G. Barnett: Well, I'm not certain that -- well, I agree with the interpretation placed on the rule.

It isn't that clear that -- in saying that he shall afford an opportunity necessarily means that despite the presence of counsel, the judge shall himself specifically inquire.

I don't think this necessarily means the same thing.

Chief Justice Earl Warren: Well, I thought our case say that --

Mr. Wayne G. Barnett: I know, I agree --

Chief Justice Earl Warren: I thought our case say that then --

Mr. Wayne G. Barnett: I agree that that is the sound of interpretation.

Chief Justice Earl Warren: No, but don't our cases say that?

Mr. Wayne G. Barnett: That's right.

Chief Justice Earl Warren: We --

Chief Justice Earl Warren: That he's entitled personally to --

Mr. Wayne G. Barnett: Green and Van Hook specifically decided that.

Chief Justice Earl Warren: Yes.

Mr. Wayne G. Barnett: And we don't challenge that.

Chief Justice Earl Warren: You're asking us to overrule those?

Mr. Wayne G. Barnett: Oh no, no.

We do not.

We do not and I think it is error as I conceded, but the problem on collateral attack is a quite different one as it is -- let me put it this way.

There are many trial errors that occur during the course of a trial for which there is no remedy other than appeal, errors that in their impact upon the defendant may have a much more important and significant effect it seems to me than say you're here to ask the defendant to speak.

Now, in those cases, the error is committed.

We don't automatically say that you can review it anytime even after the judgment has otherwise become final and to set up an automatic rule for the failure in this one instance, seems to me, would simply create an anomaly.

Chief Justice Earl Warren: Well, there really was something at stake here because the judge as to one of these defendants suspended the sentence.

He sent the other one to jail for 25 years.

Mr. Wayne G. Barnett: Correct.

Chief Justice Earl Warren: And if there's anything in the procedure that would give -- that would give a defendant the right to say something in his behalf, it's hard for me to see how you could say that it was inconsequential that the judge didn't -- that the judge didn't afford him the opportunity clearly to do it because the statute says that the judge shall give him the right to do it.

Mr. Wayne G. Barnett: I don't -- I don't deny that the consequences of the proceeding, namely the sentence to be imposed are a very serious matter.

What I do deny is if there's any reason to suppose that this defect had a material impact on the outcome of that proceeding in the sense that we require for collateral proceedings.

Of course, every error conceivably can affect the outcome.

Chief Justice Earl Warren: But can we say here that it had no impact?

Mr. Wayne G. Barnett: Well, I don't say that.

I think every error who affects the outcome, but traditionally -- after all, our system is basically structured on the notion that a thing once disposed of is disposed of and we don't continually retry every error granted.

We have made many inroads on that principle in criminal cases.

Thus far, we have limited that to a very constitutional rights, jurisdictional defects; very basic fundamental things going to the basic fairness of the proceeding.

Here, what we have it seems to me, is simply a violation of a specific procedural rule entirely different kind of thing.

I think than any other case is allowed a collateral remedy for it.

Chief Justice Earl Warren: Well, here, now you're arguing on the theory that this is 2255.

Mr. Wayne G. Barnett: That is right, I'm directing myself to --

Chief Justice Earl Warren: Yes, are you not --

Mr. Wayne G. Barnett: 2255.

Chief Justice Earl Warren: Is it different if it's under Rule 31?

Mr. Wayne G. Barnett: I think Rule 31, as you know, this is interpreted in Hill, it provides that a judge may correct an illegal sentence at any time.

In Hill, the Court said that an illegal sentence is one that has an illegality in its terms or duration.

The sentence itself is a wrong sentence to impose.

It does not mean one that is imposed in a procedure in the proceeding where there are procedural errors.

It's a difference between a proper sentence --

Chief Justice Earl Warren: I think -- I think we know the difference between the two, but how did the judge treat this?

Did he treat it as Rule 31 or 2255?

Mr. Wayne G. Barnett: Well, I would -- that really I think has a bearing only on the appealability question.

Chief Justice Earl Warren: Well, of course it does.

Mr. Wayne G. Barnett: And I think we all agree -- we all agree that the relief he is entitled to the labels don't make any difference.

Chief Justice Earl Warren: Well you can't appeal -- if you can appeal on the 31 --

Mr. Wayne G. Barnett: Well --

Chief Justice Earl Warren: -- the judge treated it as 31 --

Mr. Wayne G. Barnett: That's right, that's right.

Chief Justice Earl Warren: -- you're not probably here, are you?

Mr. Wayne G. Barnett: At the moment I'm trying to confine myself to the merits because the Government has to prevail on the merits as well as on the appealability.

It maybe sufficient for the petitioners to prevail on appealability but it's not sufficient for us.

Even if it's appealable, I have to satisfy you that the decision below was right.

Chief Justice Earl Warren: Yes.

Mr. Wayne G. Barnett: And on the merits --

Chief Justice Earl Warren: But you don't want to say now whether the judge treated it as a 31 --

Mr. Wayne G. Barnett: Oh yes --

Chief Justice Earl Warren: -- 31 or 2255 because really in following you, that becomes very, very important.

Mr. Wayne G. Barnett: Oh it does.

Chief Justice Earl Warren: Well, which is it?

How do you treat it, 31 or 2255?

Mr. Wayne G. Barnett: The -- Donovan's petition -- Donovan's motion was we agree labeled and styled as one under Rule 35.

All the judge did was grant it.

Chief Justice Earl Warren: Yes and then he treated that as --

Mr. Wayne G. Barnett: I'm perfectly willing -- I'm perfectly willing to assume that he thought that it lay under Rule 35 and was looking to that when he signed the order.

As to Donovan -- as to Andrews, I disagree but I think on the main question that that isn't going to be terminated.

Now --

Chief Justice Earl Warren: You had no right of appeal in Donovan's case?

Mr. Wayne G. Barnett: No, I -- I don't say that.

When I -- on the appealability question at that point, I don't think that the labels, what the judge went hat he was wearing, it's useful to speak up two rules authorizing action as jurisdictional notions.

I don't think that makes the difference.

I think what makes the difference is the nature of the relief requested and granted.

The character of the action determines the Government's right to appeal and not whether it styled under Section 2255 or under Rule 35, and I will show that the character of the proceeding and the nature of relief granted is specifically that provided for in 2255 and that our right of appeal under 2255 is equally applicable to Donovan's case.

The -- now, on the merits on Rule 35, I don't expect to convince those who disagreed in Hill that the decision was right.

I do hope to persuade you that it was a reasonable interpretation of what is after all a rule of this Court and that there is no occasion to overrule it.

It's been decided and if the rule is to be changed as I think the dissent pointed out in Hill, they can be changed quite simply by this Court.

And certainly, if there's any substance to the notion of repose and stare decisis, it ought to apply to such a question.

At least if it is one of two reasonable interpretations and I suggest plainly that it is at least that.

First, on the language, I think illegal sentence does illegal modify sentence and it does suggest that the illegality is in the sentence and not in the proceeding by which it was imposed.

Justice John M. Harlan: You got a threshold question here.

You've the case at some point [Inaudible] independent of whether it is 35 or 2255 [Inaudible]

Mr. Wayne G. Barnett: I'm not sure how independent that is.

The Court -- the cases by and large in dealing with collateral ancillary proceedings has merged the notion of independence and the finality.

If it so independent of the main course of the action then the action is final.

And if it is not deemed, that independent is not final.

I'm not entirely sure that the Court has treated a separate question.

I do propose a deal without those questions.

Let me turn then to the question of appealability.

And first, because it is also challenged as Justice Harlan notes, even on the assumption that this is a 2255 proceeding, I would like to first establish our right to appeal assuming this is a 2255 proceeding and then deal with the question whether the fact that Donovan's motion was labeled under Rule 35 should change the result.

2255 was adopted as part of 1948 revision of judicial code and its history was canvassed by this Court in the Hayman case in 342 U.S.

Now I think it is now established and there's no issue about it that basically it is a substitute in the sentencing court for the remedy of previously available by habeas corpus.

The main problem it was directed towards solving was that habeas corpus lay only in the place of detention.

And the Court where the prisoner was detained didn't have the records, didn't know anything about the case.

All the witnesses, if the witnesses were necessary, were probably back in the jurisdiction where he was tried and sentenced, and in addition, they concentrated by having burden of post collateral proceedings in the few districts where the federal prisons happen to be located.

Now the purpose of 2255 was to shift the habeas corpus jurisdiction as it were into the sentencing court.

Now in doing that and putting it back into the sentencing court, there was, I acknowledge, a blurring of the separation of a collateral proceeding and the criminal proceeding.

When they're in different courts, the separation is perfectly clear.

The habeas corpus court could simply order the release because the detention was illegal and the sentencing court would then have to take some action to correct the defect and make a legal order sentencing it.

Now when you put the two together and you take the collateral remedy and put it into the sentencing court, it's inevitable I think the way statutes are written, there are some blurring of the character and the separation of the two proceedings and I think that's evident from the wording of 2255.

That appears at the petitioners brief at page 48.

Now, let me say that this Court has held and it's now, I think, firmly established, 2255 is an independent civil proceeding and for example that the civil -- the time limit is applicable to civil cases, Government appeals and certiorari that was held in the Hayman case and I think in the Heflin case, but there are difficulties and rationalizing that treatment in terms of the language.

Now, the first paragraph, I'm reading on page 48, starts out providing that a prisoner in custody under the sentence of a federal court, claiming the right to be released may on stated grounds move --

Chief Justice Earl Warren: Claiming the right to what?

Mr. Wayne G. Barnett: Claiming the right to be released.

Chief Justice Earl Warren: To release.

Mr. Wayne G. Barnett: To be released.

Chief Justice Earl Warren: Yes, yes.

Mr. Wayne G. Barnett: May --

Chief Justice Earl Warren: That's a critical word is -- isn't in there?

Mr. Wayne G. Barnett: I -- oh yes.

Well, let me say that what the suggestion at 2255 by its terms would not apply to this case which I think -- a news just in or -- I don't remember that in the brief because he was not claiming the right to be released, only the right to be resentenced.

I think it is not the case.

The prisoner is objecting to the legality of the sentence under which he is held and all he wants is to have that vacated and he'd be quite happy to go free.

He is not -- he is not claiming the right to be resentenced.

He is claiming that the present sentence is illegal and ought to be struck.

Now, he foresees of course that if that is done, the Government would then have the right to have him resentenced and to correct the defect.

Chief Justice Earl Warren: What did he ask for in this case?

Mr. Wayne G. Barnett: He asked -- in the pleading, he asked to be -- to have it vacated and be resentenced.

That is only an anticipation --

Chief Justice Earl Warren: To be committed the same as Donovan was under 35.

Mr. Wayne G. Barnett: That's right.

No, not under 35, I'm just speaking of the relief they ask for.

Chief Justice Earl Warren: Yes, but Donovan was treated under 35 and he --

Mr. Wayne G. Barnett: That is correct.

Chief Justice Earl Warren: -- and he asked to be treated the same way.

Mr. Wayne G. Barnett: He asked for the same relief.

I don't know that he asked -- to be -- whether he focused on Rule 35 for the same procedure that strikes in a rather sophisticated concept to read into his request.

Chief Justice Earl Warren: How did the Court then -- the Court ought to say he's treated as the 35 or --

Mr. Wayne G. Barnett: Now, they listed Andrews' case as a 2255 motion I believe.

Chief Justice Earl Warren: I understood from Mr. Prettyman that all through the proceeding, it was listed in the criminal case itself and not as a collateral proceeding and not as a civil proceeding.

Mr. Wayne G. Barnett: I think it is correct that it is docketed in the criminal case.

Actually, I'm not sure that is a wrong interpretation of 2255 and I will come to that.

Whether it was treated as Rule 35 or 2255, I believe Mr. Prettyman can confirm this that in Andrews' case, it was entered as a rule -- as a Section 2255 application.

Now under -- regardless of the docket that was entered under, it was listed as the rule -- as a Section 2255 application.

Chief Justice Earl Warren: Well, I didn't --

Mr. Wayne G. Barnett: But I'm now --

Chief Justice Earl Warren: -- I didn't get that impression from Mr. Prettyman but we will clear it up with him --

Mr. Wayne G. Barnett: Correct.

Chief Justice Earl Warren: -- when he comes off.

Mr. Wayne G. Barnett: It was in the -- it was entered in the original case under the criminal docket number.

I'm not denying that.

Chief Justice Earl Warren: Well, is that the way 2255 is done in the courts?

Mr. Wayne G. Barnett: That's one of the ambiguities that the -- the way it is in fact has treated, there seems to be a discrepancy depending upon each District Court clerk where they list 2255 under a new docket number as a civil proceeding or simply as a motion in the criminal case.

And that ambiguity, I think, is evident in the language of 2255.

Now it starts out, it says that a prisoner in custody claiming the right to be released may, on stated grounds, move the Court which imposed the sentence to vacate, set aside or correct sentence.

Now, the grounds stated are those for which habeas corpus generally was available.

And to that extent, the parallel is there.

In addition, he may move to have the sentence vacated, set aside or corrected.

Now apart from the word correct which I think have a special meaning in that context, the release -- the relief he may ask for is the same sought in habeas corpus i.e. to have the sentence vacated or set aside.

However, note that it is to be brought on by a motion in the sentencing court and there is at least an implication as to be by a motion in the criminal case, the sentencing court and the criminal case and that implication is added to by the next paragraph which says that unless the files and record of the case conclusively show that he is not entitled to relief to have a hearing.

And that refers to the files and records of the case presumably only one case of the criminal case.

Now, it is finally -- the implication is finally extended at the end of paragraph 3 which directs the Court, tell the Court what it's suppose to do.

And it says that if the Court finds the motion to be well founded, the Court shall vacate and set the judgment aside and -- and it goes on, and shall discharge the prisoner or resentence him, or grant a new trial, or correct the sentence as it may appear appropriate.

That is to say under the -- literally under 2255, the judge doesn't stop.

He was simply vacating what was done that was wrong.

He's told to go ahead and correct it.

Now, this is a merging of the collateral relief and the corrective proceeding, the merging of the habeas corpus and the main criminal case.

Chief Justice Earl Warren: Does the Court have --

Mr. Wayne G. Barnett: Because -- because the collateral proceeding was --

Chief Justice Earl Warren: Does the Court have that same power under habeas corpus?

Mr. Wayne G. Barnett: No -- oh no, no.

Chief Justice Earl Warren: Then you believe that 2255 transcends habeas corpus --

Mr. Wayne G. Barnett: Well --

Chief Justice Earl Warren: -- and so and so --

Mr. Wayne G. Barnett: What I'm suggesting --

Chief Justice Earl Warren: It serves a purpose over and beyond the writ of habeas corpus?

Mr. Wayne G. Barnett: It doesn't add substantively because under habeas corpus, the habeas corpus court would order and say that this sentence is invalid and vacated and direct the prisoner to be relieved -- released subject to interim detention, pending action by the sentencing court then the holding for resentencing -- and the sentencing court would then resentence him, but it required the cooperation of two courts.

But when you put the collateral proceeding together, put it back into the sentencing court so that you don't have that necessary separation.

It's quite understandable that the distinctness becomes blurred and it is blurred there.

The collateral proceeding stops when he is ordered to be discharged when the sentence -- the existing sentence is set aside or vacated, but then the Court is told to go on with the powers it has as the sentencing court to resentence the defendant.

At that point, the nature of this proceeding is I agree, a very ambiguous and hybrid thing.

I think the answer is found in the provision in the next -- the last paragraph, the governing appeals.

That provides that an appeal maybe taken to the Court of Appeals from the order entered on the motion as from a final judgment on application for writ of habeas corpus.

Now basically, what that I think means is despite the fact that we have put the collateral proceedings into the sentencing court and have not carefully maintained the demarcation here; nevertheless, it is still to be treated as a distinct proceeding as in habeas corpus.

Now certainly, certainly this language does create a right to appeal.

It says, you may appeal from the order entered on the motion and we don't need to rely upon the general appellate appeal provisions nor is it stated here requirement of finality.

So --

Justice John M. Harlan: The order entered on the motion includes these other things that follow the word and --

Mr. Wayne G. Barnett: Well, that is the basic ambiguity.

The motion --

Justice John M. Harlan: This isn't an ambiguity.

Mr. Wayne G. Barnett: Well, let me create an ambiguity.

The first paragraph --

Chief Justice Earl Warren: You're doing it pretty well for me.[Laughter]

Mr. Wayne G. Barnett: I hope I can create it to resolve it.

Now, the first paragraph describes the motion where he may move the Court to vacate, set aside, or correct the sentence.

Now correct the sentence I think has to deal with cases when all you do is simply loft off the excess.

You don't resentence.

You simply make a correction, but it does not as the third paragraph does at that point go on to say resentence or order a new trial or so forth.

So the motion simply asks that it would be vacated and set aside.

Now, it could be that the order entered on the motion as used in the appeal provision refers that to order granting the relief asked for in the motion authorized to be filed.

Now, in fact the judge is told upon granting such relief to go on.

He is told not to stop, but to go on and exercise its powers as the sentencing court to the corrective steps.

Now, I say that most consistently with the traditions of appeals in criminal cases, the proper way to construe this is to read it as giving us an appeal from the action on the motion asking to have it vacated and set aside, i.e. the order vacating the sentence.

You could, I agree, read it as given this right to appeal from the further order resentencing it.

Now, certainly, we can't challenge the discretion exercise in the resentencing.

And we'd be challenging on -- if that appeal would be the vacation of the prior sentence.

And I don't think it's not consistent with the way generally we have treated appeals from collateral attacks.

Chief Justice Earl Warren: Mr. Barnett, let me ask you this question.

Suppose this defendant was serving a 10-year term for another crime before he started to serve his sentence for this crime.

And during that 10-year term, he asked for 2255 relief.

Would he be entitled to it?

Mr. Wayne G. Barnett: The Court in Heflin and -- no, I guess it's really dictum held that 2255 applies only if he is presently incarcerated under the sentence he is attacking.

Chief Justice Earl Warren: That's right.

Now --

Mr. Wayne G. Barnett: Now --

Chief Justice Earl Warren: -- the next question I want to ask you then is this.

If Congress intended that this 2255 proceeding be for the purpose of correcting a sentence as well as for the release, why would we come to that conclusion and why wouldn't he be entitled to relief under 2255 whether he was serving another sentence or not if his -- if his sentence was wrong?

Mr. Wayne G. Barnett: That -- I think all of those considerations equally go to the errors prior to conviction, an illegal conviction equally once you reach the result in Heflin.

Let me say that the system of remedies in criminal cases is not a neat pattern and I think the result in Heflin does increase the difficulties of trying to make a rational system of post-conviction remedies.

It was only dictum and I suggest that it is to be reconsidered as that is probably the more appropriate thing to reconsider.

I agree that on the law, on the development from habeas corpus, it seems a sound interpretation of the statute.

It doesn't -- it leaves a gap in the system of post-conviction remedies and the Government is cognizable of that gap, but that gap, we're not going to solve by the attempted use of Rule 35 here because that gap is equally present and much more glaring in the case of the defendant who was, he claims unconstitutionally convicted and no one suggest that he has a remedy under Rule 35 for that.

And the problem -- the problem is whether we should give preferred status to errors in the sentencing procedure as compared to errors in the trial and I see no reason why a rational system would do that, but the -- we don't deny that Rule 35 applies to the correction of sentences which are on their face illegal, a sentence in excess for such maximum for that sort of correction as it was done in the Heflin case.

To end up on Rule 2255, the interpretation I suggested, I think is given further support by the express analogy to habeas corpus, the appeal from the order as from the final judgment and application of habeas corpus.

The final judgment of habeas corpus would be simply the release, the vacation of the erroneous sentence and not the entry of the new sentence.

And it seems to me to -- in the light of its history, its development from habeas corpus and the express relation back to habeas corpus in the statute, but that is the appropriate time.

Certainly, that is the time that the independent civil proceeding termi -- necessarily terminates because this resentencing is necessarily back in the criminal case.

And if as the Court has held, this is an independent civil proceeding, it's at that point that it stops.

And we do have a right of appeal.

The statute gives us the right of appeal and it doesn't specifically impose its own finality requirement.

We're not appealing under 1291 and so the finality requirement there prescribed is not in terms applicable here.

But the finality question has been identified in the cases with the separateness if it is an independent civil proceeding then the end of that proceeding is the final order -- it is the final decision --

Justice Potter Stewart: At the end of the proceeding, that's the point of it.

Mr. Wayne G. Barnett: Well, the end of the independent civil proceeding, if it is an independent civil proceeding, is necessarily the vacation of the existing sentence.

The resentencing cannot be conceived out as a part of an independent civil proceeding.

The resentencing have --

Justice Potter Stewart: It's right here in the language of 2255.

Mr. Wayne G. Barnett: I -- well, it's that difficult well I've been trying to explain.

Justice Potter Stewart: You've been trying to evade, that's right, but it's right here in the language (Voice Overlap)

Mr. Wayne G. Barnett: I haven't tried to pay something to it I think.

Justice John M. Harlan: Prior to this case.

Mr. Wayne G. Barnett: The --

Justice John M. Harlan: If I may say so, you have made a wonderful ingenious argument.

Mr. Wayne G. Barnett: Well, I'm really is trying to make sense out of this.

It is not -- frankly, it was not drafted having in mind the separation of functions.

The draftsman as when you put it back on the sentencing court, and back in the sentencing court, you just go ahead and tell them what to do.

You vacate that and you go ahead and resentence.

There isn't the necessary bifurcation of the process, but the appeal provision insists that we do maintain conceptually a division between the two halves of the case as in habeas corpus.

Chief Justice Earl Warren: Well, is it the position of the Government from now on that 2255 and Rule 35, it can be used interchangeably by the defendant for the purpose of correcting his sentence for errors of this kind?

Mr. Wayne G. Barnett: Let me -- let me turn to --

Chief Justice Earl Warren: No, can you answer --

Mr. Wayne G. Barnett: -- Rule 35.

Chief Justice Earl Warren: Can you answer that question --

Mr. Wayne G. Barnett: Well, no.

Chief Justice Earl Warren: -- instead of turning?

Mr. Wayne G. Barnett: Rule 35, we say as the Court decided in Hill, does not apply to errors in the proceedings in which the sentence was imposed.

It goes only to the defects in the sentence itself and its content duration or term.

And it derives not only on its face but from historical antecedents.

I think that it is its function.

The advisory committee noted that simply it was a continuation of existing law and what the existing law had to do with was what powers the Court had after the exploration of the term to modify its judgment and basically that was limited to errors appearing on the face of the common law record, the judgment role of the indictment, the verdict of the plea -- the verdict, the judgment and sentence.

And as applied to the sentencing errors, that was necessarily limited to sentences that were not authorized by the basic statute.

They never exceeded the statute, two sentences for the same crime and that sort of thing.

And I think that is the historical origins and the meaning of Rule 35.

Now even so limited, even so limited, there's an overlap between it and 2255 because that that kind of defect to which Rule 35 does speak is equally covered by the language of Rule 2255.

Now this is not that case because our case lies only -- is the kind of defect that lies only under 2255 and as to that case, we say simply that the labels do not control.

The question is whether he asked for and got the kind of relief which is specifically authorized in 2255.

2255 doesn't say, “You may file a motion labeled Section 2255.

It is simply to authorize the filing of a motion.

You don't have to label it at all.”

And it provides that action on that kind of motion is appealable.

It doesn't say anything about how it's labeled and in our view, the appeal authorization in Rule 2255 reads directly on the motion filed whatever it was labeled or one looks to is the content of the motion.

And that is the way the Court has approached Rule 35 and 2255 when questions of appeal -- time for appeal and timeliness of certiorari and basically you look to whichever one by its terms applies and the label that the petitioner, the defendant used or that the Court used doesn't control it.

And we are simply saying the same thing.

Otherwise, the wise defendant ought -- simply always to label his applications Rule 35.

And most District Courts aren't going to bother to change the label if they think he is entitled to it because this Court has told them to ignore the labels.

And so, they just grant the motion regardless how it's labeled, then it is said that the Government cannot appeal because of his labeled Rule 35 and it seems to me that if labels are not to control, they are not to control.

Now, I would address myself very briefly to the -- what seems to me the much more troubling question where relief is of a kind which both authorized, namely the excessive sentence.

You can get relief under Rule 35 and Rule 20 -- and Section 2255 equally applies.

Now I'm not certain how one resolves that problem.

It seems to me that the sensible result certainly it shouldn't turn on which he chooses to label it.

I don't think that ought to be discussed.

So you need a rule that in the overlapped period, one or the other governs and it seems to me that to work out a consistent body of post-conviction remedies in Section 2255 should be deemed to govern anything within its terms.

There's no reason to single out that one kind of defect and have an entirely different system.

That question isn't involved in this case because here, if we arrive on the merits and as the Court decided in the Hill case --

Chief Justice Earl Warren: Well, Mr. Mr. Barnett could the petitioner in this case have properly proceeded either under 2255 or Rule 35 in order to obtain the relief which you sought here, namely, merely to have his sentence corrected.

Mr. Wayne G. Barnett: I think he didn't ask merely.

He has to have his sentence vacated I believe.

And --

Chief Justice Earl Warren: Well he'd have to -- he'd have to vacate (Voice Overlap)

Mr. Wayne G. Barnett: Of course -- well that's right.

There's a sense of for [Inaudible] he vacated and that he'd be resentence in according -- in accordance with federal rules criminal procedure.

Chief Justice Earl Warren: Yes.

Now, could he -- could he have properly apply either under Rule 35 or 2255?

Mr. Wayne G. Barnett: I do not think there is anyway in the world for him to demand that he'd be resentenced.

Chief Justice Earl Warren: I beg your pardon.

Mr. Wayne G. Barnett: He has no right to be resentenced.

Chief Justice Earl Warren: Well, no.

Mr. Wayne G. Barnett: He has a right only not legal or --

Chief Justice Earl Warren: You say -- you say he had a --

Mr. Wayne G. Barnett: -- illegal sentence.

Chief Justice Earl Warren: You say he had a right to seek this relief under 2255 because --

Mr. Wayne G. Barnett: He had the right to have the sentence under which he was held vacated because --

Chief Justice Earl Warren: Yes.

Mr. Wayne G. Barnett: Under his allegation, it was an illegal sentence.

Chief Justice Earl Warren: Do you say then that he had no right to proceed under Rule 35 --

Mr. Wayne G. Barnett: Under Rule 30 --

Chief Justice Earl Warren: To obtain this relief.

Mr. Wayne G. Barnett: The problem with rules as preceded in Rule 35 is the nature of the defect he is alleging, not the relief he is requesting.

Rule 35 --

Chief Justice Earl Warren: I'm talking about the procedure.

Suppose he had asked the Court specifically for a relief under Sect -- under Rule 35, would he have been properly before the Court.

Mr. Wayne G. Barnett: Well, it would be properly before the Court because the Court ought not to dismiss it for improper labeling.

Now, if the Court -- let us suppose he stated a valid claim that there was such a -- the kind of defect for which he was entitled to have the case inside --

Chief Justice Earl Warren: Yes.

Mr. Wayne G. Barnett: -- and labeled it Rule 35.

If the Court dismissed it and says that Rule 35 doesn't apply to that kind of defect, I'm sure that we have -- we would immediately -- it would immediately be reversed or mandamus to ignore the fact that it was labeled Rule 35 and exercise his powers given by Rule -- Section 2255.

So I'd -- in this case if the judge acted -- form properly and all of the clearest forms, he would have said this does not lie under Rule 35.

It is the kind of defect which may -- which may be claimed under Rule -- under Section 2255.

However, he would not establish a -- the kind of fundamental unfairness in the proceedings to warrant relief.

Chief Justice Earl Warren: Suppose the judge have said specifically that I consider this to be an application under Rule 35.

Mr. Wayne G. Barnett: Yes.

Chief Justice Earl Warren: I consider that you're properly here, asking this relief under Rule 35 and I set your sentence aside under Rule 35 and reconsider.

Could you have appealed from that order?

Mr. Wayne G. Barnett: Yes.

Chief Justice Earl Warren: On what theory?

Mr. Wayne G. Barnett: Our position is that we could.

Well, on the theory that 2255 gives us a right to appeal from the order entered on a particular kind of motion and the motion is described not by the label attached to it, but by what it asked for.

The motion is described as one which claiming these defects move the Court to vacate the sentence and it was such a motion.

It was that motion described in Section 2255 from which Section 2255 gives us the right to appeal.

And it does not necessary that it'd be labeled 2255 so long as it's that kind of motion we can appeal.

Otherwise, it seems to me, if you produce a game in labeling and I think that is what this Court has avoided in this treatment of indigents.

Granted this in this instance, if you like, it cuts against him, but still, we look to the basic nature of the relief he's after and whether the Court has power to grant it and not to how he styles the application.

Justice John M. Harlan: Your view as I understand it, the Government treating this as 2255, I follow your argument up to that point, but your view is that the Government can only appeal, it has to appeal at the -- I won't use the word interlocutory stage, but the stage at which the order vacating and it has no right to appeal on that.

Mr. Wayne G. Barnett: If we -- is that from which we appeal and it must appeal within time of that.

Justice John M. Harlan: Yes.

Mr. Wayne G. Barnett: Now, if in the interim, the Court --

Justice John M. Harlan: But if the judge let it in --

Mr. Wayne G. Barnett: Oh no, that would --

Justice John M. Harlan: -- before you could get your papers out --

Mr. Wayne G. Barnett: No, no.

Justice John M. Harlan: -- the judge sentenced him, resentenced him.

Mr. Wayne G. Barnett: No, no.

We could still appeal.

What we will be challenging is the vacation.

Justice John M. Harlan: Oh I see.

Mr. Wayne G. Barnett: We wouldn't be challenging the discretion exercised in the --

Justice John M. Harlan: I see.

Justice Arthur J. Goldberg: What if your theory is correct [Inaudible]

Mr. Wayne G. Barnett: No, no, no.

I wouldn't read 2255 that way.

I think it goes on to say --

Justice Hugo L. Black: Talk about your sentence?

Mr. Wayne G. Barnett: Yes.

Being in the sentencing court, it says that not only shall you vacate the sentence as you did in habeas corpus but since you're there, go ahead and correct it.

But at that point it shifts gears and that is not the proceeding it seems to me, that is not -- the farthest action taken is necessarily in the criminal case.

Justice Arthur J. Goldberg: Does it apply to claim the right to resentencing?

Mr. Wayne G. Barnett: Well, I don't claim the right to appeal from the resentencing.

I'm saying we can appeal from the order vacating.

Now if it's all when ordered in which he vacates and resentenced the same order, we appeal from so much of the order as vacates the prior sentence.

Justice Arthur J. Goldberg: That is your [Inaudible]

Mr. Wayne G. Barnett: That's right.

Now, the only alternative I think is to say that we can appeal from the resentencing and that just seems to me basically contrary to the tradition of criminal appeal.

Justice Potter Stewart: Well, what if you think -- what if you -- the Government think that the district judge who has committed grossly erroneous error in resentencing the person, you can appeal from that you say?

Mr. Wayne G. Barnett: Not if it's authorized.

Justice Potter Stewart: No, I'm saying that your position -- this is not authorized --

Mr. Wayne G. Barnett: The --

Justice Potter Stewart: -- by assumption.

Mr. Wayne G. Barnett: Well, that question, I think, is the same on original sentence as on the resentencing.

Now whatever remedies we have, we have occasionally been successful in mandamus in a judge who on the original sentence did not impose the kind of sentence required by the statute.

Now whatever powers we have on the original sentencing against erroneous action by the judge, we would equally have on the resentencing, but it would in all respects be treated from the vacation on is treated just as though we're back in the original case, and the same -- the same powers of review that we have then would equally apply [Inaudible]

Justice Potter Stewart: No appeal only mandamus.

Isn't it?

Mr. Wayne G. Barnett: Well --

Justice Potter Stewart: Is that your position?

Mr. Wayne G. Barnett: I'm trying to avoid saying what those remedies are.

Justice Potter Stewart: Alright, but that's my question because you say your appeal is only for the vacation and not from anything to do with the resentencing.

Mr. Wayne G. Barnett: The appeal -- the appeal authorized by 2255 is one that goes only to the vacation of the prior order.

That appeal goes on [Inaudible].

If there'd be other powers which we would have quite a part from 2255 to an appeal that the sentence originally entered, they would equally apply I say to the further step of resentencing after 2255 vacation.

Justice Tom C. Clark: Is there any such power Mr. Barnett?

Mr. Wayne G. Barnett: Well, there is the Lane case which I think is not in brief, basically the judge granting probation when he was not authorized to grant probation under the statute and we were successful mandamus in here.

We tried -- we tried to appeal -- we first, I think, filed the Rule 35 motion and tried to appeal from that and let me tell you that none of the remedies and criminal procedure are that clear cut.

I can't answer your question confidently.

Offhand, I don't know of any case in which --

Justice John M. Harlan: Supposing you'd waited until the sentence was reimposed, this man was resentenced, and then it turned out that the judge reimposed the same sentence, could you appeal?

Mr. Wayne G. Barnett: I suppose it would be mooted.

Justice John M. Harlan: I would think so.

You --

Mr. Wayne G. Barnett: It isn't quite the same --

Justice John M. Harlan: I would think so and therefore that's still a possibility.

Mr. Wayne G. Barnett: Oh yes.

That is --

Justice John M. Harlan: Why isn't that make the order without anything more and why doesn't that render the order final?

Mr. Wayne G. Barnett: Well, the possibility of mootness and it is not the same as finality.

The finality requirement is -- the same possibility exists in habeas corpus for example.

If you release him because of a defect in the trial, he maybe retried and could be reconvicted and get the same sentence before the Government appeals and the appeal would be mooted, but it is not because the -- there was not a final termination of the independent civil proceedings in the habeas corpus court.

Those are finally disposed off and it seems less final here only because it has been merged into one court and the same court that conducts the independent civil proceeding and then shifts gears and acts like criminal judge.

And -- but the appeal provision I think it's specifically directs to preserve the independent of the proceedings nonetheless.

Thank you.

Chief Justice Earl Warren: Mr. Prettyman.

Rebuttal of E. Barrett Prettyman, Jr.

Mr. E. Barrett Prettyman, Jr.: Mr. Chief Justice and may it please the Court.

I want to touch on one preliminary factual question raised by the Chief Justice and then I want to turn immediately to the very basic question raised by Mr. Justice Goldberg.

In regard to Mr. Andrews' letter, the letter itself was simply a letter.

The clerk apparently put the criminal docket number on it.

On record, page 10, you'll see the way he entered it in which he made no reference to either 2255 or Rule 35.

It was granted without any reference to what it was but it bore that original criminal docket number.

Then when Mr. Andrews found, the Government was suddenly referring to his letter as a 2255 letter, he protested that specifically and requested that it would be treated as a Rule 35 motion, but all of this to one side, the Government has conceded on the record that this was exactly the same as Donovan's and it has now told you that Donovan's was a Rule 35.

Justice Arthur J. Goldberg: As a matter of fact, the letter cannot be read [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Of course not.

Justice Arthur J. Goldberg: It's a simple letter [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Exactly, exactly and the Government --

Justice Arthur J. Goldberg: The first characterization I found in Section 2255 [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Exactly, exactly.

But the Government in addition and I quote now from record 51, the factual and legal posture of this application, that is the letter, therefore is identical to the similar motion of Robert L. Donovan.

It seems to me that forecloses that question.

Now, Mr. Justice Goldberg, I have not argued that Rule 32 (a) or denial of Rule 32 (a) denies due process per se because I have not had to on this record, but I can assure you that it's my personal view that it does.

But whether it does or not, certainly, there is a denial of due process in the context of the situation in this case where you have the absence of the defendants during a crucial stage of the sentencing process where you have the absence of one attorney where you have a misapprehension as to a vital fact and I do not agree with great respect to Mr. Barnett's characterization of the judge's misunderstanding but I will not go into that, it's in my brief, with the fact that we have Donovan's record here and the fact that you have two denials in the same case of the right of allocution.

All of these together, the sum total of the circumstances, clearly, it seems to me, amounts to a denial of due process.

Now the importance of the right of allocution in this case, it seems to me is pointed out by a chance remark that was made here that if you have a mandatory sentence and if the judge could not have given probation, why of course the denial of the right to speak was not important, not so.

Rule 32 (a) gives two rights, the right to speak in mitigation of sentence and that would go to the situation I was just stating, but also the right to speak in your own behalf.

Now, in regard to the right to speak in your own behalf, that's not just talking about the sentence, this maybe the first time the man has had a chance to speak and that is true in this case because Mr. Cohen testified, but Mr. Andrews and Mr. Donovan did not.

So we reach the conclusion of the case, we reach this vital stage where these men are about to be sentenced and this is the first chance that they have had to get on their feet and say anything that they want to say, I have been defrauded, my counsel has not represented me, I want to get on the stand, this witness like the sentence is beyond the mandatory, the sentence is not in accordance with your -- the judge's instructions to the jury, any number of things.

This is his chance to speak and I say regardless of what the sentence is, regardless of whether probation is involved or not, that man at this point has a right to speak and should be granted it.

Justice Byron R. White: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Now, Your Honor, will you turn please to Record 30, fourteen lines down, Mr. Healey is speaking.

He has been speaking about Mr. Donovan -- yes, Mr. Donovan and he says, “I could go on with other things that I have here in my notes.”

I could go on with other things but I won't.

Now, what --

Justice Byron R. White: [Inaudible

Mr. E. Barrett Prettyman, Jr.: Well, I have had this difficulty in this case Your Honor.

I have one client who has been in Lewisburg, Pennsylvania.

I have had another until recently who has been in Alcatraz and I have no idea where he is at the moment.

Our mail is censored and consequently, I have had some difficulty frankly in getting it straightened out with my clients --

Justice Byron R. White: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: Well, there was no necessity for making the record because the motion was granted.

Justice Byron R. White: [Inaudible]

Mr. E. Barrett Prettyman, Jr.: No, it doesn't but it's not his fault that the record doesn't show it.

Well, I just wanted to make that point because when he filed his motion, you see, there wasn't even a hearing.

The judge simply looked at the record and he said “motion granted.”

Now, so on the question of full disclosure, the counsel for the Government says, “Well, there's no problem here because there's a full disclosure of everything they wanted to say.

The Government -- the defense counsel spoke at length.

We don't know.

That is an assumption.

We don't know what they would have said.

We don't know whether there was a full disclosure or not.

As I've pointed out, they didn't testified the trial, they weren't granted the right of allocution the first time or the second time so we have no idea what they're going to say as of this juncture.

Now the Government says, well, they didn't ask to speak and they didn't raise the question in their first appeal.

May I ask how they knew they had the right to speak?

Nothing was indicated anywhere in this record indicating until Green was decided that they had the right to speak.

But further on their appeal, they were represented by the very gentleman and I do not say this adversely to the counsel but they were represented by the very gentlemen who were in effect responsible for they're not speaking in the sense that they spoke in place of this man and quite obviously, it seems to me it's rather strange -- it would be a strange situation for them then to turnaround on appeal on the ground that they have not protected this right of their clients.

Now, I'll say only one word in regard to this finality question.

It's interesting that in the -- as you know, 2255 came as -- came about as a result of rec -- number of recommendations from the judicial conference which finally resolved in an extended bills before Congress.

And one of the original suggestions that was made by the judicial conference as the language for rules or for Section 2255 and this appears in the report for 1953 -- 1943 I am sorry on page 44, “the wording in regard to appealability was an appeal from an order granting or denying the motion shall lie to the Circuit Court of Appeals.”

Now, I cannot find in the legislative history the reason why that was changed.

The legislative history is somewhat involved here, but it was changed and it was obviously changed with a view to adding this idea of finality.

They didn't want 2255 appeals to lie simply from an order entered.

They wanted to lie only from final order and that was the language they used.

Now here, we have a situation where the order was entered whether it would be Rule 35 or 2255 which both vacated sentences and ordered resentencing and that I say did not on its face and in effect have any semblance of finality.

Now, in conclusion, I think we ought to look finally the end of this case as a practical matter that what is involved here and what the Government is asking you to do.

What is the effect of allowing the Government an appeal in this type of situation?

Since these petitioners have now served their five-year sentence, remember that was on count three, every single day that passes now in this interlocutory appeal stage is a day which these defendants if they could prove to the District Court on resentencing that they were entitled to probation, everyday that goes by is a day that they would be free.

In the case of short sentences, the Government can totally defeat the right of resentencing by the simple act of appeal.

You get a man who is sentenced to a year-and-a-half which has been the time since the order of Judge Murphy was entered and the Government notes its appeal, it takes its time, it writes its brief, it goes up, receives cert, and then at the end of that time, the order of resentencing was correct, too late, it's all over.

That's what the Government is asking you to do in this case and I think that the figures which I cited to you at the end of yesterday, in terms of the time the Government sought in the last fiscal year, any type of repeal, namely none is an indication not only that this right is not necessary and that they do not really need it, but as shown by the facts of this case that it actually denies the right which we're all seeking to protect.

Thank you.

Chief Justice Earl Warren: Mr. Prettyman, before you sit down, I would like to express the appreciation of the Court to you for having assumed as public service that you have assumed in representing this indigent defendant.

It always gives us a feeling of security to know that lawyers are willing to devote their time and their effort to cases of this kind that the -- on the assignment of the Court and we appreciated very much sir.

Mr. E. Barrett Prettyman, Jr.: Thank you.

Chief Justice Earl Warren: And Mr. Barnett, of course, we appreciate the very earnest, diligent manner in which you represented the interest of the Government.

Rebuttal of Wayne G. Barnett

Mr. Wayne G. Barnett: Thank you sir.