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decided: January 7, 1952.



Vinson, Black, Reed, Frankfurter, Douglas, Jackson, Burton, Clark; Minton took no part in the consideration or decision of this case.

Author: VINSON

[ 342 U.S. Page 206]

 MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.

In its 1948 revision of the Judicial Code, Congress provided that prisoners in custody under sentence of a federal

[ 342 U.S. Page 207]

     court may move the sentencing court to vacate, set aside or correct any sentence subject to collateral attack. 28 U. S. C. (Supp. IV) ยง 2255.*fn1

[ 342 U.S. Page 208]

     Respondent, confined at the McNeil Island penitentiary in the Western District of Washington,*fn2 invoked this new procedure by filing a motion to vacate his sentence and grant a new trial in the District Court for the Southern District of California. That court had imposed a sentence of twenty years' imprisonment in 1947 for forging Government checks and related violations of federal law.*fn3

In his motion, respondent alleged that he did not enjoy the effective assistance of counsel guaranteed defendants in federal courts by the Sixth Amendment. Specifically, he alleged that one Juanita Jackson, a principal witness against respondent at his trial and a defendant in a related case, was represented by the same lawyer as respondent. Respondent claims that he was not told of the dual representation and that he had no way of discovering the conflict until after the trial was over. It appeared from court records that Juanita Jackson testified against respondent after entering a plea of guilty but before sentence. Since a conflict in the interests of his attorney might have prejudiced respondent under these circumstances, the sentencing court and the court below, one judge dissenting, found that the allegations of respondent's motion warranted a hearing. Respondent's motion requested the issuance of an order to secure his presence at such a hearing.

For three days, the District Court received testimony in connection with the issues of fact raised by the motion. This proceeding was conducted without notice to respondent and without ordering the presence of respondent. On the basis of this ex parte investigation, the District Court found as a fact that respondent's counsel had also

[ 342 U.S. Page 209]

     represented Juanita Jackson but that he "did so only with the knowledge and consent, and at the instance and request of [respondent]." Pursuant to this finding, the District Court entered an order denying respondent's motion to vacate his sentence and to grant a new trial.

On appeal to the Court of Appeals for the Ninth Circuit,*fn4 the majority, acting sua sponte, raised questions as to the adequacy and constitutionality of Section 2255. The court addressed itself to the provision that an application for a writ of habeas corpus "shall not be entertained" where the sentencing court has denied relief "unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." Considering that the proceedings in the District Court were proper under the terms of Section 2255, the court below held, one judge dissenting, that the Section 2255 procedure could not be adequate or effective in this case and, in the alternative, that the Section, in precluding resort to habeas corpus, amounted to an unconstitutional "suspension" of the writ of habeas corpus as to respondent.*fn5

On rehearing below, and again in this Court, the Government conceded that respondent's motion raised factual issues which required respondent's presence at a hearing. The Court of Appeals, however, refused either to affirm the denial of respondent's motion or to accept the Government's concession and remand the case for a hearing with respondent present. Instead, it treated Section 2255 as a nullity and ordered respondent's motion dismissed

[ 342 U.S. Page 210]

     so that respondent might proceed by habeas corpus in the district of his confinement. 187 F.2d 456.

We granted certiorari in this case, 341 U.S. 930 (1951), to review the decision that Section 2255 must be considered a nullity, a holding that stands in conflict with cases decided in other circuits.*fn6 We do not reconsider the concurrent findings of both courts below that respondent's motion states grounds to support a collateral attack on his sentence and raises substantial issues of fact calling for an inquiry into their verity.

First. The need for Section 2255 is best revealed by a review of the practical problems that had arisen in the administration of the federal courts' habeas corpus jurisdiction.

Power to issue the writ of habeas corpus, "the most celebrated writ in the English law,"*fn7 was granted to the federal courts in the Judiciary Act of 1789, 1 Stat. 73, 81-82. Since Congress had not defined the term "habeas corpus," resort to the common law was necessary.*fn8 Although

[ 342 U.S. Page 211]

     the objective of the Great Writ long has been the liberation of those unlawfully imprisoned, at common law a judgment of conviction rendered by a court of general criminal jurisdiction was conclusive proof that confinement was legal. Such a judgment prevented issuance of the writ without more.*fn9

In 1867, Congress changed the common-law rule by extending the writ of habeas corpus to "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States," and providing for inquiry into the facts of detention. 14 Stat. 385. In commenting on the 1867 Act this Court has said:

"The effect is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common-law practice, and under the act of 31 Car. II, c. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to 'dispose of the party as law and justice require.'

". . . a prisoner in custody pursuant to the final judgment of a . . . court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the . . . court to proceed to judgment against him. . . ."*fn10

[ 342 U.S. Page 212]

     Under the 1867 Act,*fn11 United States District Courts have jurisdiction to determine whether a prisoner has been deprived of liberty in violation of constitutional rights, although the proceedings resulting in incarceration may be unassailable on the face of the record. Under that Act, a variety of allegations have been held to permit challenge of convictions on facts dehors the record.*fn12

One aftermath of these developments in the law has been a great increase in the number of applications for habeas corpus filed in the federal courts by state and federal prisoners. The annual volume of applications had nearly tripled in the years preceding enactment of Section 2255.*fn13 In addition to the problems raised by a large volume of applications for habeas corpus that are repetitious*fn14 and patently frivolous, serious administrative problems developed in the consideration of applications which appear meritorious on their face. Often, such applications

[ 342 U.S. Page 213]

     are found to be wholly lacking in merit when compared with the records of the sentencing court. But, since a habeas corpus action must be brought in the district of confinement,*fn15 those records are not readily available to the habeas corpus court.

Walker v. Johnston, 312 U.S. 275 (1941), illustrates a further practical problem presented when an application for habeas corpus alleges a meritorious claim not controverted by the records of the trial court. In the Northern District of California, Walker alleged that he had been denied counsel and coerced into pleading guilty by the United States Attorney, his assistant and a deputy marshal in the Northern District of Texas. The District Court for the Northern District of California refused to grant the writ after receiving ex parte affidavits from the federal officers denying the allegations. This Court reversed, finding that Walker's application raised material issues of fact and holding that the District Court must determine such issues by the taking of evidence, not by ex parte affidavits.*fn16 Granting the need for such a hearing to resolve the factual issues, the required hearing had to be held in the habeas corpus court in California although the federal officers involved were stationed in Texas and the facts occurred in Texas.*fn17

These practical problems have been greatly aggravated by the fact that the few District Courts in whose territorial jurisdiction major federal penal institutions are located

[ 342 U.S. Page 214]

     were required to handle an inordinate number of habeas corpus actions far from the scene of the facts, the homes of the witnesses and the records of the sentencing court solely because of the fortuitous concentration of federal prisoners within the district.*fn18

Second. The Judicial Conference of the United States,*fn19 addressing itself to the problems raised by the increased habeas corpus business in 1942, created a committee of federal judges "to study the entire subject of procedure on applications for habeas corpus in the federal courts."*fn20 At the next session of the Conference, the Committee on Habeas Corpus Procedure submitted its report. After extensive consideration, the Judicial Conference recommended

[ 342 U.S. Page 215]

     adoption of two proposed bills, a "procedural bill" containing provisions designed to prevent abuse of the habeas corpus writ and a "jurisdictional bill," Section 2 of which established a procedure whereby a federal prisoner might collaterally attack his conviction in the sentencing court.*fn21 The Judicial Conference repeatedly reaffirmed its approval of this forerunner of Section 2255.*fn22

In 1944, the two bills approved by the Judicial Conference were submitted to the Congress on behalf of the Conference. In the letter of transmittal and accompanying memorandum, Section 2 of the "jurisdictional bill" was described as requiring prisoners convicted in federal courts to apply by motion in the sentencing court "instead of making application for habeas corpus in the district in which they are confined."*fn23 At the request of the Chairmen of the House and Senate Judiciary Committees, a "Statement" describing the necessity and purposes of the bills was submitted to Congress on behalf of the Judicial

[ 342 U.S. Page 216]

     Conference Committee on Habeas Corpus Procedure. In this Statement, Congress was furnished statistics showing in detail the increased volume of applications for habeas corpus.*fn24 The Statement, stressing the practical difficulties encountered in hearings held in the district of confinement rather than the district of sentence, described Section 2 of the "jurisdictional bill" as follows:

"This section applies only to Federal sentences. It creates a statutory remedy consisting of a motion before the court where the movant has been convicted. The remedy is in the nature of, but much

[ 342 U.S. Page 217]

     broader than, coram nobis. The motion remedy broadly covers all situations where the sentence is 'open to collateral attack.' As a remedy, it is intended to be as broad as habeas corpus."*fn25

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     While the bills proposed by the Judicial Conference were pending, the Committee on Revision of the Laws of the House of Representatives had drafted a bill revising the entire Judicial Code. Portions of this bill dealing with habeas corpus were drafted to conform with the bills approved by the Judicial Conference,*fn26 including Section 2255, modeled after Section 2 of the "jurisdictional bill" approved by the Judicial Conference. According to the Reviser's Note on Section 2255:

"This section restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus. It has the approval of the Judicial Conference of the United States. Its principal provisions are incorporated in H. R. 4233, Seventy-ninth Congress [the so-called jurisdictional bill]."*fn27

After the House of Representatives had passed the bill revising the Judicial Code, the Judicial Conference reconsidered the two bills drafted by its Committee on Habeas Corpus Procedure. The Conference noted the importance of securing legislation along the lines of its proposals, approved the habeas corpus chapter of the Judicial Code revision bill with two amendments not affecting Section 2255 and directed that Congress be informed of

[ 342 U.S. Page 219]

     the interest of the Conference in the enactment of the habeas corpus provisions of the revised Judicial Code.*fn28

This review of the history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.*fn29

Third. The crucial issue of fact resented by respondent's motion under Section 2255 was whether his attorney appeared as counsel for Juanita Jackson "with the knowledge and consent" of respondent. The Court of Appeals found, and the Government now agrees, that respondent's presence at a hearing on this issue is required if the Section 2255 procedure is to be adequate and effective in this case. In holding that Section 2255 should be treated as a nullity in this case, the court below found that the Section contemplated and permitted the ex parte investigation conducted by the District Court without notice to respondent and without respondent's presence.

[ 342 U.S. Page 220]

     We do not find in Section 2255 the disturbing inadequacies found by the court below. The issues raised by respondent's motion were not determined by the "files and records" in the trial court. In such circumstances, Section 2255 requires that the trial court act on the motion as follows: ". . . cause notice thereof to be served upon the United States attorney, grant a prompt hearing Page 220} thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." (Emphasis supplied.) In requiring a "hearing," the Section "has obvious reference to the tradition of judicial proceedings."*fn30 Respondent, denied an opportunity to be heard, "has lost something indispensable, however convincing the ex parte showing."*fn31 We conclude that the District Court did not proceed in conformity with Section 2255 when it made findings on controverted issues of fact relating to respondent's own knowledge without notice to respondent and without his being present.

The court below also held that the sentencing court could not hold the required hearing because it was without power to order the presence of a prisoner confined in another district. This want of power was thought to follow from our decision in Ahrens v. Clark, 335 U.S. 188 (1948), where we held that the phrase "within their respective jurisdictions" in the habeas corpus statute*fn32 required the presence of the prisoner within the territorial jurisdiction of the District Court as a prerequisite to his filing an application for habeas corpus. This is not a habeas corpus proceeding. The sentencing court in the Southern District of California would not be issuing an original writ of habeas corpus to secure respondent's presence from another district. Issuance of an order to produce the prisoner is auxiliary to the jurisdiction of the trial court over respondent granted in Section 2255 itself and invoked by respondent's filing of a motion under that Section.

The very purpose of Section 2255 is to hold any required hearing in the sentencing court because of the inconvenience of transporting court officials and other necessary

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     witnesses to the district of confinement. The District Court is not impotent to accomplish this purpose, at least so long as it may invoke the statutory authority of federal courts to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."*fn33 An order to secure respondent's presence in the sentencing court to testify or otherwise prosecute his motion is "necessary or appropriate"*fn34 to the exercise of its jurisdiction under Section 2255 and finds ample precedent in the common law.*fn35 The express language of Section 2255 that a "court may entertain and determine such motion without requiring the production of the prisoner at the hearing" negatives any purpose to leave the sentencing court powerless to require production of the prisoner in an appropriate case.*fn36 Other federal courts conducting Section 2255

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     proceedings have not encountered difficulties in securing the presence of prisoners confined outside the district.*fn37

The existence of power to produce the prisoner does not, of course, mean that he should be automatically produced in every Section 2255 proceeding. This is in accord with procedure in habeas corpus actions.*fn38 Unlike the criminal trial where the guilt of the defendant is in issue and his presence is required by the Sixth Amendment, a proceeding under Section 2255 is an independent and collateral inquiry into the validity of the conviction.

[ 342 U.S. Page 223]

     Whether the prisoner should be produced depends upon the issues raised by the particular case. Where, as here, there are substantial issues of fact as to events in which the prisoner participated, the trial court should require his production for a hearing.*fn39

Fourth. Nothing has been shown to warrant our holding at this stage of the proceeding that the Section 2255 procedure will be "inadequate or ineffective" if respondent is present for a hearing in the District Court on remand of this case. In a case where the Section 2255 procedure is shown to be "inadequate or ineffective," the Section provides that the habeas corpus remedy shall remain open to afford the necessary hearing.*fn40 Under such circumstances, we do not reach constitutional questions. This Court will not pass upon the constitutionality of an act of Congress where the question is properly presented unless such adjudication is unavoidable,*fn41 much less anticipate constitutional questions.*fn42

We conclude that the District Court erred in determining the factual issues raised by respondent's motion under Section 2255 without notice to respondent and without his presence. We hold that the required hearing can be afforded respondent under the procedure established in Section 2255. The Court of Appeals correctly reversed

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     the order of the District Court but should have remanded the case for a hearing under Section 2255 instead of ordering that respondent's motion be dismissed. Accordingly, we vacate the judgment of the Court of Appeals and remand the case to the District Court for further proceedings in conformity with this opinion.

Vacated and remanded.

MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS concur in the result.

MR. JUSTICE MINTON took no part in the consideration or decision of this case.


187 F.2d 456, judgment vacated.

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