Full opinion text
FAHY, Circuit Judge, announces the judgment of the court and delivers the following opinion in which EDGERTON, Chief Judge, and BAZELON and WASHINGTON, Circuit Judges, join. In August 1949 one Lewis Crowder met his death as a result of knife wounds inflicted by appellant. The grand jury indicted appellant for second degree murder, indicating their conclusion that the homicide was not accompanied by premeditation and malice aforethought, essential elements of first degree murder. The trial did not take place until September 1954, appellant having left the jurisdiction upon learning of Crowder’s death and not having been returned until March 1954. Appellant was found guilty as charged and the ease is before us as a result of proceedings subsequently set forth in this opinion. The prosecution called but one eye witness, Wallace Brown. He supported appellant’s claim of self defense. He said he saw Crowder, who was a much taller and heavier man, slapping and kicking appellant, who “was trying to defend himself and fight off from him.” He saw a small penknife in appellant’s hand but did not see him cut Crowder. The prosecution claimed surprise and sought to impeach its witness by the use of a written statement represented to have been made by Brown in August 1949. A conference with the court ensued at the bench. The court considered and rejected the claim of surprise. It appeared to the court that the prosecuting attorney had recently interviewed Brown and knew he would not adhere to the statement, whatever it was. The effect of this ruling was to prevent the prosecution from attacking the testimony of the witness it had itself called as one worthy of belief. Though section 14-104, D.C.Code (1951), allows an exception to the general rule that one cannot impeach his own witnesses by the use of previously made contradictory statements, to come within that exception actual surprise must be found. Young v. United States, 94 U.S.App.D.C. 62, 69, 214 F.2d 232, 238. The prosecution did not abide by the court’s ruling that it could not impeach its own witness. Over repeated defense objections, repeatedly sustained by the court, the prosecution sought by questioning Brown to convince the jury that he had given a statement in August 1949 that was inconsistent with his sworn testimony at the trial. The following questions asked Brown illustrate the tactics used: “Doesn’t it say in the statement you saw him cut the man ? [Objection sustained.] “You say you didn’t make that statement to the police? [Objection sustained.] “Read the statement and see whether you made it. [Objection sustained.] “Didn’t you say, when you told me what happened— [Objection sustained.] “Did you tell me that the next day when you saw Belton he showed you a knife? A. Showed me a knife? “Didn’t I read that statement to you? [Objection sustained.]” At one point when the court sustained the objection, saying the prosecutor was attempting to impeach his own witness the prosecutor said, apparently also in the hearing of the jury: “No. He is trying to say an entirely different story, say something different, and I think I can show in the interview what happened.” The prosecutor also referred to a conversation he had had with the witness on the previous day, and, still over objection, which was sustained, stated in the hearing of the jury, “I think I am entitled to show his conversation in this case by the witness, that I should be entitled to show if he said something that is not true.” Again, “Well, now, you remember, as I say — you don’t deny signing this statement, do you? [Objection sustained.]” None of these references to a prior statement which was not in evidence— none of these prejudicial implications of the prosecutor himself — was permissible. This improper conduct was renewed in his summation when the prosecutor said to the jury that if appellant had stood trial in August 1949 “the Government would have sufficient evidence to convict him * * In characterizing the prosecutor’s conduct as improper we do not assess his motives. We use the adjective to describe the effect of his conduct upon the fairness of the trial. Appellant took the stand. He testified that while he was asleep in a yard the deceased woke him and asked him to walk outside which he did. The deceased then asked him if he had made a particular statement about the deceased going with a certain married woman. Appellant denied having done so. He testified that then the deceased “grabbed me by my collar, called me a damn liar and said I did, and he started beating me, and he kept beating me. I could not run. I could not get away from him.” He continued to describe the fight, said he was being kicked, managed to get out his knife, he did not know how, but deceased kept kicking him in the lower part of the stomach and on the leg and beating him and he started fighting back. He did not know how long it was before Brown came up. There were a number of knife wounds on decedent, the most serious of which appears to have been a cut in the throat. In view of the evidence which was properly before the jury it is impossible to avoid the conclusion that the conduct of the prosecution might have affected the verdict of the jury, on the issue of self-defense or the degree of homicide, by leading them to believe that evidence against appellant of a damaging character existed which the court would not permit the jury to hear. This grew out of tactics which violated the rulings of the court and appellant’s right to a trial on the evidence given under oath from the witness stand rather than given in effect by the prosecutor from counsel table. The United States contends, however, that the conviction, thus impaired, must stand because no appeal from the judgment is properly before us. We think the appeal is here for us to decide. The verdict of the jury was rendered September 10, 1954. Judgment thereon was entered October 1, 1954. In the meantime, on September 14, 1954, there was filed in the office of the Clerk of the District Court a letter from appellant requesting inter alia, that he be granted the privilege of “receiving an appeal as I am without funds to pay the cost of court * * This was an adequate and timely notice of appeal. Rule 37(a) (2) F.R.Crim.P., 18 U.S.C.; Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865; Williams v. United States, 88 U.S.App.D.C. 212, 188 F.2d 41; accord, Shannon v. United States, 93 U.S.App.D.C. 4, 206 F.2d 479; and see Kirksey v. United States, 94 U.S.App.D.C. 393, 395, note 2, 219 F.2d 499, 500, note 2. This court thus obtained jurisdiction to review the judgment of conviction. The fact that the notice of appeal was received by the clerk after the verdict and before entry of judgment thereon is an irregularity which does not affect substantial rights and should be disregarded. Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3. Rule 39(c) F.R.Crim.P. requires, however, that after the appeal is taken the record shall be filed and the proceedings docketed in this court within forty days from the date the notice of appeal is filed in the District Court. The record was not filed and the proceedings were not docketed within forty days from the notice of appeal of September 14, 1954. But this did not oust the jurisdiction which had become vested in this court. Rule 45(b) (2) explicitly provides that for cause shown we may upon motion permit an appeal to be perfected after the expiration of the time specified in Rule 39(c), if the failure to do so within that time was the result of excusable neglect. The neglect was excusable. The District Court treated appellant’s letter of September 14, 1954, as a request for leave to appeal in forma pauperis and denied it as such. This we have no doubt indicated to appellant, an illiterate pauper then in confinement, that his request for an appeal had been denied. See Boykin v. Huff, supra. It is only now that we decide that this letter constituted a notice which vested jurisdiction of the appeal in this court. This decision comes about at this late date in the following circumstances: In August 1955 appellant began to file a series of motions in the District Court under 28 U.S.C. § 2255 (1952), collaterally attacking the judgment of conviction. This led finally to our allowance of an appeal from the denial by the District Court of the § 2255 motion he had filed July 10, 1956. In connection with that appeal we appointed counsel to represent appellant. This in turn led to the disclosure that by reason of the letter to the Clerk of the District Court of September 14, 1954, we were possessed of jurisdiction of an appeal from the original judgment of conviction itself, though the appeal had not been perfected in a timely manner. Since we only now reach this decision that we have jurisdiction of the direct appeal we think it is not permissible for us to hold that uncounseled and imprisoned appellant should have known in the fall of 1954 what we only now decide, and, in addition, should have known that the rules required him to perfect within forty days from September 14, 1954, an appeal which we cannot say he even knew he had. After he was sentenced October 1, 1954, appellant was without counsel until this court appointed counsel for him November 20, 1956. See Blunt v. United States, 100 U.S.App.D.C. 266, 244 F.2d 355. Aside from the question of excusable neglect on the part of appellant in perfecting the appeal within the usual time we have reached the merits of the appeal upon another and independent ground. Rule 39(a), set forth in the margin, places under our “supervision and control” the “proceedings on appeal.” Within this supervisory authority this court has held that we have the power to consider an appeal on a record filed out of time, once we have obtained jurisdiction by the filing of a notice of appeal within time, as was here done. The late Chief Judge Stephens stated the applicable principles in a case where the court rejected the claim that the delay was due to excusable neglect within the meaning of Rule 45(b) (2): “[I]n a criminal case in which a sentence of imprisonment is involved, there is a public interest against denial of consideration on appeal of substantial questions as to the lawfulness of the conviction. For if the conviction is erroneous it is abhorrent to justice that a defendant shall nevertheless suffer such a penalty for the crime charged. The Supreme Court has on this account vested the United States Court of Appeals with discretion to consider and determine questions on appeal notwithstanding failure of counsel to make due compliance with the usual procedural requirements. This discretion may be exercised either on application of a party or by the court sua sponte.” Christoffel v. United States, 88 U.S.App.D.C. 1, 6, 190 F.2d 585, 590. Chief Judge Stephens quoted the Supreme Court’s reference in Forte v. United States, 1937, 302 U.S. 220, 223-224, 58 S.Ct. 180, 182, 82 L.Ed. 209, to the “full responsibility” of the Court of Appeals “for the exercise of a reasonable control over all the proceedings relating to the appeal,” and said that the court lost none of its power to determine what the interests of justice required “by reason of the fact that the question [of conformity to the rules] was not brought to its attention until the court had heard argument and reached a decision upon the assumption” that procedural requirements had been met. Thus it is clear that once this court has jurisdiction of an appeal the procedural Rules, though designed for the expeditious and orderly progression of a case, contain within themselves provisions which prevent imprisonment of the court within rigid time schedules that would defeat the interests of justice. And of course the fact that appellant has long been in confinement cannot be ground for denying relief under the principles set forth in Christoffel. On the contrary. While remembering that the administration of criminal justice by appellate as well as other courts must be within the law which includes those rules of procedure that are binding, we must also not forget that, subject to these limitations, it is never too late to rectify serious error. Were illustration necessary it was furnished recently by Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. There a motion for a new trial was filed some 12 years after a plea of guilty had been accepted by a state court. Seven years later, or 19 years after the plea had been accepted, the case was decided by the Supreme Court. The Court held that the plea of guilty had been invalidly accepted and accordingly reversed the denial of the motion for a new trial. The basic question was whether the accused had waived his right to counsel. In view of our disposition of the case we do not reach the questions raised on the appeal from denial of the § 2255 motion filed July 10, 1956. That appeal must now be dismissed as moot. Reversed and remanded. . Except in certain situations under 31 Stat. 1321 (1901), as amended, § 22-2401, D.C. Code (1951), not here pertinent. . Section 14^104, 32 Stat. 540 (1902) reads as follows: “Whenever the court shall be satisfied that the party producing a witness has been taken by surprise by the testimony of such witness, such party may, in the discretion of the court, be allowed to prove, for the purpose only of affecting the credibility of the witness, that the witness has made to such party or to his attorney statements substantially variant from his sworn testimony about material facts in the cause * * * See Wheeler v. United States, 93 U.S.App.D.C. 159, 211 F.2d 19; Smith v. United States, 57 App.D.C. 71, 17 F.2d 223. . 3 Wharton, Criminal Evidence § 948 (12th ed. 1955): After presenting a witness to the jury as worthy of belief, a party cannot attack the witness and ask the jury to disbelieve his testimony if it is unfavorable. To that extent, ,a party is bound by the answer of his own witness, and the general rule obtains in criminal cases that a party cannot impeach his own witness, even though the party thus precluded is the government. And see, Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170. Compare 3 Wigmore, Evidence §§ 896-905 (3d ed. 1940). . See 3 Wharton, op. cit. supra § 953; Un-derhill, Criminal Evidence § 421 (4th ed. 1935). For an excellent discussion of the federal law on the overall point of impeaching one’s own witness in a situation of surprise see United States v. Michener, 3 Cir., 152 F.2d 880. . The record was filed January 23, 1957, and supplemented June 25, 1957. . No formal motion was filed under Rule 45 (b)(2) but appellant in brief and oral argument requested that we consider the appeal on the merits notwithstanding lateness under the Rule in filing the record and docketing the appeal in this court. This is suflicient. See Jordan v. United States District Court, 98 U.S.App.D.C. 160, 163, note 3, 233 F.2d 362, 365, note 3, reversed on other grounds, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114. . F.R.Crim.P. 39(a): “(a) Supervision in Appellate Court. The supervision and control of the proceedings on appeal shall be in the appellate court from the time the notice of appeal is filed with its clerk, except as otherwise provided in these rules. * * * ’> Of course the same supervision resides here when wo have obtained jurisdiction of an appeal and the record is on filo with our cleric, .as in the present case. . Decided under Rule IV of the earlier Rules of Practice and Procedure in Criminal Cases promulgated by the Supreme Court May 7, 1934, 292 U.S. 661. Rule IV, said by Chief Judge Stephens, 88 U.S.App.D.C. at page 7, note 7, 190 F.2d at page 591, note 7, to parallel, so far as pertinent to Christoffel, present Rule 39(a), reads in part: “From the time of the filing with its clerk of the duplicate notice of appeal, the appellate court shall, subject to these rules, have supervision and control of the proceedings on the appeal, including the proceedings relating to the preparation of the record on appeal.”
PRETTYMAN, Circuit Judge, with whom BURGER, Circuit Judge, joins, concurring in the result. I do not agree that the neglect in failing to file the record, or in the alternative to bring the matter to the attention of this court, for so long a time was excusable, under the circumstances shown, within the meaning of Rule 45(b) (2). But I agree that this case calls for the exercise of the supervisory power of the court under the doctrine of the Christof-fel case. I also agree that the judgment of conviction should be reversed. I agree with Judge Miller’s discussion of the Section 2255 problem, with the understanding that the discretion vested in a district court is subject to review for abuse; but I do not reach the question.
WILBUR K MILLER, Circuit Judge, with whom DANAHER and BASTIAN, Circuit Judges, concur, dissenting. In a fight which took place August 2, 1949, Roland Belton stabbed one Lewis Crowder and inflicted wounds from which death resulted eight days later. Belton was indicted September 6, 1949, for second degree murder but fled the jurisdiction and was not apprehended until March 2, 1954. He was arraigned ten days later and pleaded not guilty. Counsel were appointed to represent him and trial was set for April 26, 1954. On March 15, employed counsel entered an appearance. The two attorneys theretofore appointed were later permitted to withdraw. After five continuances — three for the Government and two for the appellant, all of which were properly granted for good reason — Belton was brought to trial September 8, 1954, was found guilty as charged, and on October 1, 1954, was sentenced to imprisonment for a term of from seven to 21 years. Although he was then still represented by competent employed counsel, from his cell in the District jail Belton wrote a letter to the Clerk of the District Court which was received and filed September 14, 1954. He had acted in self-defense, he said, and had been unjustly convicted in an unfair trial. He asked that the matter be brought to the attention of the trial judge (Judge F. Dickinson Letts) “and grant me the privilege of receiving an appeal as I am without funds to pay the cost of court, that I may proceed in forma pauperis * * Treating the letter as a motion for leave to proceed on appeal without prepayment of costs, Judge Letts found and certified that the appeal was not taken in good faith and therefore denied the motion. In the meantime appellant’s counsel filed (September 16) a motion for a new trial, which was denied October 1, the day of sentence. Judicial generosity now treats Belton’s letter of September 14, 1954, as a notice of appeal from the judgment of conviction, although it fell far short of satisfying the requirements of Rule 37(a) (1) of the Federal Rules of Criminal Procedure. This tenuous appeal was not perfected, but was completely abandoned by the appellant, as will appear hereafter; but it is now revived by a majority of this court as a basis for substituting their judgment for that of the jury, and granting Belton a new trial. This probably means that he is freed of the murder conviction, for there is little chance that, after a lapse of nine years, the Government will be able to make out a case on a new trial. I am unwilling to agree to this procedure. It cannot be disputed that the appeal was not perfected in time. Rule 39(c) requires that “The record on appeal shall be filed with the appellate court and the proceeding there docketed within 40 days from the date the notice of appeal is filed in the district court * * * Thus it was necessary for Belton to file the record here within 40 days after October 1, 1954. He did not do so and did not during that time ask for an extension. This failure justifies, if it does not require, dismissal of the appeal unless we exercise the discretion committed to us by Rule 45(b) (2) “upon motion [to] permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect * * * I do not think appellant’s neglect was excusable. Trial counsel informed him that his employment would end October 1, 1954, the day of sentence. His services of course remained available until that time, but Belton wrote the letter of September 14 apparently without consulting him. He had ample opportunity to inquire of counsel what further steps he must take on appeal and when he must take them. He seems to have preferred to rely on himself and his adviser at the District jail. I think that neglecting to file the record within 40 days was not excusable and that therefore we do not have the discretion to enlarge the time which Rule 45(b) (2) gives us “if the failure to act was the result of excusable neglect.” The appeal from the conviction perhaps noted by the letter filed September 14, 1954, was therefore not perfected, and should be dismissed. In addition to holding that Belton’s neglect was excusable, the majority attempt to justify their action by citing Christoffel v. United States, 1950, 88 U.S.App.D.C. 1, 180 F.2d 555. Their reliance on that case seems to me to be misplaced. In it the delay was only a matter of a few days, while here it was prolonged over a period of more than three years. Nor was Belton “uncounseled,” although the majority so characterize him. He was represented, as I have said, by experienced employed counsel who could have advised him, and no doubt did so, of the time in which the appeal must be perfected. In addition to that, he had available in the penal institutions the services of what Judge Bennett Champ Clark used to call “guardhouse lawyers” who are well aware of the requirements of the Criminal Rules but who chose to concentrate on § 2255. In his separate dissenting opinion Judge Bastían has dealt adequately with the alleged misconduct of the prosecuting attorney relied upon by the majority as a reason for reversal, so I shall not discuss that matter further. The case is really here on the limited appeal we finally — and I think improvidently — allowed from the sentencing court’s denial of the last of several motions to vacate sentence filed by Belton under 28 U.S.C. § 2255. I detail here the several steps taken by Belton after his conviction to show how completely he abandoned the appeal noted on September 14, 1954, and devoted himself exclusively to attacks upon the sentence; and also for the purpose of determining the only issues actually before the court. Section 2255 reads: “[1] A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. “[2] A motion for such relief may be made at any time. “[3] Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. “[4] A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. “[5] The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. “[6] An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus. “[7] An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” After being sentenced October 1, 1954, Belton was silent until August 8, 1955, when he began a barrage of applications by filing his first motion under § 2255. The grounds alleged were these: (1) that Belton “in ‘self defense’, was forced to use a small knife, (pen knife) wherein the deceased came in contact with such knife and was cut twice”; (2) that “in order to have been charged with any degree of murder * * * the deceased had to die within S days or 72 hours, after being injured or cut with a knife. Furthermore there had to be jotted [sic] into use a ‘dangerous weapon’ and, an ordinary pocket knife is NOT A DANGEROUS weapon”; (3) that Belton did not flee to avoid any felony charge; that his arrest in Virginia was null and void “and no warrant of removal could be legally used to bring the defendant into District of Columbia as no felony had been committed; and, no murder had been committed by defendant”; (4) “The law requires in trials that involve Murder, the defendant be given not less than two competent lawyers to defend him. There existed but one lawyer, and, he was incompetent, and assisted the government, instead of his client.” September 21, 1955, Judge Letts found and certified that the motion and the files and records of the case conclusively showed the movant was entitled to no relief, and so denied the motion without a hearing, as permitted by paragraph [3] of § 2255. Belton did not file a notice of appeal from this order in the District Court, and did nothing there or here-which indicated a desire to appeal from-it. October 17, 1955, Belton filed another motion under § 2255. This time he abandoned all the grounds stated in the first motion except the alleged incompetence-of trial counsel, to which he added (a) that he did not receive a copy of the indictment, and (b) that the United States Attorney failed to call certain eyewitnesses to testify, although he knew their identity and could have called them. This motion was similarly denied October 21,1955. October 29,1955, Belton moved for a rehearing without stating grounds, which was denied November 8, 1955. November 17, 1955, Belton filed in the District Court an application for leave to-proceed without prepayment of costs in which he asserted he was convicted without proper representation of counsel, that he “was tried and convicted five years after the alleged offense, when the prosecution knew or should have known of the whereabouts of the defendant,” and that “the defendant could and now can prove his innocence, if his witnesses are subpoena [sic] into court.” This application was denied November 22,1955. December 19, 1955, Belton filed in this court a petition for leave to proceed on appeal in forma pauperis from the order of the District Court of November 22, 1955. In it he alleged, among other things, that the “trial judge stated a legal conclusion, that the appeal was not taken in good faith, but failed to certify in writing facts upon which such a conclusion at law could be or was, based as required by Section 1915 of Title 28, U. S. Code * * * ” January 26, 1956, this court denied the petition. February 20, 1956, Belton filed another motion under § 2255 on the ground of newly discovered evidence. He attached an affidavit by one James Le Grand. The affiant said that on August 2, 1949, he was sitting in an automobile in front of the premises where the killing occurred; that Belton was on the front steps asleep and he saw Crowder “snatch” Belton to his feet and kick him. “In the struggle Belton managed to get a small pocket knife from his pocket and open it. The two men were still locked together. I saw Belton swipe at Crowder’s neck. But in the melee I could not see everything that was taking place, but I did see one Wallace ‘Mutt’ Brown, come out of the crowd which had gathered and separate the two men. Brown took Belton away * * * Crowder followed after them * * but * * * slumped to the sidewalk just before he could reach Que Street.” February 23, 1956, Judge Letts entered the following order: “The Court finds and certifies that the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. The motion is therefore denied.” March 12, 1956, Belton filed in the District Court a motion for leave to file notice of appeal, time having expired, and for leave to appeal in forma pauperis, apparently with reference to the court’s order of February 23, 1956. March 19, 1956, Judge Letts endorsed the following thereon: “The Court finds and certifies that the motion is without merit. The motion is therefore denied.” April 5, 1956, Belton filed in this court a motion for leave to proceed on appeal in forma pauperis from the orders of the District Court of February 23 and March 19, 1956. He alleged that since the trial he had located an eyewitness, James Le Grand, who would corroborate the testimony of Wallace Brown in tending to show self-defense; that the Government knew where he was at all times during the five-year interval from August 2, 1949, the date of the crime, to September, 1954; and that the District Court denied his § 2255 motion without granting an oral hearing. June 25, 1956, this court denied the petition, and also denied a motion for appointment of counsel, which had been filed by Belton on May 24, 1956. July 10, 1956, Belton filed in the District Court what he denominated a “Motion for A Rehearing to ser aside conviction and sentence, and Affidavit in support for Leave to Sub Peana all record and material Evidence and eye witnesses that was at the scene of the crime. Title 28, Sec. 2255 in Forma Pauperis.” In it he complained again that the Government had failed to produce three eyewitnesses and repeated his assertion he had acted in self-defense. He also alleged inter alia that police and jail officials “planted” Wallace Brown, a witness for the Government, in his cell “to spy and gain his confidence,” and that Brown was also placed with him in a court house “bull pen,” where he “overheard conversation between Petitioner and his counsel.” The motion was denied August 8, 1956. August 16, 1956, Belton filed in the District Court an affidavit in support of an application for leave to proceed on appeal without prepayment of costs but did not specify the order from which he desired to appeal. September 18, 1956, Judge Letts endorsed thereon the following: “Application for leave to proceed on appeal without prepayment of costs denied.” October 10, 1956, Belton filed in this court a petition for leave to prosecute an appeal in forma pauperis from the District Court’s order of September 18,1956. He recited among the questions presented the following: “Did not the U. S. Attorney and the officials of the District Jail conspire together to obstruct justice by taken a inmate out of the Petitioner cell and placing the Government witness in the Petitioner cell to conspire on the Petitioner before trial.” Without acting directly on this petition, this court entered an order November 16, 1956, allowing Belton to proceed on appeal in forma pauperis, not from the order of September 18, 1956, but from the order entered August 8, 1956, which denied the § 2255 motion filed July 10, 1956. Thus, this court treated Belton’s affidavit filed August 16, 1956, as equivalent to a notice of appeal from the order of August 8. Our panel limited the appeal to the issues: “(1) should the District Court have granted a hearing on petitioner’s allegation that there was an intrusion by a government agent into the confidential conversations between petitioner and his counsel ? and (2) was petitioner deprived of the right to a speedy trial?” and on November 20 we appointed counsel to represent petitioner on the limited appeal so granted. In considering this phase of the case, it is necessary first to examine the propriety of our order of November 16, 1956; for, if it was improvidently entered, the two issues concerning which an appeal in forma pauperis was purportedly allowed are not properly before us and we cannot deal with them. The statute provides in paragraph [5] that “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” We have already noted that Belton’s first motion under § 2255 was denied by Judge Letts September 21, 1955, and that the order of denial was not appealed. Other motions under the same section were filed and denied before July 10, 1956. Consequently, Belton’s § 2255 motion filed that day was a “successive motion.” If the sentencing judge “entertains” a second or successive motion, the statutory provision just quoted will not support its denial and an appeal from the order of denial authorizes review of the merits. Taylor v. United States, 9 Cir., 1956, 238 F.2d 409. On the other hand, if the court does not “entertain” the motion, but disposes of it under the provisions of the statute quoted above, the only inquiry on appeal from the order of disposition is whether the motion was in fact “a second or successive motion for similar relief.” If so, the order will be affirmed by the appellate court; if not, the motion will be remanded for a hearing unless the court finds that “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Section 2255, par. [3]. The first question then is whether the sentencing court “entertained” the motion of July 10, 1956, which it disposed of by the order entered the following August 8. The Ninth Circuit’s Taylor opinion does not define the word “entertain,” but the Supreme Court, in Brown v. Allen, 1953, 344 U.S. 443, 461, 73 S.Ct. 397, 409, 97 L.Ed. 469, defined the word as used in 28 U.S.C. § 2244, where its significance is the same as in § 2255: “The word ‘entertain’ presents difficulties. Its meaning may vary according to its surroundings. In * * * § 2244 we think it means a federal district court’s conclusion, after examination of the application with such accompanying papers as the court deems necessary, that a hearing on the merits legal or factual is proper. * * * Even after deciding to entertain the application, the District Court may determine later from the return or otherwise that the hearing is unnecessary.” I construe this as a holding that a decision to “entertain” means a conclusion that a hearing on the merits is proper; from which it follows that to “entertain” means to conduct a hearing on the merits. Judge Letts did not conclude that a hearing on the merits of the motion of July 10, 1956, was proper; hence, he did not decide to entertain it. And, as he did not hold a hearing on the merits, he did not entertain the motion. Whether he erred in not doing so is the immediate question. It is well established that the statute leaves the matter of entertaining a second or successive motion to the sound discretion of the trial judge. United States v. Brown, 7 Cir., 1953, 207 F.2d 310; Johnson v. United States, 5 Cir., 1954, 213 F.2d 492; Jackson v. United States, 4 Cir., 1955, 224 F.2d 556; Cor-coran v. United States, 7 Cir., 1956, 231 F.2d 449. That is to say, although the judge may entertain a second or successive motion, he shall not be required to do so if it is for similar relief. The motion of July 10, 1956, which Judge Letts refused to entertain, was of course a successive motion, as I have shown. Whether it was for “similar relief” within the meaning of paragraph [5] of § 2255 is therefore the decisive question; it presents some difficulty because the meaning of the words “similar relief” is not spelled out in the statute. The term implies that a second or successive motion may be for relief dissimilar to that sought in an earlier motion; that different kinds of relief are available under § 2255. And yet the only motion authorized by the section is one “to vacate, set aside or correct the sentence;” that is the only relief available to the prisoner. I observe that under paragraph [1] of § 2255 the motion may be made by a prisoner “claiming the right to be released upon the ground [a] that the sentence was imposed in violation of the Constitution or laws of the United States,- or [b] that the court was without jurisdiction to impose such sentence, or [e] that the sentence was in excess of the maximum authorized by law, or [d] is otherwise subject to collateral attack * * # » In order to attribute some meaning to the words “similar relief” in paragraph [5] of § 2255, I suggest the possibility that Congress intended that the sentencing court shall not be required to entertain a second or successive motion based on one of these four statutory grounds which had been invoked in a previous motion. Using that standard, I turn to examine the situation here. The two grounds of the motion of July 10, 1956, with respect to which the panel allowed this limited appeal, arise under the Constitution: denial of the effective assistance of counsel, and denial of a speedy trial. In his first motion, filed August 8, 1955, and again on October 17 of that year, Belton alleged he had not had the effective assistance of counsel and in the motion of November 17, 1955, he alleged he had been denied a speedy trial. These were attacks on the sentence as having been imposed in violation of the Constitution, and are exactly the same as the two grounds for the last motion with respect to which we allowed this appeal. Thus the last motion — July 10, 1956— was a successive motion for relief based on the alleged violation of the same constitutional rights which had been relied on in three previous motions. It was therefore for “similar relief” within the above postulated meaning of those words, and the sentencing court was not required to entertain it. It is true, however, that the last motion alleged the witness, Wallace Brown, was “planted” in his places of confinement “to spy and gain his confidence” and there “overheard conversation between Petitioner and his counsel.” If this was inferentially an allegation that he was deprived of the effective assistance of counsel, the claim was based on a different ground than that alleged in the earlier motion, which was that his employed counsel was incompetent and “assisted the government, instead of his client.” It is also true that the earlier motion had claimed denial of a speedy trial during the years of fugitivity, while the question posed later included the period from March 2, 1954, when he was arrested, until September 8, 1954, when the trial began. From these considerations it might be said that, although Belton’s last motion rested on the same statutory ground which he had invoked in previous motions, it was based on slightly different factual grounds. The next and only remaining question, then, is whether this undoubtedly successive motion was not one for “similar relief” because of the fact that it presented some factual grounds which had not been urged in previous motions. This question has not heretofore been considered by this court. Other courts which have considered it are divided. There is some confusion in the cases which seems to have arisen from what I think is the mistaken notion that the remedy provided by § 2255 should be equated with habeas corpus and that the rule with respect to successive applications for that writ should be applied to successive applications under § 2255. That rule is that res judicata does not apply to applications for habeas corpus although, in considering a petition for the writ, the court may require a showing of the record and action on prior applications and may decline to examine further into the merits because they have already been decided against the petitioner. Darr v. Burford, 1950, 339 U.S. 200, 215, 70 S.Ct. 587, 94 L.Ed. 761. This avoidance of abuse of the writ is expressly authorized by 28 U.S.C. § 2244, which reads as follows: “No circuit or district judge shall be required to entertain an application for a writ of habeas corpus * * * if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry.” (Emphasis added.) The italicized words show a deliberate legislative intent to preserve the long-established principle that res judicata does not apply to applications for habeas corpus. But the motion to vacate sentence provided for in § 2255 is not a mere substitute for habeas corpus. This section of the statute, as the Reviser’s note says, “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.” The omission from § 2255 of the words I have italicized in § 2244, which is a part of the same statute, has pointed significance. If Congress intended that language with respect to habeas corpus, which it consciously and carefully inserted in § 2244, to apply as well to motions to vacate sentence under § 2255, it doubtless would have worded paragraph [5] thereof somewhat as follows: “The sentencing court shall not be required to entertain a second or successive motion for similar relief on the same factual grounds.” To hold, then, that this language: “if it appears that the * * * [successive] petition [for habeas corpus] presents no new ground not theretofore presented and determined,” which was carefully inserted in § 2244, applies equally to motions under § 2255, is to read into the latter section a provision which is not there and which Congress apparently intentionally omitted. There was no necessity for its inclusion. After the denial of a successive motion under § 2255, habeas corpus remains available to the prisoner, subject only to the limitation set forth in paragraph [7] of § 2255. Turning to the authorities, I find three circuits have held that the sentencing court is not required to entertain a successive motion for similar relief even though it is based upon factual grounds not relied upon in the antecedent motion. In Lipscomb v. United States, 1955, 226 F.2d 812, 816, the Eighth Circuit, after referring to a previous unsuccessful motion by Lipscomb, said: “ * * * The same relief was sought in that motion as in the motion here under consideration and the contentions now presented could have been urged in that proceeding as there is no claim that they arose subsequent thereto and the decision in that proceeding is binding on the defendant not only as to the contentions there made but as to all other contentions which could have been made.” The United States Court of Appeals for the Sixth Circuit has expressed the same view. In Dunn v. United States, 1956, 234 F.2d 219, 221, that court said: “Appellant’s contention that his present motion is based on new grounds not included in his previous motion is without merit. In our opinion, the successive proceedings seek ‘similar relief on behalf of the same prisoner,’ and under the provisions of Section 2255, Title 28, U. S. Code, it is within the sound discretion of the District Judge whether a second motion seeking similar relief should be entertained. Moss v. United States, 10 Cir., 177 F.2d 438; Shobe v. United States, 8 Cir., 220 F.2d 928, 929; United States v. Brown, 7 Cir., 207 F.2d 310; Bick-ford v. United States, 9 Cir., 206 F.2d 395.” In Johnson v. United States, 5 Cir., 1954, 213 F.2d 492, the appellant filed in the sentencing court a second motion based on grounds not relied upon in the first. The appellate court said, at page 494: “Whether or not the second motion to vacate the sentence should have-been considered is a matter resting in. the sound discretion of the district judge. * * * We find no abuse of discretion-, here.” Thus in this case the Fifth Circuit agreed with the Sixth and Eighth Circuits that reliance upon different grounds does not require the sentencing court to entertain a second or successive motion under § 2255. The authorities to the contrary rely principally upon Barrett v. Hunter and Rutledge v. Hunter, 180 F.2d 510 (1950). In those cases the United States Court of Appeals for the Tenth Circuit was considering appeals from orders denying applications for writs of habeas corpus- and was not immediately concerned with successive motions to vacate sentences made under § 2255. The question was-whether the trial judge had correctly relied upon paragraph [7] of § 2255 in refusing to issue writs of habeas corpus. The Court of Appeals affirmed his action but, in the course of its opinion, discussed the provision of § 2255 that the sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. I quote from the opinion, at page 515: “ * * * If the second or successive motion sets up new or dissimilar grounds for relief which are within the purview of the grounds enumerated in the third paragraph of § 2255, and the motion and the records and files in the case do not conclusively show that the prisoner is entitled to no relief, the court should ordinarily entertain such second or successive motion. So construed, the provision conforms with the rule in habeas corpus with respect to successive applications for the writ, laid down by the Supreme Court in Salinger v. Loisel, 265 U.S. 224, 230, 232, 44 S.Ct. 519, 521, 68 L.Ed. 989 * * * ” This passage seems to have been obiter dictum. According it respect, nevertheless, as a deliberate expression of the court’s view, I do not consider it authority for the proposition that the language of § 2244 concerning a “new ground not theretofore presented and determined” should be read into § 2255. The opinion does not say the trial judge must entertain a second or successive motion which sets up new or dissimilar {factual] grounds, but only that he “ordinarily should” exercise his discretion to entertain it. This is not in conflict with the provision of § 2255 that the trial judge “shall not be required” to entertain such a motion. Illustrative of the confusion in the cases to which we have referred are Hallowell v. United States, 5 Cir., 1952, 197 F.2d 926, and Bistram v. United States, 8 Cir., Oct. 1956, 237 F.2d 243. In the Hallowell case the Fifth Circuit relied to some extent on Barrett v. Hunter, but its Johnson case referred to above (213 F.2d 492), decided two years later, shows it does not endorse the dictum of Barrett v. Hunter insofar as it holds that the presentation of a new ground requires the court to entertain a successive motion under § 2255. In the Bistram case the Eighth Circuit followed Barrett v. Hunter and quoted therefrom with apparent approval. But the opinion, written by the same judge who had written the Lipscomb opinion less than a year before, does not overrule the Lipscomb case and makes no reference to it. I conclude on reason and on what I consider the better authority that § 2255 should be literally construed to mean what it unqualifiedly says: that the sentencing court shall not be required to entertain a second or successive motion for similar relief. It follows that this court cannot reverse and direct Judge Letts to do what the statute expressly says he shall not be required to do. It follows further that we improvidently allowed even a limited appeal from the order of August 8, 1956, and that the appeal should therefore be dismissed. Were it otherwise, I should have no difficulty in disposing of the two issues presented by the limited appeal. The witness Wallace Brown, who is alleged to have been “planted” in Belton’s cell, was not a Government agent, but merely a recalcitrant Government witness who testified substantially as did Belton himself. Moreover, it was not alleged that this fellow-prisoner informed the Government of any conversation between Belton and his counsel, and so deprived appellant of the latter’s effective assistance. The suggestion that the appellant was not afforded a speedy trial is obviously without substance. His naive notion that he was deprived of a speedy trial because he was not apprehended and tried during his years of fugitivity must of course be rejected. And I have already noted that the five continuances which were granted after his apprehension, two of which were at his instance, were justified. In sum, I think the majority err in considering the appeal from the conviction, and also err in their decision thereon. Long ago, a jury found Belton guilty of second degree murder, a verdict which was finally acquiesced in by him and should not now be disturbed. The majority should reach the question of the limited appeal from a § 2255 order which was actually allowed by a panel of this court, and should then dismiss the limited appeal as improvidently granted. The appellant has trifled with this court far too long. . This is seized upon by tlie majority as showing the grand jury concluded Belton did not have malice aforethought. They say in their opinion, “The grand jury indicted appellant for second degree murder, indicating their conclusion that the homicide was not accompanied by premeditation and malice aforethought, essential elements of first degree murder.” The majority err, for § 22-2403, D.G.Code (1951), defines second degree murder as follows: “Whoever with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another, is guilty of murder in the second degree.” Contrary to the majority opinion, the grand jury concluded that the killing was done with malice aforethought. . Belton cannot write except to sign his name. He found a draftsman in the jail who prepared the letter for him. . 28 U.S.C. § 1915 includes the following: “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” There was no further effort to obtain leave to appeal from the conviction in forma pauperis until appointed counsel moved to enlarge the issues in the limited appeal we finally allowed. This motion was not filed until May 2, 1957. . In reproducing the section I have numbered its provisions for convenient reference. The numbers do not appear in the Code. . “ * * * [T] he ground that the sentence was imposed in violation of the Constitution or laws of the United States * * Par. [1] of § 2255. . Paragraph [7] of § 2255 is .as follows: “An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motions pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”
BASTIAN, Circuit Judge, dissenting. I am in complete accord with all that is said by my brother Miller in his dissenting opinion. Because of the importance of the questions involved, I am constrained to make my additional comments as I am unable to agree with the conclusion or the reasoning of the majority in this case. A look at the record will disclose that Belton had a fair trial and, in my opinion, the judgment of conviction should be affirmed. While I duplicate some of the facts included in Judge Miller’s dissent, I make this duplication for continuity in reading and to emphasize what I consider to be the error of the majority. The Nature of the Case Before This Court Lewis Crowder died as the result of knife wounds inflicted by Belton in August 1949. Further details of the crime appear infra, in the subdivision entitled “The Merits.” In September 1949 Belton was indicted for second degree murder. He fled the jurisdiction, went to Virginia, changed his name and, although diligent search was made for him (by the police and the Federal Bureau of Investigation, among others), he was not apprehended until March 1954. Thereupon, he was quite promptly brought to trial and convicted of the charge for which he was indicted. The verdict of the jury was returned on September 10, 1954, and motion for new trial was denied on October 1, 1954, after which appellant was sentenced. In denying the motion for new trial, the experienced and able trial judge said: “The Court thinks the matters that have been discussed were inherent in the duty of the jury and the jury has spoken. The Court sees no reason for doubting the correctness of the finding of that jury. The motion will be denied. Let the defendant step up, please.” On September 14, 1954, after the jury verdict but before sentence, appellant addressed a letter to the clerk of the District Court asking that he be granted the privilege of an appeal and asking to proceed in forma pauperis. Treating that letter as a motion to that end, Judge Letts, on September 18, 1954, entered the following order: “Treating the above letter as a Motion for Leave to proceed on appeal without prepayment of costs the court finds and certifies that the appeal is not taken in good faith, the Motion is therefore denied.” At this time Belton was represented by able counsel of his own choosing, who, on September 16,1954, had filed a motion for new trial; who, on October 1,1954 (after denial of the motion for leave to appeal in forma pauperis), argued the motion for new trial; and who was present at the time of sentence and asked leniency for Belton. His retained counsel declined to proceed with the appeal. On August 8, 1955, nearly a year after he had been sentenced, Belton filed in the District Court “Motion to Vacate Sentence and Release Defendant from Unlawful Custody, Trial; Judgment; Sentence ; and Commitment, Null and Void, and No Effect in Law.” This motion, which contained an argument against his conviction, also contained a statement that he should have been given not less than two competent lawyers to defend him and that the lawyer assigned to him was incompetent. On September 21, 1955, the judge who had tried the case entered the following order: “The Court finds and certifies that the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. The motion is therefore denied.” On October 17,1955, Belton filed in the District Court “Motion to Vacate and Set-Aside Sentence, and Affidavit for Leave to Prosecute in Forma Pauperis to Support Thereof,” as to which motion the court entered the following order: “The Court finds and certifies that the Motion and the files and records conclusively show that the prisoner is entitled to no relief. The Motion is therefore denied.” On October 29, 1955, a similar motion was filed in the District Court, as to which the court, on November 8,1955, entered the following order: “Motion denied.” Thereupon, on December 19, 1955, Bel-ton applied to this court for leave to appeal from the order of Judge Letts of November 8, 1955, and for appointment of counsel. This motion was denied on ■January 26, 1956 (Mise. 604 in this court). Obviously, at this time at least, he knew of his right to apply to this court for leave to appeal in forma pauperis after denial of rights by the District Court, and to apply to have counsel appointed. Yet, as will be seen, even then he made no attempt to appeal from Judge Letts’ order of September 18, 1954, or from the conviction and sentence. The record also discloses that appellant desired his retained counsel to appeal the conviction but that counsel advised that, as Belton had no money, he would not represent him on appeal and that Belton would have to retain other counsel. On February 20, 1956, Belton filed in the District Court “Motion to Vacate and Set Aside Sentence as Provided by Title 28, Section 2255, Affidavit in Support of Application for Leave to Proceed Without Prepayment of Costs,” as to which, on February 23, 1956, the court entered the following order: “The Court finds and certifies that the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. The motion is therefore denied.” Thereupon, on April 5, 1956, appellant filed in this court his petition for leave to appeal in forma pauperis from the order of February 23, 1956. After the Government filed its opposition thereto, appellant filed motion for appointment of counsel. On June 25, 1956, his motions were denied. (Misc. 649 in this court.) On July 10, 1956, a motion for rehearing was filed by appellant in the District Court, as to which, on August 8, 1956, the court entered the following order: “The Court finds the motion to be without merit. It is therefore denied.” From this order appellant filed in this court a motion to appeal in forma pau-peris. On November 16, 1956, this court entered the following order: “ORDERED by the Court that petitioner be, and he is hereby, allowed to proceed on appeal in forma pauperis from the order of the District Court entered herein August 8, 1956, said appeal to be limited to the issues (1) should the District Court have granted a hearing on petitioner’s allegation that there was an intrusion by a government agent into the confidential conversations between petitioner and his counsel? and (2) was petitioner deprived of the right to a speedy trial ? “It appearing to the Court that this appeal is not frivolous but presents a substantial question it is FURTHER ORDERED by the Court that the stenographic transcript of proceedings at the trial be prepared at the expense of the United States. “It is FURTHER ORDERED by the Court that the record on appeal shall be prepared by the Clerk of the District Court as promptly as possible and shall be transmitted by him to this Court within 40 days.” The court, on November 20, 1956, appointed Mr. Arness to represent petitioner on this appeal. Like the five motions in the District Court, the three petitions to this court— and the addenda thereto — were well documented wdth authorities and arguments. Each of these motions was accompanied by a complete statement of points and authorities in favor of the motion, citing cases which, it was claimed, supported the several contentions. Never once, after the motion of September 14, 1954, above referred to, was any effort made to appeal from his conviction until May 2, 1957. On that date (two years and six months after his sentence) appellant filed a motion to enlarge the scope of appeal. Never once did he attempt, either before the District Court or here, a direct appeal to this court after the judgment of sentence. At the time the record on appeal was filed, presumably on the last motion, about three years had elapsed since the time of the notification of appeal. Was There Excusable Neglect? I am unable to tell from the several opinions and concurrences filed whether a majority of this court feels that the direct appeal is properly here by reason of “excusable neglect.” I am not sure that a majority so hold; but, at any rate, I feel impelled to register my emphatic objection to such a contention