UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Washington and Danaher, Circuit Judges, and Bastian, Senior Circuit Judge. Washington, Circuit Judge (concurring).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER
Whether the appellant's motion of February 12, 1964 be treated as a motion to vacate sentence pursuant to 28 U.S.C. § 1651(a) (1965), as he called it, or a motion for relief pursuant to 28 U.S.C. § 2255 (1965), the record shows that no evidentiary hearing had been held in the District Court. Leave to appeal was there denied, but on petition filed here leave to prosecute the appeal was granted.
Appellant had been convicted of robbery in Criminal No. 848-54 and on November 24, 1954 had been sentenced to imprisonment for 5 to 15 years; in Criminal No. 847-54, appellant had been convicted of housebreaking and larceny and on December 7, 1954 had been sentenced to imprisonment for 5 to 15 years on the first count and to imprisonment for a year on the second count, the sentences on this conviction to run concurrently, but both sentences to be served consecutively to the sentence in Criminal No. 848-54; and in Criminal No. 846-54, following his plea of guilty to a second count charging grand larceny, appellant had been sentenced on January 7, 1955 to a term of imprisonment of 3 to 10 years, to run concurrently with the sentence in Criminal No. 848-54. No appeal had been taken from any of these convictions. At all times pertinent, the appellant had been represented by counsel.
Commencing in 1962, appellant filed a series of pleadings in the District Court, in each of which he had sought on various grounds to attack his convictions and the consequent sentences. Respecting his first motion of April 3, 1962, after the District Court had refused relief, this court denied leave to appeal in forma pauperis, and cert. was denied, Thomas v. United States, 371 U.S. 963, 83 S. Ct. 546, 9 L. Ed. 2d 511 (1963). Yet other collateral attacks on his convictions successively had been denied until we reach the instant case, the fifth in the series, and the fourth which had charged that confessions had been elicited from him through duress and coercion. We have not been shown that the Government at any time had filed an opposition.
It is true, as the Government has contended, that federal courts are not required "to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Sanders v. United States, 373 U.S. 1, 18, 83 S. Ct. 1068, 1078, 10 L. Ed. 2d 148 (1963). But the Supreme Court also emphasized with respect to second or successive applications for relief, that the prisoner is not to be denied an evidentiary hearing unless it shall appear that the application is conclusively without merit "on the basis of the application, files, and records of the case alone . . .." 373 U.S. at 15, 83 S. Ct. at 1077. The discussion which follows on pages 15, 16 and 17 of the Court's opinion, 83 S. Ct. on pages 1077, 1078, provides explication pertinent to our problem here.
Of course the Court recognized that a "successive" application might in some circumstances constitute an abuse of remedy as to which "the Government has the burden of pleading." 373 U.S. at 17, 83 S. Ct. at 1078.
Granted that in this fifth application for relief the appellant as in previous motions had asserted that his confession was coerced, his claim when earlier presented had never been adjudicated on the merits.
We had earlier thought that disposition of this case might be controlled by Hodges v. United States, 108 U.S.App.D.C. 375, 282 F.2d 858 (en banc, 1960), cert. dismissed as improvidently granted, 368 U.S. 139, 82 S. Ct. 235, 7 L. Ed. 2d 184 (1961), and see cases cited in Fay v. Noia, 372 U.S. 391, 474, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963) (dissenting opinion).
We are now satisfied, however, that Sanders v. United States (supra) must control. Within the standards there laid down, an evidentiary hearing must be afforded on the issues tendered by the appellant's motion of February 12, 1964.