Earl Warren: James Francis Hill, Petitioner, versus United States. Mr. Reitz.
Curtis R. Reitz: If the Court please, the petitioner in this case is seeking relief from an illegal sentence imposed by a Federal District Court on June 4, 1954. He had been found guilty of transporting a stolen motor vehicle in interstate commerce and of transporting across state lines a person who had been kidnapped and held for ransom. The transcript of what transpired at the sentencing proceeding is in the record of page 18 and is the core of this case, beginning about two-thirds of the way down the page. It's quite brief. First, the court said, does the Government cared to say anything, this was following the conviction and counsel for the Government said that he did not care to make a statement that the character of the defendant and his other crimes had been developed in proof during the course of the trial. The court then inquired whether his memory was correct as to the disposition of other -- of the defendants in these cases and the counsel for the Government replied that the one defendant had received the15-year sentence and a 2-year sentence and the -- that a minor had received a smaller sentence. The Court said, that's the way I remembered it, and they are found on page 19 of the record without any further inquiry, the Court proceeded to impose sentence. Specifically, the Court did not inquire of the defendant whether he wanted to make a statement in his own behalf. He did not inquire whether the defendant wished to present any information in litigation of the punishment. Nor did they make any such inquiries of counsel. There were absolutely no questions at all in the record which would constitute a compliance of Rule 32 (a) of the Rules of Criminal Procedure which is the underlying rule in this case. The rule which is in petitioner's brief on page 2 states the relevant portion of the second sentence of 32 (a), “before imposing sentence, the Court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information for litigation and punishment. In light of this Court's decision last term in Green versus United States, it is plain on the face of the record that there has been a violation of Rule 32 (a) and that point, I may say, is not in contest any longer in this case. The Government now concedes in this Court for the first time that there has been a violation of Rule 32 (a) in the treatment of the petitioner in this case. In the lower courts, the Government took precisely the opposite position. The case now comes before the Court of course in a petition for collateral relief. On October 21, 1959, petitioner filed a motion to vacate the sentences based upon several grounds and that motion is in the record at page 26. The District Court summarily denied the motion without any proceedings whatsoever, writing an opinion which is found on page 41. The Court of Appeals for the Sixth Circuit affirmed in the brief per curiam opinion and then this Court granted certiorari limited, however, to a specific question whether petitioner may raise his claim under the Federal Criminal Rule 32 (a) in the proceeding he has now brought. The other issues which were raised by petitioner in his motion for relief are therefore not presently relevant. In a sense, I suppose, this case is a continuation of where the Green case left off last term. The Court then did not have to decide whether or not collateral relief was available in the case was a violation of 32 (a) because on the facts, four members of the Court found that 32 (a) had been complied with and Mr. Justice Stewart was of the opinion that the rule should have prospective operation only in requiring a specific question addressed to the defendant. So the question now before the Court in view of the clear, plain violation of 32 (a) is the one not decided in Green which is whether a collateral remedy is available for this violation. In raising this question, petitioner sought relief under Section 2255 of the Judicial Code. At the present time, I would like first to argue that he is entitled to relief under Rule 35 of the Federal Rules of Criminal Procedure. The Government does not challenge the possibility of interchanging the remedy at this stage and I will explain later why I think it is perhaps important to the defendant that this be done. Rule 35 provides, and it's on page 2 of petitioner's brief, the Court may correct an illegal sentence at any time. The Green case, the Court will recall, was specifically raised under Rule 35 and decided in light of that rule and the question now relevant is whether or not this is an illegal sentence. We are dealing of course with a rule of procedure in this case, a procedure set forth by Rule 32 (a) with respect to sentencing. One of the remarkable things about the administration of criminal law generally in the last few years is the recognition long overdue, I may say, of the importance of the procedure of sentencing. We have a great body of law which deals with the procedures surrounding the trial of the issue of guilt or innocence, but we have virtually no procedures at present which deal with sentencing as such. This is remarkable in light of the fact that more than 90% of the defendants who appear in criminal court, in a federal criminal court and are convicted, do so on a guilty plea so that the only real judicial function in the great majority of cases is the function of sentencing. The issues of guilt are foreclosed by the plea of guilty and the only thing which the judge really learns about the defendant is learn in the course of imposing sentence. The only provision in the rules as presently devised which offer the defendant any right whatsoever in connection with the procedure of sentencing is Rule 32 (a). The Government has taken the position that this is a nice rule, a rule of sound practice, but one which can be dispensed with without any great harm to the defendant. Petitioner takes exactly the opposite position that for most defendants, this is the single most important rule in the entire set of federal criminal rules. There are of course procedural rules which we might call housekeeping rules, which simply provide for a settled order a way of conducting the proceedings of the trial which are not terribly important and which can perhaps be dispensed with without great harm to the litigants. On the other hand, there are procedural rules such as Rule 32 (a) which have underlying and powerful reasons of policy. There were several such rules in the body of the Federal Rules of Criminal Procedure. Rule 11 and Rule 44 are rules which specifically reflect constitutional rights of a person accused of crime and in their own way they provide a procedural setting for vindicating those constitutional rights. I would suggest to the Court that Rule 32 (a) is of similar vintage. This is apparent in the first place on the face of the language. This Court in adopting the Rules of Criminal Procedure did so with great care and study and there were -- there was of course the advisory committee which worked for the Court and with the Court. There were two preliminary drafts which were published, commented on by the bar and there's of course the final draft. The language of Rule 32 (a), I'd like to point out to you, contains the unique requirement of imposing upon the trial judge the obligation to initiate a procedural move for the protection of the defendant. That is done in very few instances. It is done in Rule 11 where the court is obliged to undertake an inquiry to determine whether or not a plea of guilty is voluntary. It is also in Rule 44 where the court is obliged to advise the defendant of his right to counsel. It is also in Rule 32 (a) where the court is obliged to afford the defendant an opportunity to make a statement in his own behalf and to present any information and litigation or punishment. In this case itself, I think we have dramatic illustration of why this right is so very important to a defendant. One of the charges against the petitioner was of course kidnapping. On the kidnapping charge, the petitioner could have received as a sentence following conviction. He could have received probation, no imprisonment at all or in terms of the statute, he could have received any term of years for life imprisonment. The range of punishment open to the Court on conviction in this case ran from zero years to life imprisonment. This is a remarkable, a dramatic change from the situation which existed at the common law where the court at the time of sentencing had virtually no discretion at all with respect to the punishment to be imposed upon the convicted defendant. It has been said and this Court said in the Green case that the sentence of Rule 32 (a) here relevant derives from and is a modern equivalent of the common law right of allocution. I would suggest to the Court, it's a little more than that, and a lot more than that because the common law right of allocution protected only a very few incidents of the defendant's rights. A defendant in response to the allocution from the court, the allocatus, could raise only a few possible reasons why sentences should not be imposed, and for the most part, it was an all or nothing proposition, no attempt to influence the court in exercising any discretion. A defendant could say that he had been pardoned and if that were true, no sentence could be imposed. The defendant could show that he was insane and had become insane since conviction, a rare incident, I'm sure in that case sentence could not be imposed. The defendant could show that he was not the same person who had been convicted, that there was a change in identity somehow between the conviction in the sentence and this would prevent sentence or in a capital case, a woman who had been convicted of a capital crime could show that she was pregnant, in which case, she could not be executed while she was pregnant, but all of these reasons which pretty much sum up the entirety of common law right of allocution went to whether or not sentence could be imposed. Of course, today, the sentencing process has become a discretionary process where as in this case, an enormously wide range of punishment from which the judge must select. On conviction, there is no indication into which range of punishments, any particular defendant goes and our modern theory of punishment discussed by this Court very well in the Williams case, Williams versus New York, is turning more and more towards individualization of punishment so that it becomes more and more important that the court be informed of the relevant facts going to punishment and this, more so, I suggest in the common law right of allocution, is what underlies Rule 32 (a). It is the only means offered to the defendant to participate in informing the Court of what is relevant in the choice of his sentence and it is for this reason, as I say, perhaps the single most important rule in the Federal Rules of Criminal Procedure as they stand today.
Potter Stewart: Under the rules, it's optional, is it not, whether a judge allows for a pre-sentence investigation for this probation?
Curtis R. Reitz: That is right. Rule 35 or 32 (c) states it as optional whether or not the judge wishes to have it, he can order that it not be made.
Earl Warren: Was there one in this case, do you know Mr. Reitz?
Curtis R. Reitz: I believe there was Your Honor, although I don't think it appeared in the record. The -- there is some indication that the judge was informed of the prior record of the defendant and I assume that came from a pre-sentence report.
Speaker: (Inaudible)
Curtis R. Reitz: Yes sir. It was strictly a Rule 35 case.
Speaker: And this is (Inaudible)
Curtis R. Reitz: No Your Honor. It was instituted in the lower courts as a motion under Section 2255, yes sir and I am suggesting to the Court now that it'd be treated as a Rule 35 case. Perhaps I'd better deal with that at this point. The Government's position on Rule 35, I find it difficult to understand the -- it would appear that the Government finds Rule 35 totally swallowed up by Section 2255. Both of these remedies came into existence at approximately the same time, the Federal Rules of Criminal Procedure with Rule 35 was enacted in its present form in 1946, or promulgated in 1946. Section 2255 came into the Judicial Code in 1948 as a part of the revision process, but the prior legislative work on both the rule and the statutory remedy were running concurrently from the early 1940s. To say that Rule 35 and Section 2255 cover identical materials, or in the Government's words that Rule 35 is a more narrow version of the remedy available under Section 2255 is to deprive the rule of all possible reason for being and this is almost belied by the fact that these two remedies were brought into the legal realm at almost identical moments. The position I would urge this Court to take and I will say this, there has been a great deal of confusion as to the scope of both of these remedies in prior decisions. The position that I urge the Court to take is that Rule 35 is limited exclusively to defects in sentencing whereas Section 2255 is much broader and goes to all those defects which could upset the conviction itself. Now, this is a very important point because it bears heavily on what happens as a result of granting relief and therefore bears heavily on the scope of the remedy which is desirable in these circumstances. I would suggest that Rule 35 be limited to those situations in which the only remedy sought is a re-sentence. In any instance in which the remedy sought would require a retrial, the appropriate remedy would be Section 2255. In this way, both of these rules would have an area of independent operation and it would be possible to conceive of a remedy in Rule 35, contrary to the Government, being much broader than the kind of remedy permissible under Section 2255 because society has a rightful interest in not unnecessarily upsetting convictions of long standing and there is no statute of limitations in the implication of either of these remedies. It is possible to upset a conviction under the present rules regardless of how long it was obtained, in which case, simply through the passage of time, it would probably impossible in many situations to obtain a new conviction. The only remedy being sought by the prisoner in this case, however, is the right to have a legal sentence. In the present posture of the case petitioner concedes the validity of this conviction. There's no issue open on which he could say otherwise. All he is seeking is the right to have a legal sentence imposed in strict conformity to his right under Rule 32 (a) to inform the Court on those factors which are relevant to his sentence, a right which he had been totally deprived of on the record at the present time. The Government has taken a further position as to Rule 35 which it seems to me is wholly untenable. Now perhaps this is their main argument, I'm not sure. The Government argues that Rule 35 is available only for errors which appear on the face of the record. That has never been decided in exactly those terms by this Court. By the record, the Government means, however, not what we would expect the record to mean. They mean the equivalent of the common law judgment rule. Now of course at the common law, this was the whole record. There were no other records kept. The argument concerning the judgment role was heard regularly in proceedings for habeas corpus relief in the last century. Traditionally, of course, the writ of habeas corpus itself in the case of an attack upon a conviction would lie only for errors that appear on the face of the judgment rule. As long ago as 1873, however, this Court rejected that argument in a habeas corpus case, Ex parte Lange and held that the record kept by modern courts went beyond the judgment rule and in that case, the Court employed the minute book which is kept by trial court's entering as the beginning of the record in both of these cases shows the docket entries, the minutes of the court at the various stages along the trial. This minute book was of course a form of record totally unknown at the common law. The Government's argument actually runs directly counter to what this Court did in the Green case where the – apart from Mr. Justice Stewart, the Court divided exactly on how to read the transcript of sentence which is not a part of the common law judgment rule, never has been. What the Government has overlooked is the Court Reporter's Act, adopted in 1944 which makes it mandatory in every criminal case to have a transcript prepared of the arraignment and sentencing proceedings, regardless of whether anything else is transcribed, the reporter must take the notes and transcribe the full proceedings of arraignment and sentencing and this is made the part of the record in this case, in every criminal case. That statute is Section 753 of the Judicial Code and I have quoted the relevant portions of it on page 8 of the petitioner's brief. There may be sound reasons for not allowing a motion under Rule 35 to require extrinsic evidence for resolution. The Government is plainly wrong, however, in suggesting that such requirement could ever arise if Rule 35 is used to inquire in the compliance with Rule 32 (a) because the record in every case of what actually took place in the courtroom must be a part of the record and was a part of the record in this case even though the Government was unaware of it until the court -- until the case arrived in this Court. Therefore, I suggest to the Court that granting relief in this case could not possibly lead to a requirement of a factual inquiry. It is simply a matter of looking at the record as this Court did in the Green case with a difficult case on the facts in Green case and deciding whether or not Rule 32 (a) has been complied with. There is nothing in the way of inconvenience to the Government or even inconvenience to the Court in making such an inquiry. It's quite simple, quite expeditious and it's over with rather quickly. Of course, if the Court should determine that Rule 35 is not an appropriate remedy in this case for some reason, petitioner would still revert back to his claim for relief under Section 2255 of the Judicial Code. I don't think that as far as the scope of the remedy under Section 2255, that petitioner and the Government are really in disagreement. I think we both agree that a post-conviction remedy which opens up factual inquiries, which opens up the possibility of upsetting a conviction of many years standing, such a remedy has to be limited to those errors which are of the greatest importance in the administration of criminal law and this has always been true. The original writ of habeas corpus inquired only into the bare competence of the Court which at that time was thought to be the only way which was entitled to post-conviction vindication. Over the past century, as this Court is well aware, the scope of habeas corpus has grown enormously in criminal law and I submit that growth process ought not to stop. The Government I think has taken on a false issue by arguing to this Court that Section 2255 is no broader than habeas corpus and then looking at habeas corpus as it was defined in the 19th Century where they find exactly two cases dealing with sentencing, and therefore it follows in their logic that there's no remedy under Section 2255. The first difficulty with the argument of course is that the habeas corpus cases they find are 19th Century cases. The Government did not even find for example that habeas corpus would protect a right of a prisoner to be present at his own sentencing simply because there was no case in this Court so holding in the 19th Century but that right is obviously one which would be protected by post-conviction relief. Nor did the Government find that habeas corpus would protect the right of a defendant to have counsel in sentencing, there were just no such cases decided by this Court in the 19th Century, but these rights, procedural rights are obviously fundamental and important to the defendant and would obviously have been protected by this Court under habeas corpus, are being protected by lower courts under Section 2255 and deal with sentencing.
John M. Harlan II: Does that appear in the record whether (Inaudible)
Curtis R. Reitz: Yes sir, it appears quite clearly that he was not given an opportunity to speak. The entire proceeding appears as I indicated at the outset on page 18 through 20 of the trans -- of the record, starting with the reporter's note that the case was called for judgment, the only inquiry made by the Court was addressed to counsel for the Government, no inquiry was made whatsoever even to the defendant or to its counsel.
John M. Harlan II: The counsel at present?
Curtis R. Reitz: Yes sir, counsel for the (Voice Overlap)--
John M. Harlan II: Suppose the (Inaudible)
Curtis R. Reitz: I think it might Your Honor. The lower courts, as you're perhaps aware, had half a dozen or more similar cases and there have been those cases in which counsel actually spoke in behalf of the defendant. In no such case has a lower court ever granted a relief. There is only one case in the lower courts, exactly like this one that I know of that's the Jenkins case decided by the District of Columbia, in that case, neither defendant nor his counsel spoke and the Court granted relief under Section 2255. I would suggest to the Court therefore that primarily, petitioner is entitled to relief under Rule 35, the rule which explicitly and purposely deals with sentencing and a rule which by virtue of its necessary limitations does not have to be as narrow in scope as the broader, the more general post-conviction remedy under Section 2255, but that in any event, petitioner has an important, a fundamental right applying to the very core of the case against him which ought to be vindicated even under Section 2255.
Felix Frankfurter: When was this point first raise?
Curtis R. Reitz: The Rule 32 (a) violation?
Felix Frankfurter: Yes.
Curtis R. Reitz: The point was first raised Your Honor to my knowledge in this Court in a petition for habeas corpus by the prisoner, an original petition filed in this Court. The -- in a footnote on page 8 and 9 of petitioner's brief, I give a citation to that case, Number 373 miscellaneous October Term 1955. That writ was denied by the Court without any hearing. The issue was next raised to my knowledge in the -- what was the -- the third effort by this prisoner of post-conviction relief, the 1958 proceeding and was summarily disposed of by the Court and was raised again in this -- his fourth application for 2255 relief.
Felix Frankfurter: Between the time that it was sought to be raised on an original -- on an application for an original petition to this Court and the raising of it below, several other motions were admitted, were it not?
Curtis R. Reitz: Yes sir. This man has been in the courts constantly, I think since he's been --
Felix Frankfurter: But the first proceeding is in 1955 then it wasn't raised again until when, 1958? When was this proceeding began?
Curtis R. Reitz: This proceeding began on October 1959.
Felix Frankfurter: So between 1955 and 1959, he raised several objections, how many, three? He challenged the sentence three times, but not on this ground, is that right?
Curtis R. Reitz: No Your Honor. I believe from 1955 on he's been raising this constantly. The --
John M. Harlan II: (Inaudible)
Curtis R. Reitz: He's been in this Court actually since this case was – since cert was granted in this case.
Felix Frankfurter: (Voice Overlap) this point as against other claims. What I want to know is when did -- if this present proceeding began in 1959, when was it contested below for the first time?
Curtis R. Reitz: The Rule 32 (a) point?
Felix Frankfurter: Yes.
Curtis R. Reitz: It was contested in the sense that it was validly raised in the lower court in his third application for relief which was filed in 1957 and decided in 1958.
Felix Frankfurter: Well it may be --
Curtis R. Reitz: To my knowledge, the only -- the only time he has missed raising it and he has raised a lot of issues in the course of time, the only time he missed raising it from the time he first raised it in 1955 in this Court was in his second application for 2255 relief which was in 1956. I think that when I actually overlapped in the --
Felix Frankfurter: But did he raise it in his first --
Curtis R. Reitz: No he did not.
Felix Frankfurter: -- application?
Curtis R. Reitz: He did not.
Felix Frankfurter: So that he at least made two -- he brought two proceedings challenging the validity of the sentence before he got around to this point, is that right?
Curtis R. Reitz: Well, the -- he raised the issue between the first and second 2255 motion. He raised 32 (a) point in a habeas corpus petition in this Court.
Felix Frankfurter: I understand that but I'm talking about the lower court.
Curtis R. Reitz: In the lower courts, there were two motions in which the objection under Rule 32 (a) was not raised, that's right and this is one of the main reasons why I have -- it seemed expedient to ask for relief under Rule 35. The Rule explicitly states that relief is available anytime and this Court indicated in the Callanan case that the repetitive nature of the motion would not --
Felix Frankfurter: (Voice Overlap) knew about the point in 1955 and he didn't formally raise it until 1958, is that right?
Curtis R. Reitz: 1957.
Felix Frankfurter: 1957.
Curtis R. Reitz: Yes sir.
Felix Frankfurter: Alright.
Curtis R. Reitz: Yes sir.
Felix Frankfurter: And in the meantime, went to -- it came before the court twice for relief on other grounds.
Curtis R. Reitz: No, once. He -- his second petition --
Felix Frankfurter: I don't count the one that's here.
Curtis R. Reitz: That's right. He had two 2255 -- his first 2255 motions did not include this point.
Tom C. Clark: (Inaudible)
Curtis R. Reitz: That's right.
Tom C. Clark: (Inaudible)
Curtis R. Reitz: That's right.
Potter Stewart: Has this question ever been dealt with by the District Court or the Court of Appeals?
Curtis R. Reitz: Which question Your Honor, I'm not sure I --
Potter Stewart: I'm asking what you're talking about the --
Curtis R. Reitz: The failure to raise --
Potter Stewart: -- Rule 35, the failure to ask him whether or not he had anything to say.
Curtis R. Reitz: No Your Honor.
Potter Stewart: Never been dealt with at all?
Curtis R. Reitz: Never been dealt with at all. The lower court twice has in a very general statement indicated that it is not the kind of issue that they would deal with in prior relief.
Potter Stewart: Is that -- does that appear in the District Court's memorandum on page 41 and following -- I've just been looking over, I can't find any records to this question.
Curtis R. Reitz: There is none. There is no specific reference in the Court's opinion to the Rule 32 (a) motion. The motion as I said raised a lot of issues --
Potter Stewart: Yes.
Curtis R. Reitz: -- in addition to this and all the Court said was the last paragraph that the Court has reexamined the motions as of the opinion of the files and records conclusively show that petitioner is not entitled to any relief.
Potter Stewart: We set this when I was a member of the Court of Appeals for the Sixth Circuit, I remember sending this back one time for a hearing.
Curtis R. Reitz: That was the third motion (Voice Overlap). The third motion raised a serious question of denial of right to appeal.
Potter Stewart: Yes and then --
Curtis R. Reitz: And the lower court had denied summarily and the Court of Appeals remanded for a hearing which was limited to that specific allegation of denial of the right to appeal and was found against him. The hearing in that case did not deal with Rule 32 (a), the district judge excluded the --
Felix Frankfurter: Was the claim made under 32 (a) in that case?
Curtis R. Reitz: Yes, Your Honor. The motion in that proceeding --
Felix Frankfurter: Was it passed on?
Curtis R. Reitz: Only insofar as the Court indicated that it was not the kind of issue that the Court thought would entitle the petitioner to a collateral relief.
Felix Frankfurter: What was the date of that?
Curtis R. Reitz: The decision was 1958. I refer to that on page 6 and 7 of the petitioner's brief.
Felix Frankfurter: Did he have counsel before you were appointed in this case?
Curtis R. Reitz: He had counsel in both the lower courts.
Felix Frankfurter: Well, I don't mean in the lower courts. In all these proceedings, did he have counsel in accordance with the requirements of counsel?
Curtis R. Reitz: I believe so Your Honor. He's had a whole series of court appointed counsel.
Felix Frankfurter: And then a change of counsel.
Curtis R. Reitz: Yes. No counsel has ever appeared in two courts to my knowledge.
Felix Frankfurter: Well, I didn't heard what you said.
Curtis R. Reitz: None of the counsel in this case has ever appeared in two courts. The counsel in the lower court disappeared before the appellate proceeding.
Earl Warren: Ms. Cooper.
Julia P. Cooper: Mr. Chief Justice, may it please the Court. The Government agrees that in neither the case of the petitioner here nor in the companion case of the petitioner (Inaudible) have there been compliance with Rule 32 (a) as this Court has interpreted that rule in Green. We say however that the error is not one properly before the Court on collateral attack. Now at the outset, may I again pinpoint the error with which we are concerned? As noted in the Green case, the right embodied in Rule 32 (a) had its beginning in the old English law, practice of allocution, arising at a time when a person accused of a felony was not permitted to have counsel to represent him and there was a formal inquiry was put to him, do you John Jones have any reason to say as to why sentence should not be pronounced against you and in answer to that, the person accused of the felony could answer not only to matters and arrest the judgment but also as to a plea in mitigation. Now the issue in Green was whether this formal inquiry was mandatory in light of present day procedure. The Government argued in that case that it was not, although it might be the better practice. This Court rejected the contention of the Government that inquiry to counsel met the requirements of the rule since it said the need still existed for a person being sentenced to personally present his plea in mitigation. It did not decide, we do not think whether noncompliance with a literal concept of the formal allocution that is the putting of this formal inquiry would per se result in an illegal sentence. The position of the Government is that the omission of this formal inquiry by its very nature is subject to correction only by direct appeal. We say that it is not an error of the scope, of the magnitude, or other character that is subject to correction perhaps years after sentencing either by a writ of habeas corpus or by motion to vacate sentence under Section 2255 or by Rule 35 of the Federal Rules of Criminal Procedure. Now, I won't take too much at the outset about habeas corpus. Although the petitioner in his brief impliedly conceded that we think that he could not invoke the great writ of habeas corpus, since an oral argument Mr. Reitz relies primarily on Rule 35, I will only say one or two things at the outset with reference to the collateral attack. Under either habeas corpus or under motion 2255 the only error --
William O. Douglas: Would your objection go to Rule 35 (2)?
Julia P. Cooper: Yes, we object to them being raised under all three.
William O. Douglas: And that was -- the mode in Green was Rule 35, wasn't it?
Julia P. Cooper: That's right Your Honor.
William O. Douglas: So you're really asking us to reconsider Green.
Julia P. Cooper: No. Your Honor, our position is that actually in Green this Court did not really meet the question.
William O. Douglas: We entertained the --
Julia P. Cooper: Yes, entertained under Rule 35 motion but we understand the holding in that case to be that as the record was too ambiguous to show that the (Inaudible) concept --
William O. Douglas: Well there certainly isn't anything in those opinions, any of the three of them or four of them, I don't how many they were, we don't think this could be raised only by appeal, isn't it?
Julia P. Cooper: Well, there is an implication if I might say so Your Honor that raising these questions years after sentencing, did present certain questions, certain difficulties.
Potter Stewart: Your point is I suppose that since in Green, we -- the majority of the Court found, four members of the Court found that there was no merit on the -- in the claim made that if the Court did have not to reach whether or not that claim to be raised in the Rule 35 motion.
Felix Frankfurter: It wasn't discussed was it Ms. Cooper.
Felix Frankfurter: It wasn't discussed.
Julia P. Cooper: No.
Potter Stewart: It wasn't reached.
Felix Frankfurter: And it was discussed on the assumption that even assuming that the sentence is illegal.
Julia P. Cooper: That is right. The basic assumption was made. Now, if I may dispose of a few basic questions as to the collateral remedy, I think it can be agreed that only those errors are the most fundamental character are errors which are so basic that they can be said to undermine the jurisdiction of the Court properly the subject of collateral relief. The scope of collateral relief was comprehensively discussed by this Court in Sunal versus Large and I think that that case is still void. That case recited the cardinal principle that the -- that was a habeas corpus case that the writ of habeas corpus would not do service for an appeal except in exceptional circumstances or as dissenting members of this Court put it in Sunal, the writ will lie in lieu of an appeal only to prevent a complete miscarriage of justice. Now, the error with which we are presently concerned is not just that kind of an error. It raises no jurisdictional problem, thus, the facts show the contrast we think with those errors in sentencing which do raise jurisdictional problems, such sentences for example as those which exceed the maximum provided by statute. Moreover, the error here is one which is known and is capable of being raised on appeal and we do not think it presents those exceptional circumstances as would warrant a departure from the cardinal rule that the proper way of correcting errors is by appeal. We do not think it remotely approaches for example in seriousness the error which was considered in Sunal versus Large. There that was an incorrect trial ruling which deny to the defendant the right to defend, a trial on a certain basis which the law later said was available to him but this Court nevertheless said was correctable only by direct appeal and we do not think that an argument for greater cognizance can be made on the basis of the fact that under Sunal versus Large the indication of collateral remedy would have called for retrial whereas here it would call only for re-sentencing. The issue here --
William O. Douglas: Excuse my interruption again but I assume on my recollection of Green that nothing was mentioned about the propriety of the use of Rule 35 procedure but I see now in the footnote of Justice Frankfurter's opinion that he addresses himself to the propriety of Rule 35 on other aspects of this case. There was one in the Green case -- there was a complaint of an improper charge of the jury.
Julia P. Cooper: Yes.
William O. Douglas: He properly said in his footnote that Rule 35 does (Inaudible) but rather is limited to challenging, involved the legality of the sentence itself. It seems to be not assuming arguendo that 35 -- Rule 35 applies, but it seems to almost say that 35, Rule 35 is a proper position. That was not an opinion for the Court, but it was --
Julia P. Cooper: When Your Honor -- perhaps I should start at this point and tell you why we think Rule 35 does not apply here.
William O. Douglas: Of course we have had arguments in the Court as to whether Rule 35 as opposed to considering under 2255 where it's proper to raise those things sua sponte I think.
Julia P. Cooper: Your Honor, we start off with the propositions certainly that we think as to scope, Rule 35 is narrower in this sense that there were few questions that should be raised under it. The Rule we say is available only to correct an illegal sentence, and what the petitioner Hill is asking here is not to correct an illegal sentence but to have an erroneous submission in the sentencing procedure rectified. We say that an illegal sentence within the meaning of Rule 35 is one which on its face does not for some reason conform to the letter of the statute which authorized it and we think that the decisions and the history of the Rule support this construction. For example, this Court we do not think has held to date at its -- that Rule 35 is applicable to a sentence which is not illegal per se on its face. Now, we might consider initially the -- quite apart from being considered, initially the recent cases which had come before this Court in which Rule 35 has been found to applicable. There is the case of Heflin versus United States in which the issue is whether consecutive sentences could be imposed on the bank robbery statute for feloniously receiving in taking the same property. The court, this Court thought Rule 35 was available since the sentence imposed was “illegal on its face.” I might also call your attention to Callanan versus United States to Holiday versus Johnston and to Prince versus United States. They were all cases where this issue of the pyramiding of penalties was raised. In Morgan versus United States, this Court noted that Rule 35 was not available to correct a claim denying of the right to counsel since and the Court said sentences subject to correction under that rule are those which the judgment of conviction did not authorize. Now, Rule 35 promulgated in 1946 continued the existing law and the law at that time was that a Federal District Court could not correct its judgments after term. Now this was a pronouncement of this Court in the early case of United States versus Meyer. Now, the lower court decisions following the Meyer case held that there were two exceptions or there were several exceptions to this rule of no alteration after term. These exceptions were that a court could after alteration of term correct for clerical mistakes and for illegal sentences and the illegal sentence as would appear from the review of the cases was a sentence which either exceeded the maximum provided by statute or the sentence which imposed to sentences for the same offense. And as Mr. Justice Stewart noted in the concurring opinion in Heflin, Rule 35 codified this existing law and it was intended to remove any doubt that a Federal District Court could correct an illegal sentence after expiration of term. We do not think that the rule enlarged the scope of illegality as it has been existent, and the scope of legality we say did not include this type of error with which we are concerned. And may I say in this regard that this is just not a matter of -- we just can't stop and say this is just a matter of recalling a prisoner for re-sentencing. The issue here is not quite that simple. Granted that the purpose of allocution is to permit the prisoner to speak, to speak himself or I might inevidently put it, to speak his piece, but we can't stop there. The only purpose of speaking is to influence, or invoke the leniency of the sentencing judge and the discretionary manner of sentencing, and a court of course does not exercise its discretion solely on the basis of matters urged by the defendant. There may be many other considerations. There may be evidentiary considerations, the seriousness of the crime, the aggravated circumstances under which it was committed, the prior record, the defendant's conduct even at the time when he is brought before the Court. And so it is reasonable to assume therefore that if this Court found that allocutions could be raised collaterally under either of the motions of Rule 35 or 2255 that whether prisoner may be recalled before a court which did not originally sentence him or where time as though the memory of the sentencing court that a perusal of the entire record might be necessary.
Potter Stewart: In this particular case, the judge Dyer acquired an extraordinarily familiarity for this particular defendant, had he not?
Julia P. Cooper: Yes. That is correct, Your Honor.
Potter Stewart: In case of the history of his having been declared first incompetent to stand trial and so on and so forth.
Julia P. Cooper: That is correct, Your Honor. Here --
Potter Stewart: Is Judge Dyer retired now, do you know?
Julia P. Cooper: I am sorry, I do not know if he is.
Potter Stewart: Judge Taylor, I know Judge Robert Taylor has been handling these both --
Julia P. Cooper: Yes, he is, Your Honor.
Earl Warren: Does the judge have a pre-sentence report to this case Ms. Cooper?
Julia P. Cooper: I am in kind to think he did Your Honor and as Mr. Justice Stewart pointed out he had been dealing with this for years and years and as his remarks in the record would indicate, he was very, very familiar with the facts of the case. He spent a lot of time going over it and so I would say --
Felix Frankfurter: I should think Ms. Cooper, from what appears on page 18 General Davis, I don't know, some of the generals, General Mead and General Davis --
Julia P. Cooper: General Mead.
Felix Frankfurter: General Davis says “I think it has been developed in the proof the character of this defendant and the other crime which he has committed that those matters must have been before the Court.
Julia P. Cooper: That is correct sir. So I would say that they're not merely considerations here of transporting back for re-sentencing in many instances from long distances, but there is a very real consideration of economy, of judicial time and procedure and while these considerations would not be significant if they were balanced against a deprivation of personal liberty, the omission of allocution we say such a deprivation of personal liberty. We pointed out raising of jurisdictional problems. It has no constitutional implication. As I've said it derived from common law practice and in lieu of present day judicial procedure where in many instances there is a pre-sentence report. The accused is represented by counsel. It could hardly result in a deprivation of personal liberty. One final word, Rule 32 (a) we think can be distinguished from those few rules of federal criminal procedure which do restate basic fundamental constitutional rights and therefore may probably be the subject of collateral attack. Such a rule might be Rule 43 which requires the presence of a defendant in every stage of the proceeding. An interesting comparison here could be made with Rule 10 which protects the right of an accused to be present, to be arraigned in open court and to be informed to the nature and acquisition of the case against him and yet the courts in Fifth, Tenth, Second and Eighth Circuits relying in this Court's opinion in Garland versus Washington has held that literal non-compliance with Rule 10 is not a jurisdictional defect which can be raised collaterally. This Court in the Garland case held that arraignment and plea are not essential to due process. And finally, may I reemphasize that a prisoner asking for the formality of allocution in a collateral proceeding under Rule 35 or Section 2255 is asking for more than the believed right to speak. He's asking the court perhaps years after sentencing, perhaps of a court totally unfamiliar with the case to exercise discretion anew in reimposing sentence with all the attending difficulties on the basis of facts which could have been erred to the time of appeal and which might have been before the Court at the time of sentencing. We respectfully submit that this right should not be permitted. Thank you.
Earl Warren: Very well.