Hodges v. United States (368 U.S. 139)/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

The hearing which the District Court gave petitioner under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, is not dispositive of the case. That hearing was held October 25, 1957. The issue with which the Court of Appeals in the present case was concerned was presented in two affidavits, one by petitioner dated August 3, 1959, and the other by petitioner's lawyers dated July 31, 1959. Petitioner swears he did not know that he had only 10 days to appeal. Petitioner's lawyers swear, 'We were present at the time that sentence was imposed. Immediately after sentence was imposed, John Hodges was removed from the courtroom by the U.S. Marshal and we did not have an opportunity to talk to him.' They also state that they advised petitioner's wife that she should have him prosecute an appeal. Petitioner says that when his wife mentioned an appeal, the 10-day period had passed. No one gave petitioner timely notice of his right to appeal.

The underlying constitutional issue which petitioner presses is that the confession used against him was coerced. I do not see how we can say that 'the files and records of the case conclusively show' that petitioner is entitled to no relief. Following the 1957 hearing the District Court made a finding that petitioner's confession was 'voluntary' and was not 'the result of coercion, threats or promises.' (156 F.Supp. 314.) But there is no record of that hearing. The reporter's notes were lost. No court can review the findings. No court has ever reviewed them.

We are not here concerned with the right to appeal out of time, as was the case of United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. Indeed, in Robinson the Court recognized that relief was, or should be, available under § 2255 in cases such as the one now before us:

'The allowance of an appeal months or years after expiration     of the prescribed time seems unnecessary for the      accomplishment of substantial justice, for there are a number      of collateral remedies available to redress denial of basic      rights. Examples are: The power of a District Court under     Rule 35 to correct an illegal sentence at any time, and to      reduce a sentence within 60 days after the judgment of      conviction becomes final; the power of a District Court to      entertain a collateral attack upon a judgment of conviction      and to vacate, set aside or correct the sentence under 28      U.S.C. § 2255, 28 U.S.C.A. § 2255; and proceedings by way of      writ of error coram nobis.' Id., 361 U.S. at 230, note 14, 80      S.Ct. at 288.

If the error now being pressed were a non-constitutional one, relief might be denied, citing Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. But in that case, where habeas corpus was sought to do service as an appeal, we made clear that we were not dealing with constitutional defects in the trial. Id., 332 U.S. at 178, 182, 67 S.Ct. at 1590. When a constitutional issue was presented, we took the other course and allowed relief by way of § 2255, at least until today. See, e.g., Jordan v. United States, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114. In the Jordan case, petitioner had not raised the constitutional objection at the trial; and though he had appealed, he had failed to raise it there. 98 U.S.App.D.C. 160, 166, 233 F.2d 362, 368. Later he tendered it in the § 2255 proceeding. We held that the constitutional issue, though not raised at the trial or on appeal, as could have been done, could be raised in a § 2255 proceeding. The Court of Appeals promptly and properly took the Jordan case to mean just that. Askins v. United States, 102 U.S.App.D.C. 198, 200, 251 F.2d 909, 911. If the Jordan case is the law, I fail to see why relief by way of § 2255 is not available when petitioner, through no fault of his own, was denied the right to appeal.