This sеcond appeal from the denial of a federal prisoner’s motion to vacate his sentence under 28 U.S.C. § 2255, presents the question whether appellant waived his rights to file the motion by failing to raise cеrtain allegations on direct appeal from his conviction and by later deciding to seek a reduction of his sentence. On an earlier appeal from a summary denial of appellant’s motion, a
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panel of this court remanded the case to the court below for an evidentiary hearing on the question of waiver. Brown v. United States, 5th Cir. 1972,
On October 22, 1969, appellant was convicted by a jury and sentenced to two concurrent four-year terms for two violations of the Dyer Act, 18 U.S.C. § 2312. On the evening after his trial, one of the jurors in his case, a Mrs. Corneeley, informed appellant’s trial counsel, James A. Robbins, that another juror had discussed matters outside the record with a Government witness during a recess in thе jury’s deliberations. The next morning Robbins relayed this information to the trial judge, who suggested that Robbins file a motion and supporting affidavits alleging misconduct affecting the jury. Robbins prepared the motion, but Mrs. Corneeley refusеd to sign an affidavit or to cooperate in any other fashion.
In the meantime, appellant had been taken from Georgia to Louisiana to face other charges there. He first learned of the possibility of juror misconduct several days after his trial when he telephoned Robbins from Louisiana about an unrelated matter. During this conversation, Robbins told appellant that Mrs. Corneeley had refused to cоoperate, and that they could proceed with the direct appeal of appellant’s conviction without waiving appellant’s right to collaterally attack his conviction on the ground of misconduct affecting the jury.
On direct appeal, Robbins did not raise the question as to the alleged communication between juror and witness. Appellant’s conviction was affirmed on May 1, 1970, United States v. Brown, 5th Cir. 1970,
*1038 Before either of these motions reached him, however, the trial judge had independently resolved to reduce appellant’s sentence to two concurrent two-year terms, in order to conform the sentence to those assessed against appellant’s two co-defendants. An order reducing the sentence to two concurrent two-year terms had been entered on June 15, 1970, but for some reason neither appellant nor Robbins had been informed of this action. Upon learning of the reduction in sentence, Robbins formally withdrew his motion to reduce appellant’s sentence.
In arguing that appellant waived his right to file a Section 2255 motion alleging misconduct affecting the jury, the Government directs our attention to two distinct events. The first is appellant’s taking a direct appeal from his conviction without asserting possible juror misconduct. It is hornbook law that a Section 2255 motion is not a “substitute for appeal.”
E. g.,
Larson v. United States, 5th Cir. 1960,
Appellant’s allegation of misconduct affecting the jury, however, could not have been raised on direct aрpeal. When his appellate brief was filed, the predicate for appellate review of the contention — a recorded event, a timely objection, and a ruling by the trial court — was nonexistеnt. The necessary development of facts independent of the trial transcript had been obstructed by Mrs. Corneeley’s refusal to cooperate with appellant’s counsel. At the time the direct appeal was taken, there was, in short, nothing to appeal from, in regard to the juror misconduct question. We agree with the court below, that, at least until the May 1970 meeting at the Atlanta Federal Penitentiary, “the possibility of asserting a jury tampering charge had not been abandoned.” Accordingly, we hold that appellant did not waive his right to file a Section 2255 motion by appealing his conviction without asserting possiblе juror misconduct.
The court below, however, concluded that appellant waived his right to file a Section 2255 motion by “consciously electing” to seek a reduction in sentence, after the discussion with Robbins аt the Atlanta Federal Penitentiary in May 1970. The record clearly indicates that appellant’s decision to seek a reduction in sentence was knowing and voluntary. Whether that decision was a true waiver of his right to file a later section 2255 motion, however, is another question. The concept of waiver or election necessarily implies ' the adoption of a course of conduct that is inconsistent with other сourses of conduct available to an individual; the question is therefore whether a decision to seek a reduced sentence is inconsistent with a later decision to move for vacation of the conviction. 2
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We find no inconsistency between a motion to reduce sentence and a later collateral attack on the conviction pursuant to Section 2255, which, by the terms of the statute, “may be mаde at any time.”
3
The motions to reduce the sentence were merely pleas for leniency; the validity of the underlying conviction and, indeed, of the sentence itself was not and could not be put in issue by such mоtions. 2 Wright, Federal Practice & Procedure (Criminal) §§ 583, 585. On the other hand, a motion to vacate pursuant to Section 2255 is “an independent and collateral inquiry into the validity of the conviction.” United States v. Hayman,
Moreover, it is important to recall that neither of the motions to reduce sentence filed on appellant’s behalf had any effect on his case. The record establishes beyond dispute that the trial judge reduced appellant’s sentence sua sponte, before considering either of the motions. The situation is no different than it would have been if appellant and Robbins had failed to carry out their decision to seek a reduced sentence.
Under these circumstances, we hold that appellant did not waive his right to file a Section 2255 motion by deliberately choosing to seek a reduced sentence. Accordingly, we reverse the judgment below and remand for an evidentiary hearing on appellant’s allegation of misconduct affecting the jury.
Notes
. After the telephone call in October 1969, it is unclear whether Robbins and appellant again discussed the case until the May 6 meeting. At the hearing below, Robbins testified that he “thought” that he and appellant had talked at some time during the interim, but that he was not certain that another conversation had taken place. Appellant, on the other hand, testified unequivocally that there were no contacts between him and Robbins between the time of the October 1969 telephone call and the May 6 visit at the penitentiary.
. It is impossible to ascertain from thе record before us whether the motions for reduction filed both by appellant himself and by Robbins on his behalf, were made pursuant to 28 U.S.C. § 2255, or were filed under Rule 35, F.R.Crim.P. In all likelihood, however, the trial judge would have treated them as Rule 35 motions, because the basis for the motions — and the trial judge’s own reason for reducing the sentence
sua sponte
— was merely the inconsistency between appellant’s sentence and those of his cо-defendants, who had been more deeply involved in the Dyer Act violations than had appellant. In seeking to reduce a sentence that, like appellant’s, was within the maximum prescribed by law, such a purеly equitable ground would not have been cognizable under Section 2255. See Cassidy v. United States, E.D.Mo. 1969,
. This is of course subject to the condition that a Section 2255 motion may not encompass allegations that should have been raised on direct appeal. See Larson, supra, and accompanying text.