381 F.2d 941 | D.C. Cir. | 1967
Lead Opinion
This court is again asked to reverse the narcotics laws convictions of these two appellants. This sought after relief is denied.
These appellants were convicted by a jury on a multiple count indictment charging violations of the narcotics laws in a trial conducted by a judge of this court sitting pursuant to 28 U.S.C. § 291(c) (1949), as amended, (Supp. I, 1966), as a District Court judge. They appealed to this court, alleging as a ground for their appeal that their right to a fair trial had been violated by a delay of approximately seven and one-half months between the time of the offenses with which they were charged and their arrests.
On August 20, 1964, a duly constituted panel of this court affirmed their convictions, Hardy & (Ferguson) v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233. That panel, in its carefully considered opinion, concluded that “[t]he delay between alleged act and arrest was not oppressive and the delay between arrest and trial did not violate appellants’ Sixth Amendment rights. Smith v. United States, 1964,118 U.S.App.D.C. 38, 331 F.2d 784 (en banc); Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963).” Subsequently, all of the judges of this court considered the appellants’ contentions on this point, and on December 18, 1964, denied appellants’ petitions for rehearing. Certiorari was denied by the Supreme Court on April 26, 1966, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276. Normally and logically this should have terminated the appellate procedure available to these appellants upon the point raised and considered in their initial direct appeal. In June of 1965, however, we considered the case of Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210. In that case, the appellant’s narcotics conviction was reversed. The court, after balancing the interests presented on the record, decided to order a new trial in exercise of
On January 4, 1966, our appellants here filed a motion in the United States District Court pursuant to section 2255
The appellants are currently barred from collaterally attacking their convictions, because the precise issue now raised was fully raised on their direct appeals and disposed of adversely to them. It has been repeatedly held that issues disposed of on appeal from the original judgment of conviction will not be reviewed again under section 2255. Lampe v. United States, 110 U.S.App.D.C. 69, 288 F.2d 881 (1961), cert, denied, 368 U.S. 958, 82 S.Ct. 400, 7 L.Ed.2d 389 (1962); McGuinn v. United States, 99 U.S.App.D.C. 286, 239 F.2d 449 (1955), cert, denied, 353 U.S. 942, 77 S.Ct. 818, 1 L.Ed.2d 762 (1957); VanBuskirk v. United States, 343 F.2d 158 (6th Cir. 1965); Sykes v. United States, 341 F.2d 104 (8th Cir. 1965); Frye v. United States, 337 F.2d 385 (7th Cir. 1964), cert, denied, 380 U.S. 925, 85 S.Ct. 927, 13 L.Ed.2d 810 (1965). This point in itself should be completely dispositive of the appeal in this ease, but my learned brother by his dissenting opinion brings into this case factors which require further comment.
Basically, the dissenting opinion proposes that the present panel of this court overrule the prior panel which heard and disposed of the appeal of these appellants on its merit. Obviously, no panel of the court has any right whatsoever to overrule the holdings of another panel of the court. To engage in this process is to bring chaos to the court’s rulings. Were the court to follow this procedure, the decisions of each panel would be valid only on the day of the issuance, and the resulting confusion would obviously destroy the entire value of appellate proceedings.
In addition, however, the dissenting opinion suggests that our present panel surmise that the panel which decided the Ross case, supra, did not mean what it said when it, in turn, was interpreting the facts in the Hardy case.
Another aspect of the dissenting opinion which causes me concern is that it is
Words are completely inadequate to emphasize the error of predicating appellate judicial action upon this kind of second-guessing of a jury.
Troublesome also is a further collateral problem underlined by the action proposed in the opinion of my dissenting brother. Although this court has gone far beyond the limits of many other appellate courts in assuring to appellants in criminal cases complete and exacting reviews of their convictions, there must— as a matter not only of logic but of sound judicial administration — be some point of termination in the appellate procedure. Were this panel to ignore all judicial precedent and overrule not one but two prior panels of the court, it would, in effect, be by judicial fiat extending the ever-lengthening processes which constitute Perpetual Appeals. It is popular now to publicly decry the huge backlog of criminal cases awaiting trial in our District Court, and yet the procedure proposed in the dissenting opinion would add to the burden of our trial court the necessity for conducting further hearings in this ease and, I suppose, similar cases. True it is, that this court’s basic responsibility is from time to time to remand individual cases to the District Court for further proceedings. These remands, as a matter of law, of sound judicial administration, and of simple efficiency, should be confined to those meritorious cases in which there exists some unresolved substantial question of law or fact. The questions of law and fact raised by the appellants’ present appeal have been resolved against them heretofore by a judge of this court sitting as a trial judge, by a panel of this court sitting in appellate review of the trial court proceedings, by the court considering the case en banc, by at least a basic review by the Supreme Court, as manifested by that Court’s denial of certiorari, and finally by a second panel of this court in distinguishing appellants’ case from that of the defendant Ross, heretofore identified. It does not require the services of efficiency experts, management surveys, or administrative studies to discover that in a case such as this the court is figuratively spinning its wheels by making no forward progress in dealing with the Judiciary’s serious problems of congestion.
Affirmed.
. “Without attempting to define the precise reach of the Fifth Amendment in this context, a due regard for our supervisory responsibility for criminal proceedings in this jurisdiction, requires in our view, the reversal of this conviction.” Ross, supra, 121 U.S.App.D.C. at 239, 349 F.2d at 216.
. 28 U.S.C. § 2255 (1959).
Dissenting Opinion
(dissenting):
Hardy and Ferguson were convicted of narcotics offenses and sentenced to ten and five years respectively. Their conviction was affirmed on appeal. Hardy v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233 (1964). They move now under 28 U.S.C. § 2255 to have their convictions set aside on the ground that our subsequent decision in Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965) should be applied to them. Since the record of their original trial indicates that these appellants were convicted contrary to the standards set forth in Ross, and since I think the standards of that case should be applied here, I would remand this case for a full hearing to determine whether these appellants are being held illegally. Judge Fahy agrees that the standards of Ross were violated but feels constrained to deny relief for the reasons discussed in his special concurring statement.
I
On August 27, 1962, at 10:30 p. m. Private Rufus Moore and his “special employee,” Atria Harris, walked north on the 1200 block of 7th Street, Northwest. They met someone walking in the opposite direction who asked them if they were looking for narcotics. Moore said yes. The three entered Moore’s car and drove to the 700 block of H Street, Northeast. Special employee Harris remained in the ear, and the other two walked across the street. There they met a third person who sold six capsules of heroin to Moore for nine dollars. Moore returned to his car and drove away with his special employee. The entire transaction, from the first meeting on 7th Street, Northwest to the sale of heroin on H Street, Northeast, took approximately fifteen minutes.
Almost seven months later, on March 15, 1963, complaints issued charging that Hardy was the man Moore met on 7th Street, Northwest and that Ferguson was the man who sold heroin to Moore on H Street, Northeast. Ferguson was informed of the charges against him on March 20, 1963, when he was arrested. Hardy was not arrested until April 25, 1963, six weeks after the complaint was signed and eight months after the alleged crime.
At the trial, Officer Moore identified both defendants as the participants in the events of August 27, 1962. About some of these events his testimony was quite clear. But his recollection of that night came from a report he wrote on the night of the crime.
He could not remember how far from his car the illicit transaction took place.
These lapses in memory are perfectly understandable. Officer Moore was put onto the street two weeks after he joined the Metropolitan Police Department. Before he joined he had no special training in crime detection or narcotics practice. He had never come in contact with narcotics before.
Moore’s service on the street was hectic. At the end of his undercover period he made 102 complaints. And probably it was a very strained and tense period — a clandestine life made more oppressive by the constant fear of exposure and perhaps death.
Yet, during his entire period as an undercover agent Moore knew that he would have to recall what he saw and what he did. Ferguson did not know until almost seven months later that he would have to remember a few minute period during the night of August 27, 1962. Hardy did not know until eight months later that fifteen minutes of that night would become important to him.
Reconstruction of that night was even more difficult for these defendants because neither had a stable frame of reference. Ferguson testified that on August 27, 1962, he was addicted to narcotics and that he was unemployed.
These lapses in memory, evidenced by both appellants and Officer Moore, undermine our confidence that the criminal process has produced the right defendants. The Government suggests that, in this case, our confidence should be bolstered by the existence of a corroborating witness, special agent Atria Harris.
Atria Harris is a former addict paid by the police to help undercover agents purchase narcotics. He began working with Officer Moore in August of 1962, and apparently he was with Moore throughout the latter’s entire undercover period.
In the circumstances in which this identification was made, though, it loses some of its significance. Harris does not seem to have taken any notes at the time of the crime.
With regard to the other appellant, Ferguson, Harris’ testimony has no significance. Although Harris accompanied Officer Moore and Hardy to H Street, Northeast, he remained in the car while the two others met Ferguson fifty or sixty feet away.
Whatever confidence we might have drawn even from this limited corroboration is shattered by other facets of this case which indicate that the police took only scanty precautions to insure that they picked the right defendants. For example, it was a month or more after the crime before Officer Moore identified Hardy’s picture. We do not know exactly when or how this’ identification occurred, since, apparently, no clear records were kept. We have no idea at all from the record when Ferguson’s picture was identified. There seems to have been no attempt to observe these defendants after August 27 in order to form a clearer picture of who committed the crime on that night. Indeed, Officer Moore testified that observing these defendants after the first sale “wasn’t of importance to me.”
The most serious indication of carelessness, though, is the six week delay between the complaint and Hardy’s arrest. The only justification for not arresting a defendant at the time of the offense is the need to keep undercover agents under cover. Once the agent comes into the open, as Officer Moore did on March 15, 1963, that justification disappears. Delay after this point continues to hurt the defendant without aiding in enforcement of the narcotics laws. Under these circumstances the police must act with dispatch to arrest the defendant and inform him of the charges as soon as possible after the complaint is signed.
According to Hardy, he was, in fact, arrested about the time the complaint was signed in the instant case. However, he was not arrested on that complaint but instead was picked up for possession of a hypodermic needle, an eyedropper, and a cooker.
The Government rebutted this story only indirectly. Officer Moore testified that he was not informed that Hardy had been talking to Officers Didone or Paul.
Hardy’s story seems incredible. But even if it were wholly imagined — even if Hardy were not so clearly available to the police — there remain disturbing questions about why it took six weeks to arrest him. Both Moore and Fogle testified that the police made a “diligent effort” to arrest Hardy.
II
The record outlined above indicates a violation of Ross v. United States, supra. There, we held that the indictment must be dismissed because there was “(1) a purposeful delay of seven months between offense and arrest, (2) a plausible claim of inability to recall or. reconstruct the events of the day of the offense, and (3) a trial in which the case against appellant consists of the recollection of one witness refreshed by a notebook.”
Our conclusion is supported by the cases which follow and interpret Ross. All of those cases which upheld the indictment were- substantially different from this one. Most of them involved much shorter periods of delay and circumstances which convinced us that the police picked their defendant carefully and that the defendant was not prejudiced by the delay.
III
There is no doubt, then, that we would grant relief if appellants were here on direct appeal from their conviction. But they are not. Hardy and Ferguson were convicted on August 19, 1963. They appealed, raised the issue of delay, and lost in this court on August 4,1964. Hardy v. United States, supra. Their petition for rehearing was denied on December 18, 1964. And on April 26, 1965, the Supreme Court denied a writ of certiorari. 380 U.S. 984, 85 S.Ct. 1353. Just two months later, this court dismissed Ross’ indictment on substantially the same facts presented by Hardy and Ferguson.
Our appellants pose the compelling question, why should they be in jail while Ross, who presented the same case, is free? One answer, of course, is that rules of finality always create inequalities like this one. And unless these appellants can attack their conviction collaterally, they must be the unfortunate, but legitimate, victims of those rules. In order to prevail now, these appellants must show (1) that their claim is cognizable on collateral attack, (2) that Ross v. United States, supra, applies retroactively, and (3) that their previous failure in this court does not bar them from collateral relief.
1. There is some reason to believe that any constitutional claim is cognizable on collateral attack. Fay v. Noia, 372 U.S. 391, 409, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963 )
[I]t becomes appropriate to consider the substantial disadvantages of collateral review in terms of judicial administration. First in time there is*951 the reasonable anticipation of a larger number of hearings on petitions that will prove to be insubstantial in fact. We would resolutely breast a flood of frivolity to rescue the stray meritorious claim if that were needed for effective vindication of constitutional protection, and there were no comprehensive procedure available at and before trial. * * * Here as already observed that effort is not required to vindicate the rights involved, and on the contrary this use of the courts would defer other cases that do present substantial claims and calls on judicial time. 125 U.S.App.D.C. at 118, 368 F.2d at 826-827.
Here, too, there are procedures available for raising the issue of delay at or before trial.
Second is the difficulty of belated determinations. The ascertainment of what constituted “probable cause,” typically a subtle and indeed elusive question, is made incomparably more difficult and often artificial as recollections dim and witnesses are unavailable. 125 U.S.App.D.C. at 119, 368 F.2d at 827.
In our case, too, there are elusive questions which may become more difficult on collateral review. However, at least some of the basic facts relevant under Ross are, or should be, simple matters of record — for example, the period of delay between offense and complaint, complaint and arrest, arrest and trial, whether there was a corroborating witness, what his testimony was, how experienced the officer was before the offense, what his procedures were, when and how the defendant’s picture was identified, whether the defendant was married, or employed, and so forth.
Last but by no means least is the fact that the court can take timely corrective action without jettisoning the trial if a valid search and seizure claim is presented at or before trial. But if the claim were entertained on collateral attack it would not only scrap the completed trial but also, taking into account the possible subsequent unavailability of witnesses present or available at the original trial, might well imperil the public interest in securing a just conviction. 125 U.S.App.D.C. at 119, 368 F.2d at 827.
This consideration does not apply to our case, since a defendant who wins his point under Ross must have his indictment dismissed. There can be no “timely corrective action without jettisoning the trial * *
Although our case is different from Thornton in the ways stated above, these differences may not be relied upon as the sole grounds for distinguishing the cases because Thornton was not based solely on considerations of efficiency.
Courts should be reluctant to let general considerations of administration require injustice in the particular case. That reluctance is overcome by the weighty consideration, diluting the fear of particular injustice, that the claim of unreasonable search and seizure does not weaken the probative value of the evidence against the accused. * * * [Cjourts will not pursue ad infinitum, the objective of deterring a blundering constabulary * * *. 125 U.S.App.D.C. at 119, 368 F.2d at 827-828.
In this regard our case is completely different. Ross is not concerned primarily with establishing some ideal of civilized police conduct — with “deterring a blundering constabulary.” We are concerned that the law enforcement methods used here create too great a danger of convicting innocent people.
[I]n each of the three areas in which we have applied our rule retrospectively the principle that we applied went to the fairness of the trial — the very integrity of the fact-finding process. Here, as we have pointed out, the fairness of the trial is not under attack. All that petitioner attacks is the admissibility of evidence, the reliability and relevancy of which is not questioned and which may well have had no effect on the outcome. 381 U.S. at 639, 85 S.Ct. at 1743.
In Shott, too, the Court distinguished recent decisions which were applied retroactively.
[W]e deal here with a doctrine which rests on considerations of quite a different order from those underlying other recent constitutional decisions which have been applied retroactively. The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. [Cases omitted.] The same can surely be said of the wrongful use of a coerced confession. [Cases omitted.] By contrast, the Fifth Amendment’s privilege against self-incrimination is not an adjunct to the ascertainment of truth. 382 U.S. at 416, 86 S.Ct. at 465.
In Johnson, the Court cited this reasoning with approval.
In each instance we concluded that retroactive application was justified because the rule affected “the very integrity of the fact-finding process” and averted “the clear danger of convicting the innocent.” [Citing Link-letter and Shott.] 384 U.S. at 727-728, 86 S.Ct. at 1778.
The doctrine in Ross was announced because we questioned the reliability of the process by which the defendant was identified. Also, we thought that the defendant was not given a fair chance to defend himself. In short, we feared that innocent people could be convicted too easily. Therefore, the doctrine should be applied retroactively.
The Government suggests, though it does not discuss, distinctions between Sanders and this case. Sanders dealt with relitigation in successive motions under § 2255. Our ease deals with relitigation after an adverse decision on direct appeal from the conviction. However, the Court emphatically st-ated that the ordinary rules of finality do not apply in § 2255 proceedings. Ordinarily those rules, and the policies they implement, would apply equally to the first § 2255 motion (after an adverse determination at trial and direct appeal) as they would to the second § 2255 motion (after an adverse determination at a pri- or § 2255 hearing and appeal). The Supreme Court’s rejection of res judicata applies equally to both situations. Recently, the District Court for the District of Columbia adopted this interpretation of Sanders.
“There appears to be no reason in principle to distinguish between the finality effect of determination of grounds made at trial or on appeal and determinations made on earlier § 2255 applications * * * ” Heard v. United States, 263 F.Supp. 613, 615 (1967).53
If the Government’s distinction makes any difference at all, it supports this conclusion. Section 2255 provides that “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” Yet, in spite of the statute’s language, in Sanders the Supreme Court was willing to allow successive motions in some circumstances. Our appellants face no such statutory prohibition because this is their first motion under § 2255. Therefore, the Supreme Court’s reasoning would apply with even greater force to them.
The Government suggests also that the Court’s statement, quoted at note 52, supra, applies only when the parties have failed to raise the issue previously. Here, the appellants did raise the issue of delay on direct appeal. Therefore, the Government suggests, Sanders does not control this case.
The Government’s suggestion has no merit. First, the statement appears in a section of Sanders titled “Successive Motions on Grounds Previously Heard and Determined.”
IV
Since I think Ross should be applied to this ease, I would grant relief in this proceeding. However, I would not direct the dismissal of these indictments. This case was tried before Ross was decided, and, therefore, the Government was not alerted that it would have to meet the appellants’ contentions. ■ Also, at the trial, when the Government attempted to answer some of these contentions, the District Judge properly excluded the evidence as too prejudicial. There are still questions which remain open, for example, whether Harris’ testimony was based upon Officer Moore’s notes,
. Trial transcript (tr.) 20-21, 35-36.
. Tr. 57-58.
. Tr. 36-37.
. Tr. 34-35.
. Tr. 43.
. Transcript of hearing on pre-trial motion (m.) 48.
. Tr. 55.
. Tr. 41.
. Tr. 42, 48. There is some ambiguity in this regard also M. 36-37.
. M. 41.
. M. 48. Cross-examination on this point is revealing:
Q. Now, do you have any idea or do you recall, Officer, when this possible meeting with the defendant might have taken place?
A. I didn’t say there was a meeting.
Q. Well, can you give us any idea of when you might have possibly seen him?
A. No, sir, I can’t.
Q. Was it in ’62, later in ’62, or was it earlier in ’63?
A. I don’t know, sir. I can’t recall.
I can’t say whether it was ’62 or ’63.
Q. I see. You don’t know whether it was before or after Christmas or anything?
A. No, sir, I don’t.
Q. But you have some idea in your mind that you might have seen him?
A. Possibly once, yes, sir.
Q. What gives you that idea if you have no idea when it was?
A. Well, there is a possibility that I could have seen him once, as I said before.
Q. But there must have been something to suggest that you might have seen him once. Why did you say you might have seen him once?
A. Because I have a vague recollection of the fact that I did see him once, but where I don’t know.
Q. Not where, an approximate idea of when?
A. I don’t know when. That is why I said possibly once.
Q. You don’t know which year?
A. No, sir, I don’t.
Q. Was he locked up then, do you recall, or was he on the street or what?
A. As I said before, the possibility is that he was on the street, but I don’t know where.
Q. You saw him on the street once?
A. Yes, sir. M. 43-44.
. Tr. 48.
. Tr. 31-32.
. Tr. 32-33.
. M. 34, tr. 49.
. Tr. 27-29.
. Tr. 29.
. M. 56.
. Tr. 42. See also tr. 33.
. Tr. 115.
. Tr. 113-117.
. M. 26.
. M. 20-21.
. M. 23.
. M. 5, 26.
. Tr. 61, 77.
. Tr. 77.
. Tr. 63.
. Tr. 62.
. Tr. 50, 86.
. Harris was convicted of a narcotics offense on November 30, 1956. Tr. 61.
. Tr. 45, 68.
. Tr. 72, 76.
. Tr. 71.
. Harris’ corroboration has not been fully explored in any prior case. The Government concedes that the significance of Harris’ testimony was not considered by the Hardy court except in a very different context. Appellee’s Supplemental Memorandum. The court in Ross discussed the corroboration as follows: “Hardy did not involve the wholly uncorroborated testimony of an undercover policeman; a paid police informer, who claimed to have been an eyewitness to the sale, testified in support of the Government.” 121 U.S.App.D.C. at 238, n. 4, 349 F.2d at 215, n. 4. This statement is true as far as it goes. Officer Moore’s testimony was not wholly uncorroborated. However, the record shows that Harris did not corroborate Moore’s identification of Ferguson, and it is the identification of the right defendant which is our major concern in these cases. Further, the record indicates that Harris’ identification of Hardy may have been based on the same notes that Moore’s testimony was based on. If so, Harris’ testimony was a repetition of Officer Moore’s identification, not a corroboration.
. M. 48.
. M. 41-42. There is ambiguity here. Tr. 48.
. M. 8.
. M. 13.
. M. 8-16.
. M. 35.
. M. 53.
. M. 53, 34.
. 121 U.S.App.D.C. at 238, 349 F.2d at 215.
. See, e.g., Morrison v. United States, 124 U.S.App.D.C. 330, 365 F.2d 521 (1966), Daniels v. United States, 123 U.S.App.D.C. 127, 357 F.2d 587 (1966), Roy v. United States, 123 U.S.App.D.C. 32, 356 F.2d 785 (1965), Worthy v. United States, 122 U.S.App.D.C. 242, 352 F.2d 718 (1965), Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705 (1965), Jackson v. United States, 122 U.S.App.D.C. 124, 351 F.2d 821 (1965), Cannady v. United States, 122 U.S.App.D.C. 120, 351 F.2d 817 (1965), Mackey v. United States, 122 U.S.App.D.C. 97, 351 F.2d 794 (1965), Bey v. United States, 121 U.S.App.D.C. 337, 350 F.2d 467 (1965).
. Our colleague thinks that the conclusion reached by Judge Fahy and myself is a “second-guessing of a jury.” This is essentially the same objection which this court rejected in Ross. Any dissatisfaction with Ross should be directed towards a reconsideration of that case and not at judges who accept its conclusions and methodology.
. Ross was ambiguous about its constitutional underpinning. The case was characterized as “presenting a question akin to a Fifth Amendment due process issue.” 121 U.S.App.D.C. at 234, 349 F.2d at 211. The court said “[T]he Constitution contemplates a separate interest in fair procedures for the citizen faced with the loss of his liberty by reason of criminal charges.” 121 U.S.App. D.C. at 236, 349 F.2d at 213. Later in the opinion the court spoke in terms of “our supervisory responsibility.” 121 U.S.App.D.C. at 239, 349 F.2d at 216. See also Powell v. United States, 122 U.S.App.D.C. at 232, 352 F.2d at 708, for the same ambiguity. Subsequently, however, one of the authors of the Ross opinion characterized that case solely in terms of a “due process claim of prejudice.” Woody v. United States, 125 U.S.App.D.C. at 196, 370 F.2d at 218 (McGowan, J. , concurring). See also Mann v. United States, 113 U.S.App.D.C. 27, 29-30, n. 4, 304 F.2d 394, 396-397, n. 4 (1962), and United States v. Parrott, D.C., 248 F.Supp. 196, 202 (1965) for similar characterizations. Although there may be disagreement about specific cases, all seem to agree that “due process may be denied when a formal charge is delayed for an unreasonably oppressive and unjustifiable time after the offense to the prejudice of the accused * * *.” Nickens v. United States, 116 U.S.App.D.C. 338, 340, n. 2, 323 F.2d 808, 810, n. 2 (1963).
It may be that some periods of delay violate the Constitution and others merely present issues “akin” to constitutional issues requiring the exercise of our supervisory powers. It is not important to decide which is involved here. By its terms, § 2255 is not limited to constitutional claims. Even if these claims are not constitutional, they are certainly very similar to or “akin” to constitutional claims, and therefore they are cognizable on collateral attack if they meet the criteria for collateral reviewability discussed infra.
. Ross v. United States, 121 U.S.App.D.C. at 236-238, 349 F.2d at 213-215, Woody v. United States, 125 U.S.App.D.C. at 194-196, 370 F.2d at 216, 218, Cannady v. United States, 122 U.S.App.D.C. at 121, 351 F.2d at 818, Salley v. United States, 122 U.S.App.D.C. 359, 360-361, 353 F.2d 897, 898-899 (1965).
. There are other differences as well between our case and the three recent Supreme Court cases. (1) Ross is not a very broad decision. At least so far it has been applied only to some defendants convicted of one special kind of crime. Retroactive apxxlication would not be as disruptive as the Supreme Court envisioned in its cases. Compare Tehan v. United States ex rel. Shott, 382 U.S. at 418-419, 86 S.Ct. 459 and Johnson v. State of New Jersey, 384 U.S. at 731-732, 86 S.Ct. 1772. (2) Although there had been cases before Ross which might be decided differently now, Ross did not overrule a long line of established precedent. Compare Linkletter v. Walker, 381 U.S. at 636, 85 S.Ct. at 1741, where the Court spoke of “thousands of cases that were finally decided on Wolf," Tehan v. United States ex rel. Shott, 382 U.S. at 417, 86 S.Ct. 459, where the Court spoke of the 56 year period in which the States were told consistently that Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), was still good law, and Johnson v. State of New Jersey, 384 U.S. at 731, 86 S.Ct. 1772. Nickens v. United States, supra, which is the case seemingly most inconsistent with Ross, was decided after the offense and the trial in the instant case so that the Government cannot claim justifiable reliance upon that decision.
. Lampe v. United States, 110 U.S.App.D.C. 69, 288 F.2d 881 (1961), McGuinn v. United States, 99 U.S.App.D.C. 286, 239 F.2d 449 (1956).
. 373 U.S. at 8, 83 S.Ct. at 1073.
. 373 U.S. at 17, 83 S.Ct. at 1078.
. The District Court quoted Judge Wright’s dissent in Thornton v. United States, supra. The majority in Thornton did not disagree with Judge Wright on this point. See also American Bar Association Project on Minimum Standards For Criminal Justice, Post-Conviction Remedies (Tentative Draft, January 1967), § 6.1(a).
. 373 U.S. at 15, 83 S.Ct. at 1077. (Emphasis added.)
. 373 U.S. at 16, 83 S.Ct. at 1078. (Emphasis added.)
. 373 U.S. at 17, 83 S.Ct. at 1078. (Emphasis added.)
. The particular words used by the Court in this section of its opinion should be noted carefully. The Court said, “If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application.” 373 U.S. at 17, 83 S.Ct. at 1078 (emphasis added). The section of the opinion deals with successive motions on grounds previously heard and determined. The Court defined a “ground” to mean “a sufficient legal basis for granting the relief sought by the applicant. * * * In other words * * * identical grounds may often be supported by different legal arguments". 373 U.S. at 16, 83 S.Ct. at 1077 (emphasis added). Thus, the statement seems to assume that the “ground” for decision was previously raised and determined, but that the parties failed to raise a crucial “argument” in the prior application. This failure, reasoned the Court, may be justified if there has been an intervening change in law since the “argument” may not have been available at the time of the previous application. The Court’s statement, then, fits our case exactly. In the first appeal, the “ground” for decision, i.e., the delay, was heard and determined, but the “argument” based on Ross was not raised because that case had not yet been decided.
Supposing, however, that appellants did raise the same “argument” as well as the same “ground” previously, the Court’s reasoning in Sanders would allow them to relitigate the old “argument” as well as the old “ground” if there has been an intervening change in law.
. If it turns out that Harris’ testimony was actually independent of Moore’s, then I think we would have to decide whether the other facets of this case require dismissal of Hardy’s indictment in spite of the corroboration.
Concurrence Opinion
(concurring in affirmance):
I agree with Parts I and II of Judge Razelon’s dissenting opinion. I do not think, however, that the standards of Ross should be applied on collateral attack in a case in which the judgment was affirmed on direct appeal before the date of the Ross decision. I think the proper course is for these appellants to petition the full court to reconsider its earlier denial of rehearing en banc.
