Appellant was convicted, along with a co-defendant, on narcotic charges, and sentenced to the minimum term of five years. Although during trial he had asserted a number of errors he failed to appeal. Subsequently he brought a petition under 28 U.S.C. § 2255. The district court denied the petition on the ground that the matters therein alleged could, and therefore should, have been raised by appeal. Appellant then asserted to the district court that he had been deprived of his appeal through default of his counsel, who had agreed to prosecute an appeal, but did not. The district court rejected this claim. On appeal we held that appellant had raised a question of fact which should have been passed on by the district court, and remanded for further proceedings. Desmond v. United States, 1 Cir., 1964,
We are entirely satisfied that the court’s action was due to some kind of misunderstanding, and that the court had no intention to impose a penalty upon appellant for having brought his petition. However, in a 2255 proceeding a petitioner is entitled to have errors of a district court reviewed in the district court regardless of believed sensitivities of another judge. Appellant was entitled, once the bar of his having failed to raise his points by appeal had been removed, to have them considered. But since the case is now here, and since appellant’s remaining questions are solely questions of law we can pass fully upon them. We reach only one, since it is unlikely that the others will reoccur.
At the original trial, in the course of its final argument to the jury the government, referring to the alleged occasion when the two defendants had transferred the heroin to the government agent, said, “Those are the facts, the evidence. Incidentally, may I say to you that the evidence stands unimpeached and uncontradicted.” Counsel for appellant immediately objected, stating at the bench that this was a comment upon appellant’s failure to testify. The court overruled the objection, saying “Absolutely not,” but added that in its charge it would tell the jury that no inference should be drawn against appellant from his failure to take the stand. Subsequently the court did so charge.
Two questions are presented, which we will take in reverse order. If it be assumed that the government’s argument constituted comment upon appellant’s failure to testify, was it cured by the charge? We think not. Correction of error should be as prompt and timely
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as possible — particularly where the error involves the infringement of a constitutional right, as this did. Griffin v. State of California,
Nor can we doubt that the government’s statement that its witness’ statement stood “unimpeached and uncontradicted” constituted improper comment. No one but appellant (or his co-defendant, whom appellant could not put on the stand against his will) could have contradicted the government witness. The government’s present argument that since the transaction took place in an apartment house perhaps there were other persons around, though its own witness had suggested no one, and on the face of things it would be to a degree unlikely, is sound neither in fact nor in law. Unless it is apparent on the record that there was someone other than himself whom the defendant could have called, the comment of necessity pointed to the only person who could have offered the contradiction, the defendant himself. Hence, in the present case it was clearly improper. This is no new constitutional interpretation. Barnes v. United States, 8 Cir., 1925,
The court was correct in vacating the first judgment. It should also have set aside the verdict. It erred in imposing the new sentence.
Judgment must be entered vacating the final judgment of the District Court and setting aside the verdict and ordering a new trial. The appeals in the two section 2255 proceedings will be dismissed as now moot.
Notes
The district judge who conducted the original trial had disqualified himself from hearing the 2255 petition.