*1 guаrantee sweeping to Tennessee. denying request amorti- Tennessee’s reading of the certifi zation, Commission’s done so. the Commission eminently cate conditions is reasonable. argues condi- that these Tennessee pre-judge the tions were not meant IV. Conclusion accounting appropriate in this treatment planned the Commis- case. To the extent that The failure of Tennessee’s gave regrettable discre- sion was intended to its exercise LNG facilities rise to parties on rate tion time of decision the in- dislocations for all of the costs, given essence, such treatment the Commission’s de- volved. In modify interpret or indeed could terminations under here and review 71-1743, today, decis- refuse to enforce certificate were decided based No. agree. warranted, applicable How- where on sions the conclusion that judged ever, contracts, regulations, has now Commission certificates impact require these restrictions fa- statutes that cоmbined light past expectations be committed to the most desira- cilities present interpreting circumstances. loss- ble future use and that various prior present its own certificate es find the rest where fell. We statutory duty, reasoning, a determination to which Commission’s and the result give deference, Accordingly, this court reached, quite must suitable to be sound. Commission has come a conclusion Commission’s Order which we see no reason to disturb. Affirmed. Although arguable it the condi explicitly possi tions did not fоresee bility proj of total failure of the LNG

ect, their clear intent was that rate base

treatment should turn on level successfully delivered Tennes service. any ambiguity see’s resolution of latent that,

would embrace the absurd result UNITED STATES America while a mere success rate would al 1% deny low the Commission to of the 99% treatment, DeCOSTER, Jr., Appellant. costs rate base Willie total failure opens way complete somehow No. 72-1283. amortization. The basic intent behind Appeals, United States Court of conditions, accepted these Tennes District of Columbia Circuit. see, gleaned origina can be from their Argued Feb. intervenors, tion with who wished to protect integrity pipeline’s Decided Oct. system-wide by barring rate structure Rehearing Denied Dec. impact rate on base who those would not project.22 benefit Despite

position later taken some of Tennes England see’s New customers, it would hold,

be irrational on the basis lan guage originating, so Tennes while see, planned which and controlled the fa cilities, guaranteeing was not tо its in dependent customers success project, making the customers were such original 22. The Pipe Commission’s Order notes Transcontinental Gas Cor Line hearing the intervenors poration, 63-228, waived formal Docket No. CP 30 F.P.C. substantially condition imposed. App., I, p. 233; restrictions 38” were Vol. “equivalent July 3, to those in [its] order of Record at *2 Judge, MacKinnon, con- Circuit part part curred and dissented opinion. filed Davison, (ap- Washington,

Calvin D.C. pointed by Court), appellant. Atty., Vermeire, Richard S. Asst. U.S. Jr., Titus, with whom Harold H. U.S. Atty., Terry, Atty., A. John Asst. Philip Atty. Cohan, at Asst. U.S. L. filed, the time any weapons. brief ‍‌​‌‌​‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌​​​‌​​‌​​​​‍were on the And neither officer had brief, appellee. weapon during seen in use the rob- bery. BAZELON, Judge, Before Chief Between the time of the offense and WRIGHT Judges. MacKINNON, Circuit the time of victim was in a se- *3 accident, rious automobile which caused lapses damage Judge: memory in his BAZELON, Chief and his eyesight. At he was unable to The in this serious issue identify appellant straight either or the appellant case is whether denied was his Eley. razor taken from guarаnteed constitutionally right the Appellant testified on the after- effective assistance of counsel.1 noon of he crime met the victim for the parking first a near time at bar I robbery alleged lot where the was relatively simple. The facts are The p.m., have occurred. At around 6 after victim testified that he accosted was having victim, ap- a few with the drinks appellant accomplices park- and two in a pellant claims to have returned to his p.m. lot at about 6 He stated that hotel, was he arrested while where accomplices -one him held from be- trying key to obtain his from the desk. hind, while other stood in front of victim The was he unsure whether had appellant him with a and knife went appellant robbery. met before the through pockets. The a his robbers took accomplice, Eley, testified that on the containing $110, wallet then fled when day robbery appellant of the he saw and police arrived. drinking together the victim at the bar policemen they and, latеr, fighting Two nearby parking testified in a cruising were in an police unmarked car lot when the arrived. robbery progress. saw DeCoster was convicted a alighted officers from their vehicle and aiding abetting jury of and in an armed gave One officer followed and chase. robbery dnagerous and an assault with a Eley, arrested a man identified as and weapon.2 was sentenced He to 2-8 straight pocket. found a razor in his years count, on each to be served concur policeman- The sеcond victim rently. appellant chased other cohort. and his pair split up, When this robbers II policeman appellant. continued after sug- events and Several circumstances nearby quarry The officer’s ran into a gest appellant may been de- have policeman followed; hotel he nied his sixth to the amendment appellant standing found desk effective assistance of counsel: lobby and arrested him. The victim Although immediately 1) appellant, appellant who failed to identified one as accepted pretrial appellant bail, was cus- robbers. A search of (meet up tody by Development turned nor neither the stolen wallet Black Man’s Cen- Appellant alleged evi- also there sufficient contends that since his We also find was accomplices only pled jury weapon guilty robbery a he for a to conclude that dence robbery. aiding abetting alleged cannot be convicted of in the an was used robbery deadly armed and an аssault with a charge dangerous weapon with a A of assault weapon. seeming paradox This aider and —an charge is a lesser included offense to a of arm principal abetter a without a but neces —is robbery arising trans ed same act or sary irrationality plea result of the bar Johnson, action. United States gaining. See, Cross v. App.D.C. 475 F.2d 1297 U.S.App.D.C. 380, Bazelon, New Gods for Old: “Efficient” appellant was Since Society, Courts a Democratic 46 N.Y.U.L. counts, the assault convic convicted on Rev. tion is vacated. give the names able to shouldn’t did file counsel not ter October you people intend to call November until bond review motion time. witnesses at alibi then, did not mention motion Even arrangement, custody proceed party alibi without third Defense: We will wrong On will court. We consider witnesses. filed to the wrote alibi witnesses. DeCoster don’t November prom- indicating had rely that counsel court on an alibi You will Court: re- motion for he would file a ised defense ? filed counsel On December lease. correct. That Defense: defend- proper court and in the motion apparently no 3) made effort Counsel released. ant was disposition of cases inquire into the (who alleged appears against that defense appellant’s It accom- two already appeal) announced fact, they not counsel on plices. is “ready” had both *4 In prepared although to judge he was not guilty pled who the same before day go appellant’s Thus, two trial to As triаl. ease. to sit DeCoster’s was on following begin, collo- agreed jury about to to- was quy regarding a trial to waive counsel would; alibi the Government’s tally his client unaware that by out, demand notice occurred: tried a pointed “be the court portion judge a of this who has heard you right, ready for All are Court: the other in connection with give evidence you you trial? If are can Government, (The defendants.” your two alibi [of names and addresses trial.) jury however, to a refused waive prosecutоr? Are to the witnesses] you 4) give a lack prepared and the names indications to are There appellant and between communication addresses ?. per- DeCoster trial counsel. When his No, present I time Defense: at the subpoena sonally requested court to not. . . . am accomplices, counsel indicated two his you trial? here for are Court: Well calling thought of them but had that he if for trial but I am here Defense: them.” for no address [sic] “we have statute pleases, under the the court immediately responded Appellant days.3 have 20 we un- of the men Jail one was D.C. asking you contin- for a Are Court: for. instant offense. the' der sentence ? uance placed recently other man had been The a 4 I would ask Defense: in probation, involvement for his also which day for this trial continuance judge by offense, the same the instant opportunity to might give me an presiding cáse. over who was DeCoster’s give prosecutor we can what called. This witness was never respоnse notice. court, first be informed the Defendant ready trial, you opening did announce Well Court: letter and then at you ap- if are . and for going . . with his dissatisfied that he was you alibi, rely then on an pointed occasion counsel. On later ' you are pleaded: the witnesses must know going he You as alibi witnesses. use honor, I feel this case Your ready. announced is, I continued because this should be Court: ^[*] there seems , your -X- [I]t witnesses seems to ^[*] be no -X- reason me that ready -X why you if ^[*] trial you into the basis His should be can’t request get proper representation getting. of his claim.4 denied without inquiry I yet by days open- meeting responsibility run “to maintain had not bis by performance day proper [de- of trial. standards Richardson, attorneys,” fense] McMann inquiry into the source 4. An the court avoiding thereby (1970), and his attor- dissatisfaction with L.Ed.2d 763 of defendant’s judge ney might to the trial later claim of ineffectiveness. have been useful a effective called two witness- assistance is a de- alleged accomplice right fendant’s appellant an fundamental most it “for es: ability appellant funda- affects on a his to assert contradicted other who right examination, may point. he Supreme direct he have.”8 The On mental observed, the scene of the Court “if placed at DeCoster fight guaranteed engaged with victim counsel a crime Constitution purpose, himself is to when had its a time DeCoster serve at defendants can- incompetent con- he was at hotel. This the mercies of testified left confused defense case and counsel.”9 tradiction credibility. stripped it major The first ineffеctiveness ease Huff, this Circuit was Jones v. 80 U.

III S.App.D.C. 254, Applying process-fundamental a due This court does not sit to sec approach, fairness we held the standard guess strategic tactical choices ond incompetence be whether counsel’s by trial However, made counsel.5 rendered the a trial “farce and mock choices are uninformed because counsel’s ery,” Bruce of~~Tnadequate' preparation, U. a defendant- S.App.D.C. 336, (1967), denied the effective аssistance *8 reconsidered Jones held that record, present typi counsel.6 The as is mockery” language “farce was “not raising cases claim of ineffec caT~in *5 literally, to be taken but rather as a viv tiveness, poses questions more about description principle id that the investigation preparation and counsel’s heavy showing accused has a burden in example, it answers. it is un- than For requisite unfairness.” rule an judg whether an clear informed tactical required nounced in Brucе a defendant preparation ment or a lack of was prove: inability identify of root counsel’s gross alibi the outset of witnesses at that there has been incom- petence his decision to call both DeCoster and and counsel that this has accomplice who contradicted effect him. blotted out the essence of a sub- Accordingly, is remanded record stantial defense the . . . F.2d at supplemental hearing on counsel’s 116-117. preparation investigation, ap Bruce, In thе claim ineffective as- pellant’s present given is leave counsel sistance on collateral In arose attack. to file a motion a new trial then, several since inef- cases the remand.7 fectiveness issue on direct raised appeal, silently ignored has court IV requirement that Bruce the defendant Since we remand for a determination “heavy prejudice, has a burden” show appellant’s claim, necessary it is implying appli- that a different test was governing principles. discuss appeal. cable on direct United States generally States, 5. See Moore v. United Zelker, ed States ex Thomas rel. F. (3rd (en banc). F.2d 730 Supp. 595, Cir. (S.D.N.Y.1971). 7. If the court finds below that a new trial See, Brown, 6. United States v. required, is this court should be advised and App.D.C. 177, (1973) ; 476 F.2d we will remand the case. U.S.App.D.C. 180, Schaefer, Federalism and State Criminal 1127, (1973). See also United Procedure, 1, (1956). 70 Harv.L.Rev. Maroney, ex rel. Kent v. 435 F.2d (3rd 1970) ; Caraway Beto, Richardson, McMann v. 397 U.S. 1970) ; F.2d 636 States ex 90 S.Ct. 25 L.Ed.2d 763 Follette, rel. Williams v. Henderson, also Tollett v. ‍‌​‌‌​‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌​​​‌​​‌​​​​‍411 U.S. (2d 1969), grounds rev’d on othеr sub 36 L.Ed.2d 235 nom., Richardson, McMann Zerbst, Johnson v. 462 — S.Ct. Unit- L.Ed. Supreme implied,11 166, 425 Hammonds, 138 Court explicitly held,12 (1970); court has Matthews v. United that effective right States, assistance, it like the to counsel self, proc Indeed, Bruce itself the derives due powerful clause, pointed “a ess from the amend out more but sixth court that necessary requirements.”13 showing inadequacy stringent is to ment’s “more recognition than to war sustain collateral attack with this Consistent repeat an order for a new trial either Court has rant continued to thаt purpose “preserve Court or this court on is the District counsel 117; appeal.” adversary process”14 F.2d at accord direct v. United role advo Scott must act “in the of an active Since these cate of his behalf client.”15 guilty plea context, decisions uncertain correct held leave the Court has applied question right to be when the standard to effective as accused’s “reasonably ap raised on ineffectiveness direct sistance is peal, competent” representation.16 now address that issue. we And

Third,17 Fourth,18 and Fifth19 Circuits already is no realized there regard In this are mindful require reason to less when the accused important several there have been Accordingly, plead guilty.20 does not developments since The test Bruce. following adopt a de there, “heavy we standard: requirement with of a reasonably “unfairness,” appears entitled burden” to show fendant competent attorney an act assistance theory rest on that an inеffective to. diligent as his conscientious grounded advoc proc claim is the due ness ate21 then, however, clause.10 ess Since Hayes, See also Harried v. U.S. *6 denied, Cir.), 882, 330, 281, cert. 404 App.D.C. (1967). U.S. 92 S.Ct. 389 F.2d 284-285 (“reasonably 210, (1971) 30 L.Ed.2d 163 See, g., States, 11. e. Wade v. United 388 likely reasonably rendering ef to render and 218, 227, 1926, U.S. 18 L.Ed.2d 87 S.Ct. 1149 assistance”). fective See also Lou West v. (1967). 1026, isiana, Crim.L.Rep. 2226 478 F.2d 13 (5th States, 1973). U.S.App.D.C. Cir. 12. Scott v. United 138 339, (1970). 609, F.2d 427 610 Saunders, 1033, 20. See also 2 In re Cal.3d 88 Cal.Rptr. banc). States, 633, (1970) (en 730, P.2d 13. See Moore 921 v. United 432 F.2d 472 (3rd 1970) (en banc). 737 21. There is to reason believe that defеndants generally Ash, receiving 300, are not 14. United now States v. this level of 413 U.S. 93 See, 2568, (1973). assistance. S.Ct. 37 L.Ed.2d 619 Matthews v. United States, U.S.App.D.C. 323, 145 449 California, 738, 15. 744, Anders v. 386 U.S. (1971) ; Hammonds, 985 138 1396, 1400, (1967). 87 S.Ct. L.Ed.2d 18 U.S.App.D.C. 166, 425 F.2d 597 Suggs States, See also v. United generally, Bazelon, See As The Defective App.D.C. 133, 391 F.2d 971 Counsel, sistance of U.Cinn.L.Rev. Richardson, ; 16. (1973) McMann 759, 29; v. cited in materials id. at n. U.S. 770- 771, 1441, Tamm, Advocacy 90 S.Ct. Taught 25 L.Ed.2d Can Be — The Way, (June, 1973). N.I.T.A. 59 A.B.A.J. 625 States, Moore v. United important It to stress that the issue (3rd 1970) (en banc) (“general require lawyer’s culpabil ineffectiveness cases not ment competency”). of normal See also ity, but rather his client’s constitutional Rundle, ex rel. Green v. rights. Compare Mitchell v. United (3rd 1971). 57, 787, 259 F.2d adopting specific 18. While not (1958), (dissenting opinion). standard of with id. at 795 competence” “reasonable attorney may the Fourth Circuit Even the best render ineffective specific has set forth assistance, duties of totally counsel which often for reasons extraneous suggest ‍‌​‌‌​‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌​​​‌​​‌​​​​‍representation. this level ability. Coles to his or her See United Peyton, Cir.), Price, 436 F.2d denied, cert. (1970) J., U.S. (Bazelon, dissenting) 89 S.Ct. C. L.Ed.2d 120 note 22 Heard v. infrа. (2) “reasonably competent promptly as should advise Counsel Since rights label, only his client of his and take all a shorthand sistance” is necessary preserve subject ready fol actions them. application, we to by Many rights protected approach adopted Fourth can be low the by legal prompt du The Su set forth some of action. Circuit22 preme has, example, rec by Court for a client :23 ties owed ognized attorney’s pro role guided be General —Counsel should tecting against privilege the client’s by Bar Association the American Ari self-incrimination. Miranda v. Funct Standards for Defense zona, 384 U.S. 436 S.Ct. [86 legal They represent pro ion24 rights (1966), 16 L.Ed.2d 694] guide fession’s own articulation Wade, line-up, at a United States criminal lines [87 cases.25 (1967) L.Ed.2d Counsel 1149] Specifically (1) con should Counsel — with concerned should also be delay and fer his client without with released accused’s be necessary mat often as as elicit trial,28 pre custody pending and be defense, ters of or to ascertаin appropriate, make pared, where potential defenses are unavailable.26 psychiatric pre-trial for a motions fully poten should discuss Counsel suppres or for examination29 strategies tial choices and tactical evidence.30 sion of with his client. Project (1965) (separate opinion Bar Association American Justice, Bazelon, J.). Standards C. for Criminal Standards (App. Relating Function the Defense Peyton, Coles prod- 1971). are the These standards Draft Cir.), denied, cert. study by comprehensive a distin- uct of a guished : Jus- Chief chaired committee indigent Counsel for an defendant should ap- States, and have been tice of .the appointed promptly. Counsel should be Delegates. proved ABA’s House opportunity prepare afforded a reasonable they are claim that to defend an 25. While the Standards accused. Counsel must confer judicial delay evalua- with his client not intended “as criteria without undue and as 1.1(f), effectiveness,” necessary, are id. аt § often rights to advise him tion of certainly largely guideposts in this and to elicit relevant matters defense or potential to ascertain that area. uncharted defenses are un- appro- available. Counsel must conduct People Shells, Cal. Cal.3d priate investigations, both factual and le- *7 Rptr. 275, Hawk P.2d 1227 483 cf. gal, to determine if matters of defense can 116, 271, Olsen, 90 66 S.Ct. 326 U.S. v. developed, enough allow to himself (1945). 61 L.Ed. preparation time for reflection and for trial. Miller, Amsterdam, Segal Trial 27. See & Harper, also 543, See State v. 57 Wis.2d Cases Defense of Criminal (1973) (ABA Manual for The N.W.2d 1 205 Standards for v. Marshall adopted “partial §§ 35-37 the Defense Function cf. 1, 436 guidelines 141 for the determination of effective (1970). representation.”). Standards, generally, Pretrial Re- ABA See

23. The duties herein articulated are meant ns 1968). (App. lease Draft starting point develop, for the court to on a by basis, guidelines case case clearer for courts Morgan, 29. United v. States 157 lawyers meaning and for as to the of effective Saunders, (1973) -, ; In re F.2d 482 786 See, g., assistance. e. United States Mar v. 1033, Cal.Rptr. 633, P.2d 921 Cal.2d tin, U.S.App.D.C. 359, 943, banc) ; Texas, (1970) (en v. Brooks (1973) (dissenting opinion of Chief 1967) ; People (5th v. Ben F.2d 619 nett, Cir. Judge suggesting Bazelon that ineffective 462, 801, 29 N.Y.2d 329 N.Y.S.2d sentencing, ness of counsel at defined ref N.E.2d 637 Standards, erence to the ABA should be resentencing) ; See, remedied a remand for Zone v. Government Canal cf. 1973) Johnson, C., ; People United States v. 479 F.2d 1253 Cir. (ineffectiveness Cal.Rptr. (1973) Ibarra, at v. 60 Cal.2d sentencing). 386 P.2d 487 him appro- to him makes estab- (3) the burden conduct must Counsel It investigations, his innocence. factual the likelihood of lish priate appellant say mat- to that legal, is no answer what to determine gov- already developed. had a trial which has can be defense ters of proof put because its noted Supreme ernment Court complaint requires ab- system is that adversary heart of his assistance of coun- raised” are the effective defenses sence “all available adversary put deprived full government him a sel has that the so most proof.31 mеans trial. This attorney, or his cases agent, Second, may proof prejudice well be only his interview should not. precisely from the record because absent those that also but witnesses own For ex- counsel has been ineffective.35 ample, call, government when intends fails conduct an investiga- they are accessible. may investigation, not indi- the record always efforts include tion should he could have cate which witnesses posses- in the information secure called, could have raised. or defensesNhe en- prosecution and law sion of And, of authorities.32 forcement course, y investigate duty also legal research.33 adequate requires of coun Much of the evidence frequently re sel’s ineffectiveness is shows a substan a defendant If (e. g., require flected in trial record a fail of these violation of tial rep investigate ease, inter ure to or to effective has been denied ments he “on a witness before government, view trial). defendant or unless resentation proof result, once a As a ineffectiveness cases burden of which is cast can precepts shown, often evolved into tests whether of these violation thereby.” appellate judges hypothesize prejudice can a ra lack establish explanation apparent' er Peyton, tional Coles v. justify 1968).34 But nei rors the conduct of trial.36 Two factors judge’s First, constitution ther one another’s requirement. in our surmise nor system proof.37 ally adversary place prescribed doubt сan take the prove Thus, government to when a claim of ineffective assist burden is on the requirement contemplated, defendant guilt. that the A ance is it should first be hand, presented shifts prejudice, on other court in a mo- the district show Ash, Cal.Rptr. 784, Williams, v. 413 U.S. See United States Cal.3d quoting (1973), S.Ct. P.2d 984 (2d Bennett, v. 409 F.2d 888 California, Chapman 34. See 1969). also L.Ed.2d require Investigation preparation Moore Olson, adequate Hawk counsel have ‍‌​‌‌​‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌​​​‌​​‌​​​​‍time. (3rd (en banc) ; 271, 278, 90 L.Ed. 326 U.S 66 S.Ct. Wade, Calloway Powell, (1945). See L.Ed.2d Glasser v. *8 Bomar, 1968) ; Townsend v. States, United 1965) ; F.2d United States .499 cf. L.Ed. Ash, 300, 326, v. generally Thompson, (1973) (Brennan, 35. See United v. States J. dissenting). U.S.App.D.C. Compare United States U.S. (Jencks Act) ; (1970) 32. See § 18 U.S.C. App.D.C. F.2d 1133-1136 16(c) ; Fed.R.Crim.P. Levin v. Katzen (1972) (opinion Bazelon), Judge of Chief bach, U.S.App.D.C. F.2d (opinion Judge with id. at Wil (1966) ; ABA for Standards Defense key). See Plummer v. (App.Draft 1971). § Function 4.1 U.S.App.D.C. 211, 260 F.2d 729 People Ibarra, Maroney, 33. See 60 Cal.2d 37. ex rel. Kent v. Staes Cal.Rptr. 863, (1963) ; (3d 1970). 386 P.2d In re imply proceed- tion for new trial.38 In such false standard that a counsel ing, may must evidence dehors record be be effective. That is a hard task by affidavit,39 for and when nec- in submitted a criminal I case. essary may proper- judge requirement believe the district order a is that hearing “adequate” he be allow counsel I otherwise task. Hence willing respond.40 phrase “inadequate would If the use the trial court assist- grant motion, ance of counsel.” this court will I thus dissent denied, above remand.41 If extent. the motion is appeal therefrom will be consolidated appeal

with the conviction and hearing any sentence. The record of motion,

held on the documents below, part

submitted will become appeal.

record on

Record remanded. UNITED STATES of America MacKINNON, Judge, concur- Circuit ring part dissenting in part: HINKLE, Appellant. Michael H. generally I concur in the standards No. 72-1990. Judge opinion outlined in Bazelon’s dealing inadequate with cases where as- Appeals, United States Court of may claimed; sistance of counsel District of Columbia Circuit. however, appear it does not to me that 1973,. Argued Sept. analysis this is such a case. An Decided Nov. points opinion majority stated in the in- Rehearing Denied Dec. 1973. clude material is irrelevant conviction, inconclusive, self-contradic-

tory unpersuasive. addition, I do not concur in the

conclusion that the burden such cases prove non-prejudice to the shifts Gov- proof usually

ernment. Such more ability

within accused, if such all, place

evidence exists at and it would

an unfair burden on the Government to

impose upon instance, that task it. For

the accused could frustrate the Govern- many merely

ment’s effort instances by claiming privilege against disclos- ground some facts on the might incriminate him.

Also the usual statement of “ineffec-

tive” assistance of counsel to me seems Brown,

38. Fed.R.Crim.P. 33 United 40. See ABA Standards for the Defense Func- 8.6(c) (App.Draft 177, 476 1971). tion § The trial Thompson, judge might, example, ask the trial attor- ney response ‍‌​‌‌​‌​‌​‌‌​‌​​‌‌​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌​​​‌​​‌​​​​‍to submit an affidavit to the Smallwood, petitioner’s allegations deciding F. before wheth- (Bazelon, Judge, 2d 98 hearing Chief concur er a is indicated. ring) ; Marshall v. United *9 41. United States v. App.D.C. 1, 159 n. 11 Smith Thompson, U.S.App. Pollin, 194 D.C.