Petitioner was tried and convicted of a federal crime. His only defense was insanity. After his conviction was upheld on appeal, petitioner sought post-conviction relief under 28 U.S.C. 2255, and included a claim that the finding of sanity was based upon the improper admission of illegally seized evidence. The District Court after an evidentiary hearing denied relief. Petitioner's applications to the District Court and the Court of Appeals for leave to appeal in forma pauperis were denied, both courts adhering to the view followed by the Court of Appeals that unlawful search-and-seizure claims "are not proper matters to be presented by a motion to vacate sentence under 2255 but can only be properly presented by appeal from the conviction." Held: A claim of unconstitutional search and seizure is cognizable in a proceeding under 28 U.S.C. 2255. Pp. 221-231.
Bruce R. Jacob, by appointment of the Court, 391 U.S. 901 , argued the cause and filed briefs for petitioner.
John S. Martin, Jr., argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question here is whether the claim of a federal prisoner that he was convicted on evidence obtained in an unconstitutional search and seizure is cognizable in a post-conviction proceeding under 28 U.S.C. 2255. 1 [394 U.S. 217, 219]
Petitioner was tried and convicted in the District Court for the Eastern District of Missouri on charges of armed robbery of a federally insured savings and loan association. At trial, petitioner's only defense was insanity. The Court of Appeals for the Eighth Circuit, on petitioner's direct appeal, affirmed the conviction. Kaufman v. United States, 350 F.2d 408 (1965).
Petitioner then filed this post-conviction proceeding under 2255 and included a claim that the finding of sanity was based upon the improper admission of unlawfully seized evidence. 2 After an evidentiary hearing, the District Judge, who had also presided at petitioner's trial, denied relief with a written opinion. As respects the claim of unlawful search and seizure, the opinion states that: "The record does not substantiate this claim. In any event, this matter was not assigned as error on Kaufman's appeal from conviction and is not available as a ground for collateral attack on the instant 2255 motion." 268 F. Supp. 484, 487 (1967). Petitioner's applications to the District Court and the Court of Appeals for the Eighth Circuit for leave to appeal in forma pauperis were denied.
We treat the actions of the District Court and the Court of Appeals as grounded on the view consistently [394 U.S. 217, 220] followed by the Court of Appeals that claims of unlawful search and seizure "are not proper matters to be presented by a motion to vacate sentence under 2255 but can only be properly presented by appeal from the conviction." 3 Other courts of appeals have indicated a contrary [394 U.S. 217, 221] view. 4 In light of the importance of the issue in the administration of 2255 we granted certiorari. 390 U.S. 1002 (1968). We reverse.
The authority of the federal courts to issue the writ of habeas corpus was incorporated in the very first grant of federal court jurisdiction made by the Judiciary Act of 1789, c. 20, 14, 1 Stat. 81, with the limiting provision that "writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States . . . ." Common-law principles initially determined the scope of the writ. Ex parte Bollman, 4 Cranch 75, 93-94 (1807). In 1867, however, the writ was extended to state prisoners, and its scope was expanded to authorize relief, both as to federal and state prisoners, in "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States . . . ." Act of February 5, 1867, c. 28, 1, 14 Stat. 385.
Section 2255 revised the procedure by which federal prisoners are to seek such relief but did not in any respect cut back the scope of the writ. The section was included in the 1948 revision of the Judicial Code "at the instance of the Judicial Conference [of the United States] to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum," United States v. [394 U.S. 217, 222] Hayman, 342 U.S. 205, 219 (1952) (italics supplied); 5 "the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined." Hill v. United States, 368 U.S. 424, 427 (1962). Thus, we may refer to our decisions respecting the availability of the federal habeas remedy in deciding the question presented in this case.
We noted in Fay v. Noia, 372 U.S. 391, 409 (1963) that "[t]he course of decisions of this Court . . . makes plain that restraints contrary to our fundamental law, the Constitution, may be challenged on federal habeas even though imposed pursuant to the conviction of a federal court of competent jurisdiction." 6 We have given the same recognition to constitutional claims in 2255 proceedings. See, e. g., United States v. Hayman, supra; Sanders v. United States, 373 U.S. 1 (1963); Jordan v. United States, 352 U.S. 904 (1956). The courts of appeals which have denied cognizance under 2255 to unconstitutional search-and-seizure claims have not generally supplied reasons supporting their apparent departure from this course of our decisions. Rather, these courts have made the bald statement, variously expressed, [394 U.S. 217, 223] that a motion under 2255 cannot be used in lieu of an appeal. 7 It is true that in Sunal v. Large, 332 U.S. 174, 179 (1947), we held that "the writ is not designed for collateral review of errors of law committed by the trial court - the existence of any evidence to support the conviction, irregularities in the grand jury procedure, departure from a statutory grant of time in which to prepare for trial, and other errors in trial procedure which do not cross the jurisdictional line." But we there recognized that federal habeas relief for constitutional claims asserted by federal prisoners is not limited by that rule. 332 U.S., at 182 ; see also Hill v. United States, supra, at 428. Later, in Townsend v. Sain, 372 U.S. 293, 311 -312 (1963), we pointed out the vital distinction between the appellate and habeas functions and concluded that habeas relief cannot be denied solely on the ground that relief should have been sought by appeal to prisoners alleging constitutional deprivations:
The Government concedes in its brief that we have already rejected this approach with respect to the availability of the federal habeas corpus remedy to state prisoners. This rejection was premised in large part on a recognition that the availability of collateral remedies is necessary to insure the integrity of proceedings at and before trial where constitutional rights are at stake. Our decisions leave no doubt that the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial. See, e. g., Mancusi v. DeForte, 392 U.S. 364 (1968); Carafas v. LaVallee, 391 U.S. 234 (1968); Warden v. Hayden, 387 U.S. 294 (1967); see also Henry v. Mississippi, 379 U.S. 443, 452 (1965). The Government argues, however, that federal post-conviction relief should not be available to federal prisoners in as broad a range of cases as that cognizable when presented by state prisoners. Support for this proposition is drawn from the fact that considerations which this Court, in Fay v. Noia, supra, deemed justifications for affording a federal forum to state prisoners - e. g., the necessity that federal courts have the "last say" with respect to questions of federal law, the inadequacy of state procedures to raise and preserve federal claims, the concern that state judges may be unsympathetic to federally created rights, the institutional constraints on the exercise of this Court's [394 U.S. 217, 226] certiorari jurisdiction to review state convictions - do not obtain with respect to federal prisoners. Thus, we are told that the federal prisoner, having already had his day in federal court, stands in a different position with regard to federal collateral remedies than does the state prisoner. Conceding this distinction, we are unable to understand why it should lead us to restrict, completely or severely, access by federal prisoners with illegal search-and-seizure claims to federal collateral remedies, while placing no similar restriction on access by state prisoners.
The opportunity to assert federal rights in a federal forum is clearly not the sole justification for federal post-conviction relief; otherwise there would be no need to make such relief available to federal prisoners at all. The provision of federal collateral remedies rests more fundamentally upon a recognition that adequate protection of constitutional rights relating to the criminal trial process requires the continuing availability of a mechanism for relief. This is no less true for federal prisoners than it is for state prisoners.
In Townsend v. Sain, supra, at 313, 318, we set down the circumstances under which a federal court must review constitutional claims - including, of course, claims of illegal search and seizure - presented by state prisoners:
The approach adopted by the court in Thornton and pressed upon us here exalts the value of finality in criminal judgments at the expense of the interest of each prisoner in the vindication of his constitutional rights. Such regard for the benefits of finality runs contrary to the most basic precepts of our system of post-conviction relief. In Fay v. Noia, supra, at 424, a case involving a state prisoner who claimed that his confession was coerced, we said that "conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review." The same view was expressed in Sanders v. United States, supra, at 8, a case involving a federal prisoner: "[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged." This philosophy inheres in our recognition of state prisoners' post-conviction claims of illegal search and seizure. Plainly the interest in finality is the same with regard to both federal and state prisoners. With regard to both, Congress has determined that the full protection of their constitutional rights requires the availability of a mechanism for collateral attack. The right then is not merely to a federal forum but to full and fair consideration of constitutional claims. Federal prisoners are no less entitled to such consideration than are state prisoners. There is no reason to treat federal trial errors as less destructive of constitutional guarantees than state trial errors, nor to give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations.
We cannot agree with the suggestion in MR. JUSTICE BLACK'S dissent that the weight to be accorded the benefits [394 U.S. 217, 229] of finality is as controlling in the context of post-conviction relief as in the context of retroactive relief. The availability of post-conviction relief serves significantly to secure the integrity of proceedings at or before trial and on appeal. No such service is performed by extending rights retroactively. Thus, collateral relief, unlike retroactive relief, contributes to the present vitality of all constitutional rights whether or not they bear on the integrity of the fact-finding process.
More fundamentally, the logic of his dissent cannot be limited to the availability of post-conviction relief. It brings into question the propriety of the exclusionary rule itself. The application of that rule is not made to turn on the existence of a possibility of innocence; rather, exclusion of illegally obtained evidence is deemed necessary to protect the right of all citizens, not merely the citizen on trial, to be secure against unreasonable searches and seizures. As we said in Miller v. United States, 357 U.S. 301, 313 (1958):
We thus reject the rule announced in the majority opinion in Thornton and adopt the reasoning of Judge Wright's dissent in that case, 125 U.S. App. D.C., at 123, 368 F.2d, at 831:
[ Footnote 2 ] Petitioner initiated the 2255 proceeding by a pro se motion. The only claim presented was denial of effective assistance of counsel. The District Judge ordered a hearing, and appointed counsel to assist petitioner. Counsel filed a supplemental motion presenting two additional claims, one of which was that the search of petitioner's automobile was illegal.
[ Footnote 3 ] Warren v. United States, 311 F.2d 673, 675 (1963); see also Springer v. United States, 340 F.2d 950 (1965); Peters v. United States, 312 F.2d 481 (1963); Gendron v. United States, 340 F.2d 601 (1965). Accord: United States v. Re, 372 F.2d 641 (C. A. 2d Cir. 1967); United States v. Jenkins, 281 F.2d 193 (C. A. 3d Cir. 1960); Armstead v. United States, 318 F.2d 725 (C. A. 5th Cir. 1963); Eisner v. United States, 351 F.2d 55 (C. A. 6th Cir. 1965); De Welles v. United States, 372 F.2d 67 (C. A. 7th Cir. 1967); Williams v. United States, 307 F.2d 366 (C. A. 9th Cir. 1962).
We have not overlooked that the District Court's statement that "this matter was not assigned as error on Kaufman's appeal from conviction . . ." suggests that in any event failure to appeal the conviction renders the 2255 remedy unavailable. This suggestion is contrary to our decisions that failure to take a direct appeal from conviction does not deprive a federal post-conviction court of power to adjudicate the merits of constitutional claims; the question rather is whether the case is one in which refusal to exercise that power would be appropriate. See Fay v. Noia, 372 U.S. 391, 438 -440 (1963); Henry v. Mississippi, 379 U.S. 443, 451 -452 (1965).
This certainly is not a case where there was a "deliberate by-pass" of a direct appeal. Appointed counsel had objected at trial to the admission of certain evidence on grounds of unlawful search and seizure, but newly appointed appellate counsel did not assign the admission as error either in his brief or on oral argument of the appeal. After oral argument of the appeal, however, petitioner wrote a letter to appellate counsel asking him to submit to the Court of Appeals a claim of illegal search and seizure of items from his automobile. Counsel forwarded petitioner's letter to the Clerk of the Court of Appeals who notified counsel that petitioner's letter had been given to the panel which had heard and was considering the appeal. The opinion of the Court of Appeals affirming petitioner's conviction does not appear to pass on the search-and-seizure claim.
[ Footnote 4 ] United States v. Sutton, 321 F.2d 221 (C. A. 4th Cir. 1963); Gaitan v. United States, 317 F.2d 494 (C. A. 10th Cir. 1963).
[ Footnote 5 ] Among the serious administrative problems under habeas corpus practice in the case of federal prisoners was that created by the requirement that the action be brought in the district of confinement, where the records of the case were often not readily available. Section 2255 changed this to require an application by motion filed in the sentencing court. See United States v. Hayman, 342 U.S. 205, 212 -219 (1952).
[ Footnote 6 ] See, e. g., Ex parte Lange, 18 Wall. 163 (1874); Ex parte Wilson, 114 U.S. 417 (1885); Callan v. Wilson, 127 U.S. 540 (1888); Counselman v. Hitchcock, 142 U.S. 547 (1892); Johnson v. Zerbst, 304 U.S. 458 (1938); Bowen v. Johnston, 306 U.S. 19 (1939); Waley v. Johnston, 316 U.S. 101 (1942); Von Moltke v. Gillies, 332 U.S. 708 (1948); see also cases collected in Fay v. Noia, 372 U.S. 391, 409 , n. 17.
[ Footnote 7 ] See, e. g., "A motion under 2255 cannot be made the substitute for an appeal," Peters v. United States, supra, n. 3, at 482 (C. A. 8th Cir.); "Section 2255 provides for a collateral attack on a judgment of conviction and is not a substitute for appeal for alleged errors committed at the trial," Eisner v. United States, supra, n. 3, at 57 (C. A. 6th Cir.); "Questions concerning the admissibility of evidence obtained directly or indirectly as a result of an unlawful search can be reviewed on an appeal from a judgment of conviction, but cannot be dealt with in a section 2255 proceeding," Williams v. United States, supra, n. 3, at 367 (C. A. 9th Cir.); "It has long been the law that habeas corpus and 2255 will not be allowed to do service as an appeal, and that so far as federal prisoners are concerned, failure to appeal will normally bar resort to post-conviction relief," Nash v. United States, 342 F.2d 366, 367 (C. A. 5th Cir. 1965). These paraphrase the statement in Sunal v. Large, 332 U.S. 174, 178 (1947), that "the writ of habeas corpus will not be allowed to do service for an appeal," but that statement was made in the context of an alleged nonconstitutional trial error. See United States v. Sobell, 314 F.2d 314, 322-323 (C. A. 2d Cir. 1963).
[ Footnote 8 ] Where a trial or appellate court has determined the federal prisoner's claim, discretion may in a proper case be exercised against the grant of a 2255 hearing. Section 2255 provides for hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." In Sanders v. United States, 373 U.S. 1 (1963), we announced standards governing the determination whether a hearing should be ordered in the case of a successive motion under 2255. Similarly, where the trial or appellate court has had a "say" on a federal prisoner's claim, it may be open to the 2255 court to determine that on the basis of the motion, files, and records, "the prisoner is entitled to no relief." See Thornton v. United States, 125 U.S. App. D.C. 114, 125, 368 F.2d 822, 833 (1966) (dissenting opinion of Wright, J.).
Furthermore, the 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly federal procedures provided at or before trial and by way of appeal - e. g., motion to suppress under Fed. Rule Crim. Proc. 41 (e) or appeal under Fed. Rule App. Proc. 4 (b). Fay v. Noia, supra, n. 3, at 438; Henry v. Mississippi, supra, n. 3, at 451-452.
MR. JUSTICE BLACK, dissenting.
Petitioner Kaufman was convicted of robbing a federally insured savings and loan association while armed with a pistol. Part of the evidence used against him was a revolver, some of the stolen traveler's checks, a money-order receipt, a traffic summons, and gasoline receipts. During the trial petitioner's counsel conceded that petitioner had committed the robbery but contended he was not responsible for the crime because he was mentally ill at the time. An appeal from his conviction was rejected by the Court of Appeals, 350 F.2d 408 (C. A. 8th Cir. 1965), and we denied certiorari, 383 U.S. 951 (1966). Three months later - after the [394 U.S. 217, 232] decision had become what is generally considered "final" - he filed in the Federal District Court the present motion under 28 U.S.C. 2255, asking that his sentence be vacated on the ground, among others, that the trial court had committed error in not suppressing the evidence against him because the articles had been obtained by an unlawful search and seizure. Despite the fact that he has never, either in his trial or in this proceeding, asserted that he had not actually physically committed the robbery with a pistol, and despite the fact that this plainly reliable evidence clearly shows, along with the other evidence at trial, that he was not insane, the Court is reversing his case, holding that he can collaterally attack the judgment after it had become final. I dissent.
My dissent rests on my belief that not every conviction based in part on a denial of a constitutional right is subject to attack by habeas corpus or 2255 proceedings after a conviction has become final. This conclusion is supported by the language of 2255 which clearly suggests that not every constitutional claim is intended to be a basis for collateral relief. 1 And, as this Court has said in Fay v. Noia, with reference to habeas corpus,
I agree with the Court's conclusion that the scope of collateral attack is substantially the same in federal habeas corpus cases which involve challenges to state convictions, as it is in 2255 cases which involve challenges to federal convictions. The crucial question, however, is whether certain types of claims, such as a claim to keep out relevant and trustworthy evidence because the result of an unconstitutional search and seizure, should normally be open in these collateral proceedings. This question was fully and carefully considered by the Court of Appeals for the District of Columbia Circuit in Thornton v. United States, 125 U.S. App. D.C. 114, 368 F.2d 822 (1966), and I agree substantially with the opinion of Judge Leventhal for the majority of that court, which states: 2
It was under these circumstances, strongly appealing to the Court's sense of what justice required, that this Court held that Noia was entitled to challenge his conviction even though it had previously become "final." My Brother HARLAN, dissenting, concluded that no matter how appealing the circumstances, one wrongly convicted must be consigned to the slow, tedious, and uncertain road to whatever relief he might possibly get from the Chief Executive. On the contrary, I agreed with Fay v. Noia as one of the bright landmarks in the administration of criminal justice. But I did not think then and do not think now that it laid down an inflexible rule compelling the courts to release every prisoner who alleges in collateral proceedings some constitutional flaw, regardless of its nature, regardless of his guilt or innocence, and regardless of the circumstances of the case. The Court's opinion in Noia shows, from beginning to end, that the defendant's guilt or innocence is at least one of the vital considerations in determining whether collateral relief should be available to a convicted defendant. [394 U.S. 217, 236] The Court repeatedly emphasized that the only evidence against Noia was a coerced confession and that he remained in jail while the State permitted his alleged confederates to go free. The Court made it clear that equitable considerations such as these should play a part in determining the availability of federal habeas corpus:
Although, as the Court of Appeals indicated in the Thornton case, habeas corpus has been thought of broadly as a means of securing redress for the violation of any "constitutional right," it was true until Mapp v. Ohio, 367 U.S. 643 (1961), that almost every "constitutional right" referred to in this sense played a central role in assuring that the trial would be a reliable means of testing guilt. It is true that the prohibition against coerced confessions has been vigorously enforced even in the absence of proof that the confession itself was unreliable, e. g., Rogers v. Richmond, 365 U.S. 534 (1961), but even this prohibition rests to a substantial extent on recognition that all such confessions "may be and have been, to an unascertained extent, found to be untrustworthy," id., at 541.
A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty. A good example of such a case is one in which I filed a dissent today, Harris v. Nelson, post, p. 286. The prisoner in Harris was convicted on a charge that he had been in possession of marihuana, possession alone being a crime under state law. He later collaterally attacked that conviction, alleging that the marihuana had been unlawfully seized from his home, where he had been in illegal possession of it. He did not and evidently could not allege a single fact that would indicate the slightest possibility that he actually was innocent of the crime charged. Under these circumstances it implies no disrespect for the importance of the Fourth Amendment to recognize the simple proposition that treatment of search-and-seizure claims should [394 U.S. 217, 238] correspond to the purpose of the Fourth Amendment exclusionary rule. As the Court of Appeals said in Thornton: 6
The only other justification for the Court's result that can be gleaned from its opinion is the statement that the reasoning of the Court of Appeals in Thornton "exalts the value of finality in criminal judgments at the expense of the interest of each prisoner in the vindication of his constitutional rights." Ante, at 228. This astonishing statement is directly contrary to the principles this Court has consistently applied on this subject, as for example in Elkins v. United States, 364 U.S. 206, 217 (1960), where we said: "The [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter - [394 U.S. 217, 240] to compel respect for the constitutional guaranty in the only effectively available way - by removing the incentive to disregard it." This same recognition that no personal right of the prisoner can be vindicated in these Fourth Amendment cases was stressed in this Court's opinion in Linkletter, supra: "We cannot say that this [deterrent] purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. . . . Finally, the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late." 381 U.S., at 637 .
The Court's consistent adherence to this approach has continued through all of the various "retroactivity" cases, including today's decision in Desist v. United States, post, p. 244, in which the Court emphasizes, quoting from Linkletter, that "`[t]he misconduct of the police . . . has already occurred and will not be corrected by releasing the prisoners involved,'" and that "the exclusionary rule is but a `procedural weapon that has no bearing on guilt.'" It would be hard to find a more apt summary of this Court's holdings in these "retroactivity" cases than the statement that they "exal[t] the value of finality in criminal judgments at the expense of the interest of each prisoner in the vindication of his constitutional rights." But since this is the course the Court has chosen to steer, I think it would not be amiss to suggest that the Court at least decide this case on the same principles and seek to achieve a modest semblance of consistency. Instead the Court adopts a rule that offers no discernible benefits in enforcing the Fourth Amendment and insures that prisoners who are undoubtedly guilty will be set free.
It is seemingly becoming more and more difficult to gain acceptance for the proposition that punishment of [394 U.S. 217, 241] the guilty is desirable, other things being equal. One commentator, who attempted in vain to dissuade this Court from today's holding, thought it necessary to point out that there is "a strong public interest in convicting the guilty." 8 Indeed the day may soon come when the ever-cautious law reviews will actually be forced to offer the timid and uncertain contention, recently suggested satirically, that "crime may be thought socially undesirable, and its control a `valid governmental objective' to which the criminal law is `rationally related.'" 9
I cannot agree to a rule, however technical it may seem, that leads to these results. I would not let any criminal conviction become invulnerable to collateral attack where there is left remaining the probability or possibility that constitutional commands related to the integrity of the fact-finding process have been violated. In such situations society has failed to perform its obligation to prove beyond a reasonable doubt that the defendant committed the crime. But it is quite a different thing to permit collateral attack on a conviction after a trial according to due process when the defendant clearly is, by the proof and by his own admission, guilty of the crime charged. There may, of course, as the Court of Appeals held in the Thornton case, be some special circumstances in which allowance of a Fourth Amendment claim in a collateral proceeding would be justified in terms of the relevant and applicable constitutional principles. Some of the situations possibly falling in this category have been enumerated and examined by others, 10 and there are circumstances alleged here that might lead [394 U.S. 217, 242] to such a disposition of this case. 11 But the Court does not rest its judgment on this narrow ground, and I therefore do not attempt to pass on it. I do contend, however, that the court below was right in refusing to follow the broad rule that this Court is announcing today. In collateral attacks whether by habeas corpus or by 2255 proceedings, I would always require that the convicted defendant raise the kind of constitutional claim that casts some shadow of a doubt on his guilt. This defendant is permitted to attack his conviction collaterally although he conceded at the trial and does not now deny that he had robbed the savings and loan association and although the evidence makes absolutely clear that he knew what he was doing. Thus, his guilt being certain, surely he does not have a constitutional right to get a new trial. I cannot possibly agree with the Court.
[ Footnote 1 ] "If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. 2255. (Emphasis supplied.)
[ Footnote 2 ] 125 U.S. App. D.C., at 116-118, 368 F.2d, at 824-826.
[ Footnote 3 ] See Mishkin, The Supreme Court, 1964 Term - Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 79-86 (1965).
[ Footnote 4 ] 372 U.S. 391, 438 .
[ Footnote 5 ] Id., at 440-441.
[ Footnote 6 ] 125 U.S. App. D.C., at 118, 368 F.2d, at 826.
[ Footnote 7 ] Only one of these decisions, Mancusi v. DeForte, 392 U.S. 364 (1968), actually ordered the granting of habeas relief on the basis of a search-and-seizure claim, and in Mancusi (as in Warden v. Hayden, 387 U.S. 294 (1967)) the issue was not even theoretically before us since only in the most exceptional case would we have considered a question not mentioned in the State Warden's petition for a writ of certiorari.
[ Footnote 8 ] Amsterdam, Search, Seizure; and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 389 (1964).
[ Footnote 9 ] 79 Harv. L. Rev. (parody ed.) 10, 12 (March 1966).
[ Footnote 10 ] Thornton v. United States, supra; Amsterdam, supra, n. 8, at 391-392, n. 60.
[ Footnote 11 ] Petitioner's allegations suggest that he may have been unjustifiably frustrated in his efforts to raise the search-and-seizure issue on direct appeal from his conviction. See the Court's opinion, ante, at 220, n. 3.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, dissenting.
I concur in much of my Brother BLACK'S opinion, and agree with his conclusion that 28 U.S.C. 2255 should be available to contest the admission of evidence allegedly seized in violation of the Fourth Amendment only under limited and special circumstances of the sort suggested in Thornton v. United States, 125 U.S. App. D.C. 114, 368 F.2d 822 (1966). I must, however, disassociate myself from any implications, see, e. g., ante, at 232-233, 234-236, that the availability of this collateral remedy turns on a petitioner's assertion that he was in fact innocent, or on the substantiality of such an allegation.
I think it appropriate to add that the main roots of the situation against which my Brother BLACK so rightly [394 U.S. 217, 243] inveighs are to be found in the Court's decisions in Townsend v. Sain, 372 U.S. 293 (1963), and Fay v. Noia, 372 U.S. 391 (1963), which have opened wide the gates to collateral re-examination of both state and federal criminal convictions. Be that as it may, the present case offers an opportunity to narrow the entrance in a fair and practicable manner. In rejecting the opportunity, the Court once again * this Term imposes a burden on the judiciary and on society at large, which results in no legitimate benefit to the petitioner and does nothing to serve the interests of justice.
I therefore dissent from the opinion of the Court.