(dissenting).
The decision in these two cases turns upon a construction of Section 2255, Title 28, U.S.C.A. While the question is not free from doubt, I find myself unable to concur in the construction placed thereon by my associates. The precise question is whether Section 2255 is a prerequisite to the right to institute a habeas corpus action or whether it is an exclusive remedial substitute therefor, except only in those cases in which it is found that the remedy provided for therein is inadequate and ineffective to test the legality of the detention. This section has been considered in one way or another by a number of courts. Most of them seem to be of the view that compliance with the requirements of Section 2255 is a prerequisite to the right to proceed by habeas corpus and not a substitute therefor.1
In Stidham v. Swope, D.C., 82 F.Supp., 931, Chief Judge Denman granted an appli*517cation for the writ without requiring compliance with Section 2255. No attempt will be made to quote from that opinion. It is sufficient to say that I am in accord with its philosophy. To square with the concept of due process, there must not only be a remedy but the remedy must also be speedy and effective. I have grave doubts whether Section 2255 can ever be an effective remedy, save in those cases in which the sentencing court is in the same jurisdiction with the institution of confinement.
To illustrate: Suppose a person sentenced to Alcatraz from the Federal Court of the District of Florida, or to McNeil Island by a Texas court, or to Atlanta by a court in the State of Washington, seeks to challenge the validity of the sentence in the sentencing court. May we not take knowledge of the fact that it would impose an onerous burden to transport these prisoners thousands of miles back and forth from their place of service of sentence to the sentencing court, with attendant guards, in armored cars, etc. But assuming all this would be done, how about the element of time involved. Would it be possible to accord to petitioner that speedy remedy to which he is entitled if the sentence, in fact, is void? Would he have an opportunity to confer with an attorney, appointed for him by the sentencing court, prior to the time of trial to prepare his case, or to subpoena and interview witnesses ? It seems to me the answer is obvious.
The contention is made that merely to construe Section 2255 as a prerequisite to the right to institute habeas corpus proceedings would fail to remedy the abuses of the judicial process resulting from repeated groundless applications for the writ by the same petitioner. Even so, that would not warrant the procedure authorized by Section 2255 unless it is an effective and complete substitute remedy for habeas corpus proceedings. The end sought to be accomplished does not justify the means employed unless it squares with the judicial concept and accords with constitutional requirements. While it is not the province of a judicial opinion to suggest appropriate legislation, we do know that Section 2255 has had the consideration of judicial officers in its preparation and submission to Congress. It would not seem inappropriate to state that it would appear that a simple statute applying the principle of res judicata to judgments ini habeas corpus actions, the same as in all other actions, would remedy all the abuses sought to be corrected by Section 2255, and yet preserve that speedy determination to which one confined under a void judgment is entitled.
Section 2255 is not free from ambiguity.. This would appear not only from the language itself but also from the fact that already judges skilled in law have reached1 conflicting conclusions. Thus the language, that “an application for a writ of habeas corpus * * * shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him * * * ”, would seem to support a construction that compliance was a prerequisite and not a substitute for habeas corpus. It may be that the remaining language warrants a construction that it is the exclusive remedy other than in cases in which the remedy by motion is inadequate or insufficient— whatever that means — to test 'the legality of the detention. If that was the intention of Congress in the passage of the Act, it is regrettable that clear, plain language stating that Section 2255 shall be the sole and exclusive remedy to test the validity of a sentence other than in cases in which this remedy was inadequate and ineffective was not used.
Neither am I in accord with the construction the majority of the court places upon the provision providing that: “A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.” There is no ambiguity or uncertainty in the meaning of this language. It means just what it says in plain words, and in my view we are not -warranted in giving this language a meaning not warranted by the plain terms .thereof, in order to find constitutionality where otherwise there would be unconstitutionality. That principle of con*518struction can have application, only where . there is ambiguity in the language employed or where there is something in the legislative history to show that words were used in a sense other than what the plain terms and reading thereof implies. If this is not so, then the device of judicial construction can always be employed to give constitutionality to an act, which, by its unambiguous terms, is unconstitutional. In the absence of any aid from the legislative history, we must presume that Congress meant what the. plain language used by it imports. To do otherwise constitutes legislation by judicial interpretation, and this constitutes a usurpation of legislative function and is not warranted solely to give validity to what would otherwise be invalid.
I am, however, of the view that it is not necessary to the decision of these two appeals to delineate the scope and effect of Section 2255, and would, therefore, prefer to defer that question until it is necessarily involved in an appeal to this court.
In his motion before the sentencing court, Barrett raised issues of fact which entitled him to be present, to testify, to have witnesses subpoenaed, to be represented by counsel, and to contest the issues before the ’court. None of these rights were accorded him. Apparently his motion was summarily disposed of. The sentencing court made no findings of fact. All we have is the judgment of the court denying any relief. Barrett sought to appeal to the Circuit Court of Appeals in forma pauperis, but was denied that right. As far as the record reveals, all of this was done by himself without the aid or benefit of counsel. Thus it appears that he exhausted his remedy under Section 2255, and that the remedy under Section 2255 was wholly inadequate or ineffective to test the legality of his detention. Under these circumstances, it is my view that he was entitled to maintain this proceeding.
It is, of course, true that if the record of the trial court affirmatively reveals that his rights to counsel were explained to him, that the court offered to appoint counsel for him, and that he waived the benefit of counsel, that such records are conclusive and that in the face thereof his allegations in the motion in the sentencing court and in the complaint in the habeas corpus action to the contrary do not raise any issues of fact which would entitle him to the right to produce testimony. It is also true that his complaint in the habeas corpus action does not negative the existence of such facts in the record of the sentencing court. According to the strict rules of pleading, it might be said that failing in this, his complaint failed to state facts sufficient to entitle him to proceed in habeas corpus.
The uninterrupted trend in judicial proceedings has been to liberalize pleadings; to look to substance rather than form. Especially has that been true in habeas corpus proceedings where in many instances the complaints are prepared by the petitioner himself while incarcerated in prison and without the aid or benefit of counsel. ' We have repeatedly entertained appeals in habeas corpus actions and ordered up records for inspection when the pleadings drawn by the petitioner himself were most sketchy and failed to comply with the most elementary rules of pleading. This has also been the practice in the Supreme Court.
No doubt, petitioner in this case was ignorant and devoid of any acquaintance with legal procedure and with the requirements of good pleading. If the records in the trial court are such that they clearly show that there was indeed no issue of fact which entitled petitioner to be present at the trial, respondent, represented by the long and powerful arm of the Government, could easily have obtained that information and should be required to set it out in his response to the application for the writ.
In Number 3954 — Barrett v. Hunter, I would reverse and remand with directions to determine the issues.
I concur in the opinion in Number 3978 —Rutledge v. Hunter, but base my concurrence on the sole ground that petitioner has not exhausted his administrative remedy under Section 2255 by failing to appeal or attempting to appeal from the decision of the trial court.
. The following cases seem to hold that compliance with the section is a prerequisite: Wong v. Vogel, D.C., 80 F. Supp. 723; Stidham v. Swope, D.C., 82 F.Supp. 931; United States v. Calp, D.C., 83 F.Supp. 152; St. Ciair v. Hiatt, D.C., 83 F.Supp. 585; Burchfield v. Hiatt, D. C., 86 F.Supp. 18; Fugate v. Hiatt, D.C., 86 F.Supp. 22; Parker v. Hiatt, D.C.86 F.Supp. 27; Mugavero v. Swope, D.C., 86 F.Supp. 45.
The following cases seem to hold that it is a substitute remedy for habeas corpus: Taylor v. United States, 4 Cir., 177 F.2d 194; Birtch v. United States, 4 Cir., 173 F.2d 316; Howell v. United States, 4 Cir., 172 F.2d 213; United States v. Meyers, D.C., 84 F.Supp. 766; United States v. Lowery, D.C., 84 F.Supp. 804.
Remark: In a number of the cases the court’s pronouncement is in the form of dicta and is of value only as it shows the inclination of the court.