(concurring).
I, too, think' the judgment should be reversed and dismissed but I view the case somewhat differently from the view expressed by the Chief Judge in his opinion.
It is my conviction that Section 2255 of the revised Judicial Code, Title 28 U.S.C.A., cuts to the very heart of the constitutional writ of habeas corpus as it applies to prisoners who are confined under federal convictions. It is true that the writ has been seriously abused ■ but a lethal remedy is neither valid nor justifiable. ■ Courts have gone a long way to stop abuses through causeless, scandalous or repetitious petitions for the issuance of the writ of habeas corpus, and the new Judicial Code, excluding Section 2255, goes further to the same end. It seems to me that it is quite unfortunate and unnecessary that the chapter in the Judicial Code which is devoted to habeas corpus should contain a section which, on its face, nullifies much of it. It is nothing new that *467executive and legislative and some judicial impatience with the writ has led to attempts to emasculate it; Fortunately they have failed. Now in an attempt to enlarge the trial court’s right to correct certain faulty phases of the sentence meted out to one under federal court conviction, it is attempted by Section 2255 to authorize a court hearing that leads to a judgment upon the prisoner’s fundamental rights without notice to him, in his absence, in the absence of his counsel and with the prosecutor participating. The Chief Judge treats this phase of the case admirably in greater detail.
It will be noticed that the section under consideration begins with a paragraph which authorizes a motion to correct an erroneous sentence.
“A prisoner in custody under sentence of a court established by Act of Congress, claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
“A motion for such relief may be made at any time. * * * ”
It is well down in the next following paragraph that the judgment is first mentioned and thereafter the scope of the section is expanded to embrace practically the whole field of habeas corpus within the area of federal court convictions: “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. 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 re-sentence him -or grant a new trial or correct the sentence as may appear appropriate. * * * » ¡ [Emphasis supplied.]
• It is readily seen that the scope of the section goes far beyond the recital in the first paragraph as to its purpose and clearly becomes a proceeding largely displacing the writ as a proceeding open to prisoners under federal court convictions. True, the section requires the motion as a precedent to the use of the writ but this does not validate it and it is not an alternative choice to the use of the writ for, while the first paragraph of the section is worded as permissive (the prisoner “may move the court”), the concluding paragraph (about to be quoted) specifically denies his right to have his writ of habeas corpus entertained if he has failed to act by motion “or that such court has denied him relief”: “An application for a writ of habeas corpus in behalf of a prisoner who is authorized to-apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” [Emphasis supplied.]
Intervening parts of the section are:
“A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
“The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
“An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for writ of habeas corpus.”
The clause in the concluding paragraph, “or that such court has denied him relief,” upon close study of the whole section appears little less than a cruel lure for, after an adverse “judgment” on the motion, the movant is by no means free to exercise his constitutional right to the writ of habeas *468corpus whereby a speedy determination may be had under the safeguards we term “due process.” When the litigation under the motion provided for finally ends, he is faced with a judgment which would seem to be res judicata of the issues litigated. If not res judicata the judgment would be practically conclusive upon a court subsequently entertaining a petition for the writ. In my opinion it comes down to the bare facts that the use of habeas corpus has been suspended during the litigation under the motion and practically denied for all time to a prisoner who has grasped the only remedy open to him under the terms of the section.
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Sec. 9, Cl. 2, art., I, United States Constitution.
Up to now I have purposely refrained from considering and I have said nothing about the concluding or saving clause of the section. If the prisoner has not acted under the section or the court has denied him relief, a petition for the writ shall not be entertained “ * * * unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” The Chief Judge, if I understand his opinion, bases his proposed decision upon the ground that by reason of the lack of due process having been denied Hayman in the circumstances obtaining, the section is inadequate and ineffective and therefore does not apply to him. I readily concur in the conclusion that the judgment must be reversed and the motion dismissed. But I think there is lack of due process with or without the saving clause. If there is lack of due process inherent in the proceeding provided by the section, it applies to every hearing under the section and every judgment under it would be fatally defective. The authors did not visualize any defect in the process and thought, of course, the section was entirely adequate and effective. The saving clause in my opinion was added to cover exceptional circumstances. One exceptional circumstance might be that a prisoner would be executed before the due course of the motion could run to a decision. Other examples could be conjured up.
To state it another way, I would see nothing inadequate or ineffective in the Act if a free choice were left to the prisoner to proceed under the motion or by petition for the writ of habeas corpus. If he chose to proceed under the motion, with all of its restrictions, there would be nothing to interfere with the adequacy or effectiveness of such a test as to “the legality of his detention.”
But a free choice is not open to him (except in unusual circumstances which do not obtain here), his case must proceed under the motion through the one-sided hearing and ordinary appeal. When the judgment is at last final, it is practically if not technically res judicata, and the issues have been determined under the harsh restrictions provided in Section 2255. Even if he finally wins his relief, it is after long litigation not required to be placed ahead of other litigation during which his rights to 'the benefits of the writ of habeas corpus have been suspended.
I am sure that it is always the duty of the judge — both trial and appellate — to see to it that fundamental rights touching any person’s right to freedom are protected and preserved and that such duty cannot be absolved by strict legalism. Appellant in this case has not raised the points I have considered but I think this court would be remiss if, for that reason, it gave them no heed but should affirm the judgment, thereby allowing it to stand as a practical bar to the classical method of trying vital issues.
I think the section cannot be construed so as to avoid the fatal vice of suspending and, for all intents and purposes, of denying the entertainment by the court of a petition for the writ of habeas corpus to appellant Hay-man and that this court has the duty of declaring the judgment herein a nullity.