(dissenting).
I agree that passage of time, whether five years or twenty-five years, cannot affect valid claims under § 2255. That is what Congress meant and that is as it should be. The issue here is whether District Courts are to be stripped of what limited discretion Congress gave them under § 2255.
That statute provides when an application for relief is made the District Court must grant a hearing “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * Section 2255, unlike 18 U.S.C. § 4245 (1958), which commands a hearing, thus calls upon the sentencing judge to weigh and evaluate everything before him in the record, including what the petitioner claims or tenders, to determine whether a hearing is required. It plainly vests some measure of discretion, some power of evaluation in the District Court, or *682otherwise the statute would simply have directed a hearing in every case. Perhaps that is what Congress should have done in § 2255 as it did expressly in 18 U.S.C. § 4245 (1958), which requires a hearing whenever the Bureau of Prisons certifies that a prisoner in its care was probably incompetent at the time of trial. Be that as it may, the majority now amends § 2255 to “correct” this omission, for as I read the record and the statute, the District Court has exercised its discretion and we must affirm unless we find an abuse of discretion.
Bostic was tried in 1937 but only after a psychiatrist of the Mental Health Commission had examined him and pronounced him “of sound mind” three days before trial. The District Court files reflect that the trial judge, and defense counsel, as well as the others who observed him throughout the trial of a capital case, apparently shared the psychiatric opinion that Bostic was of sound mind for none of these persons are tendered as holding any other view. Nearly 25 years have elapsed and Bostic now contends that because mental examinations in 1940 and 1949 showed that he then had mental disorders, he was incompetent to be tried in 1937. This manifestation of mental disorder was thus after he had spent years in the “death house” awaiting the execution which after long delay and many stays of execution was commuted by presidential action.
I particularly take issue with the suggestion that Dr. Cohen’s 1937 opinion that Bostic was “of sound mind” was of little value and was not an opinion on competency to stand trial. Several opinions of this court emphasize that competency to stand trial is quite different from and calls for a lesser standard, for example, than capacity to be found guilty. Winn v. United States, 106 U.S.App.D.C. 133, 270 F.2d 326 (1959), cert. denied 365 U.S. 848, 81 S.Ct. 810, 5 L.Ed.2d 812 (1961); Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958); Blunt v. United States, 100 U.S.App.D.C. 266, 244 F.2d 355 (1957). A person suffering from a mental disease of severe proportions may, and often is, found competent to stand trial since 18 U.S.C. § 4244 (1958) requires only that he be able “to understand the proceedings against him or properly to assist in his own defense * * Hence, if a person is “of sound mind" he is, a fortiori, competent to stand trial.
The present holding intimates that the processes for pre-trial examinations of an accused under § 4244 to determine whether he can fairly be tried, and the affirmative conclusions of psychiatrists, somehow become obsolete with the passage of time. What this holding may well mean is that no application raising the issue of competency to stand trial can be resolved without a hearing.