(concurring).
Without hesitation I concur in the-judgment reversing the District Court’s-order dismissing the appellant’s motion without a hearing and remanding the case for a plenary hearing upon the allegations of mental incapacity to stand' trial.
However, the inclusion of certain observations in the per curiam opinion; seems to me ill-advised.
Correctly, and quite unavoidably on this record, the opinion recognizes that the case does not fall within the excusatory provision of 28 U.S.C.A. § 2255, which makes a hearing unnecessary only if the motion and files and records in the case conclusively show that the prisoner' is entitled to no relief. But then the opinion proceeds to make observations which seem needlessly to disparage the petitioner’s case, by suggesting that “ [a]dmittedly” the allegation of insanity is not persuasive; that it is “improbable,” though it cannot be said to be impossible or incredible; that prisoners are not entitled and need not be permitted to-make “bald charges”; that the petitioner’s allegation is “not wholly unsupported” and “is not without some shadow of substance.” The opinion, which properly awards a “plenary hearing,” thus at*155tenuates the prisoner’s claims in advance of the hearing.
This is not the spirit in which a hearing should be ordered and it would be less than fair to the prisoner if these expressions should have the effect of handicapping the hearing before it is begun. The effect of these expressions would be even more unfortunate if their implications were adopted by district judges as a precedential guide in other cases.
Likewise, on the question of whether the presence of the petitioner at the hearing should be permitted, there is no occasion for the advisory remarks. The point was not made or debated in briefs or argument. The District Judge should be trusted to exercise his discretion without them. Indeed, if we were called upon to tell the District Court anything I should be inclined to say that in the circumstances here shown, it is hardly possible to conduct a fair hearing without permitting the petitioner to appear and testify to his version. Catalano v. United States, 298 F.2d 616 (2d Cir. 1962). The question involves what he understood and is peculiarly one on which his story needs to be heard.
Short cuts — through denial of hearings or curtailing them by determining contested factual issues in the absence of the petitioner' — rarely achieve either just results or a real saving of time. Having concluded that the petition is not without substance, nothing less than a full inquiry will achieve a final disposition of the ease.
The paramount teaching of the Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), is that the normal procedure for determining disputed facts is by a full hearing, not by barring the presence of one in a position to offer testimony crucial to the issue. The allegations here presented have not heretofore been considered in any hearing, so there is no basis here for reliance on earlier findings. We are told by the Court that in habeas corpus proceedings “the petitioner, and the State, [no less does this principle fit section 2255 proceedings] must be given the opportunity to present other testimonial and documentary evidence relevant to the disputed issues.” 83 S.Ct. 762, 9 L.Ed.2d 791. We should not give this direction a strained or niggardly application.