(concurring).
While I concurred in the original opinion written by Judge Swygert and also concur in the result reached in the present denial of rehearing, I think it appropriate to add that I have serious doubts in any event that this is a proper case for a defendant to raise a question regarding retroactivity. The usual and ordinary case in which this question is involved is that in which a new constitutional protective principle is laid down. It is of substantial significance to a criminal defendant to determine whether the newly enunciated principle is effective timewise and otherwise applicable to the facts of his case.
Dickerson purported to establish a new protective rule of constitutional proportions which was the law of this circuit for several years. Beckwith, as I read it, did not establish a new rule but in effect stated that Dickerson and Oliver were never good constitutional law. I have difficulty therefore in perceiving any merit in a defendant relying on a principle or rule which was never the law of the land, that being the only law which this circuit, as well as any other courts in our system, should in final analysis apply.