dissenting:
I concur in Parts I, II, and IIIA of the majority opinion. However, I dissent from that part of the opinion that is of most interest to the appellant: the affirmance of the district court’s decision to vacate its belated reduction of sentence ruling.
I agree that one of the accepted reasons for the time limit in Rule 35 is the supposed fact that “ ‘after a lapse of time the peculiar ability of the court to determine sentence gives way to the presumably greater competence, and knowledge, of the penal authorities.’ ” United States v. Ferri, 686 F.2d 147, 155 (3d Cir.1982) (quoting United States v. Dansker, 581 F.2d 69, 73 (3d Cir.1978) and 8A J. Moore, Moore’s Federal Practice II 35.02, at 35-4 n. 4 (2d ed. 1968)), cert. denied sub nom. Matthews v. United States, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983).1 But the majority’s application of this principle is not logical. Diggs’ Rule 35 motion was filed timely in December of 1979. Because of an unfortunate error of the district court, however, the court did not take action on the motion until July of 1982, two and one-half years later. A delay caused by administrative error of the court itself cannot constitute “unreasonable delay” for the purpose of Rule 35. Were it otherwise, the defendant would be twice penalized: once because the court failed to act on his motion for two and one-half years; and once again because the court’s own inaction bars Rule 35 relief. Consequently, when the district court, as here, fails to act on a defendant’s timely Rule 35 motion by reason of the court’s own error, any ensuing delay cannot as a matter of law be “unreasonable delay” barring Rule 35 relief.
The majority is surely correct, however, that any Rule 35 relief could not be based on facts and events that arose after the 120-day period. Therefore, the appropriate disposition is to remand with instructions to entertain Diggs’ Rule 35 motion to the extent that it is based on facts and events that arose before the expiration of the 120-day period of Rule 35. This simple disposition would avoid any “second-guessing” of the Parole Commission beyond that for which Rule 35 itself inherently provides.
*251Rather than adopt this simple and appropriate disposition, however, the majority speculates that the district court “second-guess[ed]” the Parole Commission when it initially granted Diggs’ Rule 35 motion, and affirms the court’s vacatur of its July 22, 1982 order. There is no point to speculating in this fashion. The district court is obviously in a better position than this court to determine whether it predicated its July 22, 1982 order on events arising after the 120-day period of Rule 35. The appropriate action is to remand to the district court with instructions to make the proper determination. By refusing to do so, this court deprives Diggs of an opportunity for a hearing before the district court on any legitimate basis for relief under Rule 35— 1. e., grounds arising before or during the 120-day period — because of the district court’s own error. Whether or not this sorry result is a violation of due process, it certainly is not required by Rule 35.
Thus, the only appropriate action for this court to take would be to reverse the order of March 7, 1983 denying habeas relief and the order of September 20, 1983 vacating the grant of Rule 35 relief, and remand to the district court for proceedings consistent with the principle of law announced in this opinion: a court which delays its disposition to a timely Rule 35(b) motion beyond the 120-day limit may grant relief if its decision is based on facts and events that did not arise after the 120-day period. This construction of Rule 35 makes unnecessary any consideration of Diggs’ due process claim.2
This ought to be the least that we should do for Mr. Diggs. After all, his timely motion for a reduction in his sentence slipped through some crack in the bureaucratic system and languished for two and one-half years. I see no reason why we should go out of our way to interpret the lower court proceedings in such a way as to forever deprive him of his right to have the district court rethink its original sentence. Our system already dismisses too many appeals by indigent and uncounseled citizens because of procedural errors in the presentation of their cases. It is saddening to see the same story when the procedural error is made by the court and not by the prisoner.
I respectfully dissent.
. Interestingly enough, this interpretation of Rule 35 is unsupported by the Advisory Committee Notes to the Rule and its various amendments. Its only derivation appears to be a federal common law interpretation of Rule 35 and the surmise of Professor Moore. In addition, the interpretation is not easily reconciled with this court's conclusion that "' “Rule 35 ... affords the judge an opportunity to reconsider the sentence in the light of any further information about the defendant or the case which may have been presented to him in the interim." ’" Ferri, 686 F.2d at 154 (quoting United States v. Johnson, 634 F.2d 94, 96 (3d Cir.1980) and United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968)). An appropriate reconciliation of these analyses would provide that a court which delays its response to a timely Rule 35(b) motion can only consider post-incarceration conduct by the prisoner that extends to the 120th day of confinement.
. I therefore do not join in Part IV of the majority opinion, which reaches out to decide the due process issue unnecessarily. Rule 35 permits the district court's consideration of grounds for relief arising before or during the 120-day period in this case. There is therefore no need to decide whether a contrary construction would violate due process when the fault of two and one-half years of inaction is the court’s and not the defendant's. I do not understand Diggs to argue that the failure to consider grounds arising after the 120-day period violates due process.