(dissenting).
Judge Denman, in his latest opinion, now concurs with Judge Stephens’ original opinion, thus making the latter the opinion of the court. I think this decision that § 2255 is void in its entirety is most unfortunate. Why it is unwarranted here could not be better stated than in the words of Judge Denman’s original opinion: “However, I think we are required to dispose of the appeal without determining such a constitutional question, since the decision may be disposed of on words of the statute which present a non-constitutional, ground. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed.. 688.”
My associates also say that they stand by “the reasoning of Judge Denman’s opinion”. The results reached in that opinion were predicated upon the validity of Judge Den-man’s assertion that the presence of the appellant was required, and that there exists no means of procuring it. Portions of the latest opinion are devoted to an attempt to answer the suggestion of the petition for rehearing that the attendance of appellant is available by writ of habeas corpus ad testificandum by citing Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898. But even if that case controls, which I very much doubt,1 the matter cannot be disposed of merely by ruling out this particular writ. § 2255 itself requires the court to “determine the issues and make findings”. In an appropriate case it may “correct the sentence”. I think that inherent in this power is the power to require and secure the presence of the prisoner, where necessary.
This sort of thing has been arranged with the greatest of ease- since long before’ any one ever thought of § 2255. Even before the adoption of Rule 35 it has been held that “The court may correct an illegal sentence at any time”. De Benque v. United States, 66 App.D.C 36, 85 F.2d 202, 106 A.L.R. 839, cited in Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. Surely my associates would not suggest that in a case where sentence must be reimposed, there is no means of doing so if the prisoner happens to be confined at a distance. The present case involves no different problem. It is answered by the fact that in a § 2255 proceeding the court has jurisdiction both of the moving party and of the United States which holds him prisoner. Its order for his presence poses no problem. It is unnecessary to call the order by any particular name, or to denominate it a writ as was done to -bring Walter McDonald from Alcatraz to Michigan for re-sentence, McDonald v. Moinet, 6 Cir., 139 F.2d 939; or to rely on Title 28, § 1651, referring to the power to issue “all writs necessary or appropriate”, etc., or to call upon any doctrine of “a writ in the nature of habeas corpus”, Price v. Johnston, 334 U.S. 266, 283, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356. It is- simply a matter of common sense fihat a court required to do 'a job may make the necessary orders to accomplish it. I think this is implied in Barrett v. Hunter, *47510 Cir., 180 F.2d 510, 514, certiorari denied 340 U.S. 897, 71 S.Ct. 234.
Not a single proposition in any of the •opinions filed was urged by either party. Upon them the United States Attorney has bad no opportunity to be heard. Until we have granted such a hearing I think we have not done our best to solve this case, as we should do before we throw up our hands and ask the Supreme Court to grant ■certiorari, as the majority now do.
The idea behind § 2255 has merit. It was •drafted after much study of a problem that ■needed attention. Its sensible procedure ■should be compared with the Mountain-to-Mahomet procedure of bringing the testimony of a Michigan judge, and other Michigan witnesses to California in response to Walter McDonald’s latest habeas corpus petition. Swope v. McDonald, 9 Cir., 173 F.2d 852, certiorari denied 337 U.S.960, 69 S.Ct. 1522, 93 L.Ed. 1759.
If there be infirmities in § 2255, I think it a matter of considerable importance whether they he of the character and extent stated in Judge Stephens’ opinion or wheth■er they be of the character and extent stated in Judge Denman’s first opinion. If the latter is the true situation, the objections raised can readily be corrected by a •simple amendment, and I think that this court ought not to say that all the labor that has been expended upon the drafting •of § 2255 must be committed to the ashcan without more thorough opportunity for argument before the court than has yet been afforded.
. The issuance of a writ of habeas corpus ad testificandum was an inherent power of a court long before the enactment of § 2241(c) (5) of Title 28. Its reach should be coterminous with that of the court’s subpoena. I think that Bruno v. United States, D.C.Cir., 180 F.2d 393, is no authority that a subpoena for a witness for the hearing below would not be issued under Criminal Procedure Rule 17(e).
If the Government needed as a witness in a prosecution at Los Angeles a prisoner at Alcatraz, I would think his presence could be procured.