368 U.S.

424
82 S.Ct. 468
7 L.Ed.2d 417

James Francis HILL, Petitioner,

v.
UNITED STATES.
No. 68.
Argued Dec. 5, 1961.
Decided Jan. 22, 1962.
Rehearing Denied Feb. 26, 1962.

See 369 U.S. 808, 82 S.Ct. 640.

Curtis R. Reitz, Philadelphia, Pa., for petitioner.
Julia P. Cooper for respondent.
Mr. Justice STEWART delivered the opinion of the Court.

In 1954 a jury in a Federal District Court found the petitioner guilty of

transporting a kidnapped person in interstate commerce in violation of 18
U.S.C. 1201, 18 U.S.C.A. 1201, and of transporting a stolen automobile in
interstate commerce in violation of 18 U.S.C. 2312, 18 U.S.C.A. 2312. The
petitioner was represented by court-appointed counsel at his trial. When, with
counsel, he appeared before the District Judge for sentencing, the petitioner
was not asked whether he wished to make a statement in his own behalf. The
District Judge, after noting his familiarity with the petitioner's character and
history, imposed consecutive prison sentences of twenty years and three years
for the two offenses of which the jury had found the petitioner guilty. There
was no appeal.1

The present litigation began in 1959 with the filing of a motion to vacate
sentence under 28 U.S.C. 2255, 28 U.S.C.A. 2255. Among various grounds
for relief asserted, the motion alleged that the petitioner at the time of
sentencing had been 'denied the right under Rule 32(a) of Federal Rules of
Criminal Procedure, Title 18 U.S.C. (18 U.S.C.A.) to have the opportunity to

make a statement in his own behalf and to present any information in mitigation
of punishment.' The District Court denied the motion without explicitly
discussing the Rule 32(a) claim. 186 F.Supp. 441. The Court of Appeals
affirmed, per curiam, 282 F.2d 352. We granted certiorari 'limited to the
question of whether petitioner may raise his claim under Federal Criminal Rule
32(a), 18 U.S.C.A. in the proceeding which he has now brought.' 365 U.S. 841,
81 S.Ct. 806, 5 L.Ed.2d 808.
3

Rule 32(a) in pertinent part provides: 'Before imposing sentence the court shall
afford the defendant an opportunity to make a statement in his own behalf and
to present any information in mitigation of punishment' The meaning of this
Rule was before the Court last Term in Green v. United States, 365 U.S. 301,
81 S.Ct. 653, 5 L.Ed.2d 670. Although there was no Court opinion in the Green
case, eight members of the Court concurred in the view that Rule 32(a) requires
a district judge before imposing sentence to afford every convicted defendant
an opportunity personally to speak in his own behalf. There thus remains no
doubt as to what the Rule commands. Moreover, the present record makes clear
that this petitioner was not given an express opportunity to make a personal
statement at the time he was sentenced. This case, therefore, is totally
unembarrassed by any such factual controversy as divided the Court in Green.
The only issue presented is whether a district court's failure explicitly to afford
a defendant an opportunity to make a statement at the time of sentencing
furnishes, without more, grounds for a successful collateral attack upon the
judgment and sentence. 2 We hold that the failure to follow the formal
requirements of Rule 32(a) is not of itself an error that can be raised by
collateral attack, and we accordingly affirm the judgment of the Court of
Appeals.

Section 2255 of Title 28 U.S.C., 28 U.S.C.A. 2255, provides that a prisoner in

custody under sentence of a federal court may file a motion in the 'court which
imposed the sentence to vacate, set aside or correct the sentence.' The statute
states four grounds upon which such relief may be claimed: (1) 'that the
sentence was imposed in violation of the Constitution or laws of the United
States,' (2) 'that the court was without jurisdiction to impose such sentence,' (3)
'that the sentence was in excess of the maximum authorized by law,' and (4)
that the sentence 'is otherwise subject to collateral attack.'3

The circumstances which led Congress in 1948 to enact this legislation were
reviewed in detail by Chief Justice Vinson, writing for the Court in United
States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. It is unnecessary
to review again here this legislative history, with which Chief Justice Vinson,
as Chairman of the Judicial Conference of the United States, was particularly

familiar. Suffice it to say that it conclusively appears from the historic context
in which 2255 was enacted that the legislation was intended simply to
provide in the sentencing court a remedy exactly commensurate with that which
had previously been available by habeas corpus in the court of the district
where the prisoner was confined.4 See Heflin v. United States, 358 U.S. 415,
421, 79 S.Ct. 451, 3 L.Ed.2d 407 (concurring opinion).
6

'(A) review of the history of Section 2255 shows that it was passed at the
instance of the Judicial Conference to meet practical difficulties that had arisen
in administering the habeas corpus jurisdiction of the federal courts. Nowhere
in the history of Section 2255 do we find any purpose to impinge upon
prisoners' rights of collateral attack upon their convictions. On the contrary, the
sole purpose was to minimize the difficulties encountered in habeas corpus
hearings by affording the same rights in another and more convenient forum.'
United States v. Hayman, 342 U.S., at 219, 72 S.Ct., at 272. (Emphasis
added.) 5

The failure of a trial court to ask a defendant represented by an attorney

whether he has anything to say before sentence is imposed is not of itself an
error of the character or magnitude cognizable under a writ of habeas corpus. It
is an error which is neither jurisdictional nor constitutional. It is not a
fundamental defect which inherently results in a complete miscarriage of
justice, nor an omission inconsistent with the rudimentary demands of fair
procedure. It does not present 'exceptional circumstances where the need for
the remedy afforded by the writ of habeas corpus is apparent.' Bowen v.
Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455. See Escoe v.
Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Johnston v. Zerbst, 304 U.S.
458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct.
574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed.
1302.

In Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, the Court held
that the remedy of habeas corpus was unavailable in circumstances far more
compelling than are presented here. There the petitioners at their criminal trial
had been denied an opportunity to present a defense which subsequent
decisions of this Court had held should clearly have been available to them.
What was said in that case is apposite here:

'We are dealing here with a problem which has radiations far beyond the
present cases. The courts which tried the defendants had jurisdiction over their
persons and over the offense. They committed an error of law * * *. That error
did not go to the jurisdiction of the trial court. Congress, moreover, has

provided a regular, orderly method for correction of all such errors by granting
an appeal to the Circuit Court of Appeals and by vesting us with certiorari
jurisdiction. It is not uncommon after a trial is ended and the time for appeal
has passed to discover that a shift in the law or the impact of a new decision has
given increased relevance to a point made at the trial but not pursued on appeal.
* * * If in such circumstances, habeas corpus could be used to correct the error,
the writ would become a delayed motion for a new trial, renewed from time to
time as the legal climate changed. Error which was not deemed sufficiently
adequate to warrant an appeal would acquire new implications. * * * Wise
judicial administration of the federal courts counsels against such course, at
least where the error does not trench on any constitutional rights of defendants
nor involve the jurisdiction of the trial court.' 332 U.S., at 181182, 67 S.Ct.
at 1592.
10

It is to be noted that we are not dealing here with a case where the defendant
was affirmatively denied an opportunity to speak during the hearing at which
his sentence was imposed. Nor is it suggested that in imposing the sentence the
District Judge was either misinformed or uninformed as to any relevant
circumstances. Indeed, there is no claim that the defendant would have had
anything at all to say if he had been formally invited to speak. Whether 2255
relief would be available if a violation of Rule 32(a) occurred in the context of
other aggravating circumstances is a question we therefore do not consider. We
decide only that such collateral relief is not available when all that is shown is a
failure to comply with the formal requirements of the Rule.6

11

It is suggested that although the petitioner denominated his motion as one

brought under 28 U.S.C. 2255, 28 U.S.C.A. 2255, we may consider it as a
motion to correct an illegal sentence under Rule 35 of the Federal Rules of
Criminal Procedure.7 This is correct. Heflin v. United States, 358 U.S. 415,
418, 422, 79 S.Ct. 451, 453, 455, 3 L.Ed.2d 407. But, as the Rule's language
and history make clear, the narrow function of Rule 35 is to permit correction at
any time of an illegal sentence, not to re-examine errors occurring at the trial or
other proceedings prior to the imposition of sentence.8 The sentence in this case
was not illegal. The punishment meted out was not in excess of that prescribed
by the relevant statutes, multiple terms were not imposed for the same offense,
nor were the terms of the sentence itself legally or constitutionally invalid in
any other respect.9

12

Affirmed.

13

Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice
DOUGLAS and Mr. Justice BRENNAN concur, dissenting.

14

The petitioner James Hill brought this proceeding to vacate two sentences under
which he is imprisoned in a federal penitentiary, alleging that the sentences are
illegal because the trial judge who imposed them had not given him the
opportunity required by Rule 32(a) of the Federal Rules of Criminal Procedure
'to make a statement in his own behalf and to present any information in
mitigation of punishment.' Conceding that the sentences thus challenged were
imposed without according petitioner his right to speak, the Court nonetheless
denies relief under Rule 35's provision for the correction of 'illegal' sentences
on the ground that the sentences though imposed in flat violation of Rule 32(a),
were not 'illegal' within the special meaning which the majority now ascribes to
that word for the purposes of Rule 35.1 The basic explanation offered for this
drastic contraction of the ordinary meaning of the word 'illegal' is this single
statement in the Court's opinion:

15

'The punishment meted out was not in excess of that prescribed by the relevant
statutes, multiple terms were not imposed for the same offense, nor were the
terms of the sentence itself legally or constitutionally invalid in any other
respect.'

16

That statement to me amounts to something less than an entirely satisfactory

justification for such a begrudging interpretation of Rule 35.

17

The Court's holding certainly finds no support in the language of Rule 35. That
Rule, although painstakingly drawn by lawyers and approved both by Judges
and by the Congress, simply provides for the correction of an 'illegal sentence'
without regard to the reasons why that sentence is illegal and contains not a
single word to support the Court's conclusion that only a sentence illegal by
reason of the punishment it imposes is 'illegal' within the meaning of the Rule. I
would have thought that a sentence imposed in an illegal mannerwhether the
amount or form of the punishment method out constitutes an additional
violation of law or notwould be recognized as an 'illegal sentence' under any
normal reading of the English language.2 And precisely this sort of commonsense understanding of the language of Rule 35 has prevailed generally among
the lower federal courts that deal with questions of the proper interpretation and
application of these Rules as an everyday matter. Those courts have expressed
their belief that, even where the punishment imposed upon a defendant is
entirely within the limits prescribed for the crime of which he was convicted, a
sentence imposed in a prohibited manneras, for example, a sentence imposed
upon an absent defendant in violation of the command of Rule 43 that a
defendant be present at sentencing3 is an 'illegal sentence' subject to
correction under Rule 35.4

18

The Court's contrary decision today, however, was perhaps foreshadowed last
Term by the narrow scope given to Rule 32(a) when the issue of the meaning of
that Rule came before us for the first time in Green v. United States.5 That case,
like this one, involved an attempt to vacate a sentence as 'illegal' under Rule 35
on the ground that the trial judge had failed to accord the defendant his right to
make a statement before sentencing. The record there showed merely that the
trial judge, in the presence of both the defendant and his counsel, had asked
generally, 'Did you want to say something?' and that, in response to this
question, the attorney rather than the defendant had spoken. Recognizing that
the right accorded by Rule 32(a) is a personal right which must be extended to
the defendant himself, the Court nonetheless denied relief, largely upon the
view expressed by four members of the Court that: 'A record, certainly this
record, unlike a play, is unaccompanied with stage directions which may tell
the significant cast of the eye or the nod of the head. It may well be that the
defendant himself was recognized and sufficiently apprised of his right to speak
and chose to exercise this right through his counsel.'6 This conclusion was
reached in spite of the fact that the Government's brief before this Court
expressly conceded that Green had not been personally afforded an opportunity
to speak.

19

But even in Green, not one member of the Court went so far as even to intimate
unless such an intimation was implicit in the concurring opinion of Mr.
Justice STEWART7 that a sentence undeniably imposed in disregard of the
legal right of a defendant to speak for himself would not be an 'illegal sentence.'
Four members of the CourtTHE CHIEF JUSTICE, Mr. Justice DOUGLAS,
Mr. Justice BRENNAN and Iexpressly stated the view that such a sentence
could be corrected under Rule 35's provision for the correction of 'illegal'
sentences. And four other members of the Court, in an opinion written by Mr.
Justice FRANKFURTER, emphasized the importance of the right of the
defendant to speak for himself, saying: 'The most persuasive counsel may not
be able to speak for a defendant as the defendant might, with halting eloquence,
speak for himself.'8 Although it is true that these latter four members of the
Court joined in refusing to set aside the sentence in that case, their stated
ground was: 'The defendant has failed to meet his burden of showing that he
was not accorded the personal right which Rule 32(a) guarantees, and we
therefore find that his sentence was not illegal.'9 In the light of all these
statements, it is not surprising that the Courts of Appeals for both the First and
the Fifth Circuits have regarded the combined opinions in Green as requiring
the correction of sentences as illegal when the defendant is able 'to meet his
burden of showing that he was not accorded the personal right which Rule 32(a)
guarantees.'10

20

I think that a due observance of the requirements of Rule 32(a), resting as they
do upon the anciently recognized right of a defendant to speak to the court
before sentence is imposed, is important to the proper administration of justice
in the federal courts. And it seems to me that the Court is mistaken in thinking
that the importance of that right is not reflected in this very case, for I cannot
agree with the Court's conclusion that 'there is no claim that the defendant
would have had anything at all to say if he had been formally invited to speak.'
According to the petitioner's brief, the denial of his right to speak was
particularly injurious to him here because he had several previous convictions
which presumably were known to the sentencing judge.11 In this connection, he
says: 'Petitioner has been and is presently seeking collateral relief from those
judgments and, indeed, has already had one set aside. This mitigating evidence,
if known to the sentencing court, might have a profound impact upon the
sentence imposed.'

21

More importantly, however, whether the right to speak before sentence would
have been of value to petitioner in this particular case or not, the right is one
recognized by a rule which has the force of law and a sentence imposed in
violation of law is plainly 'illegal.' If the Court is unhappy with the wording of
Rule 35a wording adopted by the Court itself and submitted to Congress for
approval as required by lawwhatever change is necessary to bring the Rule
into conformity with the Court's present preferences should be incorporated
into the explicit language of the Rule and submitted to Congress for its
approval. I would reverse this case and remand it to allow the District Court to
resentence petitioner after granting him his right to speak under Rule 32(a).

In an earlier motion filed under 28 U.S.C. 2255, 28 U.S.C.A. 2255 the

petitioner claimed that he had been prevented by government agents from
appealing the judgment of conviction. The District Court denied the motion.
The Court of Appeals set aside the District Court's order and directed that a
hearing be had on the motion. 6 Cir., 256 F.2d 957. After a hearing before a
different district judge, the motion was again denied. The Court of Appeals
affirmed. 6 Cir., 268 F.2d 203.

The majority of the Court in the Green case did not decide whether the issue of
a Rule 32(a) violation could be raised on collateral attack, or whether such a
violation 'would constitute an error per se rendering the sentence illegal.' 365
U.S., at 303, 81 S.Ct., at 655.

'A prisoner in custody under sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence was imposed

in violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.' 28 U.S.C. 2255, 28 U.S.C.A. 2255.
4

See Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171.

The Courts of Appeals, at least since the Hayman decision, appear to have
consistently understood the substantive scope of 2255 to be the same as that
of habeas corpus. See, e.g., Larson v. United States, 275 F.2d 673 (C.A.5th
Cir.); Black v. United States, 269 F.2d 38 (C.A.9th Cir.); Taylor v. United
States, 229 F.2d 826, 832 (C.A.8th Cir.); Kreuter v. United States, 201 F.2d 33,
35 (C.A.10th Cir.).

See Van Hook v. United States, 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821 for
the relief afforded on direct appeal in a case where the sentencing judge
disregarded the mandate of Rule 32(a).

Rule 35 provides in pertinent part: 'The court may correct an illegal sentence at
any time.'

As has been pointed out, Rule 35 'was a codification of existing law and was
intended to remove any doubt created by the decision in United States v.
Mayer, 235 U.S. 55, 67, 35 S.Ct. 16, 18, 59 L.Ed. 129, as to the jurisdiction of a
District Court to correct an illegal sentence after the expiration of the term at
which it was entered.' Heflin v. United States, 358 U.S. at 422, 79 S.Ct. at 455
(concurring opinion).

Compare Heflin v. United States, supra. In that case Rule 35 was invoked in a
situation where we unanimously recognized that the only issue was whether
'the sentence imposed was illegal on its face.' 358 U.S., at 418 (Court opinion),
422 (concurring opinion), 79 S.Ct. at 453, 455. Heflin involved the imposition
of separate consecutive sentences for a single offense.

Petitioner's attack upon his sentences was originally brought as a motion under
28 U.S.C. 2255, 28 U.S.C.A. 2255. Since I agree with the Court that a
motion under 2255 must, where appropriate, also be considered as a motion
under Rule 35, and because I think petitioner is plainly entitled to relief under
that Rule, I find it unnecessary to consider the question discussed by the Court
as to whether petitioner is also entitled to relief under 2255.

This does not of course mean that Rule 35 permits attack upon a sentence based
upon mere trial errors. Rule 35 applies to any 'illegal sentence,' not to any

illegal conviction, and thus by its terms the Rule protects only those rights
which a defendant retains even if the judgment of guilt against him is proper.
See Cook v. United States, 1 Cir., 171 F.2d 567, 570571.
3

Rule 43 provides: 'The defendant shall be present at the arraignment, at every

stage of the trial including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as otherwise provided by
these rules. * * *'

See Cook v. United States, 171 F.2d 567; Crowe v. United States, 6 Cir., 200
F.2d 526. Cf. Williamson v. United States, 5 Cir., 265 F.2d 236, 239. Similarly,
it has also been held that Rule 35's corrective force extends to a sentence illegal
by reason of the fact that the defendant upon whom it was imposed was insane
at the time of sentencing. Byrd v. Prescor, 8 Cir., 163 F.2d 775. See also
Duggins v. United States, 6 Cir., 240 F.2d 479, 483484.

365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670.

Id., 365 U.S. at 304305, 81 S.Ct. at 655.

But cf. Mr. Justice Stewart's concurring opinion in Heflin v. United States, 358
U.S. 415, 420, 79 S.Ct. 451, in which the four other members of the present
majority concurred.

365 U.S., at 304, 81 S.Ct. at 655.

Id., at 305, 81 S.Ct., at 655.

10

Domenica v. United States, 292 F.2d 483; Jenkins v. United States, 293 F.2d
96.

11

Rule 32(c) provides for a presentence investigation and report to the trial judge
for use in imposing sentence which 'shall contain any prior criminal record of
the defendant * * *.' Since this is not the sort of information which normally
finds its way into the record at the trial itself, a defendant's only chance to
explain or rebut such evidence will often be by exercise of his right under 32(a).