Davis v. United States , 94 S. Ct. 2298 ( 1974 )

Mr. Justice Stewart

delivered the opinion of the Court.

This case involves the availability of collateral relief from a federal criminal conviction based upon an intervening change in substantive law. While the question presented is a relatively narrow one, it arises as the result of a rather complicated chain of events.

I

In February 1965, the petitioner, Joseph Anthony Davis, was classified I-A by his draft board and ordered to report for a pre-induction physical examination. Davis failed to appear on the appointed date. He later informed his local board that his failure to report was due to illness. Although the board attempted to arrange a second date for the pre-induction physical, its attempts to communicate with the petitioner were frustrated by his failure to keep the board apprised of his correct mailing addresses. As a result, the local board’s communications to the petitioner were returned to the board stamped “addressee unknown,” and Davis again failed to report for the physical. In December 1965, the board sent the petitioner a warning that it was considering declaring him a delinquent because of his failure to report for the second pre-induction physical.¹ This communication was also returned to the board stamped “addressee unknown.”

After another unsuccessful attempt to communicate with the petitioner, the local board declared him a delinquent, pursuant to 32 CFR § 1642.4 (a) (1967),² both because of his failure to report for the second pre-induction physical and because of his failure to keep the local board informed of his current address.³ At the same time the board mailed the petitioner a delinquency notice. Shortly after the delinquency declaration, the board sent the petitioner an order directing him to report for induction into the Armed Forces. Once again, the order was returned to the board stamped “addressee unknown.” Several months later, the board sent the petitioner a second order to report for induction. This time the order was mailed to a St. Paul, Minnesota, address that Davis had used when requesting a duplicate draft card. Although there was no indication that Davis did not receive the induction order, he once again failed to report as ordered. This second failure to report for induction resulted in the petitioner's prosecution and conviction under 50 U. S. C. App. §462 (a).⁴

At the time that the local board issued the second induction order, 32 CFR § 1631.7 (a) (1967) provided that registrants could be ordered to report for induction only after they “[had] been found acceptable for service in the Armed Forces and . . . the local board [had] mailed [them] a Statement of Acceptability . . . at least 21 days before the date fixed for induction.” Since, at the time of his induction order, Davis had not yet appeared for a physical examination to determine his acceptability, quite obviously neither one of these requirements was satisfied. The regulation, however, went on to provide that “a registrant classified in Class I-A or Class I-A-0 who is a delinquent may be selected and ordered to report for induction to fill an induction call notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and has not been mailed a Statement of Acceptability ... The only other registrants similarly excepted from these prerequisites were those who had volunteered for induction. In light of this proviso, the local board evidently concluded that the preconditions to induction stated in § 1631.7 (a) were inapplicable to the petitioner, whom it had earlier declared to be a delinquent, and that it was thus free to issue an induction order to the petitioner.⁵

Davis appealed his conviction to the Court of Appeals for the Ninth Circuit. While that appeal was pending, this Court announced its decision in Gutknecht v. United States, 396 U. S. 295 (1970). In Gutknecht a Selective Service registrant’s induction had been accelerated because his local board had declared him a delinquent.⁶ When he failed to report for induction as ordered, he was prosecuted and convicted under 50 U. S. C. App. § 462. The delinquent registrant’s accelerated induction was ordered in accordance with another portion of 32 CFR § 1631.7 (a) that, like the provision applicable to Davis, called for exceptional treatment for registrants whom a local board had declared delinquent. Local boards were authorized by 32 CFR § 1642.4 to issue a declaration of delinquency “ [wjhenever a registrant . . . failed to perform any duty or duties required of him under the selective service law,” other than to report as ordered for induction or for civilian work. Both Davis and Gutknecht were declared delinquent on the authority of § 1642.4.⁷ In Gutknecht, the Court held that the Selective Service regulations that accelerated the induction of delinquent registrants by shifting them to the first priority in the order of call were punitive in nature and, as such, were without legislative sanction.⁸ Accordingly, the Court concluded that the registrant could not be prosecuted for failure to comply with an induction order issued pursuant to these regulations.

After Gutknecht, the Court of Appeals remanded the petitioner’s case to the District Court “without limitation of scope but especially for consideration ... in the light of the intervening decision of Gutknecht v. United States.” 432 F. 2d 1009, 1010 (1970). On remand, the District Court, after conducting a hearing, concluded that the petitioner’s induction had not been accelerated because of his delinquency status and that Gutknecht therefore did not affect his conviction.⁹ On appeal, the Court of Appeals affirmed. 447 F. 2d 1376.

While Davis’ subsequent petition for certiorari was pending in this Court, the Court of Appeals for the Ninth Circuit decided United States v. Fox, 454 F. 2d 593. The circumstances leading to Fox’s induction order were virtually identical to those in the petitioner’s case. Like Davis, “Fox was declared delinquent by his Selective Service Board ... for his failure to appear for pre-induction physical examinations as ordered .'. . .” Ibid. Prior to receiving his induction order, “Fox . . . was never found to be ‘acceptable for service’ and he was [not] mailed a Statement of Acceptability ... at least 21 days before his induction date . . . .” “[T]hus the only authority the Local Board had for its order to Fox to report for induction was the provision of § 1631.7. (b)¹⁰ for delinquents to be called without a previous finding of acceptability or the mailing of a Statement of Acceptability 21 days before induction.” Id., at 595. This was the same regulation on which the board's induction order to Davis had been predicated.

At Fox's post-Outknecht trial for failure to report for induction, “the government offered evidence ... to show that Fox’s induction order was not accelerated by the declaration of delinquency.” “The trial judge found no acceleration and convicted.” Id., at 593-594. The Court of Appeals reversed Fox's conviction on the authority of Gutknecht. The court held that “Fox’s induction was accelerated by the declaration of delinquency as a matter of law [because] [wjithout the declaration, the Board could not have ordered him to report for induction.” Id., at 594. Thus, the court concluded “that the [induction] order . . . was illegal and created no duty on Fox’s part to report for induction.” Id., at 595.

In opposing Davis’ petition for certiorari, the Solicitor General conceded that “the holdings in Fox and in [Davis] are inconsistent,” but nevertheless urged the Court to deny certiorari in that “the conflict is an intra-circuit one . . . [to] be resolved by the Ninth Circuit itself . . . .” Supplemental Memorandum for the United States in Opposition 2 (No. 71-661, O. T. 1971). We denied Davis’ petition for certiorari. 405 U. S. 933.

After an unsuccessful attempt to secure a rehearing in the Court of Appeals, Davis was remitted to federal custody to commence serving his three-year sentence. He then instituted the present collateral proceeding under 28 U. S. C. §2255, which permits “[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 . . . [to] move the court which imposed the sentence to vacate, set aside or correct the sentence.” In his § 2255 motion, Davis asserted that the Court of Appeals for the Ninth Circuit had in the Fox case effected a change in the law of that Circuit after the affirmance of his conviction, and that its holding in Fox required his conviction to be set aside. The District Court summarily denied the petitioner’s motion.¹¹ On appeal, the Court of Appeals affirmed without considering the merits of the petitioner’s claim on the ground that “[t]he decision on the direct appeal is the law of the case,” and that therefore any “new law, or change in law” resulting from its decision in United States v. Fox would “not [be] applied in this circuit under circumstances such as here presented.” 472 F. 2d 596. Because the case presents a seemingly important question concerning the extent to which relief under 28 U. S. C. § 2255 is available by reason of an intervening change in law, we granted certiorari. 414 U. S. 999

II

The sole issue before the Court in the present posture of this case is the propriety of the Court of Appeals’ judgment that a change in the law of that Circuit after the petitioner’s conviction may not be successfully asserted by him in a § 2255 proceeding.¹² Thus, our inquiry is confined to the availability of a § 2255 proceeding for the resolution of Davis’ claim to relief from his conviction.

Because the petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the Court of Appeals held that its earlier affirmance was “the law of the case” and precluded the petitioner from asserting on collateral attack his claim that its Fox decision had subsequently changed the law of the Ninth Circuit on that issue. In • this Court, the Solicitor General’s brief concedes that the opinion of the Court of Appeals in this regard “is not consonant with this Court’s holding in Sanders v. United States, 373 U. S. 1.” ¹³ In Sanders, the Court held, inter alia, that even though the legal issue raised in a § 2255 motion “was determined against [the applicant] on the merits on a prior application,” “the applicant may [nevertheless] be entitled to a new hearing upon showing an intervening change in the law Sanders v. United States, 373 U. S. 1, 17. The same rule applies when the prior determination was made on direct appeal from the applicant’s conviction, instead of in an earlier § 2255 proceeding, “if new law has been made . . . since the trial and appeal.” Kaufman v. United States, 394 U. S. 217, 230 (1969). Thus, the Court of Appeals erred in holding that “the law of the case,” as determined in the earlier appeal from the petitioner’s conviction, precluded him from securing relief under § 2255 on the basis of an intervening change in law.

Nevertheless, the Solicitor General contends that we should affirm the judgment of the Court of Appeals because the petitioner’s claim is not “of constitutional dimension” (Brief for United States 34) and thus is not cognizable in a § 2255 collateral proceeding. At the outset, we note that the Government’s position finds scant support in the text of § 2255, which permits a federal prisoner to assert a claim that his confinement is “in violation of the Constitution or laws of the United States.” (Emphasis added.)

It is argued forcefully in a dissenting opinion today that this language, which appears in the first paragraph of § 2255, is somehow qualified by the third paragraph of the statute, which provides:

“If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.”

The dissent of Mr. Justice Rehnquist rejects any suggestion that the language concerning “sentence[s] . . . otherwise open to collateral attack” can encompass a claim that a confinement under that sentence violates the “laws of the United States,” contending that this would reduce the remaining language regarding “a denial or infringement of constitutional rights” to surplusage. Indeed, the nub of the dissent is that § 2255 “does not speak of an illegal ‘confinement’ ... or even of an illegal conviction, but rather of illegal sentences.” Post, at 356. (Emphasis in original.) Although this microscopic analysis of § 2255 surely shows that the statutory language is somewhat lacking in precision, the resulting shadow that the dissenting opinion would cast over the statute totally disappears in the light of its legislative history.

That history makes clear that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus. As the Court pointed out in United States v. Hayman, 342 U. S. 205, 219 (1952), 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.” Thus, there can be no doubt that the grounds for relief under § 2255 are equivalent to those encompassed by § 2254, the general federal habeas corpus statute, under which relief is available on the ground that “[a person] is in custody in violation of the Constitution or laws or treaties of the United States.” (Emphasis added.) Furthermore, although the dissent of Mr. Justice Rehnquist derides the view that the words “otherwise open to collateral attack” are intended to be “a catch-all phrase,” post, at 358, the legislative history fully supports that view. In recommending to Congress what eventually became § 2255, the Judicial Conference Committee on Habeas Corpus Procedure stated that “[t]he motion remedy broadly covers all situations where the sentence is 'open to collateral attack.’ As a remedy, it is intended to be as broad as habeas corpus.”¹⁴

No microscopic reading of § 2255 can escape either the clear and simple language of § 2254 authorizing habeas corpus relief “on the ground that [the prisoner] is in custody in violation of the . . . laws ... of the United States” or the unambiguous legislative history showing that § 2255 was intended to mirror § 2254 in operative effect. Thus, we cannot agree that the third paragraph of § 2255 was in any fashion designed to mark a retreat from the clear statement that § 2255 encompasses a prisoner’s claim of “the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States.” Accordingly, we conclude that the text of the statute cannot sustain the Government’s position that only claims “of constitutional dimension” are cognizable under § 2255.

Moreover, there is no support in the prior holdings of this Court for the proposition that a claim is not cognizable under § 2255 merely because it is grounded in the “laws of the United States” rather than the Constitution. It is true, of course, that in Sunal v. Large, 332 U. S. 174 (1947), the Court held that the nonconstitutional claim in that case could not be asserted to set aside a conviction on collateral attack. But Sunal was merely an example of “the general rule . . . that the writ of habeas corpus will not be allowed to do service for an appeal.” Id., at 178. “Appeals could have been taken in these cases, but they were not.” Id., at 177. The Court was careful to point out that “if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile.” Id., at 181. Moreover, “[t]he case [was] not one where the law was changed after the time for appeal had expired.” Ibid. Thus, Sunal cannot be read to stand for the broad proposition that nonconstitutional claims can never be asserted in collateral attacks upon criminal convictions.¹⁵ Rather, the implication would seem to be that, absent the particular considerations regarded as dispositive in that case, the fact that a contention is grounded not in the Constitution, but in the “laws of the United States” would not preclude its assertion in a § 2255 proceeding.

This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. In Hill v. United States, 368 U. S. 424, 429 (1962), for example, we held that “collateral relief is not available when all that is shown is a failure to comply with the formal requirements” of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was “a fundamental defect which inherently results in a complete miscarriage of justice,” and whether “[i]t . . . present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Id., at 428 (internal quotation marks omitted). The Court did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the “laws of the United States.”

In this case, the petitioner’s contention is that the decision in Gutknecht v. United States, as interpreted and applied by the Court of Appeals for the Ninth Circuit in the Fox case after his conviction was affirmed, establishes that his induction order was invalid under the Selective Service Act and that he could not be lawfully convicted for failure to comply with that order. If this contention is well taken, then Davis’ conviction and punishment are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance “inherently results in a complete miscarriage of justice” and “presents] exceptional circumstances” that justify collateral relief under § 2255. Therefore, although we express no view on the merits of the petitioner’s claim, we hold that the issue he raises is cognizable in a § 2255 proceeding.

The judgment of the Court of Appeals is accordingly reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

1 The notice further stated that “[a] delinquent registrant loses his eligibility for deferment and may be placed in a class immediately available for service. He is ordered for induction ahead of other registrants.” Pet. for Cert. 21a.

2 This regulation, which was rescinded shortly after our decision in Gutknecht v. United States, 396 U. S. 295 (1970), provided in pertinent part:

“(a) Whenever a registrant has failed to perform any duty or duties required of him under the selective service law other than the duty to comply with an Order to Report for Induction . , . or the duty to comply with an Order to Report for Civilian Work . . . , the local board may declare him to be a delinquent.”

3 Title 32 CFR §1641.4 imposes a duty on every registrant to report for an Armed Forces physical examination at the time and place fixed in the order mailed to the registrant by the board. Title 32 CFR § 1641.1 imposes a duty on every registrant “to keep his local board currently informed in writing of . . . the address where mail will reach him .. . .”

4 Title 50 U. S. C. App. § 462 (a) provides, in pertinent part, that “any person . . . who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, or rules, regulations, or directions made pursuant to this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment.” Title 32 CFR § 1641.5 imposes a duty on every registrant “to report for induction at the time and place ordered by the local board.”

5 Both induction orders sent to the petitioner had the word “Delinquent” typed on the face. The local board's “Minutes of Action” also reflect that the petitioner was ordered to report “as Del.”

6 Title 32 CFR § 1631.7 (1967) established an order in which registrants who were eligible would be called for induction. A registrant’s place in this order of call was determined by several factors, including age and marital status. If a registrant were declared a delinquent under 32 CFR § 1642.4 (1967), he immediately entered the first priority in the order of call and was ordered to report for induction even ahead of volunteers for induction. In this sense, the registrant’s induction was “accelerated” as a result of the local board’s delinquency declaration.

7 Gutknecht had been declared a delinquent for failing to have his registration certificate and current classification notice in his possession at all times, as required by 32 CFR §§ 1617.1 and 1623.5, respectively.

8 In this regard, the Court said:

“The power under the regulations to declare a registrant 'delinquent’ has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions. . . . We search the Act in vain for any clues that Congress desired the Act to have punitive sanctions apart from the criminal prosecutions specifically authorized .... If federal or state laws are violated by registrants, they can be prosecuted. If induction is to be substituted for these prosecutions, a vast rewriting of the Act is needed.” 396 U. S., at 306-307.

9 At the hearing in the District Court, the executive secretary of the local board testified that the petitioner would have been inducted earlier if he had not failed to appear for the physical. In corroboration, the Government introduced the local board’s “delivery lists” showing the induction dates of other registrants at the local board. The District Court found that if the petitioner had complied with the local board’s procedures and “[h]ad . . . not been declared a Delinquent, he would have been ordered to report for induction on or before November 15, 1966,” which would have been nearly eight months before he finally failed to report (July 11, 1967).

10 Between the dates of the induction orders of Davis and Fox, the provisions of 32 CFR § 1631.7 (a) (1967) were incorporated into 32 CFR § 1631.7 (b) (1969).

11 At the time of his § 2255 motion in the District Court, Davis also moved under Fed. Rule Crim. Proc. 35 for reduction or modification of his sentence. This motion was taken under advisement by the District Court and was thereafter granted in part. As a result, the petitioner was released from incarceration after having served four months of his three-year sentence, and he was placed on probation for the remainder of the original term.

12 In the absence of a decision by the Court of Appeals on me merits of the petitioner’s contentions, this case is not an appropriate vehicle to consider whether the Gutknecht decision has retroactive application or whether the Fox case was correctly decided by the Court of Appeals.

13 Brief for United States 25 n. 11.

14 United States v. Hayman, 342 U. S. 205, 217 (1952).

15 Although Sunal held that a federal prisoner could not assert a noneonstitutional claim on collateral attack if he had not raised it on appeal, the Court there recognized that this rule would not bar the assertion of constitutional claims in collateral proceedings even if the applicant had failed to pursue them on appeal. 332 U. S. 174, 178-179, 182. Cf. Kaufman v. United States, 394 U. S. 217, 223 (1969).