Castle, Chief Judge, and Kiley, Circuit Judge and Wise, District Judge.
Petitioner appeals from the denial by the district court, without a hearing, of his motion to vacate his sentence, filed pursuant to 28 U.S.C. § 2255.*fn1 Petitioner alleges that various errors occurred at his arraignment, at which he and his co-defendant waived the right to counsel and indictment and pleaded guilty to the charge of assaulting and putting in jeopardy the lives of three individuals while robbing a national bank of approximately $9,890.50, in violation of 18 U.S.C. § 2113(d). Petitioner had previously filed two other § 2255 motions which were also denied without hearings. In all three cases, the district judge, who had presided at petitioner's arraignment, reviewed the record and decided that the files and records showed conclusively that petitioner was not entitled to relief. While petitioner did not appeal from the first two denials, the third § 2255 motion reasserted, albeit in general terms, the allegations made in the first two.
Petitioner first contends that he was entitled to a hearing on his allegation, contained only in his third § 2255 motion, that, at the arraignment, he was mentally incompetent due to the fact that he had taken drugs (paragoric) shortly before the arraignment was held.*fn2 The Government contends that since petitioner waited until his third § 2255 motion to assert that he was under the influence of drugs, he has waived his right to a hearing on this allegation. Both parties rely heavily on Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963).
In Sanders, the Supreme Court reaffirmed the inapplicability of res judicata to habeas corpus proceedings and § 2255 motions. "Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged." 373 U.S. at 8, 83 S. Ct. at 1073. The Court noted, however, that in dealing with successive motions, denial without a hearing may be proper "even though a second or successive application states a claim for relief." Id. The Court discussed the situation where a prisoner sought to retry a claim previously considered and decided against him. See Salinger v. Loisel, 265 U.S. 224, 44 S. Ct. 519, 68 L. Ed. 989 (1924).
The Court then dealt with the case where a successive application for collateral relief asserted a ground which had not been raised in the prior applications. In discussing Wong Doo v. United States, 265 U.S. 239, 44 S. Ct. 524, 68 L. Ed. 999 (1924), the Court concluded that a "prisoner who on a prior motion under § 2255 has deliberately withheld a ground for relief need not be heard if he asserts that ground in a successive motion; his action is inequitable -- an abuse of the remedy -- and the court may in its discretion deny him a hearing." 373 U.S. at 10, 83 S. Ct. at 1073. The Court further stated, regarding abuse of remedy:
"Thus for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." 373 U.S. at 18, 83 S. Ct. at 1078.
The Court held that Sanders was entitled to a hearing on his second § 2255 motion on the allegation of the influence of drugs -- which had not been raised in his prior motion -- since the denial of the first motion was not on the merits, but was "merely a ruling that petitioner's pleading was deficient." 373 U.S. at 19, 83 S. Ct. at 1079. The Court then stated that the record in that case could not "conclusively show" that Sanders was entitled to no relief, and that even though the same judge who presided at the hearing at which the petitioner made the waiver also passed on the § 2255 motions, the brief appearance, without counsel, before that judge raised the possibility that the influence of narcotics might not have been apparent to the district court. The Supreme Court also noted the fact that the trial judge was aware of Sanders' prior history of drug addiction and treatment while in jail.
While we feel that there is merit in the Government's argument that the district court in the instant case could have justifiably dismissed petitioner's third § 2255 motion on the ground that petitioner was abusing the remedy by not having raised the allegation of drug influence in either of his two previous motions -- a fact about which petitioner would have known when he filed those motions -- since the district court did not rely on this ground in denying the third motion, we shall deal with the merits. We also note that Sanders held that the Government has the burden of proving abuse of the remedy, 373 U.S. at 17, 83 S. Ct. 1068, and the record in the instant case is devoid of any indication that the Government met such burden.*fn3
Petitioner argues that Sanders requires a hearing in all cases where a petitioner alleges, in a habeas corpus application or a § 2255 motion, that he was under the influence of drugs at his arraignment, trial, or other hearing where a waiver of rights was made. We do not read Sanders as requiring such an inflexible rule. Each case must still be decided on its own facts, in light of the record before the court.
In a memorandum opinion, the court below reviewed the record and decided that the allegation was untrue and that petitioner was conclusively entitled to no relief for three reasons: (1) Petitioner had been incarcerated in a federally-approved institution for about one week prior to the arraignment; (2) The court "interrogated the petitioner concerning the use of any drugs or narcotics [as well as alcohol] within 48 hours prior to the arraignment, and the defendant, Bennett, [as well as his co-defendant] indicated on the record unequivocally that he had not"; (3) "The entire transcript reflects coherent, responsive, and intelligent replies from the petitioner in all regards."
Petitioner relies on Sanders and Coates v. United States, 106 U.S.App.D.C. 389, 273 F.2d 514 (1959) for the proposition that a district judge could never rely on the record or his recollection of a defendant's demeanor in denying a motion to vacate without holding a hearing. However, in Sanders, the petitioner was a known addict who was, admittedly, undergoing treatment at the time of his arraignment. That this distinction is meaningful is demonstrated by the Court's comment on the fact that Sanders asked to be sent to a hospital for treatment. After stating that the petitioner's response to the judge's inquiries could not "conclusively show" that the petitioner was entitled to no relief, the Court said: "If anything, his request before sentence that the judge send him to a hospital 'for addiction cure' cuts the other way. Moreover, we are advised in the Government's brief that the probation officer's report made to the judge before sentence * * * disclosed that petitioner received medical treatment for withdrawal symptoms while he was in jail prior to sentencing." 373 U.S. at 20, 83 S. Ct. at 1079. This last statement indicates the Court's awareness of the strong possibility that petitioner had been taking drugs while incarcerated.
Similarly, in Coates, the sentencing judge was made aware of the defendant's narcotic addiction, and in fact knew that the defendant had taken narcotics the morning of the hearing and would "soon" begin to suffer withdrawal symptoms.*fn4 Moreover, the Court of Appeals found that the trial judge's inquiries of the defendant as to his understanding of the guilty plea "seemed to us to have fallen far short of that 'penetrating and comprehensive examination of all the circumstances' which this situation required. Cf. Von ...