Federal Procedure-Appellate Practice- Excusable Neglect In Failing to Perfect Criminal Appeal Provides No Ground for Collateral Review of Conviction

After the ten-day period for filing a notice of appeal from a federal criminal conviction had expired, defendant filed a motion under section 2255 of the Judicial Code to set aside his sentence under a conviction for armed robbery. The motion was based on the improper admission of a confession given during an allegedly unlawful detention. The district court denied the motion on the ground that the error asserted did not amount to a denial of a constitutional right and that only constitutional defects are subject to attack after the time for an appeal has expired. The District of Columbia court of appeals, sitting en bane, affirmed, three judges dissenting. The majority held that the erroneous admission of a confession alleged by the defendant was not subject to a collateral attack, and therefore could only have been raised by direct appeal. Excusable neglect, which had been alleged by the defendant, does not broaden the scope of the collateral remedy under section 2255 so as to be available as a substitute for an appeal. On certiorari to the Supreme Court, held, writ dismissed as improvidently granted, three Justices dissenting. The writ had been granted upon the understanding that the question presented was whether the district court should have accorded petitioner a hearing under section 2255 when it appeared that no appeal had been perfected from the original judgment of conviction. After a thorough review of the record, including the trial transcript, it was concluded that the file and records of the case conclusively show that petitioner was entitled to no relief. Hodges v. United States, 368 U.S. 139 (1961) (per curiam)