fundamental assertion of insufficient time to prepare for trial. We are of the opinion that counsel for an indigent defendant, held in custody, must be appointed by the court sufficiently far in advance of trial to enable counsel adequately to prepare the defense. In he case at bar the period given for preparation was too brief. * * *'
Greco had counsel of his own choice who had been retained several months in advance of trial. The Government's case had been investigated fully over a period of several months. Vasilick was entitled to the same opportunity, particularly when he was to receive virtually a life sentence. He was denied the effective assistance of counsel. His fundamental rights were violated.
The fact that a formal motion for continuance does not appear on the record does not alter this conclusion. There is ample uncontradicted testimony, supported in part by the record, that a request for continuance was made and that the court and the Government were aware that Walsh had no opportunity to prepare the case. Under such circumstances the guarantee of the fundamental right of a defendant to effective assistance of counsel should not depend on whether a formal motion appears on the record. See MacKenna v. Ellis, 5 Cir. 1959, 263 F.2d 35, 42.
Whether Walsh would have been able to secure witnesses or develop other facts is not material. As the Supreme Court stated in Powell v. Alabama, supra, 287 U.S. at page 58, 53 S. Ct. at page 60:
'It is not enough to assume that counsel thus precipitated into the case thought there was no defense, and exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could say what a prompt and thoroughgoing investigation might disclose as to the facts. No attempt was made to investigate. No opportunity to do so was given. * * *'
See also United States v. Helwig, supra.
In appealing the defendant's conviction, Walsh did not raise the matter of the denial of the request for continuance. No reason appears on the record for failure to raise the question. A motion under 2255 is not to be a substitute for an appeal, and failure to raise on appeal the question of violation of known constitutional rights ordinarily precludes a defendant from a collateral attack on that basis. United States v. Morin, 3 Cir. 1959, 265 F.2d 241, 246. United States v. Brest, 3 Cir. 1959, 266 F.2d 879. United States v. Gironda, 2 Cir. 1960, 283 F.2d 911. Hodges v. United States, D.C.Cir. 1960, 108 U.S.App.D.C. 375, 282 F.2d 858, 863. Larson v. United States, 5 Cir. 1960, 275 F.2d 673, 679. When fundamental constitutional rights are involved, the courts ought not to fashion stringent rules and stereotyped generalizations which provide that in every instance there must be an appeal before resort can be had to § 2255. Resort to § 2255 is barred if the record indicates a conscious election not to appeal. See Larson v. United States, supra. The record in this case shows no conscious election not to appeal on this point.
The testimony and the record prove that both the court and the Government knew the circumstances of Walsh's appointment, and that Walsh did not have an opportunity to prepare the defense. Neither Walsh's failure to appeal nor any disadvantage to the Government on a retrial outweighs the defendant's right to effective assistance of counsel. His constitutional rights are paramount.
An order will be issued vacating the judgment of conviction and sentence and granting a new trial.
The petition filed by the defendant was for a Writ of Error Coram Nobis which this Court treated as a motion to vacate, set aside or correct the sentence under Title 28 U.S.C.A. § 2255. A motion under this section is a new and independent civil proceeding. Martin v. United States, 10 Cir. 1960, 273 F.2d 775; United States v. Stevens, 3 Cir. 1955, 224 F.2d 866, 868. The Clerk will be directed to docket the proceedings herein accordingly on payment of the proper fee or upon in forma pauperis proceedings as permitted by Title 28 U.S.C. § 1915(a).