several weeks prior to trial, was advised of his right to counsel, but he had told the court he would obtain his own counsel. He failed, but he did not inform the court. The court said:
'As a result the appeared in court on the morning of the trial without representation and the court had to decide whether to: (1) Postpone the trial of all of the defendants until a later date; or (2) grant on its own motion a severance of the case and continuance as to Goforth and proceed with the trial of the other defendants; or (3) appoint counsel for Goforth and proceed with the trial of all of the defendants. Confronted with this situation, the court chose to follow the latter course and we are unable to say that this was an abuse of discretion. Neufield v. United States, 73 App.D.C. 174, 118 F.2d 375, cert. denied, Ruben v. United States, 315 U.S. 798, 62 S. Ct. 580, 86 L. Ed. 1199.'
The Government argues that the motion must be denied because there was no request for a continuance.
The fact that no continuance was requested is not important, particularly under the circumstances of the case. Petitioner did not waive a continuance. Prior to the arraignment he requested Mr. Maguire to obtain a continuance and later after Mr. Moody's appointment, he asked him to request a continuance. The court should not have permitted a trial since it knew the defendant had just been arraigned and that counsel had had no time whatever to prepare the defense. The failure to request a continuance is not a bar to petitioner's motion. Powell v. Alabama, supra; United States v. Helwig, supra.
The Government also contends that the denial of the prior motion by Judge Watson is a bar to the instant motion.
Title 28 U.S.C.A. § 2255 provides in part: 'The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.' While a court normally is not required to entertain a second motion under § 2255 alleging the same infirmity as the first, such motion should be disposed of in the exercise of sound judicial discretion. Kyle v. United States, 2 Cir. 1961, 297 F.2d 507. The United States Supreme Court recently stated in Sanders v. United States, 1963, 373 U.S. 1, at page 15, 83 S. Ct. 1068, at page 1077, 10 L. Ed. 2d 148, 'Controlling weight may be given to denial of a prior application for * * * § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.' In discussing point (3), the Supreme Court stated, '* * * If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair; * * *' and 'If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. * * *' Using these guidelines, this court holds that the denial of the prior motion does not bar and does not control the disposition of the instant motion. In exercising this discretion, it is pointed out that no hearing was held on the prior motion even though factual issues were raised; that petitioner was without counsel, although he had requested the court to appoint counsel; that this court disagrees with the conclusion reached in the prior § 2255 proceeding, 'Here, despite the shortness of the time (the court found five minutes) which Petitioner spent with counsel before the trial, there is shown no lack of knowledge by counsel of either the facts or the law upon which counsel advised and defended his client'; and that under all the circumstances petitioner did not have effective assistance of counsel.
An order will be issued vacating the judgment of conviction and sentence and granting a new trial.
This opinion shall constitute the court's findings of fact and conclusions of law in accordance with Rule 52(a), Fed.R.Civ.P.
The court is grateful to Christopher T. Powell, Esq., of Scranton, pennsylvania, who as assigned counsel ably represented petitioner in these proceedings.