McLaughlin, Forman, and Aldisert, Circuit Judges.
Harold Konigsberg appeals from a denial by the United States District Court for the District of New Jersey of his motion pursuant to 28 U.S.C. § 2255 to vacate a sentence of ten years imposed upon him in that court on July 16, 1963. He was convicted on an indictment charging him with possession of property stolen from interstate commerce in violation of 18 U.S.C. § 659. The conviction was affirmed in an opinion by this court*fn1 where the facts and arguments of the case were so fully explored as to make references to them here unnecessary unless they bear directly upon the issues of the instant appeal.
Appellant is principally aggrieved by the failure of the District Court to view favorably two grounds for his § 2255 motion which he urges originated after the affirmance of his conviction by this court in 1964. The first is his contention that testimony taken at a 1967 Supreme Court hearing*fn2 showed that during his 1963 trial there was illegal suppression by the Government of evidence which was favorable to him. Specifically, he argued that the thrust of this testimony demonstrated that the arresting Federal Bureau of Investigation agents refused to allow the appellant the use of a telephone to call his lawyer for several hours after his arrest.*fn3 Appellant urges that had this court been informed of these facts at the time of its affirmance of the 1963 conviction, it would have been compelled by Escobedo v. Illinois*fn4 to exclude the incriminating statements.*fn5
This argument, however, ignores the fact that the testimony given at the New York hearing did not reveal any substantive discrepancies from the testimony of the agents at the 1963 trial. There, one of the agents in question testified that the incriminating statements were freely offered by the appellant.*fn6 Moreover, both the trial court and this court on appeal found no evidence suggesting that there was a denial of counsel. In denying a petition for rehearing, it was concluded that:
"Under the evidence documented in our opinion, we found that the process in this case was investigatory, that it was uncontradicted that there had been no attempt to elicit a confession and that the facts of this matter differed radically from the Escobedo situation. We therefore supported the trial court's conclusion that Konigsberg's statements were voluntary and admissible into evidence."*fn7
The new testimony offered by appellant in no way contradicts the court's previous determination that at the time the incriminating statements were made the process of the case was investigatory and not accusatory. Due consideration of this testimony leaves us convinced that, contrary to the appellant's contentions, had the court been aware of it at the time of the appellant's direct appeal it would have had no effect on its ruling.
Appellant's second contention is that the District Court erred in not considering the question of his standing to contest the legality of a search and seizure which occurred during his arrest.*fn8 He argues that under the recent Supreme Court decision in Kaufman v. United States*fn9 the District Court was obligated to consider this question. Once having considered it, he contends that the decision in Simmons v. United States*fn10 would have required the District Court to grant the § 2255 motion since the Simmons decision, he argues, makes it clear that he had standing to challenge the legality of the search and seizure.
Kaufman, however, did not establish a mandatory rule controlling in all cases. The Court there held that questions concerning search and seizure were entitled to the same consideration in a § 2255 motion as other constitutional claims. But the Court also stated that
"when a request for relief under § 2255 asserts a claim of unconstitutional search and seizure which was tested by a motion to suppress at or before trial under Fed.Rule Crim.Proc. 41(e), the § 2255 court need not stop to review the adequacy of the procedure established by that Rule. * * *"*fn11 (Emphasis supplied.)
Thus, where a federal court had an opportunity to consider the merits of the contention it is within the discretion of the § 2255 court whether or not to relitigate the issue. Since in this case there had been a motion to suppress at trial and a full consideration of the merits on appeal, we find that the District Court acted well within the bounds of proper discretion in refusing to consider the appellant's contention that he had standing to contest the search and seizure. Furthermore, assuming that the appellant had standing, it is noteworthy that both the trial court*fn12 and this court*fn13 found with ample ground that probable cause for arrest existed at the time of the search and seizure.
Appellant's additional argument on this appeal that because the jury was present during a portion of the hearing on the voluntariness of his incriminating statements he was denied a Jackson v. Denno*fn14 hearing is also without merit. Again, appellant is attempting to collaterally attack an issue raised on direct appeal and decided adversely to him. The conclusion already determined by this court is still apt:
"Since Escobedo is inapplicable to the situation before us, the argument that Konigsberg's statement was involuntary and therefore he was deprived of due process of law under Jackson v. Denno must fall."*fn15 (Citations omitted.)
The appellant's charge that the District Court erred in refusing to grant an evidentiary hearing on his petition is stripped of any substance by the failure of the file and the entire record to disclose a valid justification therefor. They were painstakingly reviewed by the ...