The opinion of the court was delivered by: BECKER
EDWARD R. BECKER, District Judge.
Petitioner, Bartholomew DiAngelo, was convicted by a jury in this court of conspiring to rob and of robbing a federally insured bank.
We sentenced him to a term of fourteen years' imprisonment to be followed by a term of five years' probation. The Court of Appeals affirmed. United States v. DiAngelo, 493 F.2d 1401 (3d Cir. 1974). DiAngelo now moves pursuant to 28 U.S.C. § 2255 to vacate the conviction and sentence. He first alleges that his constitutional rights were violated because his counsel was not present at the time, prior to trial, when the Assistant United States Attorney showed a witness, who later identified DiAngelo in court, a photographic display which included DiAngelo's picture. Second, DiAngelo claims that he did not receive the effective assistance of counsel guaranteed him by the Sixth Amendment, because counsel failed to move to suppress the above in-court identification and to subpoena two witnesses whose testimony would have attacked the validity of the identification.
Section 2255 requires that we afford DiAngelo a hearing on these issues "[unless] the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." Moreover, in Fontaine v. United States, 411 U.S. 213, 93 S. Ct. 1461, 36 L. Ed. 2d 169 (1973), the Court warned that the statutory phrase "conclusively show" is to be construed to afford a hearing unless "under no circumstances could the petitioner establish facts warranting relief under Section 2255." We believe that petitioner's identification claim presents one of those instances where the files and records of the case conclusively show that petitioner is entitled to no relief, but we find that we must hold a hearing on the issues raised by DiAngelo's second stated ground.
I. The Identification Issue
The government relied in its case in chief upon the testimony of two eyewitnesses to the robbery. One of those witnesses, Alvin C. Wipplinger, was employed as an assistant branch manager at the bank on the day of the incident. During the trial, Mr. Wipplinger identified DiAngelo as one of the robbers and also testified that he had twice chosen DiAngelo's picture from arrays of photographs shown him by F.B.I. agents.
Petitioner relies on United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), to attack the identification. That case held that such a photographic spread constitutes a "critical stage" of the criminal process and, thus, the defendant is entitled to have counsel present. Unfortunately for petitioner, Zeiler was overruled by United States ex rel. Reed v. Anderson, 461 F.2d 739 (3d Cir. 1972) (en banc), and rejected a year later by the Supreme Court in United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973). The Supreme Court recognized in Ash that even though a photographic spread is not a "critical stage" of the prosecution, a defendant may still move as a matter of due process to suppress a later in-court identification "if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). Thus, although the petition clearly raises only the Zeiler counsel point as grounds for relief on the identification issue, we will, out of an excess of caution, also address the due process question.
Trial counsel for petitioner did not request a suppression hearing to obtain a ruling that the out-of-court identifications were impermissibly suggestive. Such a ruling would not only have required suppression of the out-of-court identifications, but also the exclusion of Wipplinger's in-court identification, unless an independent basis for the in-court identification could be established. Simmons, supra ; see United States v. Wade, 388 U.S. 218, 241-42, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). In this case, however, even if we were to find that the photo spreads were impermissibly suggestive,
we would find, based upon Wipplinger's testimony, that his in-court identification was the product, not of any impermissible suggestion, but of an independent source and thus not susceptible to suppression on due process grounds.
The relevant portions of Wipplinger's testimony show that petitioner entered the bank with his accomplice and ordered Wipplinger to stand with hands against the wall. Petitioner was wearing a stocking over his face but, according to Wipplinger, the stocking distorted his features only "slightly." During this period of time, Wipplinger testified that he was approximately six feet away from the petitioner and was able to observe him and his face for "about a half minute or so." Wipplinger made a positive in-court identification of petitioner. As to the earlier photographic identifications, Wipplinger stated that he was shown a display of eight or nine photos by Agent Nolan of the F.B.I. at Wipplinger's office in the bank on March 27. The relevant portion of his testimony regarding this photo display is as follows:
Q. [By the Assistant U.S. Attorney] Now, in what manner did he [Agent Nolan of the F.B.I.] display the photos to you? Where exactly did he display the photos?
A. I was at my desk at the time and he just laid the photos in front of me, put all of them down in front of me.
Q. Did he indicate to you in any manner which photograph, if any, you should pick out?
Q. And what did you do when you looked at the photographs?
A. I picked out the man that held the gun on me.
Q. The photograph of the same individual who you have ...