ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 76-1831.
Adams, Gibbons, Garth, Circuit Judges.
This appeal presents the question whether, when a petitioner alleges that (a) his sentence was based on a presentence report containing false information and (b) such information was relied upon in fashioning the punishment, a hearing is required to determine the validity of these charges. Inasmuch as there has been no hearing, although there should have been one in the circumstances here, it is necessary to vacate the dismissal of the petition and for the matter to proceed to an appropriate hearing.
Petitioner, James Moore, was indicted on June 25, 1969, on charges of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). He was convicted after a jury trial on all counts of the indictment. Subsequently, on June 3, 1970, Moore was sentenced to a prison term of twenty-five years, which was the maximum period of incarceration provided by the statute.
On September 17, 1976, Moore filed a habeas corpus petition pursuant to 28 U.S.C. § 2255, seeking to have his sentence vacated. Moore's petition was bottomed on the proposition that the presentence report utilized by the judge in the course of formulating the sentence contained materially incorrect information about him.
In opposing Moore's habeas petition, the U.S. Attorney filed with the court a letter memorandum, in lieu of a formal brief, in which the government attorney candidly wrote:
Although I have not had an opportunity to review petitioner's presentence report, based upon the vituperative language and barren assertions contained in petitioner's petition, it appears that the allegations contained therein are frivolous and absurd. Moreover, petitioner's allegations are totally unsubstantiated by any documentation. (emphasis added)
Apparently on the basis of no submissions other than Moore's pro se petition and the government's letter, and in the absence of a hearing on the matter, the district court on October 26, 1976, denied Moore's motion. Without making any findings of fact, the district judge concluded as a matter of law that the petitioner had failed to state a claim on which relief could be granted.
Moore sought a rehearing on November 4, 1976. He stressed in particular that the district court's order did not conform to the dictates of 28 U.S.C. § 2255, which provides:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make the findings of fact and conclusions of law with respect thereto.
The district court, in response to Moore's petition for reconsideration, on January 10, 1977, ruled once again that Moore had failed to state a claim on which relief could be granted. From ...