Habeas Corpus – Procedural Prerequisites – Motion Denied for Failure to Appeal Convicion Despite Failure Being Excusable

Plaintiff was convicted of robbery in a federal district court and, although represented by counsel, failed to appeal within the statutory ten-day period. Three months later he filed a motion in the same court under section 2255 of the judicial code to vacate the sentence on the ground that the conviction, because it was based on a coerced confession, was unconstitutionally obtained without due process of law. The motion was denied and the denial affirmed, in the absence of any attempt to excuse the failure to appeal. On reargument, plaintiff attempted to excuse his failure to appeal by alleging that neither the court nor his counsel advised him of his right to an appeal or that such appeal had to be taken within ten days. On reargument before the court en bane, held, affirmed, three judges dissenting. Even if the failure to appeal was excusable, such failure precludes relief by motion under section 2255 since collateral attack may not be used as a substitute for an appeal. Hodges v. United States, 282 F.2d 858 (D.C. Cir. 1960).