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DAVIS V. UNITED STATES, 417 U. S. 333 (1974)

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U.S. Supreme Court

Davis v. United States, 417 U.S. 333 (1974)

Davis v. United States

No. 72-1454

Argued February 26, 1974

Decided June 10, 1974

417 U.S. 333


After being declared a delinquent, petitioner was ordered to report for induction pursuant to Selective Service regulations, which permitted the ordering of a declared delinquent to report for induction even though he had not been found acceptable for military service. When petitioner did not report as ordered, he was prosecuted and convicted for failure to report for induction. Following a remand by the Court of Appeals for reconsideration in the light of the intervening decision of this Court in Gutknecht v. United States, 396 U. S. 295, the District Court concluded that Gutknecht did not affect the conviction, and the Court of Appeals affirmed. While petitioner's petition for certiorari was pending in this Court, the Court of Appeals decided United States v. Fox, 454 F.2d 593, wherein, on the authority of Gutknecht, that court reversed a conviction based on facts virtually identical to those on which petitioner's conviction was based. This Court subsequently denied certiorari in the petitioner's case. After beginning his sentence, petitioner brought this collateral proceeding under 28 U.S.C. § 2255, asserting that the Court of Appeals in the Fox case had effected a change in the law of the Ninth Circuit after affirmance of his conviction, and that the holding in Fox required that his conviction be set aside. The District Court summarily denied relief. The Court of Appeals affirmed on the ground that, because petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the court's earlier affirmance was "the law of the case," and precluded petitioner from securing relief under § 2255 on the basis of an intervening change in law.


1. Even though the legal issue raised in a prior direct appeal from petitioner's conviction was determined against petitioner, he is not precluded from raising the issue in a § 2255 proceeding "if new law has been made . . . since the trial and appeal." Kaufman v. United States, 394 U. S. 217, 394 U. S. 230. Pp. 417 U. S. 341-342.

2. The fact that petitioner's claim is grounded "in the laws of the United States", rather than in the Constitution, does not chanroblesvirtualawlibrary

Page 417 U. S. 334

preclude its assertion in a § 2255 proceeding, particularly since § 2255 permits a federal prisoner to assert a claim that his confinement is "in violation of the Constitution or laws of the United States." Sunal v. Large, 332 U. S. 174, distinguished. Pp. 417 U. S. 342-346.

3. The issue that petitioner raises is cognizable in a § 2255 proceeding. Pp. 417 U. S. 346-347.

472 F.2d 596, reversed and remanded.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J.,and DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, post, p. 417 U. S. 347. REHNQUIST, J., filed a dissenting opinion, post, p. 417 U. S. 350.

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