author: GIBSON, Chief Judge.

text:
    Frank HOUSER and Winnie Houser, Appellants, v. UNITED STATES of America, Appellee.
    No. 74-1359.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 16, 1974.
    Decided Dec. 11, 1974.

      Daniel P. Reardon, Jr., St. Louis, Mo., for appellants.
    Frederick J. Dana, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   GIBSON, Chief Judge.

Frank and Winnie Houser, husband and wife, were jointly arrested, tried, and convicted by a jury of possession of heroin with intent to distribute. On March 16, 1973, each defendant was sentenced to a term of five years imprisonment to be followed by a three year special parole term. A notice of appeal was filed March 19, 1973. That appeal was dismissed May 4, 1973, in accordance with Local Rule 13 for failure to prosecute.

Defendants now appeal the District Court’s denial of their 28 U.S.C. § 2255 motion to vacate their sentences which alleged various errors in the conduct of their trial.

28 U.S.C. § 2255 provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

It is not contended that the court was without jurisdiction or that the sentence imposed was in excess of the statutory maximum. The Housers’ prayer for relief depends then on whether their sentences were “imposed in violation of the Constitution or laws of the United States” or are “otherwise subject to collateral attack.”

Those matters which can be raised as collateral attacks have seen a steady expansion since the enactment of § 2255 in 1948. The purpose underlying the enactment of § 2255 was to eliminate procedural abuses, harassments, and unseemly delays in the processing of habeas corpus actions. This was to be accomplished by shifting the hearing of habeas actions from the district where the petitioner was in custody to the more convenient forum, in terms of the availability of records and witnesses, of the sentencing court. Hill v. United States, 368 U.S. 424, 427-428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Lee v. United States, 501 F.2d 494 (8th Cir. 1974). This section was held constitutional as being merely a “jurisdictional bill,” United States v. Hayman, 342 U.S. 205, 218, 72 S.Ct. 263, 96 L.Ed. 232 (1952), with the remedies available under § 2255 being “exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined.” Hill v. United States, supra, 368 U.S. at 427, 82 S.Ct. at 471.

The federal remedy of habeas corpus had for many years been limited to cases where a conviction was void for want of jurisdiction in the trial court. See Frank v. Mangum, 237 U.S. 309, 327, 35 S.Ct. 582, 587, 59 L.Ed. 969 (1915):

[T]he writ of habeas corpus will lie only in case[s] the judgment under which the prisoner is detained is shown to be absolutely void for want of jurisdiction in the court that pronounced it * * *

An indication of expansion appears in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Justice Holmes (a dissenter in Frank v. Mangum) determined that habeas corpus would lie to secure to petitioners their constitutional rights. Moreover, it was further determined that the petitioners’ allegations in Moore, if true, would have made the trial absolutely void. Moore v. Dempsey, supra, 261 U.S. at 92, 43 S.Ct. 265, 67 L.Ed. 543. It was 1942 before the Supreme Court clearly acknowledged that habeas corpus relief “extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.” Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 966, 86 L.Ed. 1302 (1942).

A § 2255 motion is available only upon grounds that would warrant the granting of a writ of habeas corpus. Taylor v. United States, 229 F.2d 826, 832 (8th Cir.), cert. denied, 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956). As the absence of jurisdiction in the sentencing court is set out in § 2255 as a distinct ground for relief, the meaning attributable to the phrases “imposed in violation of the Constitution or laws of the United States” or “otherwise subject to collateral attack” must have reference to the expansion of habeas corpus jurisdiction foretold by Moore, announced in Waley, and continued to the present day.

The line of demarcation between a sentence “imposed in violation of the Constitution or laws of the United States” or one which is “otherwise subject to collateral attack” has never been clearly delineated in the cases. In reviewing the adjudicated cases when the court has granted or denied relief, it is seldom clear upon what ground the decision of the court rests. However, a framework for analysis of the differences between a sentence “imposed in violation of the Constitution or laws of the United States” and one “otherwise subject to collateral attack” can be gleaned from the decided cases.

Cognizable under the ground of “violation of the Constitution or laws of the United States” are claims of a violation of a specific constitutional guarantee. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 223, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). The Supreme Court has recently indicated that not only claims of Constitutional violations are cognizable under this ground in § 2255 but also claims of violation of the “laws of the United States” when the claimed error was “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, supra, 417 U.S. at 346, 94 S.Ct. at 2305, quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).

What then is cognizable under the ground of “otherwise subject to collateral attack?” It was noted in 1961 that the boundaries of that phrase had not been defined, save that “mere error” is not enough. Kyle v. United States, 297 F.2d 507, 511 n. 1 (2d Cir. 1961). This ground still lacks definition but must have reference to those “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Hill v. United States, supra at 428, 82 S.Ct. at 471, quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 83 L.Ed. 455 (1939). See United States v. Lewis, 392 F.2d 440, 443 (4th Cir. 1968), where the court stated that:

Rare as well as unprecedented conditions — well termed “exceptional circumstances” — we think are embraced in § 2255’s words “[otherwise subject to] collateral attack.”

It is one thing to note that there must be a “fundamental defect which inherently results in a complete miscarriage of justice” or “exceptional circumstances” before a conviction may be collaterally attacked and another to apply that principle to particular claims. However, in the 26 years which have elapsed since enactment of § 2255 the courts have had occasion to consider what seems like almost every conceivable or inconceivable claim of error in the context of these collateral proceedings. What basically was to be an inquiry into the fairness of the trial has been expanded to litigate collaterally any alleged errors occurring before, during, and after trial. We think review of what is or should be cognizable in a collateral attack, as expressed in federal cases, might prove of interest and possibly save the courts and petitioners time as well as assist in the administration of justice.

To provide a quick reference for the district courts called, upon to determine whether a particular matter is cognizable under § 2255 we set forth the following, with the full knowledge that these decisions are not etched in stone. For matters not settled it must be recognized that any decision which allows or refuses collateral attack rests upon a choice between achieving finality and assuring substantial justice in each case. This principle was well expressed by Judge Leventhal in Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822, 825-26 (1966):

Whether collateral attack is permissible depends on the nature of the constitutional claim, the effectiveness of the direct remedies, and the need for choices among competing considerations in quest of the ultimate goal of achievement of justice. The decision is not predetermined by the absolute availability of judicial power, but reflects the need to fathom and delineate the claims and circumstances that make the exercise of power appropriate. The courts are called on to evolve and provide procedures and remedies that are effective to vindicate constitutional rights. However, where effective procedures are available in the direct proceeding, there is no imperative to provide an additional collateral review, leaving no stone unturned, when exploration of all avenues of justice at the behest of individual petitioners may impair judicial administration of the federal courts, as by making criminal litigation interminable and diverting resources of the federal judiciary.

However, the Supreme Court has made it clear that in making this choice, the principle of finality is not entitled to any great weight. See Kaufman v. United States, 394 U.S. 217, 228, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).

I. PARTICULAR GROUNDS NOT COGNIZABLE UNDER § 2255.

It is firmly established that § 2255 cannot be used as a substitute for a direct appeal from a conviction. Several times this court has quoted with approval the following from Taylor v. United States, 177 F.2d 194, 195 (4th Cir. 1949):

Prisoners adjudged guilty of crime should understand that 28 U.S.C.A. § 2255 does not give them the right to try over again the cases in which they have been adjudged guilty. Questions as to the sufficiency of the evidence or involving errors either of law or fact must be raised by timely appeal from the sentence if the petitioner desires to raise them.

A corollary to the previous statement is, of course, that any matter which has been decided adversely to the petitioner upon direct appeal is not cognizable under § 2255.

Thus a matter may not be cognizable upon a § 2255 motion because it is one which could not have denied the substance of a fair trial or because the matter was raised and considered upon direct appeal. Those matters amounting to a denial of a fair trial, if proved, which could not have been raised upon appeal, or which constitute a denial or infringement of a constitutional right if not asserted upon direct appeal, even though they might have been, are generally cognizable under § 2255. See, e. g., Kaufman v. United States, 394 U.S. 217, 230-31, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); United States v. Coke, 404 F.2d 836, 847 (2d Cir. 1968); Stirone v. United States, 341 F.2d 253, 257 (3rd Cir.), cert. denied, 381 U.S. 902, 85 S.Ct. 1446, 14 L.Ed.2d 284 (1965).

A. Pretrial Matters.

Claims of illegal arrest, irregularities in arrest, or an improper removal from one district to another have been held not cognizable, as has a delay in bringing the petitioner before a commissioner, or the excessiveness or the denial of bail. The same decision was reached upon claims of a lack of a preliminary hearing, illegal detention prior to arraignment, and irregularities or errors in arraignment. Challenges to the composition of a grand- jury or its procedures, the failure to provide a copy of the indictment to the defendant, defects in the indictment, or the sufficiency of the indictment absent a showing of exceptional circumstances, where the questions raised are of large importance, the need for remedy is apparent and the offense charged was one over which the sentencing court manifestly had no jurisdiction, cognizable. are not

Other assertions which fall into the pretrial area and held not cognizable under § 2255 include defenses such as the bar of the statute of limitations, the double jeopardy clause, improper venue in the trial court, or a preindictment delay.

B. Trial Matters.

Petitioners have found the trial stage to be a fertile ground for claims for relief under § 2255. Claims considered by the courts upon § 2255 motions and held not cognizable are numerous, beginning with such matters as the absence of the judge during peremptory challenges, refusal of a continuance, and the refusal to subpoena witnesses. Claims of prejudicial joinder, prejudicial trial publicity, or the lack of a full, public trial are not cognizable.

The non-disclosure of grand jury minutes and the refusal to turn over statements required by Jencks v. United States, now codified as the Jencks Act, have been determined not properly considered upon a § 2255 motion.

Whether the petitioner was insane at the time of the offense, (if issue of competency was raised and submitted to the trial court), the question of entrapment, and claims regarding the use of informers are not cognizable.

Claimed errors in evidentiary rulings, in instructions to the jury, or because of alleged prejudicial statements by the trial judge or prosecutor do not state a claim for relief under § 2255.

The sufficiency of the evidence or the acquittal of a codefendant are not grounds for relief under § 2255, nor is a claim of petitioner’s absence from a portion of the proceedings, improper communications between a bailiff and the jury and most claims of ineffective assistance of counsel. However, lack of effective assistance of counsel also raises a constitutional issue cognizable in a collateral proceeding, but substantial proof of incompetency of counsel is required for relief.

The question of petitioner’s actual guilt upon an acceptable guilty plea is not cognizable and an acceptable guilty plea waives all nonjurisdictional defects in the proceedings.

C. Post-Trial Matters.

Claims of error arising from post-trial events have not been as prevalent as the previously noted claims. The denial of allocution to petitioner at time of sentencing is not a ground for relief under § 2255 unless accompanied by aggravating circumstances. The assertion that a severer sentence than expected was received after a guilty plea presents no claim for relief, nor does a claim of an excessive sentence when the sentence imposed is within the statutory maximum. An attack upon the execution or time of serving a sentence rather than upon its legality, or the mistaken advice of counsel as to eligibility for parole, does not afford grounds for relief. Further, a petitioner finally convicted is not entitled to rely upon a change in the law as a ground for relief in a § 2255 motion.

II. PARTICULAR GROUNDS COGNIZABLE UNDER § 2255.

Although the foregoing discussion may indicate a hesitance to disturb the finality of a conviction, the courts do consider collateral attacks when the allegations, if proved, would be a denial or infringement of a constitutional right or a defect seriously affecting the fairness of the trial. Thus claims that the court lacked jurisdiction, that the statute under which the conviction was obtained was unconstitutional, and that the indictment is not merely defective but affirmatively shows on its face that no federal offense was committed, are cognizable. Prejudicial pretrial publicity may warrant relief.

Denial of the right to speedy trial may be recognized as a ground for relief under § 2255, as may the refusal to suppress evidence obtained in violation of the Fourth Amendment.

Trial events may be considered under § 2255. An involuntary guilty plea may be challenged, as may the issue of mental competency at time of trial (not commission of the offense) or plea of guilty even though not asserted at the proper time or if the resolution was inadequate. Claims of incapacity due to drug use or a language barrier to understanding the proceedings may be considered.

A denial of counsel, an unintelligent waiver of counsel, or the failure of counsel to take an appeal may be raised by § 2255 motion. Consecutive sentences for the same transaction may be challenged.

Claims of a coerced confession, suppression of helpful evidence by the prosecutor, the Government’s knowing use of perjured testimony, or the falsification of a transcript by a prosecutor may be considered upon a § 2255 motion.

We turn now to petitioners’ claims in the present case. The District Court determined that a challenge to arrest and seizure of evidence used at trial would not lie under § 2255 as a pretrial hearing was held and all relevant circumstances were known to the petitioners at the time of trial. This determination was correct. The proper remedy was a direct appeal from the conviction. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), does not require a § 2255 hearing in the circumstances aforementioned.

Petitioners claim a denial of their right to confrontation in that testimony of Fred Richardson, a Government informant, was used against them. This assertion is’ without foundation. The record of the criminal proceeding reveals that Richardson did not testify at either the suppression hearing or the trial. Collateral to this issue is the claim that the court should have granted a continuance to allow petitioners’ counsel to interview the informant since he was not used by the Government at trial. As we have noted, the failure to grant a continuance is not properly a matter considered upon a § 2255 motion. See note 27, supra. This assertion is revealed without merit in the present case by the record of the pretrial hearing wherein petitioners’ counsel was informed of the location of the informant. During the month between the pretrial hearing and trial no attempt was made to interview the informant and no subpoena was issued for his attendance at trial. Relief on this claim was properly denied.

Petitioners’ last assertion, that a mentally ill person was allowed to give testimony against them, is also without merit. This claim is based on the allegation that Richardson, the informant, had spent time at the Medical Center for Federal Prisoners in Springfield, Missouri. First, as we have noted, Richardson did not testify. In addition, he was sent to the Medical Center pursuant to 18 U.S.C. § 4208(b) for a mental examination, the result of which showed Richardson competent. This claim was also properly denied.

The judgment of the District Court is affirmed.

      . The various allegations in their joint motion were reduced to three upon analysis by the District Court: (1) their arrest and the seizure of evidence violated their Fourth Amendment rights, (2) they were denied their right to confront witnesses against them, and (3) a mentally ill person was allowed to give testimony against them.
      In their appellate brief to this court the petitioners posit “the sole question is whether the defendants here were denied a fair trial” because of the trial court’s refusal to grant a one day continuance so that defendants could interview or have the Government produce an alleged informant.

        . See Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 178 (1948).

      . See Ellis v. United States, 353 F.2d 402, 405 (8th Cir. 1965):
      [A]nything less than [a matter so inherently prejudicial as to constitute a subversion of fair trial] would ordinarily represent general trial incident, required to be challenged in the proceedings as error and to be corrected by direct appeal from conviction.

        See also Glouser v. United States, 296 F.2d 853, 856 (8th Cir. 1961), cert. denied, 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962).

      . Cardarella v. United States, 351 F.2d 443 (8th Cir. 1965), cert. denied, 382 U.S. 1020, 86 S.Ct. 640, 15 L.Ed.2d 534 (1966); Holt v. United States, 303 F.2d 791 (8th Cir.), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1963).

      . Quoted in Cardarella v. United States, supra, 351 F.2d at 447; Link v. United States, 295 F.2d 259, 260 (8th Cir. 1961).

      . Sykes v. United States, 341 F.2d 104 (8th Cir. 1965); Franano v. United States, 303 F.2d 470 (8th Cir.), cert. denied, 371 U.S. 865, 83 S.Ct. 125, 9 L.Ed.2d 102 (1962). See generally Annot., 10 A.L.R. Fed. 724.

      . Runge v. United States, 427 F.2d 122, 123 (10th Cir. 1970); Cox v. United States, 351 F.2d 280 (8th Cir. 1965).

      . Williams v. United States, 344 F.2d 264, 265 (8th Cir.), cert. denied, 382 U.S. 857, 86 S.Ct. 112, 15 L.Ed.2d 95 (1965); Lewis v. United States, 16 Alaska 341, 235 F.2d 580, 581, cert. denied, 352 U.S. 897, 77 S.Ct. 136, 1 L.Ed.2d 89 (1956).

      . Runge v. United States, 427 F.2d 122 (10th Cir. 1970); see Ragavage v. United States, 272 F.2d 196, 197 (5th Cir. 1959), cert. denied, 363 U.S. 806, 80 S.Ct. 1241, 4 L.Ed.2d 1149 (1960).

      . Adkins v. United States, 298 F.2d 842, 843 (8th Cir.), cert. denied, 370 U.S. 954, 82 S.Ct. 1604, 8 L.Ed.2d 819 (1962); United States v. French, 274 F.2d 297 (7th Cir. 1960).

      . See Davis v. United States, 358 F.2d 360, 362 (8th Cir. 1966).

      . See United States v. Wolfson, 340 F.Supp. 968, 971 (D.Del.1972).

      . Austin v. United States, 408 F.2d 808, 810 (9th Cir. 1969); Stephens v. United States, 341 F.2d 100, 101 (10th Cir. 1965).

      . Runge v. United States, 427 F.2d 122, 123 (10th Cir. 1970).

      . Cf. Hurst v. United States, 180 F.2d 835, 836 (10th Cir. 1950).

      . Perez v. United States, 303 F.2d 441 (5th Cir. 1962).

      . Sunal v. Large, 332 U.S. 174, 179, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947).

      . Rice v. United States, 420 F.2d 863, 867 (5th Cir. 1969), cert. denied, 398 U.S. 910, 90 S.Ct. 1705, 26 L.Ed.2d 70 (1970).

      . Link v. United States, 352 F.2d 207 (8th Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966).

      . Alley v. United States, 426 F.2d 877, 879 (8th Cir. 1970); Moore v. United States, 337 F.2d 350 (8th Cir. 1964), cert. denied, 379 U.S. 994, 85 S.Ct. 712, 13 L.Ed.2d 614 (1965).

      . Taylor v. United States, 332 F.2d 918, 919-920 (8th Cir. 1964); Keto v. United States, 189 F.2d 247, 251 (8th Cir. 1951).

      . United States v. Taylor, 207 F.2d 437, 438 (2nd Cir. 1953). But cf. Askins v. United States, 102 U.S.App.D.C. 198, 251 F.2d 909, 912 (1958).

      . Armstrong v. United States, 367 F.2d 821 (7th Cir. 1966). But see Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873). But cf. United States v. Jackson, 344 F.2d 158 (3rd Cir. 1965).

      . Gourneau v. United States, 390 F.2d 320, 321 (8th Cir. 1968); Marcella v. United States, 344 F.2d 876, 882 (9th Cir. 1965), cert. denied, 382 U.S. 1016, 86 S.Ct. 630, 15 L.Ed.2d 531 (1966); Lightfoot v. United States, 327 F.2d 207 (10th Cir. 1964); see Walker v. United States, 218 F.2d 80 (7th Cir. 1955). Contra, Domer v. Smith, 422 F.2d 831 (7th Cir. 1969).

      . Chapman v. United States, 376 F.2d 705, 707 (2d Cir.), cert. denied, 389 U.S. 881, 88 S.Ct. 119, 19 L.Ed.2d 174 (1967); cf United States v. Sanchez, 361 F.2d 824, 825 (2d Cir. 1966).

      . Stirone v. United States, 341 F.2d 253 (3d Cir. 1965).

      . See Weinreich v. United States, 414 F.2d 279 (9th Cir. 1969), cert. denied, 397 U.S. 996, 90 S.Ct. 1135, 25 L.Ed.2d 403 (1970).

      . United States v. Shields, 291 F.2d 798, 799 (6th Cir.), cert. denied, 368 U.S. 933, 82 S.Ct. 371, 7 L.Ed.2d 196 (1961).

      . Cardarella v. United States, 351 F.2d 443 (8th Cir. 1965), cert. denied, 382 U.S. 1020, 86 S.Ct. 640, 15 L.Ed.2d 534 (1966).

      . Wingo v. United States, 244 F.2d 800 (6th Cir. 1957).

      . United States v. Geise, 17 Alaska 461, 158 F.Supp. 821, aff'd 262 F.2d 151 (9th Cir. 1958), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959).

      . Guido v. United States, 400 F.2d 73 (7th Cir. 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 997, 22 L.Ed.2d 125 (1969).

      . 353 U.S. 657 (1957); see Black v. United States, 269 F.2d 38 (9th Cir. 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960); United States v. Angelet, 255 F.2d 383 (2d Cir. 1958).

      . 18 U.S.C. § 3500; cf. United States v. Angelet, 255 F.2d 383, 385 (2d Cir. 1958).

      . Bradley v. United States, 347 F.2d 121, 123 (8th Cir. 1965), cert. denied, 382 U.S. 1016, 86 S.Ct. 628, 15 L.Ed.2d 530 (1966); Wheeler v. United States, 340 F.2d 119, 121 (8th Cir. 1965).

      . Turner v. United States, 262 F.2d 643 (8th Cir. 1959).

      . Ruiz v. United States, 328 F.2d 56 (9th Cir. 1964).

      . Glouser v. United States, 296 F.2d 853, 856 (8th Cir. 1961), cert. denied, 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962); see Cauley v. United States, 294 F.2d 318 (9th Cir. 1961); Barber v. United States, 197 F.2d 815 (10th Cir.), cert. denied, 344 U.S. 857, 73 S.Ct. 94, 97 L.Ed. 665 (1952). Note: Evidentiary rulings on search and seizure issues would now be cognizable with certain limitations under Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).

      . Feeney v. United States, 392 F.2d 541, 543 (1st Cir. 1968); Cambiano v. United States, 295 F.2d 13, 14 (9th Cir. 1961), cert. denied, 368 U.S. 999, 82 S.Ct. 626, 7 L.Ed.2d 537 (1962).

      . Vandergrift v. United States, 313 F.2d 93, 95 (9th Cir. 1963); Smith v. United States, 265 F.2d 14 (5th Cir.), cert. denied, 360 U.S. 910, 79 S.Ct. 1297, 3 L.Ed.2d 1261 (1959).

      . Holt v. United States, 303 F.2d 791, 793 (8th Cir.), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1963).

      . Weaver v. United States, 418 F.2d 475, 476 (8th Cir. 1969); Cardarella v. United States, 351 F.2d 443 (8th Cir. 1965), cert. denied, 382 U.S. 1020, 86 S.Ct. 640, 15 L.Ed.2d 534 (1966) .

      . Cardarella v. United States, supra.

      . Glouser v. United States, 296 F.2d 853, 855-856 (8th Cir. 1961), cert. denied, 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962); Stein v. United States, 313 F.2d 518, 522 (9th Cir. 1962), cert. denied, 373 U.S. 918, 83 S.Ct. 1307, 10 L.Ed.2d 417 (1963). But cf. Jones v. United States, 299 F.2d 661 (10th Cir.), cert. denied, 371 U.S. 864, 83 S.Ct. 123, 9 L.Ed.2d 101 (1962).

      . Zachary v. United States, 275 F.2d 793, 796 (6th Cir.), cert. denied, 364 U.S. 816, 81 S.Ct. 46, 5 L.Ed.2d 47 (1960).

      . Johnson v. United States, 506 F.2d 640 (8th Cir. 1974); Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113, 116-117 (1967) [must show both gross incompetence of counsel and deprivation of a substantial defense].

      . Moore v. United States, 425 F.2d 1290, 1291 (5th Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 91, 27 L.Ed.2d 83 (1970).

      . Id.; Lipscomb v. United States, 226 F.2d 812, 815 (8th Cir. 1955), cert. denied, 350 U.S. 971, 76 S.Ct. 445, 100 L.Ed. 843 (1956).

      . Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

      . Green v. United States, 313 F.2d 6, 9-10 (1st Cir.), cert. dismissed, 372 U.S. 951, 83 S.Ct. 948, 9 L.Ed.2d 976 (1963); United States v. Taylor, 303 F.2d 165, 167-168 (4th Cir. 1962).

      . Sweeden v. United States, 209 F.2d 524 (8th Cir. 1954).

      . Lipscomb v. United States, 226 F.2d 812, 816 (8th Cir. 1955), cert. denied, 350 U.S. 971, 76 S.Ct. 445, 100 L.Ed. 843 (1956).

      . Lee v. United States, 501 F.2d 494 (8th Cir. 1974); Tanner v. Moseley, 441 F.2d 122 (8th Cir. 1971).

      . Ellis v. United States, 353 F.2d 402 (8th Cir. 1965).

      . Heinecke v. United States, 115 U.S.App.D.C. 34, 316 F.2d 685, 687, cert. denied, 375 U.S. 846, 84 S.Ct. 101, 11 L.Ed.2d 74 (1963); Gaitan v. United States, 295 F.2d 277 (10th Cir. 1961), cert. denied, 369 U.S. 857, 82 S.Ct. 939, 8 L.Ed.2d 15 (1962); cf. Smith v. United States, 431 F.2d 1, 3-4 (8th Cir. 1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1396, 28 L.Ed.2d 658 (1971); United States v. Sobell, 314 F.2d 314, 324-25 (2d Cir.), cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077 (1963). However, a petitioner may present circumstances showing that his conviction under a prior interpretation of the law represents a complete miscarriage of justice which would justify collateral relief. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).

      . United States v. Allocco, 305 F.2d 704, 708 (2d Cir. 1962), cert. denied, 371 U.S. 964, 83 S.Ct. 545, 9 L.Ed.2d 511 (1963); United States v. Rider, 282 F.2d 476, 478 (9th Cir. 1960).

      . See Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947); Wright v. Looney, 212 F.2d 186 (10th Cir. 1954).

      . Hilderbrand v. United States, 261 F.2d 354, 357 (9th Cir. 1958); Martyn v. United States, 176 F.2d 609, 610 (8th Cir. 1949).

      . See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); cf. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

      . Waugaman v. United States, 331 F.2d 189, 191 (5th Cir. 1964); cf. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Contra, United States v. Shields, 291 F.2d 798, 799 (6th Cir.), cert. denied, 368 U.S. 933, 82 S.Ct. 371, 7 L.Ed.2d 196 (1961); United States v. Robinson, 143 F.Supp. 286, 292 (W.D.Ky.1956). But cf. Johnson v. United States, 333 F.2d 371 (10th Cir. 1964).

      . Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).

      . Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Bartlett v. United States, 354 F.2d 745, 751 (8th Cir.), cert. denied, 384 U.S. 945, 86 S.Ct. 1471, 16 L.Ed.2d 542 (1966).

      . Bishop v. United States, 96 U.S.App.D.C. 117, 223 F.2d 582, 584-585 (1955), vacated and remanded for hearing on issue of competency at time of trial, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Wheeler v. United States, 340 F.2d 119 (8th Cir. 1965).

      . Taylor v. United States, 282 F.2d 16, 23 (8th Cir. 1960).

      . Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Krupnick v. United States, 264 F.2d 213, 218 (8th Cir. 1959). But cf. United States v. O’Connor, 298 F.2d 62 (6th Cir. 1962).

      . Sanders v. United States, 373 U.S. 1, 19-20, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Catalano v. United States, 298 F.2d 616 (2d Cir. 1962).

      . Atilus v. United States, 378 F.2d 52 (5th Cir. 1967).

      . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 467-469, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965).

      . Starks v. United States, 264 F.2d 797, 799 (4th Cir. 1959).

      . Kent v. United States, 423 F.2d 1050 (5th Cir. 1970). But see Dennis v. United States, 177 F.2d 195 (4th Cir. 1949) [mere showing of neglect not enough].

      . Mathis v. United States, 200 F.2d 697 (6th Cir. 1952).

      . See Proctor v. Anderson, 124 U.S.App.D.C. 103, 361 F.2d 557 (1966).

      . Brady v. Maryland, 373 U.S. 83, 86-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287, 290 (1966).

      . Holt v. United States, 303 F.2d 791 (8th Cir. 1962), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1963); Taylor v. United States, 229 F.2d 826 (8th Cir.), cert. denied, 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956) [burden is on defendant to establish knowledge at the time of use].

      . United States v. McDowell, 305 F.2d 12, 14 (6th Cir.), cert. denied, 371 U.S. 927, 83 S.Ct. 296, 9 L.Ed.2d 234 (1962).


source: Caselaw Access Project

author: WILLIAM E. DOYLE, Circuit Judge. LEWIS, Chief Judge

license: Public Domain

text:
    Nellie Atkins ARMSTRONG, Plaintiff-Appellant, v. MAPLE LEAF APARTMENTS, LTD., a limited partnership, et al., Defendants-Appellees.
    No. 74-1286.
    United States Court of Appeals, Tenth Circuit.
    Argued Oct. 25, 1974.
    Decided Dec. 12, 1974.
    Rehearing Denied Feb. 21, 1975.

      Jay C. Baker, Tulsa, Okl. (C. Rabón Martin and Christopher J. Grant, Tulsa, Okl., on the brief), for plaintiff-appellant.
    Royce H. Savage, Tulsa, Okl., for defendant-appellee Maple Leaf Apartments, Ltd.
    Chris L. Rhodes, III, James R. Ryan, James D. Groves, and Charles A. White-book, Tulsa, Okl., on the brief, for defendants-appellees.
    Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

This appeal seeks reversal of a judgment which denied plaintiff a preliminary injunction incidental to an ejectment and quiet title action filed in the United States District Court for the Northern District of Oklahoma in which the plaintiff, a person of American Indian ancestry, sought to set aside a deed to land which had been allotted. Jurisdiction arises under 28 U.S.C. §§ 1331 and 1353.

The embattled conveyance was executed on December 3, 1965. This did not end the matter because by Act of Congress the conveyance of restricted land requires approval to be obtained from the county court in Oklahoma for the county in which the land was situated. Act of August 4, 1947, 61 Stat. 731.

Originally, the subject land had been allotted to Billy Atkins, a full-blood Creek Indian and had been restricted against alienation by the Act of May 27, 1908, 35 Stat. 312. Atkins died in 1929 and 120 acres, which included the land involved in this action, descended to plaintiff and her two brothers. They, in turn, effected a voluntary partition of the tract, part of which is involved in this action. It is unclear from the evidence whether plaintiff had a full interest in the tract or merely a one-third interest, but this is unimportant here. The Act of Congress contains restrictions on the alienation of land acquired by devise or inheritance from Indians whose land had been restricted and is absolute in its requirement that the conveyance in order to be valid has to be approved in open court.

Plaintiff is unquestionably a one-half blood Creek Indian who meets the terms of the statute.

The evidence at the hearing established that plaintiff had first given the option to sell this property in 1964. Subsequently, there was an assignment to H. Harold Becko who was named as a defendant only after he had filed a petition seeking approval of the conveyance. Very soon after she had executed the option, the plaintiff apparently entertained doubts about conveying the property. She consulted her then attorney who told her that she could not avoid conveying the property even in the face of the fact that one of the checks given for the option was dishonored. Notwithstanding her change of mind, she executed the warranty deed to H. Harold Becko on December 3, 1965 for a consideration of $107,100.

We have noted that the necessary approval of the county court was not obtained at the time of conveyance. At trial Mr. Petrik, the attorney who had represented plaintiff in connection with the conveyance, testified that plaintiff would have asked the court not to approve the deed had she had an opportunity to do so. No such consent was then sought. The evidence further established that neither Mr. Petrik nor plaintiff knew of the restriction or the necessity for approval.

Becko conveyed the land to one C. H. Rosenstein, trustee, who quit-claimed to Manual Brown, who conveyed to Broken Arrow Mall, Inc., from which the present defendant Maple Leaf Apartments acquired its title. There has been substantial improvement since the original conveyance.

The action here was filed in the United States District Court for the Northern District of Oklahoma February 22, 1974, soon after appellant became aware that the land was restricted. Subsequently (on March 4, 1974), Becko instituted proceedings in the Probate Division of the District Court of Tulsa County, Oklahoma in which he sought to have the 1965 deed retroactively approved. The probate division ordered that the approval hearing would be conducted without competitive bidding. It issued a subpoena commanding the presence of plaintiff at the hearing. She did not, however, appear but filed a motion to dismiss March 12, 1974. Following this, the plaintiffs in the action, defendants-appellees here, sought a writ of attachment from the state district court and the judge of the probate division presently has under advisement the issuance of the requested warrant for Mrs. Armstrong’s arrest. The District Court for the Northern District of Oklahoma denied plaintiff’s motion for a preliminary injunction against the state court action. That court did not, however, dismiss the case. It retained jurisdiction over the ejectment suit pending the outcome of the state court proceedings. It is the denial of the preliminary injunction which is before us. Pending this appeal the parties have stipulated to hold the probate proceedings in abeyance.

I.

We first consider whether the pertinent statute allows the Oklahoma court to approve a conveyance of restricted land without the consent of and indeed over the protest of the Indian grantor of such land. If the statute allows this to be done it would then follow that the Oklahoma district court (probate division) would be entitled to proceed and that the federal district court’s ruling denying the preliminary injunction was correct. We must hold that the denial of relief was not correct. In our judgment the court’s approval of the conveyance cannot be given without the consent of or over the objection of the Indian grantor.

The statute itself considered in context with the general scheme of similar statutes dating back to 1906 defining and providing procedures for restrictions on Indian lands furnishes an initial answer. The major effect of the 1947 Act was to extend restrictions on lands held by full-blood Indians in the Five Civilized Tribes to half-blood Indians who had received the lands by devise or inheritance; the result is that the underlying policy applicable to full-blood Indians was extended to half-blood heirs.

Unquestionably the object of the restrictions was to protect the Indians from improvident dispositions resulting from overreaching by members of other races. Alonzo v. United States, 249 F.2d 189 (10 Cir. 1957), cert. denied, 355 U.S. 940, 78 S.Ct. 429, 2 L.Ed.2d 421 (1958).

There is little recorded legislative history. There were hearings, however, before the House Public Lands Committee which were not printed. These are described by W. F. Semple in his book, Oklahoma Indian Land Titles 811 (1952). In commenting on the procedure to be followed in the 1947 Act, Semple states that a first step is the filing in the county court (which was then the proper court) of a verified petition signed by the grantors “asking for approval.”

The statute itself is not complex. It calls for prompt hearing, for recitation of the amount of the consideration and for a description of the land to be contained in a public notice. A further requirement is that the grantor shall be present at the hearing and shall be examined in open court. Still a further proviso is that this presence can be obviated if the grantor and the probate attorney consent in writing. In such a case the hearing and approval may be had in the absence of the grantor.

Every provision of this statute deals with the rights of the grantor. There is no provision which suggests that the grantee can obtain an approval from the judge in the absence of or over the objection of the grantor. Maple Leaf’s argument is that the Act gives the state court exclusive jurisdiction to grant or withhold approval. From this it is reasoned that the court has authority to grant approval even if the grantor is compelled to be present. They thus view presence as a token presence. We disagree. Such a ruling would run counter to the purpose, the spirit and for that matter the language of the statute. This Act of Congress contains no provision to relieve the grantee. It does not contemplate having an adversary hearing and what would amount to a specific performance decree in the state court. It is designed to have a court ascertain whether advantage had been taken of the Indian. It contemplates that the Indian or the probate attorney would ask for the approval soon after the contract to convey was made.

We do not say that the lapse of time between the conveyance and the requested approval in and of itself constitutes an impediment. Snell v. Canard, 95 Okl. 145, 218 P. 813 (1923), appeal dismissed, 267 U.S. 578, 45 S.Ct. 350, 69 L.Ed. 797 (1925); Hope v. Foley, 57 Okl. 513, 157 P. 727 (1916). As shown here, it does have a practical consequence. The failure to seek the approval at the very time of the proposed conveyance creates a problem like the present one.

Expert testimony given by the Field Solicitor for the Department of Interior is, however, very significant. This witness testified that in his experience and to his knowledge such a deed had never been approved over the objection of the Indian grantor. He added that in his experience when an Indian grantor notified the court that he did not wish to approve the deed the court customarily immediately dismissed the case. He further said that the Department’s interpretation of the Act was that the consent of the Indian was essential to approval by the court.

Furthermore, the Department of Interior’s construction has been approved in a closely analogous situation by the Court of Appeals for the Ninth Circuit in Bacher v. Patencio, 232 F.Supp. 939 (S.D.Cal.1964), aff’d per curiam, 368 F.2d 1010 (9th Cir. 1966), a decision which expresses our view. The district court there said:

From the complaint’s own allegations it seems clear that either an expressed or implied term and condition of the Area Director’s approval of the arrangement to sell Patencio’s land was that Patencio himself remain willing to receive the fee patent up to the time of its actual issuance and delivery to him. . . . [I]t has been decided that where a fee patent is issued without the application or consent of the Indian it is invalid and cancellable.
In the case now before this Court Patencio applied for the patent, but if it is now issued it will be against his will, since that application has been withdrawn. The beneficent attitude of the United States toward its Indian wards is reason enough for refusal to issue fee patents without consent.

232 F.Supp. at 943-944.

Finally, the requirement of court approval would be rendered meaningless if it could be circumvented by compelling the Indian to be present against his will or by approving the deed even though the Indian grantor refused to give consent.

Accordingly, we must hold, considering the language of the statute,' its history and purpose, that neither forced appearance nor approval over the grant- or’s objection is permissible.

II.

We next consider whether a federal court injunction should have issued prohibiting the proceedings in OkUhoma probate court. Defendants-appellees’ position is that the federal court lacked jurisdiction to enjoin the proceedings in the probate court. Plaintiff, on the other hand, contends that there was an abuse of discretion in the refusal to grant the relief. We conclude that an injunction should have been issued for the following reasons:

First, the Act of Congress, 28 U.S.C. § 2283, which prohibits federal court injunctions to stay proceedings in state court except as authorized by Act of Congress or where necessary in aid of the court’s jurisdiction or to protect or effectuate its judgments is not applicable for the reason that the probate division acting under the 1947 statute is not performing a state judicial function. Instead it is fulfilling a federal ministerial or administrative function. See Parker v. Richard, 250 U.S. 235, 39 S.Ct. 442, 63 L.Ed. 954 (1919); Springer v. Townsend, 336 F.2d 397 (10th Cir. 1964); United States v. Goldfeder, 112 F.2d 615 (10th Cir. 1940); United States v. Easley, 33 F.Supp. 442 (E.D.Okl.1940). In Springer we concluded that the probate division of the court acts as a federal instrumentality and functions in an administrative rather than a judicial capacity. Hence, an important requisite of the Anti-Injunction Act is not present. Cf. Roudebush v. Hartke, 405 U.S. 15, 20, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972).

Second, contrary to the alternative argument of defendants-appellees, the doctrine of primary jurisdiction is not applicable because the federal district court and the probate division do not both have jurisdiction over the subject matter and this condition is essential to application of the primary jurisdiction doctrine. See 3 K. Davis, Administrative Law Treatise § 19.01 (1958).

The sole question is whether the probate division is acting in excess of its jurisdiction. This issue of law involves a federal statute and is thus federal in nature. Thus, the federal court is an appropriate tribunal to decide it. Moreover, the probate division is not entitled to determine whether is has initial jurisdiction. Cf. Macauley v. Waterman S.S. Corp., 327 U.S. 540, 66 S.Ct. 712, 90 L.Ed. 839 (1946). In Macauley there was a question of fact to be determined by the administrative tribunal. Here, however, as we have noted, the issue is purely legal, an interpretation of an Act of Congress, and the federal district court is highly qualified to perform this function. We must conclude that it is for the federal court to decide whether the statute allows the proceedings to be held over the objections of the Indian grant- or. On the other hand, the probate division is restricted to inquire as to whether the transaction was fair to the consenting Indian.

Third, the Act of Congress is subject to interpretation that there is no appeal for the plaintiff-appellant from the probate division. The only express provision is granted to the probate attorney. This would mean that the Indian would have to resort to an extraordinary writ which would create an unfair impediment.

There exists, then, no legal obstacle to the granting of injunctive relief prohibiting the proceedings in the Probate Division in the District Court for the County of Tulsa, Oklahoma.

We are mindful that this is somewhat inequitable to Maple Leaf. In its present ¡posture the plaintiff-appellant, who has not returned the purchase price, would succeed in having title to the land. This question is not before us, but undoubtedly the district court can on remand and in connection with its ejection suit on its merits adjust the equities between these parties.

III.

ABUSE OF DISCRETION IN DENYING PRELIMINARY INJUNCTION

The trial court found that plaintiff had not sustained the burden of establishing circumstances warranting the granting of a preliminary injunction.

Relief was denied because: 1) construction on the property has been halted to the financial detriment of some of defendants — to grant the injunction would cause further financial loss to defendants and to deny it would not cause substantial financial loss to plaintiff; 2) plaintiff failed to convince the court that the state proceedings cannot proceed over her objection; 3) plaintiff has adequate remedies available in the state court, including the right to appeal; and 4) the state court should be allowed to perform its function under the Act.

In Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1969) this court said:

The application for a preliminary injunction is directed to the judicial discretion of the trial court. Before an appellate court may set aside that court’s action, the appellate court must be able to say that the trial court’s action, as a matter of law, was clearly erroneous or that it was the result of an improvident exercise of judicial discretion. ... In hearings upon motions for temporary or preliminary injunctive relief, the burden is upon the one requesting such relief to make a prima facie case showing a reasonable probability that he will ultimately be entitled to the relief sought. The applicant has the additional burden of showing a right to the specific injunc-tive relief sought because of irreparable injury that will result if the injunction is not granted. There must exist a probable right and a probable danger.

415 F.2d at 439.

Plaintiff here has shown a probable right and a probable danger. The trial court correctly found that approval of the deed is a condition subsequent to its validity. Pickering v. Lomax, 145 U.S. 310, 12 S.Ct. 860, 36 L.Ed. 716 (1892). We have concluded that a proper construction of the 1947 Act prohibits the state court hearing from proceeding over the objections of the grantor.

If the state court were to act over the objection of Mrs. Armstrong, it would be acting outside the law and without jurisdiction. Eventually there could be a correction of an invalid approval of the deed, but this would occur only after much appealing and perhaps a collateral attack in federal court. Such appeals might prove futile because there is no clear provision for appeal.

The trial court found that some of defendants are suffering substantial financial loss as a result of the pendency of this action. We are painfully aware of this. Certainly an injunction which prohibits them from even seeking retroactive approval of the deed will cause further loss. But approval of the deed is essential to their having a right or interest in the property. A deed without this requisite approval conveys no interest in the land. Grisso v. United States, 138 F.2d 996 (10th Cir. 1943). Thus, defendants’ losses are a result of their reliance on a deed conceded to be invalid at this time. The grant of a preliminary injunction would cause cognizable injury to defendants only if the state district court could legally grant approval of the deed over the objection of and without the presence of Mrs. Armstrong. Since the Act precludes even the holding of the hearing over the objection of the Indian grantor, defendants’ losses cannot be considered as a substantial factor in the decision to grant a preliminary injunction.

It is apparent that the grounds on which the trial court denied the injunction are without foundation. Plaintiff has shown both a probable right and a probable danger, and there is no competing interest asserted by defendants sufficient to justify a denial of the injunction.

The judgment of the district court is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

LEWIS, Chief Judge

(dissenting).

This appeal asks us to interpret the Act of August 4, 1947, ch. 458, 61 Stat. 731. Concededly, the Act is no model of clarity. Whether it requires the appropriate Oklahoma county court, acting in an exclusive delegated statutory capacity, to divine the grantor’s “consent,” or whether it requires that court to determine whether the conveyance was for adequate consideration and thus not a product of overreaching, is unclear. And neither the legislative history nor the case law, sparse as it is, provides much assistance. Nevertheless, whether such doubt be resolved in the plaintiff’s favor or not, I cannot conclude that it is necessary to the preservation of plaintiff’s rights that her motion for a preliminary injunction be granted. If, under the Act, the grantor’s objection — made for whatever reason, or for no reason, and made at any time — is sufficient cause to require the Oklahoma court to refuse to approve the conveyance, then the plaintiff’s remedy in that court is complete and no reason for the preliminary injunction appears. If, on the other hand, the Act requires that the Oklahoma court investigate the objective equities of the conveyance — rather than the subjective state of mind of the grantor — , then, again, no reason appears for the preliminary injunction, for no irreparable injury could result lest we hold that such injury could occur from the performance by the Oklahoma court of its duties under the Act. That I am unwilling to do, and I must therefore respectfully dissent.

      . The statute in question reads:
      [The] petition for approval of conveyance shall be set for hearing not less than ten days from date of filing, and notice of hearing thereon, signed by the county judge, reciting the consideration offered and a description of the land shall be given by publication in at least one issue of a newspaper of general circulation in the county where the land is located and written notice of such hearing shall be given to the probate attorney of the district in which the petition is filed at least ten days prior to the date on which the petition is to be heard. The grantor shall be present at said hearing and examined in open court before such conveyance shall be approved, unless the grantor and the probate attorney shall consent in writing that such hearing may be had and such conveyance approved in the absence of the grantor, and the court must be satisfied that the consideration has been paid in full. (Emphasis added.)
      Section 1(b), Act of August 4, 1947, 61 Stat. 731.

      . See also Sunderland v. United States, 266 U.S. 226, 45 S.Ct. 64, 69 L.Ed. 259 (1924); United States v. Bowling, 256 U.S. 484, 41 S.Ct. 561, 65 L.Ed. 1054 (1921); Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820 (1912); Goddard v. Frazier, 156 F.2d 938 (10th Cir. 1946), cert. denied, 329 U.S. 765, 67 S.Ct. 124, 91 L.Ed. 659 (1946); Drummond v. United States, 131 F.2d 568 (10th Cir. 1942).

      . Semple, who helped draft the 1947 Act, obviously did not contemplate that the court could approve a conveyance over the Indian grantor’s objection. The thread which runs through all of his discussions of the law pertaining to Indian land is protection of the Indian against the excesses of the white man.

      . This lack of express right to appeal bolsters our conclusion that the probate division has no authority to entertain an adversary proceeding such as that which Maple Leaf would seek to have it entertain.

      . The 1947 Act allows the probate attorney to appeal a decision of approval to the next appellate court (see, 25 C.F.R. § 16.7 (1974) ). It is not clear whether other parties are entitled to appeal.

      . See McCurtain v. Palmer, 121 F.2d 1009 (10th Cir. 1941); United States v. Brown, 8 F.2d 564 (8th Cir. 1925), cert. denied, 270 U.S. 644, 46 S.Ct. 210, 70 L.Ed. 777 (1926) holding that unapproved deeds must be cancelled whether or not the conveyances were made in good faith and for adequate consideration.

      . The Act of August 4, 1947, ch. 458, § 1(b), 61 Stat. 732, provides, in part, that “[proceedings for approval of conveyances by restricted heirs or devisees under this section shall not be removable to the Federal court


author: WEBSTER, Circuit Judge.

text:
    Eugene Bataan AILSHIRE, Appellant, v. Gene DARNELL, Sheriff of Lafayette County, Lexington, Missouri, Appellee.
    No. 74-1148.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1974.
    Decided Dec. 31, 1974.
    Francis L. Kenney, III, St. Louis, Mo., for appellant.
    John H. Altergott, Jr., Kansas City, Mo., for appellee.
    Before VOGEL, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

The controversy before us concerns the claims of Eugene Bataan Ailshire, a former inmate in the Lafayette County, Missouri, Jail, who contends that his Eighth Amendment rights were violated during his pretrial detention in that institution. His pro se complaint, filed under 42 U.S.C. § 1983, named as defendant the Sheriff of the county, appel-lee herein. Upon defendant’s motion and accompanying affidavit, the District Court dismissed the action for failure to state a claim upon which relief could be granted. With the aid of appointed counsel, Ailshire appeals. Because we conclude that the District Court treated the motion to dismiss as a motion for summary judgment, see Fed.R.Civ.P. 12(b), without first notifying the plaintiff that he intended to do so, or affording him the required opportunity to file opposing affidavits, we vacate the judgment of dismissal and remand the case with instructions to permit plaintiff to amend his complaint and/or to submit counteraffidavits.

As a result of the disposition below, we view the facts in the light most favorable to appellant. Ailshire has asserted that while awaiting trial in the Lafayette County Jail a prison trustee gave him a dosage of an hallucinogenic drug commonly known as LSD in response to his complaints of a headache. As a consequence of this treatment, he has alleged that he now experiences “flashbacks,” nausea and other discomforts. Ailshire has prayed for damages in the amount of $250,000.

The defendant Sheriff predicated his motion to dismiss upon the view that he could be held liable for the incident only on a respondeat superior theory, a theory which is not available to a plaintiff seeking monetary relief for violation of his civil rights. Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973). The defendant Sheriff submitted an affidavit stating, inter alia, that he had not witnessed the occurrence in question; that he had neither directed nor authorized jail trustees to furnish medication to the inmates; that he had neither authorized nor directed the particular occurrence alleged by Ailshire and, finally, that he had had no opportunity to intervene to prevent that incident. The District Court granted defendant’s motion, observing that:

Since the relief sought is monetary damages, “the doctrine of respondeat superior is not available to impose vicarious liability upon a defendant who has no personal involvement in the alleged deprivation of plaintiff’s federally-protected rights.” Jennings v. Davis, 339 F.Supp. 919, 921 (W.D.Mo.1972), aff’d, 476 F.2d 1271 (8th Cir. 1973) .

The assumed fact of “no personal involvement” must relate to the Sheriff’s affidavit, since the complaint alleges in substance that the Sheriff had failed to train his subordinates properly. In this appeal the defendant Sheriff concedes that the District Court treated his motion to dismiss as a Rule 56 motion for summary judgment. He discerns no procedural irregularities in the disposition below, however, because (a) 12 days had elapsed between the filing of the motion and the issuance of the order of dismissal, and (b) no genuine issue of fact was presented to the court and, according to defendant, plaintiff had failed to state a claim as a matter of law. We reject such reasoning.

Rule 56 provides for service of the motion “at least 10 days before the time fixed for the hearing” in order to afford the party opposing the motion an opportunity to serve counteraffidavits. While recognizing that there is some authority for permitting a district judge to enter summary judgment sua sponte when the pretrial procedures disclose the lack of a disputed issue of material fact and the facts so established indicate an unequivocal right to judgment favoring a party, “ [cjourts of the eighth circuit have not so viewed the summary judgment procedure but have taken a position of strict compliance with the provisions of the rule.” Twin City Federal Savings & Loan Association v. Transamerica Insurance Co., 491 F.2d 1122, 1126 (8th Cir. 1974); accord, Sims v. Mercy Hospital of Monroe, 451 F.2d 171 (6th Cir. 1971); Bowdidge v. Lehman, 252 F.2d 366 (6th Cir. 1958); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1366, at 683 (1969); see Mills v. Larson, 56 F.R.D. 63, 65 (W.D.Pa.1972).

Indeed, defendant-appellee has failed to persuade us that Ailshire would not have been entitled to relief as a matter of law, even assuming the facts to be as set forth in the defendant-appellee’s affidavit. Ailshire has urged in this appeal that he was not suing Sheriff Darnell on a respondeat superior theory but rather on a theory of direct liability for the latter’s failure to provide proper training for his subordinates. While we express no opinion on the merits of Ail-shire’s contentions, we note that his reasoning is not totally without legal support. See Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974); United States ex rel. Miller v. Twomey, 479 F.2d 701, 724-725 (7th Cir. 1973) (Swygert, J., dissenting in part), cert. denied sub nom. Gutierrez v. Department of Public Safety, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974); Roberts v. Williams, 456 F.2d 819 (5th Cir.), cert. denied sub nom. Roberts v. Smith, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971), modified, 456 F.2d 834 (5th Cir. 1972); cf. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Moreover, as we have stated in the past, “a complaint should not be dismissed merely because a plaintiff’s allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974).

Since the case must be remanded because of procedural defects, we direct the District Court to afford plaintiff an opportunity to amend his pleading as well as to file opposing affidavits. We do so mindful of Rule 15’s mandate that “leave [to amend] shall be freely given,” Fed.R.Civ.P. 15, and of the liberal construction ordinarily accorded pro se civil rights complaints, which are held to a “less stringent standard than formal pleadings drafted by lawyers,” Cruz v. Cardwell, 486 F.2d 550, 552 (8th Cir. 1973).

Reversed and remanded for further proceedings in accordance with this opinion.

      . At the time this appeal was filed, Ailshire was incarcerated in the Missouri Department of Corrections at Jefferson City, Missouri.

      . The Honorable William R. Collinson, United States District Judge for the Western District of Missouri.

      . The standard is substantially the same whether reviewing orders of dismissal issued under Fed.R.Civ.P. 12(b)(6), see Remmers v. Brewer, 475 F.2d 52, 53-54 n.2 (8th Cir. 1973), or summary judgments entered pursuant to Fed.R.Civ.P. 56, see Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

      . Under Local Rule 10(c) of the Local Rules of the United States District Court for the Western District of Missouri, taken together with Fed.R.Civ.P. 6(e), plaintiff has a total of eight days in which to respond and file affidavits and/or a brief in opposition to the motion to dismiss. By not responding within the eight-day period, appellee asserts that Ailshire let the affidavit stand uncontroverted.

      . The time requirement does not mandate a hearing. The hearing must be requested by a party to the action. Fed.R.Civ.P. 12(d).

      . E. g., Wirtz v. Young Elec. Sign Co., 315 F.2d 326 (10th Cir. 1963); Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019 (1966).

      . In his brief Ailshire asserts that he attempted in good faith to file a reply in opposition to defendant’s motion to dismiss but that, as a pro se plaintiff, he was unable to do so timely. He claims that he did mail an amended complaint to the District Court after the eight days allowed by Local Rule 10(c) and Fed.R.Civ.P. 6(e) had elapsed but that that pleading was neither ruled on by the District Court nor incorporated into the record on this appeal.
      Because of our disposition of this case, we find it unnecessary to express an opinion on this aspect of the controversy.