Whether the petitioner need assert that his trial was 'a mockery and a farce' in order to obtain a hearing pursuant to § 2255 for alleged ineffective assistance of counsel, Mitchell v. United States, 104 U.S.App.D.C. 57, 63, 259 F.2d 787 (1958), cert. den. 358 U.S. 850, 79 S. Ct. 81, 3 L. Ed. 2d 86 (1958), or whether some lesser degree of ineffectiveness might be sufficient, Mitchell, supra, 104 U.S.App.D.C. at 66, 259 F.2d at 794 (dissenting opinion), the conclusion in the instant motion is inescapable that the petitioner is not entitled to a hearing. In a direct appeal of this case which was 'ably' argued by counsel appointed by the Court of Appeals, Gray, supra, 311 F.2d 126, that court specifically noted that trial counsel had failed to develop facts with sufficient clarity for the Court of Appeals to determine whether there was probable cause for the initial arrest of the defendant. The court further pointed out that this very failure prevented the court from invoking Rule 52(b), under which matters which are not brought to the attention of the trial court may be noticed if they are plain errors, since, if an error occurred at all in this case, it was not 'plain.'
Nevertheless, the Court of Appeals concluded that the matter was not important enough to warrant a remand for clarification, specifically declining to do so:
Since the Court of Appeals after direct review did not believe it necessary to remand for clarification of the point that retained trial counsel had failed to develop, this Court will not examine the same matter in this collateral proceeding. 'The motion and the files and records of the case conclusively show that the prisoner is entitled ...