The opinion
FAHY, Circuit Judge
(dissenting).
In his post-conviction motion styled “Motion questioning the trueness of indictment,” treated by the District Court as a motion under 28 U.S.C. § 2255 (1958), appellant alleged that on his trial for robbery at which the identity of appellant as the robber was critically in issue, perjury on that issue was committed by the government witness Ellis. Ellis denied at the trial that he had previously made a positive identification of another person, Adcock, as the robber. We have before us an affidavit of a Captain of the Metropolitan Police Department, the officer who conducted the lineup at which the identification in question was made, that Ellis positively identified the other person, without qualifying or limiting the identification in any manner, flatly in contradiction of Ellis’ testimony at the trial.
If the Captain’s affidavit is true appellant has been convicted with the material aid of testimony offered by the government, established to be false by a responsible public official directly concerned with the investigation of the case, whose affidavit has not thus far been factually countered in any way by the government. 1
In these unusual circumstances, and applying the basic principles which I *169 think underlay the decisions of the Supreme Court in Mesarosh v. United States, 352 U.S. 1 , 77 S.Ct. 1 , 1 L.Ed.2d 1 , and Napue v. People of State of Illinois, 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 , appellant’s motion at least calls for a hearing by the District Court to determine whether clearly false testimony of Ellis was used to convict appellant. The omission thus far of the government to deny the allegations of Captain Brown’s affidavit places the representations before us in a position somewhat comparable to that occupied by the representations made by the Solicitor General to the Supreme Court in Mesarosh; and though the facts before us are different from those in Napue, and while that case may be a stronger one than this, the issue of due process is similar. That issue is whether a conviction may stand when it rests upon clearly false testimony brought to the attention of the appellate court by a government official who investigated the case for the prosecution and whose representations of the falsity of the testimony relied upon by the government are not challenged by the government. I would not consider the Captain’s affidavit as merely cumulative of the testimony of appellant and another inmate of the jail that Ellis had identified Adcock, for the Captain’s occupies a very different position in the case.
Should a hearing result in a finding that Captain Brown’s affidavit is true then appellant should be granted a new trial.
In the view I take, as above, of what seems to me the controlling issue on the appeal, it appears unnecessary to discuss other matters; but I add that when the District Court enters an order on a section 2255 motion that “the motion, files, and records conclusively show the petitioner is entitled to no relief” I think the court has entertained, considered, and decided the motion. While an evidentiary hearing is one way of entertaining a motion under section 2255, it is not the exclusive way.
. A motion to strike the affidavit on the ground it was first presented in this court, and not to the District Court, was filed by the United States and granted by this court, with the present writer voting to deny.