Preston H. Williams, Appellant, v. United States of America, Appellee, 521 F.2d 590 (8th Cir. 1975)

Preston H. Williams appeals from an order of the United States District Court for the Western District of Missouri denying his consolidated motions under 28 U.S.C. § 2255. His motions alleged that he was denied the effective assistance of counsel. On May 19, 1975, this Court, by order, denied his motions for admission to bail pending appeal and for appointment of counsel. We also granted him fifteen days to set forth additional reasons why the appeal should not be dismissed on the grounds stated by the District Court. In response thereto, additional pleadings have been filed.

The additional pleadings do not challenge the finding that the petitioner was afforded the effective assistance of counsel. We affirm the District Court's order on the grounds therein stated. See McQueen v. Swenson,498 F.2d 207 (8th Cir. 1974). Instead, the petitioner alleges for the first time that he was denied due process of law because he was not present while his counsel exercised peremptory challenges and while some members of the jury were impanelled. This new allegation raises a substantial issue under the Constitution. See United States v. Chrisco, 493 F.2d 232 (8th Cir.), Cert. denied, 419 U.S. 847, 95 S. Ct. 84, 42 L. Ed. 2d 77 (1974), and cases cited therein. The record does not, however, show whether this right to be present at every stage of the trial was knowingly and voluntarily waived.

The petitioner is now appearing Pro se. No purpose would be served by requiring that he institute a new action raising this new claim. Accordingly, it is appropriate that the cause be remanded to the District Court for an evidentiary hearing on this issue not previously presented. United States v. Barillas, 291 F.2d 743, 744 (2nd Cir. 1961). See United States v. Chrisco, 487 F.2d 505 (8th Cir. 1973).

The order of the District Court is affirmed and the cause remanded for further proceedings consistent with this opinion.