In 1974, petitioner Wheeler was convicted of bank robbery and sentenced to 20 years' imprisonment by the district court of the Western District of Washington. Two weeks after sentencing, Judge William N. Goodwin, the trial judge, issued an order directing Wheeler's custodian to prevent Wheeler from communicating with ten named individuals. The judge entered the order without prior notice to Wheeler and without a hearing at which Wheeler was either present or represented.

After Judge Goodwin's death, Wheeler filed this petition pursuant to 28 U.S.C. § 2255 to vacate the post-sentencing order. The district court dismissed the petition. We reverse the district court's order of dismissal and remand to the district court for further proceedings consistent with this opinion.

Petitioner Wheeler was convicted of bank robbery after a trial and sentenced to 20 years' imprisonment. During the trial Wheeler admittedly attempted to persuade Donna Joiner to testify in his behalf.2 The allegedly harassing tactics used by Wheeler to persuade Ms. Joiner included several attempts to expose to her family and military superiors certain information that discredited her. Because Wheeler continued in his harassment of Ms. Joiner after the trial was over, she requested protection from the court. On January 6, 1975, approximately two weeks after Wheeler's sentencing, the court ordered "that the Attorney General or his authorized representative duly acting as the custodian of James William Wheeler shall not permit James William Wheeler to telephone or to write to the following individuals: ...." Ten individuals were listed, including relatives of Ms. Joiner and several of her commanding officers. Petitioner was not provided notice that Ms. Joiner was seeking the court's protection, was not present when the court issued the order, and was not formally notified of the order within a reasonable time after it was issued.3 Apparently, Wheeler was first formally notified of the order in March 1979, over four years after it was issued.

Wheeler filed this petition to vacate the order under 28 U.S.C. § 2255 on June 12, 1979, approximately three months after receiving such formal notification. At the time of filing, Wheeler was incarcerated at the Federal Correctional Institution at Lompoc, California. Wheeler has since been moved to the United States Penitentiary, Leavenworth, Kansas, where he is currently imprisoned.

The district court referred Wheeler's petition to a magistrate who recommended that the petition be denied. The magistrate found: the trial court has the inherent power to protect witnesses; the protection of witnesses is an important and substantial governmental interest; and this substantial governmental interest justified the restrictions placed on Wheeler's mailing privileges under the authority of Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974) (Excerpt, p. 9). The district court adopted the magistrate's recommendation and ordered the dismissal of the petition under 28 U.S.C. § 2255 on July 26, 1979 (Excerpt, p. 7).

We raise, as we must, the question of the district court's jurisdiction to pass on the merits of Wheeler's petition.4 The district court, we assume, asserted jurisdiction under 28 U.S.C. § 2255, which provides in 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 is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."

Wheeler filed his § 2255 petition in the District Court for the Western District of Washington, the court in which he was tried and sentenced.

Wheeler's petition, however, does not attack the sentence imposed;5 rather, the petition attacks the post-sentencing order restricting his mail privileges. The contested order, unlike a sentence, was not issued on a judgment of sentence form, was not a result of petitioner's conviction for bank robbery, and was issued two weeks after petitioner was sentenced to 20 years' imprisonment. Nevertheless, the effect of the order has been to impose an additional restriction on Wheeler while serving his sentence.

The Supreme Court in United States v. Hayman, 342 U.S. 205, 210-19, 72 S. Ct. 263, 267-72, 96 L. Ed. 232 (1952), discusses at some length the practical reasons why different types of cases should be heard in different districts. A district court that happened to be located where there was a federal penitentiary with thousands of prisoners would be overwhelmed with habeas petitions, while other districts would get none. Section 2255 evens the load among the district courts. Also, the type of actions that may be brought under § 2255 would ordinarily be of the type that would require the presence of witnesses and old records that would be located where the petitioner was tried and sentenced; not where the petitioner is confined.

This case is something of a hybrid. Wheeler is challenging actions of the warden, which would seem to bring it within § 2241 (see notes 6 and 7), yet the warden's action is being imposed by an order of the sentencing court in Washington. Because the events that led up to the judge's order took place in Washington, a remand there, where the records and witnesses would be more available, is in conformity with the purposes Congress had in enacting § 2255. While the order is not, strictly speaking, a sentence, its effect is to add an additional condition to Wheeler's sentence. We hold that, for the purposes of § 2255, the order should be considered as the equivalent of a sentence.

Before concluding that jurisdiction under § 2255 was proper, we considered several alternative means by which Wheeler could obtain federal judicial review of the contested order. The Government contends Wheeler's complaint should be filed in the Kansas district court pursuant to 28 U.S.C. § 2241.6 Wheeler proposes that his petition should be addressed by the Washington district court as either a 28 U.S.C. § 2241 petition,7 a Bivens -type action filed pursuant to 28 U.S.C. § 1331,8 or a writ of mandamus.9 For the reasons set out in notes 6-9, none of these methods of obtaining review is appropriate in this case.

The reason none of the suggested approaches offers the appropriate means of review lies in the extremely unusual and highly irregular nature of the order itself and the circumstances of its issuance. Neither the parties nor this court has been able to unearth any substantially similar case.10 Assuming the facts as alleged are true,11 the trial judge issued the order, not before or during trial, but after sentencing Wheeler. Generally, the trial judge has no authority over the defendant once sentence has been entered. See United States v. Huss, 520 F.2d 598 (2d Cir. 1975) (power of sentencing court after sentence entered is limited to those areas expressly provided by Congress). Furthermore, by entering the order after sentencing, the trial judge interfered with the executive branch's province of prison administration in violation of the separation of powers principle. See Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974), discussed infra at part II. Assuming the facts as alleged are true, prior to the entry of the order restricting Wheeler's fundamental and highly protected First Amendment rights, Wheeler should have been provided with notice and an opportunity to be heard. In almost every instance where First Amendment rights are to be restricted, notice and a hearing must be provided to the one whose rights are to be limited. Carroll v. Princess Anne, 393 U.S. 175, 180, 89 S. Ct. 347, 351, 21 L. Ed. 2d 325 (1968), discussed infra at part I. Here, Wheeler not only had no prior notice, he never received formal notification even after the order was issued.12 This failure to notify precluded Wheeler from appealing the order. As the facts stand before us, it appears that Wheeler received his first formal notice of the order on or about March 21, 1979, over four years after it was issued. Conceivably, because the order was directed to the warden, and not Wheeler, the warden could have been opening and inspecting Wheeler's mail for four years without Wheeler's knowledge.

Congress, not surprisingly, did not contemplate such an extraordinary set of circumstances when it considered what judicial decisions were to be subject to collateral attack. In light of the broad powers granted the district courts by the Federal Rules, habeas corpus statutes, and other jurisdictional legislation, we conclude that Congress did not intend to preclude collateral attack on an order such as the one presented here. This conclusion is especially justified where, as here, petitioner could not have appealed the order if he was never notified of it. To strictly and literally apply the jurisdiction-granting statutes so as to withhold jurisdiction from the district court "is so shocking to the sense of justice that ... it is the duty of the court to (refuse the strict application of the statute) in the interest of the Government itself, to protect it from the (possible) illegal conduct of its officers and preserve the purity of its courts ...." Sorrells v. United States, 287 U.S. 435, 449, 53 S. Ct. 210, 215, 77 L. Ed. 413 (1932).

The Supreme Court, in McNabb v. United States, 318 U.S. 332, 340, 63 S. Ct. 608, 612, 87 L. Ed. 819 (1943), imposed on the courts of appeals the power and the duty of "establishing and maintaining civilized standards of procedure ...." Id. at 340, 63 S.Ct. at 613. United States v. Guido, 597 F.2d 194, 198 (9th Cir. 1979); United States v. Hammond, 605 F.2d 862, 864 (5th Cir. 1979); United States v. Premises Known as 608 Taylor Ave., 584 F.2d 1297, 1305 (3d Cir. 1978) (Rosenn, J., concurring). This supervisory power has been used to afford relief where constitutional rights have been callously disregarded, United States v. Premises Known as 608 Taylor Ave., supra at 1305, and where governmental conduct has adversely affected the integrity of the judicial process. United States v. Hammond, supra at 864. We find the exercise of the power appropriate here.13 Of the jurisdictional statutes considered, § 2255 provides the most appropriate means by which Wheeler can obtain federal judicial review. For this reason, we have held at page 5 above that the district court properly asserted jurisdiction over Wheeler's petition pursuant to 28 U.S.C. § 2255. Alternatively, we rely on our supervisory powers described above and direct that the district court assert its jurisdiction to hear Wheeler's petition.

To conclude, we hold the district court had jurisdiction over Wheeler's complaint under 28 U.S.C. § 2255 or, alternatively, pursuant to this court's supervisory powers as required in McNabb v. United States, supra.

Our analysis of the legal issues raised by petitioner Wheeler is limited by the paucity of facts in the record. Although we discuss the pertinent law below, we conclude that we cannot resolve any of the legal issues presented. The case, therefore, will be remanded to the district court with instructions to develop the facts and resolve the issues in light of this opinion.

Wheeler challenges the constitutionality of the initial order on Fifth Amendment, due process grounds. Admittedly, Wheeler was not notified that the judge was considering restricting Wheeler's correspondence rights, nor was Wheeler or his representative present at the hearing, if any, when the judge issued the order.

In cases where the court has exercised its inherent power to protect witnesses, a hearing was required. United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976) (hearing required before court could deny bail to defendant who had threatened a witness); United States v. Wind, 527 F.2d 672 (6th Cir. 1975) (same). A hearing was also required where the court restricted a plaintiff's First Amendment rights in order to protect defendant's right to a fair trial. In re Halkin, 598 F.2d 176 (D.C.Cir.1979).

In the present case, the court's order, issued ex parte with no notice to Wheeler, restricted his First Amendment right to correspond. The Supreme Court has stated:

"(T)here is no place within the area of basic freedoms guaranteed by the First Amendment for such (ex parte) orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate."

Carroll v. Princess Anne, 393 U.S. 175, 180, 89 S. Ct. 347, 351, 21 L. Ed. 2d 325 (1968). Unless the circumstances were unusually compelling, the trial court should have held a hearing, with prior notice to Wheeler, before it issued the order.14

On remand, the initial order will be vacated by the district court unless the Government can show there was an emergency justifying its entry. We refrain from vacating the order ourselves because of the lack of a developed record and the presumption in favor of the legality of official action, whether judicial or not. Goldblatt v. Hempstead, 369 U.S. 590, 594, 596, 82 S. Ct. 987, 990, 991, 8 L. Ed. 2d 130 (1962).

If the facts as developed on remand reveal that an emergency existed and Wheeler's due process rights were not violated, the district court would have to address the merits of the complaint. It would appear that the propriety of issuing the order approximately six years ago is no longer of concern. What is important now is the validity of the order at this time. The district court, if it addresses the merits, must consider the necessity and validity of the order six years after it was issued. We briefly discuss the merits of petitioner's complaint in the event the district court does not dissolve the order as invalid because issued in violation of Wheeler's right to due process.

II. Scope of Court's Inherent Power to Protect Witnesses and Insure the Proper Administration of Justice

The district court upheld the order restricting Wheeler's mail privileges in the belief that the trial court's inherent need to protect witnesses justified the restrictions imposed on petitioner. Wheeler claims the trial court exceeded the bounds of its inherent, but limited, power to protect witnesses in two ways. First, he contends the court's inherent power to protect witnesses is limited to use only before or during trial, not after the trial is over. Because the order was issued after sentencing, Wheeler maintains that it is invalid. Second, he argues that the court exceeded its authority because it interfered with the executive branch's domain of prison administration without a showing of a constitutional violation as required in Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974). We reject petitioner's first contention in part and second contention in full.

First, we conclude that, in certain unusual circumstances, a trial court can issue a post-trial order to protect a witness. We recognize that a court has the inherent power to protect witnesses. United States v. Cozzetti, 441 F.2d 344 (9th Cir. 1971); Carbo v. United States, 288 F.2d 282 (9th Cir. 1961); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976); United States v. Wind, 527 F.2d 672 (6th Cir. 1975). This inherent power to protect witnesses stems from the "indisputably ... broad powers (of the trial judge) to ensure the orderly and expeditious progress of a trial." Bitter v. United States, 389 U.S. 15, 16, 88 S. Ct. 6, 7, 19 L. Ed. 2d 15 (1976). More generally stated, the trial judge has the broad discretion to protect the administration of justice from "abuses, oppression and injustice." Id. at 16, 88 S.Ct. at 7 Wood v. Georgia, 370 U.S. 375, 383, 82 S. Ct. 1364, 1369, 8 L. Ed. 2d 569 (1962); Gumbel v. Pitkin, 124 U.S. 131, 143, 8 S. Ct. 379, 383, 31 L. Ed. 374 (1888). Courts have exercised the power to protect witnesses by refusing to release a defendant on bail both during the trial, Bitter v. United States, supra; United States v. Kirk, supra; United States v. Cozzetti, supra; Carbo v. United States, supra, and at the pretrial stage, United States v. Wind, supra.

In the present case the court issued a protective order not before or during the trial but rather after the trial had ended. The Government has cited no case in which a court has taken steps to protect a witness once the trial has been completed and we have been unable to find even one such case. Because this is a post-trial order, it cannot promote "the orderly and expeditious progress of a trial." Bitter v. United States, 389 U.S. at 16, 88 S. Ct. at 7. It could, however, promote the more general purpose of protecting the administration of justice from "abuses, oppression and injustice." Id. at 16, 88 S.Ct. at 7. By protecting the witness after the trial, the court is encouraging that witness, and other potential witnesses, to come forward and provide information helpful to the implementation of justice.

The trial court's inherent power to protect the sound administration of justice has provided the basis for orders issued to protect jurors after the trial has ended. King v. United States, 576 F.2d 432 (2d Cir. 1978) (court upheld order requiring jurors to report to FBI if anyone questioned them); Bryson v. United States, 238 F.2d 657 (9th Cir. 1956) (order prohibiting defendant from communicating with jurors upheld). Cf. United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978) (order that no one, including newsmen, speak with jurors struck down as unjustified because no showing that jurors would be harassed). It is possible, in a particular situation, that a trial court would be warranted in issuing an order to protect a witness, like a juror, even though the trial was over.

The Supreme Court has stated that the court's inherent power to promote the administration of justice must be exercised "with circumspection ... (and) only when ... defendant's conduct presents... significant interference with the (administration of justice)."15 Bitter v. United States, 389 U.S. at 16, 88 S. Ct. at 7. This circuit has also demonstrated an attitude of caution in this area. In considering an order prohibiting jurors from speaking with anyone, including newsmen, the Ninth Circuit panel in United States v. Sherman, supra at 1361, stated that

"(t)he government in order to sustain the order must show that the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962); the restraint must be narrowly drawn and no reasonable alternatives, having a lesser impact on First Amendment freedoms, must be available, Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968); Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)."

In Sherman, the court held that the protective order failed to satisfy either part of the test.

The Government, to sustain the order on remand, must demonstrate that the contested order satisfies the two-part test set out in Sherman. To meet part one of the test, Wheeler's communication with the ten named individuals must be found to pose a clear and present danger to the witness. As to the second prong of the test, available alternatives, we bring to the district court's attention a similar case, Intersimone v. Carlson, Civil No. 80-0410 (M.D.Pa. Dec. 29, 1980). In Intersimone, the court ordered defendant not to communicate or harass the jurors. Despite the order, defendant continued to attempt to communicate with the jurors. The court charged the defendant with contempt, held a hearing, found defendant in contempt, and sentenced him.16 Still, defendant persisted in his attempt to harass and communicate with his jurors. At this point the judge wrote a letter (not an order) to the prison authorities, requesting that they take the necessary precautions to insure that defendant did not communicate with the named jurors.17 The United States District Court for the Middle District of Pennsylvania, on petition from defendant contesting the inspection of his mail by prison authorities, held that, under the circumstances, the "prison officials had a legitimate purpose for restricting (defendant's) general correspondence." Id. at ----. The district court recognized that the prison authorities could prohibit the defendant from corresponding with his jurors by enforcing a negative mailing list. The court orders, contempt citations and sanctions, and requests to prison authorities used in Intersimone are some of the less disruptive means the trial judge could have used to protect the witness, Ms. Joiner.

Because we do not know the facts surrounding the issuance of the January 1975 order, we are unable to determine if the trial court issued the order in compliance with the test set out in Sherman, in which case it did not exceed its inherent power. If necessary, the district court will make this determination on remand.

Second, we reject Wheeler's argument that the court exceeded its inherent power in issuing an order which interferes with the executive branch's domain of prison administration where there was no constitutional violation shown. The contested judicial order directs the Attorney General or other custodian to restrict Wheeler's mail privileges. Attorneys General and prison officials are members of the executive branch. The management of the federal prisons lies within the province of the executive branch and is delegated to the Attorney General. Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S. Ct. 1800, 1807, 40 L. Ed. 2d 224 (1974); United States v. Huss, 520 F.2d 598, 602 (2d Cir. 1975); 18 U.S.C. § 4001 (1976). Only where a prison regulation or practice offends a fundamental constitutional right may a court interfere in this executive domain of prison administration. Procunier v. Martinez, 416 U.S. at 405, 94 S.Ct. at 1807.

In the present situation, unlike that in Procunier, supra, the Government need not demonstrate an infringement on someone's fundamental constitutional rights. In Procunier, the Court recognized the respect due the prison authority's need to maintain security and held that prison regulations would be sustained unless they infringed on a fundamental constitutional right. Procunier v. Martinez, 414 U.S. at 405, 94 S. Ct. at 1807. In the present case, it is the court's order like the prison regulation, that must be given due respect and upheld unless it infringes on someone's fundamental constitutional rights. The burden is on petitioner, not the Government, to demonstrate a constitutional violation.

Wheeler further challenges the order as an unconstitutional limitation on his First Amendment right to free speech. Wheeler's challenge requires that we balance his First Amendment right to correspond against the court's need to promote the fair administration of justice and to protect witnesses.18 We have found no case in which a court has balanced these two particular interests. Perhaps the most similar balancing process was carried out in Procunier v. Martinez, supra.19 The balancing in Procunier was between a prisoner's First Amendment right to correspond and the prison officials' need to maintain security. The Court in Procunier held that a prison regulation or practice must be approved if (1) it furthered an important or substantial governmental interest unrelated to the suppression of expression, and (2) it limited the prisoner's First Amendment freedoms no more than necessary or essential to protect the governmental interest. Id. at 413, 94 S.Ct. at 1811. The governmental interests in Procunier consisted of the prison authority's need to manage the prison efficiently and to maintain security. Despite these substantial governmental interests, the Court invalidated as unnecessarily broad the California prison regulations which, among other things, permitted prison authorities to inspect all letters and confiscate those which contained "complaints, ... grievances, ... inflammatory political, racial, religious or other beliefs (or) were lewd, obscene or defamatory ... or are otherwise inappropriate." Id. at 399-400, 94 S.Ct. at 1804-05. Since Procunier, the Supreme Court has upheld prison regulations that permitted detainees to receive only that published material which was sent by a publisher or book club. Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). Regulations permitting the inspection of mail from a prisoner's attorney in the presence of the prisoner have also been upheld. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).

The test announced in Procunier is appropriately applied to the presently contested order to determine its validity in light of First Amendment constraints.20 The court's interest in furthering the orderly administration of justice by protecting witnesses is a substantial interest. United States v. Bitter, supra; Kirk v. United States, supra. Procunier, however, permits an invasion of a prisoner's fundamental constitutional right of free speech only where the intrusion is so tailored that it furthers the substantial governmental interest without unduly interfering with the prisoner's First Amendment freedoms.

As with the prior consideration of the various alternatives available to the court to protect the witness, we are unable to decide if the order as issued is the least restrictive means of protecting witness Ms. Joiner from any improper harassment by Wheeler on this record.

As stated above, we vacate the district court's order of July 26, 1979, dismissing the petition to vacate the order of January 6, 1975, and remand for further consideration by the district court in accordance with this opinion. On remand, the district court must first address the due process issue raised by petitioner Wheeler. If the court finds there was no due process violation, it must then consider the necessity of protecting Ms. Joiner under the facts as they presently exist. Finally, if protection is required, the court must address the merits. It must explore the various alternatives available to effect the desired protection and choose the most appropriate means in light of both the court's inherent, but circumscribed, power to protect witnesses and Wheeler's First Amendment right to correspond.