dissenting:

The majority opinion holds that Marshall’s attack upon the validity of his sentence, based upon the Government’s failure to comply with the procedural requirements of 18 U.S.C. § 3575 , is not cognizable in a Section 2255 petition. The holding is inconsistent with the language of Section 2255, and the rationale is based upon a misreading of Davis v. United States (1974) 417 U.S. 333 , 94 S.Ct. 229 , 41 L.Ed.2d 109 and Hill v. United States (1962) 368 U.S. 424 , 82 S.Ct. 468 , 7 L.Ed.2d 447 . Even if there were doubt about the applicability of Section 2255, the refusal of the majority to treat the Section 2255 petition as a Rule 35 motion is an inexplicable departure from the established rule that prisoner petitions are to be decided on the merits, despite mislabeling of the motion or petition.

The district court vacated Marshall’s sentence on the sole ground that the Government’s failure to comply with the procedural requisites of 18 U.S.C. § 3575 , et seq., rendered his sentence illegal. The Government conceded that petitioner’s sentence was infirm under United States v. Kelly (8th Cir. 1975) 519 F.2d 251 , but the Government argued below, and here argues, that Kelly was wrongly decided.

I first address the question whether a Section 2255 petition will lie to reach the sentencing error. As the Supreme Court pointed out in Hill v. United States, supra, Section 2255 contains two specific provisions relating to relief from sentences: (1) “That the sentence was imposed in violation of the Constitution or laws of the United States;” and (2) the sentence “is otherwise *164 subject to collateral attack.” ( 368 U.S. at 426-27 , 82 S.Ct. at 470 .) The Hill Court held that a violation of Rule 32(a) is neither a mistake that renders a sentence illegal nor is it an error that can be raised by collateral attack. Accordingly, relief pursuant to Section 2255 was not available to challenge a Rule 32(a) defect.

The reasoning in Hill, however, directly supports the conclusion that Marshall could obtain Rule 35 relief from his illegal sentence proceeding by way of Section 2255. The Court explained: “It is suggested that although the petitioner denominated his motion as one brought under 28 U.S.C. § 2255 , we may consider it as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure. This is correct. Heflin v. United States, 358 U.S. 415, 418, 422 , 79 S.Ct. 451 , 3 L.Ed.2d 407 . But as the rule’s language and history make clear, the narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of the sentence. The sentence in this case was not illegal.”

The remedies under Rule 35 and Section 2255 to some extent overlap. The statutory authority to attack a sentence under Section 2255, or under Rule 35, is not limited either to constitutional issues or to those non-constitutional issues in which “some type of extraordinary discrepancy is alleged.” 1 Thus, in Davis v. United States, supra, 417 U.S. 333 , 94 S.Ct. 2298 , 41 L.Ed.2d 109 , the Supreme Court rejected the Solicitor General’s contention that petitioner’s claim was not cognizable under Section 2255 because it was not “of constitutional dimension.” “[W]e note that the Government’s position finds scant support in the text of Section 2255, which permits a federal prisoner to assert a claim that his confinement is ‘in violation of the Constitution or laws of the United States.’ ” ( 417 U.S. at 344-45 , 94 S.Ct. at 2304 .) (Emphasis by the Supreme Court.)

We should not be quibbling about whether Marshall, appearing pro se, put the right label on his document, “[I]n this area of the law, . . . ‘adjudication upon the underlying merits of claims is not hampered by reliance upon the titles petitioners put upon their documents.’ . . . See Helfin v. United States, 358 U.S. 415 , 79 S.Ct. 451 , 3 L.Ed.2d 407 . Section 2255 explicitly authorizes a prisoner in custody under a sentence imposed by a federal court to attack such a sentence collaterally upon the ground that the sentence ‘was imposed in violation of the . . . laws of the United States,’ by moving the trial court ‘to vacate, set aside or correct the sentence.’ ” (Andrews v. United States (1963) 373 U.S. 334, 338 , 83 S.Ct. 1236, 1238 , 10 L.Ed.2d 383 .) The established rule is that errors in naming the rule or statute under which a defendant is proceeding should not be held against him and, if any relief is available under any of these proceedings, it ought to be given. (E. g., United States v. Brown (9th Cir. 1969) 413 F.2d 878 ; United States v. Coke (2d Cir. 1968) 404 F.2d 836 (“Although Coke’s application was labeled as under 28 U.S.C. § 2255 , Judge Cooper, with the liberality proper in dealing with pro se motions, treated it alternatively as a motion under Rule 35.”); Baker v. United States (8th Cir. 1959) 271 F.2d 190 . See also 2 C. Wright, Federal Practice and Procedure, § 583, p. 564.)

Insistence upon procedural precision means that the already overburdened district court will be required to entertain the identical motion under a different name. Moreover, it is an imposition upon Marshall himself.

Under 18 U.S.C. § 3575 , the Government is required to file a pretrial notice stating *165 its intention to proceed against the defendant as a dangerous special offender under the sentencing procedures of 18 U.S.C. § 3575 (b), if the defendant is convicted. This provision is satisfied by identifying all those individuals against whom the Government intends to proceed under the special sentencing procedure. However, Section 3575(a)(2) sets forth the additional requirement that the pretrial notice must identify “with particularity” the reasons why the prosecuting attorney “believes the defendant to be a dangerous special offender.” The notice given by the Government in this case did not even describe the nature of Marshall’s prior offenses, let alone any reasons why the prosecutor believed that Marshall was a dangerous offender within the meaning of the statute. The Government contends here, as it did in Kelly , that the statute only requires “the Government to select and identify the appropriate category or categories of special offender which the Government intends to prove at the post-trial hearing.” “[T]he plain language of the Act itself defeats the Government’s argument.” ( 519 F.2d at 255-56 .)

We have not heretofore specifically addressed the question whether the failure of the Government to give a notice complying with the statutory requirements of Section 3575 results in an illegal sentence. But in directly analogous situations, applying 21 U.S.C. § 851 (b) (United States v. Garrett (9th Cir. 1977) 565 F.2d 1065 (following United States v. Cevallos (5th Cir. 1976) 538 F.2d 1122 ). Cf. United States v. Sutton (D.D.C.1976) 415 F.Supp. 1323 (holding illegal an enhanced sentence imposed pursuant to 21 U.S.C. § 849 , on the ground of insufficient statutory notice, and vacating sentence under Rule 35)), we held that failure to comply with the procedural requisites of enhancement statutes renders illegal the ensuing sentence.

I would affirm the district court.

. Stone v. Powell (1976) 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 and Sunal v. Large (1947) 332 U.S. 174 , 67 S.Ct. 1588 , 91 L.Ed. 1982 , are not in point. Neither case involves an attack on sentencing. Stone is limited to federal habeas attacks upon state court judgments based upon claimed violations of the Fourth Amendment. In Simal, the defendant attempted to attack a conviction, from which he took no appeal, complaining about the erroneous exclusion of evidence.