The opinion of the court was delivered by: Robert D. Morgan, District Judge.
This cause arises on a motion under Section 2255, Title 28,
United States Code, to vacate or modify sentences. On July 13,
1967 the motion was docketed as a Civil Action pursuant to Memo
No. 337 of the Administrative Office of the United States Courts.
Petitioner was sentenced in this court to the custody of the
Attorney General of the United States for periods of five years
and seven years, running concurrently, on June 26, 1962, after
conviction of violation of Sections 2, 371 and 659 of Title 18,
United States Code; and, as recited in the motion, is presently
confined at the United States Institution at Springfield,
Missouri. The motion further recites that he has been serving
said sentences since the summer of 1965; that
within a year thereafter he suffered a series of three strokes
which left him virtually helpless; that his physical condition
and conditions of life are deplorable in several particulars;
that the institution in which he is confined is unable to give
appropriate attention to his physical ill-being; and that,
because of these unusual circumstances, the sentence imposed by
this court violates the prohibition against cruel and unusual
punishment in the Eighth Amendment to the Constitution of the
United States. An affidavit of Petitioner's brother, one Anthony
Policheri, on the present physical condition of Petitioner, is
attached to the basic motion, and an ancillary Motion for Entry
of an Order in Aid of Securing Evidence and to Set for Hearing
was also filed.
Section 2255 (Title 28, United States Code) requires hearing on
a motion thereunder "[u]nless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief". The motion here does not charge lack of
jurisdiction to impose the sentences, or that the sentences were
in excess of the maximum authorized by law, or that when imposed
they were subject to collateral attack of any kind. The judgment
of this court was affirmed and the validity of the sentences was
not questioned on appeal (7 Cir., 340 F.2d 254, cert. den.
381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433).
It seems clear that the motion does not attack the sentences as
imposed, but rather as they are being executed. Thus it appears
that the motion itself does show conclusively that no relief is
available thereon. Freeman v. United States, 103 U.S.App.D.C. 15,
254 F.2d 352 (1958). See also Halprin v. United States,
295 F.2d 458 (9th Cir. 1961) and Darnell v. Looney, 239 F.2d 174 (10th
Cir. 1956). The manner in which a defendant may have been treated
by prison officials, even before sentence but after a plea of
guilty, does not afford a basis for relief under Section 2255.
United States v. Koptik, 300 F.2d 19, 23 (7th Cir. 1962), cert.
den. 370 U.S. 957, 82 S.Ct. 1609, 8 L.Ed.2d 823.
Accordingly, the pending Motion to Vacate or Modify Sentence is
denied, as is the motion ancillary thereto.
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