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UNITED STATES v. ISAACS

February 26, 1975

UNITED STATES OF AMERICA
v.
THEODORE J. ISAACS AND OTTO KERNER, JR.



The opinion of the court was delivered by: Robert L. Taylor, District Judge.

MEMORANDUM

Oral argument was recently heard on defendant's motion for reduction of sentence under Rule 35, F.R.Cr.P., or in the alternative a correction of the original sentence pursuant to 28 U.S.C. § 2255. Neither the Government nor the defendant introduced evidence.

Defendant contends that the Court retained jurisdiction to reduce his sentence under Rule 35, F.R.Cr.P., because his motion was filed within 120 days of receipt of the mandate from the Supreme Court. Rule 35 provides as follows:

    "The court may correct an illegal sentence at any
  time and may correct a sentence imposed in an illegal
  manner within the time provided herein for the
  reduction of sentence. The court may reduce a
  sentence within 120 days after the sentence is
  imposed, or within 120 days after receipt by the
  court of a mandate issued upon affirmance of the
  judgment or dismissal of the appeal, or within 120
  days after entry of any order or judgment of the
  Supreme Court denying review of, or having the effect
  of upholding, a judgment of conviction. The court may
  also reduce a sentence upon revocation of probation
  as provided by law."

The cases relied upon by the defendant, with the exception of United States v. Steven D. Legum, an unreported order by Judge Bryan of the Eastern District of Virginia, hold that the Court may rule upon a timely motion after the expiration of the 120-day limitation. Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967); United States v. Koneski, 323 F.2d 862 (4th Cir. 1963); Johnson v. United States, 235 F.2d 459 (5th Cir. 1956). The order of Judge Bryan dated April 5, 1974, copy of which was presented to the Court by defendant's counsel, modified the sentence given on March 9, 1973, by making the defendant eligible for parole under 18 U.S.C. § 4208(a)(2), at such time as the Board of Parole may determine. As the Court recalls, counsel indicated that this modification may have been stipulated. There is nothing to indicate any appeal was taken by the Government from this order.

When the original motion to reduce defendant's sentence was denied, the jurisdiction of this Court was then terminated. Rule 35 was designed to promote finality in litigation. United States v. Mehrtens, 494 F.2d 1172, 1175 (5th Cir. 1974). The 120-day time limit in this Rule is jurisdictional and cannot be extended by judicial order. United States v. Granville, 456 F.2d 1073 (5th Cir. 1972).

Three circuits have caused writs of mandamus to be issued to preclude reduction in sentences after the 120-day period. United States v. United States District Court, 509 F.2d 1352 (9th Cir. 1975); United States v. Regan, 503 F.2d 234 (8th Cir. 1974); United States v. Mehrtens, 494 F.2d 1172 (5th Cir. 1974). In granting the writ in the United States v. United States District Court case, the Court distinguished its decision in Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967) and held that the second motion could not relate back to the original motion. See United States v. Regan, 503 F.2d 234 (8th Cir. 1974), in which it was held that the 120-day time limit is jurisdictional and once the 120-day time limit has passed the Court loses jurisdiction.

Some limitation is necessary to protect the district courts from continual filing of petitions while the sentence is being served. Moreover, prison authorities who have custody of the defendant are in a better position to deal with them than is the sentencing court.

The Court is of the definite opinion that it is without authority to entertain defendant's motion under Rule 35, F.R.Cr.P.

Section 2255

The relief sought under Section 2255 transforms the proceeding into a civil case. The pertinent part of Section 2255 reads:

    "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 that the court was without
  jurisdiction to impose such sentence, or that the
  sentence was in excess of the maximum authorized by
  law, or is otherwise subject to collateral attack,
  may move the court which imposed the sentence to
  vacate, set aside or correct the sentence.

"A motion for such relief may be made at any time."

It is to be noted that relief under this Section is confined to constitutional defects in the trial and sentence. If the petition shows on its face that petitioner is not entitled to relief, a motion to dismiss may be granted without an evidentiary hearing. Eaton v. United States, 458 F.2d ...


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