The opinion of the court was delivered by: Robert L. Taylor, District Judge.
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
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
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
The Court is of the definite opinion that it is without
authority to entertain defendant's motion under Rule 35,
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 ...