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 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,
(4th Cir. 1963);
Johnson v. United States,
(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 704 (7th Cir. 1972); United
States v. Davis, 212 F.2d 264 (7th Cir. 1954).
In considering Section 2255, a distinction between the
imposition and the execution of a sentence must be recognized. If
there is constitutional error in the imposition of sentence,
Section 2255 relief is indicated. United States v. Tucker,
404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
Section 2255 was intended to provide the sentencing court a
remedy commensurate with that which had been available by habeas
corpus in the court of the district where the prisoner was
confined. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7
(1962). Upon the assumption that the presiding judge has
firsthand knowledge of the issues related to the trial, Section
2255 conferred jurisdiction upon the presiding judge to consider
claimed defects in the proceedings up to the imposition of the
sentence. Claims relating to the execution of the sentence
ordinarily are beyond the first-hand knowledge of the trial judge
and are, therefore, beyond § 2255 coverage. Mordecai v. United
States, 137 U.S.App.D.C. 198, 421 F.2d 1133 (1969).
Section 2255 is available when an attack is made on the
imposition of the sentence and not on the execution thereof.
Hartwell v. United States, 353 F. Supp. 354 (D.C.Cir. 1972);
Ridenour v. United States, 446 F.2d 57 (9th Cir. 1971); Stirone
v. Markley, 345 F.2d 473 (7th Cir. 1965); Allen v. United States,
327 F.2d 58 (5th Cir. 1964); Lee v. United States, 501 F.2d 494
(8th Cir. 1974).
The determination of parole is a matter of legislative grace
and the determination of eligibility is within the discretion of
the Parole Board. Wiley v. United States Board of Parole,
380 F. Supp. 1194 (M.D.Pa. 1974).
The Court in the case of Lee v. United States, 501 F.2d 494
(8th Cir. 1974) observed that Section 2255 did not grant subject
matter jurisdiction over all types of post-conviction claims.
". . . It established subject matter jurisdiction
for the enumerated claims in the statute, which
relate to the legality of the sentence. (citing
cases) To allow jurisdiction under § 2255 in this
case would defeat its purpose in creating subject
matter jurisdiction over those claims concerning the
imposition of the sentence. Congress only intended to
shift jurisdiction over specific types of claims in
order to distribute post conviction cases more
efficiently. In this case, the claims involving the
Board of Parole do not relate to Judge Henley's
imposition of the nine-year `Arkansas' sentence;
rather they involve the matter of the execution of
petitioner's sentences." p. 500.
Thus, it is clear that Section 2255 is not available to the
defendant to assert his claim for relief. Ledesma v. United
States, 445 F.2d 1323 (5th Cir. 1971). 28 U.S.C. § 2241 is
available to him to challenge the execution of the sentence by
either the Parole Board or Bureau of Prisons.
In Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898
(1948), it was held that the jurisdiction of district courts to
issue writs of habeas corpus was restricted to persons confined
or detained within the jurisdiction of the Court. Although the
Ahrens doctrine may have been narrowed by the decision in Braden
v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93
S.Ct. 1123, 35 L.Ed.2d 443 (1973), it is not believed that the
Braden decision is sufficient to enable defendant to succeed
under the circumstances shown in the record. See Garfola v.
Benson, 505 F.2d 1212 (7th Cir. 1974).
Defendant could not successfully proceed in this Court under
Section 2241 because his custodian is beyond the territorial
jurisdiction of the Court. Ahrens v. Clark, supra.
We were advised by counsel during the hearing that defendant
will undergo a thorough medical examination on March 15, 1975 and
that a hearing will be conducted before the Board on April 15,
1975. If at that hearing it appears that defendant's health is
adversely affected by his continued incarceration, it is assumed
the Board will duly consider the Court's strong suggestion made
from the bench on July 9, 1974.
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