Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 75 C 133 JAMES B. PARSONS, Judge.
Pell and Sprecher, Circuit Judges, and Jameson, Senior District Judge.*fn*
Manuel Napoles appeals from an order of the district court dismissing his petition for post conviction relief for lack of jurisdiction. The appeal involves an apparent conflict between 28 U.S.C. § 2255, which provides that the court imposing sentence shall retain continuing jurisdiction for post conviction challenges, and 18 U.S.C. § 3653, which provides that where jurisdiction over a probationer is transferred to another district, the court in that district shall have all power with respect to the probationer possessed by the court from which the transfer was made. We reverse, concluding that a § 2255 motion should be brought before the court whose proceedings are being attacked.
On June 16, 1972 petitioner pleaded guilty in the United States District Court for the Northern District of Illinois, Eastern Division, to five counts of illegally transporting aliens in violation of 8 U.S.C. § 1324(a)(1). On June 30, 1972 the court first imposed a sentence of three years imprisonment. Subsequently on the same day this sentence was vacated and Napoles was sentenced to a period of one year and three months imprisonment on Count One. On the remaining four counts imposition of sentence was suspended and Napoles was placed on probation for four years.*fn1 The order of commitment specified as a condition of probation that "defendant shall not re-enter the United States illegally".
Napoles was released from prison on March 9, 1973. While on probation, pursuant to the judgment entered June 30, 1972, he moved to Texas. On April 4, 1974 "jurisdiction of the probationer" was transferred to the Western District of Texas, pursuant to 18 U.S.C. § 3653. On April 26, 1974 the Texas court entered an order revoking probation, finding that Napoles had violated the conditions of his probation, as set forth in the judgment and sentence entered June 30, 1972. The Texas court sentenced Napoles to four years imprisonment, with the provision that he should be eligible for parole pursuant to 18 U.S.C. § 4208(a)(2). He is presently incarcerated in the Federal Penitentiary, Leavenworth, Kansas.
On January 14, 1975 Napoles filed in the Illinois court a pro se motion under § 2255 to vacate or modify his sentence, alleging that his guilty plea had been accepted without compliance with various requirements of Rule 11, F.R.Crim.P. The court appointed counsel for Napoles, who filed an amended § 2255 motion raising additional issues.*fn2 On September 17, 1975 the court entered an order dismissing Napoles' petition without prejudice, finding "jurisdiction to currently rest with the Texas court" pursuant to § 3653. On this appeal Napoles contends that under § 2255 jurisdiction remained with the District Court of Illinois which imposed the sentence which is attacked, even though jurisdiction of his probation had been transferred to the Texas court.
28 U.S.C. § 2255, enacted June 25, 1948 and amended May 24, 1949, provides in pertinent part:
"A prisoner in custody under sentence of a court established by an Act of Congress claiming the right to be released upon the grounds 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." [Emphasis added.]
18 U.S.C. § 3653, enacted and amended on the same dates as § 2255,*fn3 states:
"Whenever during the period of his probation, a probationer heretofore or hereafter placed on probation, goes from the district in which he is being supervised to another district, jurisdiction over him may be transferred, in the discretion of the court, from the court for the district from which he goes to the court for the other district, with the concurrence of the latter court. Thereupon the court for the district to which jurisdiction is transferred shall have all power with respect to the probationer that was previously possessed by the court for the district from which the transfer is made, except that the period of probation shall not be changed without the consent of the sentencing court. . . ." [Emphasis added.]
The statutory conflict which occurs when a prisoner on probation is transferred to another district and then decides to attack the validity of the original sentence has been considered by two courts. Both have held that the proper forum to hear the § 2255 petition is the court which originally imposed the sentence.
In Martin v. United States, 248 F.2d 554 (8th Cir. 1957), two concurrent prison sentences were imposed upon the defendant in Florida upon pleas of guilty to two informations transferred to the Florida court pursuant to Rule 20 of the Federal Rules of Criminal Procedure. The court suspended the execution of the sentences and placed the defendant on probation. The defendant moved to Minnesota, and jurisdiction was transferred to the Minnesota court pursuant to 18 U.S.C. § 3653. Subsequently the Minnesota court ordered that defendant's probation be revoked and that he enter upon the execution of the sentences imposed in Florida. The defendant filed a motion in Minnesota, under 28 U.S.C. § 2255, to vacate the sentences. In affirming the district court's denial of the motion, the court concluded at 248 F.2d at 556:
"The Minnesota Court had nothing to do with the procedure leading up to the sentencing of the defendant in Florida, and could not, in our opinion, have concerned itself with the question of the validity of the sentences imposed by the Florida Court. The questions whether the sentences imposed by the Florida Court are void for any lack of procedural due process or for any other reasons are, in our opinion, under § 2255 of Title 28 U.S.C.A., exclusively for that court to determine."
In making this determination the court quoted from United States v. Hayman, 342 U.S. 205, 220-221, 96 L. Ed. 232, 72 S. Ct. 263 (1952), in which the Supreme Court observed that the "very purpose of § 2255 is to hold any required hearing in the sentencing court because of the inconvenience of transporting court ...