Crow v. United States, 12478.
Decision Date | 20 December 1950 |
Docket Number | No. 12478.,12478. |
Citation | 186 F.2d 704 |
Parties | CROW v. UNITED STATES. |
Court | U.S. Court of Appeals — Ninth Circuit |
John R. McDonough, Jr., San Francisco, Cal., for appellant.
Ernest A. Tolin, U. S. Atty., Norman Neukom, and Ray M. Steele, Assts., Los Angeles, Cal., for appellee.
Before ORR, Circuit Judge, and BOWEN and LEMMON, District Judges.
Appellant moved the trial court, pursuant to Section 2255 of Title 28 U.S.C.A., to vacate a sentence of imprisonment for the period of one year imposed after his plea of guilty to a charge of violation of the Dyer Act, Section 4081 of Title 18 U. S.C. (1946 Edition). He appeals from an order denying the motion.
Service of the sentence which he attacks in this proceeding has not begun. He is presently serving a five year sentence imposed in another case. That sentence he does not question. The one year sentence is to begin at the expiration of the five year sentence. This posture of the case raises the question as to whether his motion is premature.
The portions of Section 2255 pertinent to the problem read: "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." (Emphasis supplied.)
Appellant argues that the one-sentence second paragraph above controls and renders his motion timely. He argues that if there be ambiguity in the two paragraphs when considered together, Congress must have intended that the motion for relief thereunder be available to the aggrieved prisoner without restriction as to time, and that "at any time" should be given its literal meaning. We are not persuaded by this reasoning. The words "at any time" must be read in connection with the related words and clauses which precede it. To avail himself of the remedy, the prisoner must be "in custody under sentence" claiming "the sentence" was imposed in violation of the Constitution or laws of the United States, or that the court was powerless to impose "such sentence", or that "the sentence" was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. Upon such grounds he may move the court which imposed the sentence to vacate, set aside or correct "the sentence". The words "at any time" are controlled by these quoted words and it is apparent that "at any time" means at any time the prisoner is in custody under the sentence which he attacks.
The objectives of the remedial legislation under which the motion was brought have been discussed in the cases. They are succinctly stated by Chief Judge Phillips of the Tenth Circuit in these words, 2
If appellant's position were sustained, the proceeding under the section could be invoked to set aside sentences served as well as sentences to be served in the future. Since the motion under Section 2255 was designed to provide a direct attack in place of collateral attack under habeas corpus, it is logical to conclude that the intent of Congress was to limit the scope of relief under it to that on habeas corpus.3 Relief under habeas corpus is limited to release from present detention. It is not available to test the legality of threatened detention. It does not lie to secure a judicial decision which, even if determined in the prisoner's favor, would not result in his immediate release.4
A prisoner serving the first of two consecutive sentences is not serving the second sentence.5
It was not the aim of the proposers of section 2255 to increase the heavy burdens of District Courts obliged to entertain petitions filed by convicted persons collaterally attacking federal court judgments under which they were imprisoned....
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