United States v. Greco, 10515.

• Citation: 141 F. Supp. 829
• Decision Date: 02 July 1956
• Docket Number: No. 10515.,10515.
• Parties: UNITED STATES of America v. Rafael GRECO, alias Ralph Demone, alias Ralph Marino, alias Raffi and William Vasilick, alias William Wasilick, alias William Miller, alias William Russon, alias Pollock.
• Court: U.S. District Court — Middle District of Pennsylvania

141 F. Supp. 829

UNITED STATES of America v. Rafael GRECO, alias Ralph Demone, alias Ralph Marino, alias Raffi and William Vasilick, alias William Wasilick, alias William Miller, alias William Russon, alias Pollock.

No. 10515.

United States District Court M. D. Pennsylvania.

July 2, 1956.

Joseph J. Walsh, Scranton, Pa., for petitioner.

Edwin M. Kosik, Asst. U. S. Atty., Scranton, Pa., for United States.

WATSON, District Judge.

William Vasilick, by his attorney, filed a petition for a writ of error coram nobis in this court. Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A., has abolished the ancient writ of coram nobis and this court will treat this petition as a motion to vacate, set aside or correct the sentence as provided under Section 2255 of Title 28 U.S.C.A. United States v. Spadafora, 7 Cir., 1952, 200 F. 2d 140.

The record and the file in this case show that, on May 29, 1942, in the United States District Court for the District of New Jersey, in Newark, New Jersey, petitioner was sentenced to a twenty-five year prison term and, on November 12, 1942, a twenty-five year sentence was imposed upon him in the United States District Court for the Middle District of Pennsylvania at Scranton, Pennsylvania. Service of the sentence imposed by the latter court, which sentence petitioner attacks, has not begun, which poses the question as to whether this petition is premature.

Relief under Section 2255 is limited to that available on habeas corpus, which is limited to release from present detention and is not available to test the legality of threatened detention. United States v. Young, D.C., 93 F.Supp. 76. A prisoner serving the first of two consecutive sentences is not serving the second and, therefore, it is clear that petitioner could not be released from his present confinement even if the sentence imposed in this jurisdiction were vacated or set aside. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238.

Section 2255 of Title 28 U.S.C.A. provides in part:

"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

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