United States v. Isaacs
Decision Date | 26 February 1975 |
Docket Number | No. 71 Cr. 1086.,71 Cr. 1086. |
Parties | UNITED STATES of America v. Theodore J. ISAACS and Otto Kerner, Jr. |
Court | U.S. District Court — Northern District of Illinois |
James R. Thompson, U. S. Atty., Samuel K. Skinner, First Asst. U. S. Atty., Gary L. Starkman and Steven J. Kadison, Asst. U. S. Attys., Chicago, Ill., for the United States.
Paul R. Connolly, William, Connolly & Califano, Washington, D. C., Warren D. Wolfson, Chicago, Ill., for defendants.
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 introduced evidence.
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, 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 Cir. 1972).
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 sentencing court.
The Court is of the definite opinion that it is without authority to entertain defendant's motion under Rule 35, F.R. Cr.P.
The relief sought under Section 2255 transforms the proceeding into a civil case. The pertinent part of Section 2255 reads:
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 L.Ed.2d 417 (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...
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