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May 17, 1976

Joseph TREMARCO, Petitioner,
UNITED STATES of America, Respondent

The opinion of the court was delivered by: BIUNNO

 Tremarco has filed a petition, purportedly under 28 U.S.C. § 2255, asking to have vacated his convictions and sentences imposed on Counts I and IV of the indictment in Crim. No. 19-71, in this court.

 In accordance with the statute, the court has examined the motion, the files and records in Crim. No. 19-71, to determine whether they conclusively show that Tremarco is entitled to no relief. If such showing does not appear, then notice must be given to the U.S. Attorney and a hearing held, after which the issues are determined with findings of fact and conclusions of law with respect thereto. The motion may be decided, under the statute, without requiring the production of the prisoner at the hearing if one is called for.

 The motion, as well as the files and records in the case, show the following history. Tremarco was convicted in 1971 in the Supreme Court of New York, Kings County, of the crimes of attempted murder, assault in the first degree, and possession of a dangerous weapon. He was sentenced to the maximum sentence, i. e., 25 years' imprisonment. The conviction was affirmed on appeal. (Motion, par. 5).

 On March 15, 1972, Tremarco was convicted after jury trial on three counts: Conspiracy to steal, etc., goods valued at more than $100, while in interstate commerce, i. e., a conspiracy under 18 U.S.C. § 371, to violate 18 U.S.C. § 659 (Count I); the substantive charge of knowingly possessing the goods stolen in interstate commerce, etc., a violation of 18 U.S.C. § 659 (Count III); the substantive charge of forcibly assaulting an FBI agent while performing his duties, etc., or aiding and abetting therein, a violation of 18 U.S.C. § 111 and § 2 (Count IV). (Motion, par. 1, files and records of the case).

 Tremarco was sentenced on June 2, 1972 by Judge Garth, as follows:

On Count III, 10 years' imprisonment, concurrent with the 25 year New York sentence already imposed;
On Count I, 3 years' imprisonment, consecutive to the sentences on Counts III and IV;
On Count IV, 3 years' imprisonment, consecutive to the sentences on Counts I and III. (Motion, par. 1; files and records of the case)

 The net effect of these sentences was a 10 year term concurrent with the New York sentence, followed by a total of 6 years consecutive to the New York sentence. (Motion, par. 2).

 Tremarco appealed his conviction in this court, but did not challenge the sentences imposed; the conviction was affirmed by the Court of Appeals, Third Circuit, on February 21, 1973. (Motion, par. 4; files and records of the case).

 Thereafter, Tremarco filed a motion to reduce or modify the sentence under F.R.Cr.P. 35, and the same was denied by Judge Garth, who presided at the trial (Motion, par. 4; files and records in the case).

 Because he was in custody of New York at the time of his trial here, he was produced under a writ of habeas corpus for trial, and after sentence was imposed was remanded to New York custody. As is customary in such cases, where a federal sentence is to follow a State sentence, the U. S. Marshal filed a "detainer" with the New York authorities. (Motion, par. 9; files and records in the case).

 The theme of the motion is that in New York, a long-term prisoner such as Tremarco may be allowed to enter special programs, such as work-release outside the prison under supervision, vocational training within correctional facilities, counseling, outside medical release for problems not capable of adequate treatment in the prison, emergency release for family deaths or serious illness, and the like. It is asserted that because of the filing of the federal "detainer" for the total of 6 consecutive years, Tremarco has been ruled ineligible by the New York authorities for any of these rehabilitative programs (Motion, pars. 7, 8, 9). It is said that the position of U.S. prison authorities is that Tremarco's treatment while in State custody is a matter solely for the State of New York, and that no relief has been obtainable from any source (Motion, par. 9). What relief has been sought, and where, is not indicated.

 The claim made is that under these circumstances, the 6 year consecutive sentence imposed here is an unconstitutional deprivation of Tremarco's rights; that it constitutes cruel and unusual punishment, a denial of due process and of equal protection of the laws (Motion, par. 10, 11).

 No challenge is made to the 10 year concurrent sentence on Count III. The challenge is to the two 3 year consecutive sentences on Counts I and IV. The sentence on Count I could have been for the maximum 5 years, 18 U.S.C. § 371, and the sentence on Count IV was for the maximum of 3 years, 18 U.S.C. § 111. Fines authorized up to $10,000 and $5,000 respectively, were not imposed.


 The obvious and first question is whether this court has jurisdiction to entertain the motion under 28 U.S.C. § 2255. Tremarco is in State custody, serving a State sentence. Judge Garth's 10 year sentence on Count III, concurrent with the 25 year New York sentence, is in fact and law no more than a recommendation to the Attorney-General, to whose custody Tremarco was committed, to designate the New York institution for service of that federal sentence, 18 U.S.C. § 4082(b). The designation having been made, Tremarco receives credit against both the New York and federal sentences for each day served. But he is undeniably in State custody, not federal custody. Section 2255 applies to a prisoner in custody under a federal court sentence, "claiming the right to be released".

 See opinion of Mr. Justice Stewart for the majority, in Heflin v. U.S., 358 U.S. 415, at 420, 3 L. Ed. 2d 407 at 411, 79 S. Ct. 451 at 454 (1959), pointing out that

". . . a motion for relief under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 is available only to attack a sentence under which a prisoner is in custody. That is what the statute says. That is what the legislative history shows. That is what the federal courts, faced almost daily with the statute's application, have unanimously concluded."

 In this circuit, this has been the rule since U.S. v. Hayman, 342 U.S. 205, 96 L. Ed. 232, 72 S. Ct. 263 (1952). See, U. S. ex rel. Bogish v. Tees, 211 F.2d 69, at 71-72 (CA-3, 1954). Other courts have expressed the same view in other language. Thus, in Gilinsky v. U. S., 335 F.2d 914, at 917 (CA-9, 1964), the court observed that "since it is conceded that appellant is validly in custody under at least one count of the indictment, Section 2255 relief is not yet available to him." In Ragavage v. U. S., 272 F.2d 196, at 197 (CA-5, ...

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