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UNITED STATES v. TULLY

August 28, 1981

UNITED STATES of America,
v.
John Patrick TULLY, Defendant



The opinion of the court was delivered by: FISHER

On January 7, 1975, petitioner pled guilty to Counts I and II of an indictment charging him with conspiring to import and distribute cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 846, 952(a), 960, and 963, and using a telephone to facilitate commission of the conspiracy, in violation of 21 U.S.C. § 843(b). In conjunction with the petitioner's guilty plea, Count III of the indictment was dismissed on the Government's motion. In addition, in return for his cooperation with law enforcement authorities concerning his knowledge of violations of federal narcotic laws, the Government agreed not to prosecute petitioner on the basis of such information and to inform the sentencing judge of the nature and extent of any such cooperation.

On July 28, 1975, petitioner was sentenced, pursuant to 18 U.S.C. § 4208(a) (2), to a twelve-year term to be followed by a special-parole period of five years on Count I and a two-year term to run concurrently with this sentence on Count II. On September 18, 1980, the court, on its own motion, corrected its sentence by eliminating the special-parole term.

 Petitioner has moved to vacate his sentence pursuant to 28 U.S.C. § 2255 alleging that (1) the court was without jurisdiction to impose such sentence; (2) the sentence is in excess of the maximum prescribed by law because of the five-year special-parole term; (3) he was mentally incompetent at the times of the plea and sentencing because of drugs administered to him by prison authorities; (4) ineffective assistance of counsel; *fn1" (5) the United States Parole Commission's (Commission) failure to consider petitioner for parole prior to the one-third point of his sentence frustrated the expectations of the sentencing judge; and (6) the Commission violated the ex post facto clause of the United States Constitution, Art. I, § 9, by the retroactive application of new parole guidelines at the time of his hearing in November 1978.

 Petitioner's claim that the sentencing judge has an objective and enforceable expectation as to when a defendant shall become eligible for parole consideration is no longer available as a basis for collateral attack of a sentence and, therefore, is not cognizable under 28 U.S.C. § 2255. In United States v. Addonizio, 442 U.S. 178, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979), three prisoners contended that a postsentencing change in the policies of the Commission prolonged their imprisonment beyond the period intended by the sentencing judge. The Court held that "subsequent actions taken by the Parole Commission whether or not such actions accord with a trial judge's expectations at the time of sentencing do not retroactively affect the validity of the final judgment itself," and "do not provide a basis for collateral attack on ... sentences pursuant to § 2255." Id. at 190, 99 S. Ct. at 2243. See United States v. Ferri, 652 F.2d 325 (3d Cir. 1981).

 Habeas corpus, an attack on the legality of incarceration and not a collateral attack on judgment, is the proper vehicle for attacking Parole Commission action. See Izsak v. Sigler, 604 F.2d 1205, 1206 n.1 (9th Cir. 1979); Thompson v. United States, 536 F.2d 459, 460 (1st Cir. 1976); 28 U.S.C. § 2241. The habeas corpus power of federal courts over prisoners in federal custody has been confined by Congress through 28 U.S.C. § 2241 to those district courts within whose territorial jurisdiction the custodian is located. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S. Ct. 1123, 1129, 35 L. Ed. 2d 443 (1973). Contrary to the Government's contentions, petitioner's physical absence from the territorial jurisdiction of this district court does not per se bar this court's jurisdiction over his petition:

 
Read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ "within its jurisdiction" requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court's territorial jurisdiction.

 Id. at 495, 93 S. Ct. at 1129. See also Jones v. Cunningham, 371 U.S. 236, 243, 83 S. Ct. 373, 377, 9 L. Ed. 2d 285 (1963).

 Considerations of fairness and basic convenience require that this court assume jurisdiction over this petition. Because of his cooperation with law enforcement officials, petitioner was given Witness Protection Unit status, and his case was designated as a Central Monitoring Case. Such inmates require central office or regional office approval for transfers or community activities recommended by the chief executive officer. The powers and discretion over prisoners which are usually accorded to local authorities and custodians are in this case ultimately vested in the central office in Washington, D.C. See Program Statement, "Central Inmate Monitoring System," Federal Prison System, No. 5190.2 (June 1, 1979). Further, because of his prisoner status, petitioner's case was designated by the Parole Commission to be an original jurisdiction case, which requires that the Regional Commissioner forward the case to the National Commissioners for parole decision. See 28 C.F.R. § 2.17 (1980). Technically, a decision that petitioner is entitled to release or a new parole hearing might be thought to exhaust this court's jurisdiction and require petitioner's complaint about Commission procedures to be filed in the District of Columbia. However, such a course would likely result in a transfer of the suit back to this district, since this court is most familiar with the long history of petitioner's case and the voluminous court records are located within this district. The Court cautioned in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. at 500, 93 S. Ct. at 1132, that 28 U.S.C. § 2241 should not be viewed as establishing "an inflexible jurisdictional rule, dictating the choice of an inconvenient forum ...." The District of New Jersey being the most convenient forum in this case, it seems preferable to exercise habeas corpus jurisdiction generously and consider the merits of petitioner's complaint. See Battle v. Norton, 365 F. Supp. 925, 927 (D.Conn.1973); Kinnell v. Warner, 356 F. Supp. 779, 781 (D.Hawaii 1973). A contrary determination would unreasonably delay final disposition of petitioner's grievances, perhaps rendering the issues moot. See Augello v. Warden, Metropolitan Correctional Center, 470 F. Supp. 1230, 1231 n.1 (E.D.N.Y.1979).

 Turning now to the merits of petitioner's complaint, I find petitioner's claim that the Parole Commission's delay in affording him a parole hearing frustrated the probable expectations of the sentencing judge cannot be sustained. Petitioner's fifteen-year sentence was imposed pursuant to 18 U.S.C. § 4208(a) (2) (now 18 U.S.C. S 4205(b)(2)). Section 4208(a)(2) permits immediate eligibility for parole, giving the Parole Commission complete discretion to determine when a prisoner should be paroled. At the time of petitioner's sentence, Judge Coolahan remarked:

 
In imposing these sentences pursuant to Section 4208(a)(2), I make no recommendation to the parole board. I leave the time of the parole and the time of his release entirely to their discretion. You know that they have a right to set the hearing and parole date at an earlier time than usually will take place in the imposition of custodial sentences.

 Transcript of Sentence, Cr. No. 281-73, July 28, 1975 at 12. It is clear from this excerpt that Judge Coolahan left the decision as to petitioner's eligibility for parole to the discretion of the Parole Commission, to be exercised in accordance with its regulations. *fn2"

 At the time of petitioner's sentence the Parole Commission was operating under new guidelines, applicable to all prisoners, which base likely parole dates primarily on "salient factors" (rehabilitative potential based on certain personal attributes) and severity of the offense. Paroling Policy Guidelines, 28 C.F.R. § 2.20 (1975). Prior to the implementation of the guidelines, a prisoner sentenced under section 4208(a)(2) was to be given consideration for early parole based on the then-existing criteria, primarily institutional performance. However, the implementation of the guidelines essentially nullified the effect of an (a)(2) sentence:

 
The criteria used in setting the targeted release period for a particular individual under the new guidelines include little if any information that sentencing judges do not already have at the time of sentencing. Thus, sentencing judges now know, as the judge at the time of Wickham's sentencing would have known, given the widespread publicity the guidelines received in the criminal justice system, that the designation of a sentence under ...

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