The opinion of the court was delivered by: BYERS
The above-named defendant brings this motion under Title 28 U.S.C. § 2255 and in support thereof 'an affidavit and memorandum' have been filed by his present attorney. The hearing was held on June 16, 1958.
On January 31, 1957, the defendant was sentenced by the undersigned to a two year term, in the custody of the Attorney General, etc., pursuant to his plea of guilty to Court 1 of the three count indictment involving the forged indorsement of a U.S. check for $ 79.10, the uttering thereof, and its possession, the latter being the first count.
The plea was entered on January 17, 1957, when the case was called. The defendant was represented by an able and experienced lawyer of his own choice. That lawyer had advised with the defendant while he was in custody, prior to the last-mentioned date, and also then.
For reasons not now necessary to state, his attorney advised him that it would be wise to withdraw his previous plea of not guilty, and to plead guilty to the first count. A stenographic transcript of the proceedings on the occasion constitutes a part of the opposing papers.
Sentence was imposed on January 31, 1957, as stated. At that time the same attorney appeared, and addressed the court on defendant's behalf prior to the pronouncement of sentence; the transcript of what took place is likewise filed with the opposing affidavit.
The defendant had been arrested for these alleged offences on November 21, 1956, and was released on bail five days thereafter.
He was out on parole to the State Courts at the time of his arrest, and was taken into State custody as a parole violator immediately upon being released on bail pending a hearing on this charge.
His case was on for pleading on December 26, 1956, and since he was then in State custody, he was brought into this court under a habeas writ, at which time his not guilty plea was entered; on January 7, 1957, he was remanded into the custody of the U.S. Marshal because the court was informed that if he continued on bail, his State custody would be resumed and his violation of parole to the State Court would proceed to inquiry and disposition.
Thus the custody of the U.S. Marshal began January 7, 1957, and continued until January 31. After sentence was imposed, the marshal returned the defendant to the custody from which he had been removed by the Ad Prosequendum writ above mentioned.
The violation of parole to the State Court being established, namely the commission of the Federal offence here involved, the defendant was returned to the confinement from which he had been paroled, and has not yet completed the original sentence which he was serving when he was released on parole.
The fact that he violated his State parole is the occasion for his being in State custody. Had he not done so, by committing the Federal offence, his present dilemma would not have arisen. The decision whether or not to violate the State parole rested entirely with him.
His major grievance is that the U.S. Marshal surrendered him to the State authorities on January 31, 1957. But since he was brought into this court on the writ which has been recited; and since judgment had been pronounced in the cause that brought him into this court, the marshal but honored the said writ when it had served its function, by returning the defendant to the custody from which he had been released for the restricted purpose for which the writ was issued.
No reason therefore appears for action by this court in any guise.
It is assumed that the marshal has lodged a detainer with the State authorities, and when the defendant shall have paid his debt to the State of New York, he will be taken into custody to ...