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June 28, 1962

UNITED STATES of America, Plaintiff,
George JOHNSON, Defendant

The opinion of the court was delivered by: ZAVATT

The defendant pleaded guilty, on October 6, 1959, to a one count indictment charging him with unlawful possession of United States mail (containing a $ 132 New York State Unemployment Insurance check payable to one other than the defendant) in violation of 18 U.S.C. § 1708 which prescribes a maximum sentence of five (5) years. He appeared before the court for sentence on October 30, 1959. The defendant had a long prior criminal record, commencing with juvenile delinquency at ages 12, 13 and 14 including being a wayward minor at ages 17 and 18; United States mail theft at age 22; possession of a hypodermic needle and burglary at age 22; a second conviction for mail theft and forgery at age 26. He had been committed at age 14 to the New York State Training School for 16 months; had been committed to the Reception Center at Elmira, New York for 3 years; had been sentenced to 1 year for mail theft, which he served at the United States Federal Penitentiary, Danbury, Connecticut in 1953; had been sentenced to a term of 2 1/2 to 5 years in Sing Sing; and, finally, in 1956 was sentenced to serve a term of 3 years by a judge of this court for mail theft and forgery. The defendant admitted these convictions imposed and jail terms served in open court on the day of and before the court imposed sentence. *fn1"

On October 30th the court imposed sentence, a certified transcript of which is set forth. *fn2" On January 4, 1960, the court received the § 208(c) *fn3" report and affirmed the sentence originally imposed on October 30, 1959, without requiring the presence of the defendant, who was then and is now incarcerated in the United States penitentiary at Lewisburg, Pennsylvania. The defendant now petitions the court, by a petition dated May 24, 1962, received by the court on June 5, 1962, for leave to petition, in forma pauperis, for a writ of habeas corpus. Habeas corpus is not a proper remedy in this case, since the petitioner is not now incarcerated in this District. United States v. Hayman, 342 U.S. 205, 72 S. Ct. 263, 96 L. Ed. 232 (1952); Ahrens v. Clark, 335 U.S. 188, 68 S. Ct. 1443, 92 L. Ed. 1898 (1948). Nevertheless, in order to avoid delay and circuity of action, the court will consider petitioner's claim for relief as a motion to vacate the sentence pursuant to 28 U.S.C. § 2255.

Petitioner contends that he was told by the court that he would be brought back to the court after it had received the § 4208(c) report. The transcript of what was said by the court on October 30, 1959 proves otherwise. Petitioner contends that he was denied his constitutional rights by not having been brought into court on January 4, 1960, when the court affirmed the sentence it had imposed on October 30, 1959. Giving the petition its most liberal and favorable interpretation, petitioner would appear to be contending that the court's action on October 30, 1959 was not the imposition of sentence; that the sentence was imposed upon petitioner, in absentia, on January 4, 1960 in violation of Rule 43, Federal Rules of Criminal Procedure, 18 U.S.C. *fn4"

 The commitment of the defendant on October 30, 1959 was the imposition of sentence for the maximum term of imprisonment, to wit, five (5) years. Sentence was imposed on October 30, 1959 in the presence of the defendant, not on January 4, 1960 when the defendant was not in court. United States v. De Blasis, 177 F.Supp. 484 (D.Md.1959). In De Blasis, the sentence under § 4208(b) was deemed one for the maximum term of ten (10) years. After the sentencing judge received the § 4208(c) report and, in the absence of the defendant, he reduced the sentence to five (5) years to run from the date of the sentence originally imposed. The defendant petitioned in forma pauperis for a copy of the minutes of his trial, claiming that he had been sentenced twice for the same offence; that the first sentence was for a term of only three months (this is the period of time within which a § 4208(c) report is to be made unless the court extends the time for a further period of three months) and that the second sentence was for a term of five (5) years. The court denied the petition, holding that his original commitment was deemed to be the imposition of a sentence to a term of ten (10) years and that the subsequent act of the court (upon receipt of the § 4208(c) report) was a reduction of that sentence, not requiring the presence of the defendant.

 Rule 43, Federal Rules of Criminal Procedure, requires the presence of the defendant at the arraignment, every stage of the trial 'and at the imposition of sentence, except as otherwise provided by these rules.' 18 U.S.C. § 4208(b) *fn5" clearly indicates that a commitment under that section is the imposition of a sentence of imprisonment for the maximum term prescribed by law. It states the alternatives available to the sentencing judge, upon receipt of the § 4208(c) report. He may, in his discretion: '(1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.'

 Leave to proceed in forma pauperis is granted. In all other respects the petition, which the court treats as a motion pursuant to 28 U.S.C. § 2255 to vacate the sentence, is denied. This is an Order. The Clerk is directed to mail a certified copy thereof to the petitioner.

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