The opinion of the court was delivered by: ZAVATT
In 1957 the defendant was serving a state sentence in Green Haven State Prison, Stormville, New York. While serving this sentence, he was brought before this court on December 2, 1957, pursuant to a writ of habeas corpus ad prosequendum issued by this court on October 17, 1957. On December 2, 1957 he was represented by counsel, Harry Chiert, and pleaded guilty to counts one and two of a six count indictment which said counts charged him with unlawful possession of a United States Treasury check in the amount of $ 105.96 payable to one other than the defendant and the unlawful forging of the payee's name thereon, in violation of 18 U.S.C. §§ 1708 and 495, respectively. On January 9, 1958, he was represented by counsel, Harry Chiert. This court sentenced the defendant on that date to a term of two years imprisonment on each of said two counts, both sentences to run concurrently. Immediately after the imposition of these sentences by this court, the defendant was returned to Green Haven Prison to complete serving the prior New York State sentence.
He was released from the Green Haven Prison on March 29, 1958 upon the expiration of the New York State sentence. Apparently, no detainer had been filed with the State by the federal authorities. The defendant remained at large for more than two years when, on November 30, 1960, he was arrested by the New York City Police on a charge of forgery of a prescription for narcotics. He was convicted of this offense and sentenced by the County Court, Kings County, New York to serve a term of one year in the Riker's Island Penitentiary. While serving this sentence, a detainer was filed. When he was released from Riker's Island Penitentiary on October 5, 1961, he was taken into custody by federal officers to begin service of the sentence which this court had imposed on January 9, 1958 and is now incarcerated in the United States Penitentiary at Lewisburg, Pennsylvania.
It is from service of this sentence that the defendant now seeks to be discharged. On May 1, 1962 this court granted the defendant's petition for leave to proceed in forma pauperis and assigned the Legal Aid Society of New York City to represent him in this proceeding, which is a petition for a writ of habeas corpus. Habeas corpus is not a proper remedy in this case, since the defendant is not 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 the petition as a motion, pursuant to 28 U.S.C. § 2255, to vacate the sentence.
He alleges that on his release from State custody on March 29, 1958, he believed that his sentence had been canceled because of a letter he wrote to this court requesting that the term of the sentence imposed by this court be reduced. The court did not reply. In point of fact, the sentence was in no way modified, nor was any formal attempt at modification ever made. Petitioner further states that from March 29, 1958 until November 30, 1960 he resided at his previous address and made no attempt to flee. As legal grounds for his release the petitioner contends in substance that:
1. By not requiring him to serve his sentence immediately on his release from Green Haven State Prison on March 29, 1958 and/or by allowing his subsequent arrest and conviction by local authorities for forgery of a prescription, the Federal Government in some manner relinquished its jurisdiction over him.
2. The delay in his imprisonment on the sentence imposed by this court was unconstitutional as a denial of due process and as cruel and inhuman punishment under the Fifth and the Eighth Amendments to the Constitution of the United States.
The governing statute, 18 U.S.C. § 3568, provides:
'The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. * *
'If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.
'No sentence shall prescribe any other method of computing the term.'
Since petitioner's service of the sentence imposed by this court on January 9, 1958 did not begin until October 5, 1961, the date of his entry into federal custody, he has suffered no denial of rights in this regard. In Hayward v. Looney, 246 F.2d 56 (10th Cir.1957), the petitioner while in state custody was surrendered to federal authorities for trial and sentencing on another charge and then surrendered back to state custody to serve his state sentence. At the expiration of his state sentence, the petitioner was required to serve his federal sentence. The court stated that:
'It is well settled that when a state surrenders a prisoner to the Federal government for the purpose of trial on a Federal charge and upon conviction and sentence in the Federal court, the Federal authorities surrender custody of the prisoner back to the state authorities for trial or imprisonment, without the prisoner having been received at a Federal penal institution for service of his Federal sentence, the Federal sentence does not begin to run until such time as the prisoner is returned to Federal custody and received at the Federal penal institution for service of his Federal sentence.' 246 F.2d at 58.
In the instant case, after being sentenced by this court the petitioner was not committed to a jail or other place of detention to await transportation to the place at which his sentence was to be served. He was detained only for surrender back to the custody of the state authorities. Hayward v. Looney, supra; Zahn v. Kipp, 218 F.2d 898 (7th Cir.1955). Zerbst v. McPike, 97 F.2d 253 (5th Cir.1938).
Petitioner's jurisdictional argument is also unsupportable. The identical argument as to relinquishment of jurisdiction was rejected in Mitchell v. Shank, 105 F.Supp. 274 (E.D.Ky.1952). In that case, the petitioner received a two year state sentence on December 2, 1946 and a fifteen months federal sentence on December 4, 1946. He was released from state custody on December 2, 1948 and, no detainer having been filed, was not taken into federal custody. He was at liberty until July 19, 1949 at which time he was sentenced on another state charge. On his release from the state correctional institution on ...