The opinion of the court was delivered by: COOPER
This is a petition pursuant to Section 2255 of Title 28, United States Code, to correct a sentence. Alternatively, it is treated as a motion to reduce sentence under Rule 35 of the Federal Rules of Criminal Procedure.
In essence, Simeon J. Coke contends on constitutional grounds raised by him for the first time that his sentence, upon conviction after a third trial to a term of imprisonment longer than that imposed upon conviction after his second trial, is illegal. Accordingly, he seeks a reduction in the term to a period no longer than that imposed after the second trial. For reasons set forth below, we disagree.
Background of Proceedings
Simeon J. Coke (hereinafter petitioner) was indicted on April 3, 1963 on three counts, each charging a violation of the federal narcotics laws. 21 U.S.C. §§ 173, 174.
Petitioner has been to trial three times upon the indictment. The jury at the first trial, held before Judge MacMahon, was unable to agree upon a verdict. A mistrial was declared on May 24, 1963. In a second trial, before the late Judge Dawson, the jury found petitioner guilty upon all three counts on June 24, 1963. The same day, he was sentenced to six years imprisonment upon each count, the sentences to run concurrently. On appeal, the conviction was reversed. United States v. Coke, 339 F.2d 183 (2d Cir. 1964).
Petitioner's third trial, held before this Court and a jury in January, 1965, again resulted in a conviction upon all three counts. The Court ordered a presentence investigation; none had been made prior to sentence following the second trial. After the report, petitioner was sentenced to five years imprisonment on each of Counts One and Two, to run consecutively with each other, and five years on Count Three, to run concurrently with the sentence imposed on Counts One and Two.
Petitioner later moved, on grounds other than those urged here, for reduction of sentence. The motion was denied on March 24, 1965. Thereafter, on July 18, 1966, petitioner's conviction upon the third trial was affirmed. United States v. Coke, 364 F.2d 484 (2d Cir. 1966), cert. denied, 386 U.S. 918, 87 S. Ct. 877, 17 L. Ed. 2d 789 (1967). Petitioner raised no issue on appeal as to the legality of the ten year sentence imposed.
By this motion, filed March 30, 1967 (the record on this motion was completed August 28, 1967), petitioner now contends for the first time that this Court's sentence of imprisonment for a period amounting to ten years, exceeding the six-year period imposed after his second trial, violates his constitutional rights to due process, equal protection of the laws, and protection against double jeopardy. In doing so, he places reliance upon novel recently decided cases in other federal circuits, the merits of which will be examined after reviewing the Government's preliminary points in opposition. It contends his claims are both untimely and premature, as well as beyond the scope of Section 2255.
Scope of 28 U.S.C. § 2255 and Timeliness of Petitioner's Claims
The Government properly notes that petitioner could have but did not raise on appeal the issues pressed here. It argues that this failure precludes raising them now. This position is buttressed by the general rule that "the writ of habeas corpus will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178, 67 S. Ct. 1588, 1590, 91 L. Ed. 1982 (1947). The Sunal decision recognized, however, that habeas corpus is a proper remedy "where the trial or sentence by a federal court violated specific constitutional guarantees." At 178-179, 67 S. Ct. at 1591.
In analogous collateral Section 2255 proceedings, judicial decisions have tended to limit the raising of constitutional questions not raised upon appeal to situations presenting "unusual circumstances." See United States v. Re, 372 F.2d 641 (2d Cir.), cert. denied, 388 U.S. 912, 87 S. Ct. 2112, 18 L. Ed. 2d 1352 (1967); United States v. Allocco, 305 F.2d 704 (2d Cir. N.Y. 1962), cert. denied, 371 U.S. 964, 83 S. Ct. 545, 9 L. Ed. 2d 511 (1963); United States v. Angelet, 255 F.2d 383, 384 (2d Cir. 1958) ("exceptional circumstances"). These and other cases mainly involve an attack not on the nature or terms of sentence but rather on the underlying conviction upon which sentence is predicated.
Supporting the varied decisions so limiting the scope of Section 2255 is the policy of bringing finality to criminal proceedings and the practical recognition that it is oft impossible to investigate the facts of the error belatedly asserted or to reprosecute, perhaps many years after the original trial. Chapman v. United States, 376 F.2d 705 (2d Cir. 1967); United States v. Re, supra; Thornton v. United States, 125 U.S. App. D.C. 114, 368 F.2d 822 (D.C.Cir.1966).
These reasons are unpersuasive here where the substantial constitutional claims do not present a commensurate burden on the administration of justice. The error claimed relates to sentencing alone, not the trial process, and is one solely of law, requiring neither retrial nor an evidentiary hearing. Accordingly, we hold the petition is properly made under Section 2255.
Prematurity of Petitioner's Claims Under Section 2255
The Government alternatively argues that the Petition should be dismissed as premature. It suggests that Petitioner is currently imprisoned pursuant to the five year term imposed under Count One, a sentence clearly proper. Thus, he would not be "in custody" under the sentence attacked as Section 2255 requires. In such a circumstance, dismissal may be proper. See Duggins v. United States, 240 F.2d 479 (6th Cir. 1957).
However, based upon the papers before us,
and including "good time" in computing petitioner's release date,
we conclude that the petitioner is presently "in custody" under the second five-year term and accordingly his application is not premature. In any event, we view the alleged errors under Rule 35 of the Federal Rules of Criminal Procedure, pursuant to which a motion to correct an illegal sentence may be made at any time.