The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge:
A fundamental issue of far-ranging importance raised by defendant Rooney's motion to dismiss the complaint in this declaratory judgment action is whether the validity of plaintiff's incarceration following trial, conviction and sentence can be collaterally attacked in a proceeding under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. (1964), or whether, under the circumstances of this case, the only possibly appropriate post-conviction proceedings are those authorized by special statutes, such as, a petition for habeas corpus, 28 U.S.C. § 2241 (1964) or a motion to vacate the sentence, 28 U.S.C. § 2255 (1964).
This issue, as well as certain other related questions, are decided adversely to the plaintiff for the reasons set forth in this opinion; and the complaint, accordingly, is dismissed.
Claiming that his constitutional right to counsel has been violated, plaintiff seeks a judgment declaring that his conviction is invalid. In addition, plaintiff has asked the Court to reverse his conviction and to order his release from incarceration and custody.
The gist of plaintiff's charge is that his counsel, defendant Turner, was absent at certain pre-trial proceedings and that Turner's law clerk, defendant Kessler (who apparently is not a member of the bar), was present in place of Turner, with the consequence that plaintiff's constitutional rights were inadequately safeguarded.
Defendant Rooney is an Assistant United States Attorney, who conducted the prosecuton of plaintiff's trial. It is not made indubitably clear whether the claim against Rooney is that he conspired with Turner and Kessler to deprive plaintiff of his right to counsel; or, though not a co-conspirator, he was aware of the facts and did not object; or, more likely, that Rooney is being sued nominally as a representative of the Attorney General, to whose custody plaintiff has been committed.
Timeliness of Defendant-Rooney's Motion
Rooney has moved to dismiss the complaint under Fed.R.Civ.P. 12(b) Before considering the merits of the motion, we must pass upon plaintiff's threshold attack that the motion has not been made timely and that Rooney is in default.
The argument that Rooney is in default is based on the fact that his answer had not been served as of the date the motion was noticed. The marshal's return discloses that Rooney was personally served on June 6, 1968 with the summons and complaint. Fed.R.Civ.P. 4(d)(5) provides that service upon an officer of the United States shall be made by serving the United States and by serving such officer. Fed.R.Civ.P. 4(d)(4) states that service upon the United States is made "by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought" (or to a designated agent) and "by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia".
The marshal was not instructed by plaintiff to serve the United States Attorney for the Southern District of New York or his designated agent; and the marshall did not effect service upon the United States Attorney. However, the designated agent's docket sheet indicates that service was made upon the United States Attorney on June 13, 1968, presumably by Rooney personally or at his request.
Fed.R.Civ.P. 12(a) requires the defendant-officer to serve his answer to the complaint within sixty days after the service of the complaint upon the United States Attorney. Thus, the time to answer would have expired on August 12, 1968, were it not for the timely notice of motion to dismiss which was filed in the Clerk's Office of the Southern District of New York on August 12, ...