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HARRIS v. UNITED STATES

February 18, 1969

Guillermo HARRIS, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: COOPER

MEMORANDUM

 COOPER, District Judge.

 Petitioner, applying pro se, moves pursuant to 28 U.S.C. § 2255 and Rule 35, F.R.Crim.P., to vacate and set aside sentence.

 The consolidated trial of Indictments 64 Cr. 106 and 64 Cr. 127, charging violations of the federal narcotic laws, was heard by this Court sitting without a jury; on March 9, 1964, petitioner was found guilty of all counts against him in both indictments. On April 7, 1964, petitioner was sentenced to a total of twelve years imprisonment: concurrent terms of five years on counts 1, 2, 3, 4, 5 and 7 of Indictment 64 Cr. 106, and a consecutive term of two years on count 6; concurrent terms of five years on counts 1, 2 and 5 of Indictment 64 Cr. 127, to be served consecutively with the seven year sentence imposed in Indictment 64 Cr. 106. These convictions were affirmed from the bench on appeal.

 A. Jurisdiction

 Petitioner attacks only the two-year sentence imposed on count 6 of Indictment 64 Cr. 106. This, however, he is not presently serving. The Government does not assert the doctrine that only those "claiming the right to immediate release" may maintain an action under § 2255. See Heflin v. United States, 358 U.S. 415, 418, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959); United States v. Bradford, 194 F.2d 197 (2d Cir. 1952), cert. denied, 347 U.S. 945, 74 S. Ct. 642, 98 L. Ed. 1093 (1954); United States v. McGann, 245 F.2d 670 (2d Cir. 1957). Nor does it claim that this attack on the underlying conviction is outside the scope of relief authorized by Rule 35, F.R.Crim.P. See, e.g., United States v. Morgan, 346 U.S. 502, 506, 74 S. Ct. 247, 98 L. Ed. 248 (1954). Yet, since issues of jurisdictional consequence are involved, we feel compelled to confront these questions. See United States v. Bradford, 194 F.2d at 200.

 We need not here decide whether petitioner's motion could be entertained under Rule 35, *fn1" for we hold the principles announced recently in Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968) as to federal habeas corpus, to be equally applicable to proceedings under § 2255. See Crow v. United States, 397 F.2d 284 (10th Cir. 1968).

 We are supported in this view by the reasoning of past decisions which limited § 2255 motions to those wherein petitioner could claim the right to an immediate release. See United States v. Bradford, supra; United States v. McGann, supra. These were rendered during the pendency of McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238 (1934), which held habeas corpus did not authorize attacks upon future consecutive sentences on the ground that such sentences failed to meet the "in custody" requirement for jurisdiction. Judge Learned Hand held:

 
"the section [2255] should be read as coextensive in substance with the writ, and as confined to amending the procedure; and it follows that in it the word, 'custody,' has the same meaning as in habeas corpus."

 United States v. Bradford, supra, at 200. See also, United States v. McGann, supra. McNally was overruled by the United States Supreme Court in Peyton v. Rowe, supra ; reading § 2255 to be coextensive with federal habeas corpus in the light of Peyton, we are empowered to entertain petitioner's motion. We must therefore consider all objections raised regardless of the sentence under which petitioner is currently confined.

 B. Self-incrimination

 Count six charged that on or about January 9, 1964, petitioner and his codefendant unlawfully, wilfully and knowingly purchased, possessed, dispensed and distributed approximately 96 grams, 100 miligrams, of cocaine not in or from the original stamped package, in violation of 26 U.S.C. § 4704(a). Petitioner contends that his sentence under this count should be vacated under the authority of Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968), Grosso v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968); in that compliance with § 4704(a) would have compelled him to incriminate himself with respect to violations of 26 U.S.C. § 4724 and of the narcotic laws of the State of New York. *fn2"

 We are duty bound to give appropriate consideration to closely related statutory requirements in determining whether the risk of self-incrimination is "real and appreciable." Grosso v. United States, 390 U.S. at 65, 88 S. Ct. 709, 19 L. Ed. 2d 906. Thus, in determining whether a substantial risk of self-incrimination is present here, we must examine the alternatives to violation of § 4704(a) afforded petitioner by the statutory scheme. On the one hand, petitioner might assure compliance with that section by purchasing the narcotics in an original stamped package. To do so he would have to obtain a written order form, since sale to any person "except in pursuance of a written order of the person to whom such article is sold" would be unlawful. See 26 U.S.C. § 4705(a). Written order forms shall be sold only to persons who have registered and paid the special occupational tax as required by §§ 4722 and 4721. See 26 U.S.C. § 4705(f).

 It is apparently upon this that petitioner bases his argument that he is required to register and incriminate himself in order to escape punishment under § 4704(a). However, petitioner admits to being unauthorized to purchase or dispense narcotic drugs. As a person not licensed or otherwise legally qualified to engage in such activity he would not be permitted to register under § 4722. See 26 C.F.R. §§ 151.23 ...


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