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June 26, 1970

Daniel KELLY, Defendant

Zavatt, District Judge.

The opinion of the court was delivered by: ZAVATT

ZAVATT, District Judge.

By memorandum-order dated and filed May 27, 1970, I granted the defendant's motion to vacate the sentence and judgment of conviction, hereinafter referred to. At that time, no formal opinion was filed because the court did not want to delay the release of defendant from jail. What follows is the opinion accompanying that memorandum-order, to be filed, nunc pro tunc, as of May 27, 1970.

 Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate the sentence and judgment of conviction, hereinafter referred to. The motion is granted.

 On May 3, 1968, the defendant pleaded guilty to a one-count indictment charging him with failing to report for induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a). On June 20, 1968, this court sentenced the defendant to a term of three years which he is presently serving at the Allenwood Federal Prison Camp. The instant motion is predicated upon two recent decisions of the Supreme Court, Gutknecht v. United States, 396 U.S. 295, 90 S. Ct. 506, 24 L. Ed. 2d 532 (1970) and Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S. Ct. 661, 24 L. Ed. 2d 653 (1970) decided more than one and one-half years after the petitioner pleaded guilty and was sentenced. The court must first decide whether the facts of the instant case are controlled by these two decisions and, if so, whether Gutknecht and Breen are to be accorded retroactive effect. This latter question is one of first impression in this Circuit. The court is aware of only one opinion on point, i.e., Andre v. Resor, 313 F. Supp. 957 (N.D. Cal., filed May 22, 1970).

 On May 8, 1970, this court held a hearing to determine the relevant facts, none of which appears to be in dispute. As a result of that hearing and the papers (including the file of the local draft board relating to the petitioner) the court finds the facts to be as follows:

 (1) Petitioner, born September 20, 1947, registered with Local Board No. 61, Jamaica, New York, in October 1965.

 (2) He was classified I-A on November 15, 1965 by a 5-0 vote of that Board.

 (3) He entered the City College of New York in the fall of 1965 and, on December 13, 1965, was classified II-S by a 5-0 vote of the Board.

 (4) On July 18, 1966, he was again classified I-A by a 5-0 vote of the Board. (This reclassification apparently occurred because of the City College summer recess).

 (5) On September 14, 1966, he wrote to the Board requesting that he be reclassified as a conscientious objector. The following day the Board mailed him CO Form 150.

 (6) On September 27, 1966, he returned the completed Form 150 to the Board. The Board did not pass upon his conscientious objector claim, but reclassified him II-S on October 17, 1966, following the submission of information that petitioner was a full-time student at City College.

 (7) The pertinent events giving rise to this motion began on December 11, 1966, when the petitioner returned his Selective Service Form 2 (Registration Certificate) and Selective Service Form 110 (Notice of Classification) to the Local Board, by letter stating his reasons for that action. The letter expressed, inter alia, the petitioner's opposition to all wars and, after expressing no opposition to doing "alternate service," stated:

"* * * I will no longer co-operate or be part of the conscription system in this country or any other, because it is a direct means of supporting the war * * *."

 (8) In response to this letter, and on December 28, 1966, the Local Board returned these two forms to the petitioner accompanied by a letter advising him of his "obligation to have these forms in your possession at all times." The letter also advised him that upon the termination of his II-S classification, his conscientious objection claim could be appealed.

 (9) On February 21, 1967, the petitioner returned these forms to the Board once again, this time accompanied by two letters. The first, dated December 29, 1966, reaffirmed his earlier statement that he would no longer co-operate with the Selective Service System, "not even to the extent of posessing [sic] selective service certificates or of accepting * * * any * * * classification." The second letter, dated February 19, 1967, discussed, generally, the wonders of Christianity in a world beset by problems.

 (10) On March 13, 1967, the petitioner was declared delinquent, by a Board vote of 4-0, for failing to have his Registration Certificate and Notice of Classification in his possession. A notice of the declaration of delinquency was mailed to the petitioner the following day, as required by the regulations. 32 C.F.R. § 1642.4(b).

 (11) On April 13, 1967, the petitioner was reclassified I-A and put in Group I priority in the order of call, by a 3-0 vote of the Board. See 32 C.F.R. §§ 1631.7(1), 1642.12, 1642.13. The next day the Board mailed to petitioner a notice of his reclassification.

 (12) On April 26, 1967, the petitioner was notified to report for induction on May 10, 1967.

 (13) On May 10, 1967, he appeared at the Local Board, handed over his classification and induction notices, and refused transfer to the Examining & Induction Station. The indictment and guilty plea followed.

 Gutknecht and Breen

 In Gutknecht, supra, petitioner was classified I-A at the time he surrendered his registration certificate and notice of classification by leaving them on the steps of the Federal Building in Minneapolis, while he was stating his opposition to the war in Vietnam. He was declared delinquent pursuant to Selective Service Regulations, 32 C.F.R. § 1642.1 et seq., and his position in the order of call was accelerated pursuant to 32 C.F.R. § 1631.7, by his being placed in the top priority group. Subsequently, he was ordered to report for induction and, when he refused, was indicted for wilfully and knowingly failing and neglecting to perform a duty required of him under the Military Selective Service Act of 1967. He was tried and convicted. On appeal, the Supreme Court reversed his conviction, holding void the delinquency regulations under which his induction was accelerated.

"The power under the regulations to declare a registrant 'delinquent' has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our lawmaking traditions." 396 U.S. at 306, 90 S. Ct. at 511.

 This holding was foreshadowed by my colleague, Judge Dooling, in United States v. Eisdorfer, 299 F. Supp. 975 (E.D.N.Y. 1969), appeal dismissed, 396 U.S. 1066, 90 S. Ct. 810, 25 L. Ed. 2d 83 (1970), cited with approval by the Supreme Court in Gutknecht.

 The Court did not dispute the power of the Government to punish registrants, who fail to comply with Selective Service duties as required under the Act, through the criminal law but, rather, found no Congressional authorization for "the Selective Service System to reclassify exempt or deferred registrants for punitive purposes and to provide for accelerated induction of delinquents" who fail to perform their required duties under the Act. 396 U.S. at 302, 90 S. Ct. at 509.

 In Breen, supra, petitioner was classified II-S (deferred-student) at the time he surrendered his registration card to a minister. He was subsequently declared delinquent for failure to possess his draft card and reclassified I-A. The Court held, inter alia, that a statutory deferment, like the statutory exemption in Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968), could not be taken away because the registrant did not possess his registration card. It also reiterated that "delinquency" induction is unauthorized.

 The court cannot distinguish the facts of the instant case from these two cases. The petitioner herein was classified II-S (the Government does not contend that he was not entitled to that deferment); he was reclassified I-A pursuant to the delinquency regulations for failing to have his registration certificate and notice of classification in his possession; this reclassification resulted in an accelerated notice of induction as he was placed in the highest priority group in the order-of-call; he was convicted for failure to report for that accelerated induction. The court finds that if this case were to arise today, the petitioner would be entitled to relief on two grounds: (1) that the Board lacked the power to deprive petitioner of his II-S deferment because of his failure to have certain registration forms in his possession at all times (Breen, supra) and (2) that the Board had no power to deprive him of his previous standing in the order-of-call by the application of the ...

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