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SCHERL v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


April 6, 1976

Morton SCHERL, Petitioner,
v.
UNITED STATES of America and Larry Taylor, Warden, Metropolitan Correctional Center, Respondents

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

Plaintiff, now confined to the Metropolitan Correctional Center in this district, pursuant to a judgment of conviction for mail fraud entered upon his plea of guilty in 1970 in the District Court for the Central District of California, moves pursuant to 28 U.S.C., section 2255, to vacate and set aside the judgment of conviction, or in the alternative that the sentence be reduced. He also requests "an immediate evidentiary hearing" as to the issues raised by him.

 Petitioner asserts three claims. He contends (1) that his original sentence was "illegal" because probation was conditioned by the California court on payment of restitution in an unspecified amount to be determined by the probation office; (2) that the extension of his term of probation by that court from three to five years without notice or a hearing violated his right to due process under the Fourteenth Amendment and therefore makes his present confinement unconstitutional; and (3) that he has not received credit on his term of imprisonment for the time he was on probation.

 This court is without jurisdiction as to petitioner's first two claims, which under section 2255 *fn1" should be addressed to the California court which imposed the sentence and extended the period of probation. *fn2" The purpose of that section was to require a petitioner challenging a sentence as unauthorized or unconstitutional to apply to the district court which entered the sentence instead of to the court in the district in which he is confined. *fn3"

 As to petitioner's third claim, that he is entitled to credit on his prison term for time he was on probation, this court does have jurisdiction. *fn4" However, it has long been the rule, uniformly applied in all circuits, that the period during which a defendant is on probation after suspension of sentence is not to be credited on imposition of sentence of imprisonment upon revocation of probation. *fn5"

 Petitioner's application is denied in all respects.


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