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August 16, 1976


The opinion of the court was delivered by: PLATT



 Petitioners, pro se, have filed motions to vacate, set aside or correct the sentences previously imposed upon them by this Court. Title 28 U.S.C. § 2255. The three cases were consolidated because each raises the identical issue of whether petitioners were denied the effective assistance of counsel.

 Collins, Peters and Flammia each pled guilty to Count One of Indictment 75 CR 275 (use of a firearm in the commission of a felony [theft of goods from a motortruck in interstate commerce] in violation of 18 U.S.C. § 924(c)(1), (2)). Each was sentenced to a term of incarceration to be served consecutively to the State prison term they were already serving.

 The gravamen of petitioners' motion is that they were denied due process of law because neither their counsel nor the Court, at the time sentence was imposed, advised them of the right to appeal their respective sentences. Each petitioner was represented by assigned counsel pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A. Petitioners allege that they requested their respective counsel to appeal their sentences because: (1) they were not sentenced until after their co-defendants' trial was completed; and, (2) the Court predicated their sentences on information gained from hearing the co-defendants' trial which denied petitioners the opportunity to rebut trial testimony which prejudiced them in the eyes of the Court.

 Petitioners contend that in their presence, Collins' attorney, John Corbett, Esq., stated to them that they had no right to appeal a sentence imposed after a guilty plea and that a Rule 35 motion was their only remedy if they thought that the sentences were too harsh. Allegedly, when Corbett told them that they had no right to appeal the other counsel were present and did not speak up to correct Corbett's statement. Thus, petitioners contend that they were led to believe that they had no right to appeal their sentences. According to petitioners, by the time they found out that they did have a right to appeal, the time for filing an appeal had lapsed; and therefore, petitioners argue that their right to appeal has been frustrated by ineffective assistance of counsel.

 The Government's answer to the motion argues that each petition is identical "boilerplate" and evidences a "lack of sincerity". Additionally, it is contended that the petitions contain self-serving allegations and are replete with conclusory statements and that, since the allegations are not supported by extrinsic evidence and there is no affidavit from the attorneys involved, petitioners have failed to meet their burden of setting forth specific facts which they are in a position to establish by competent evidence. Dalli v. United States, 491 F.2d 758 (2d Cir. 1974). Therefore, the Government argues, the failure to set forth specific facts requires this Court to dismiss the petitions.

 Because a motion pursuant to Section 2255 is a collateral attack on the judgment of conviction or sentence, the burden is on the petitioners to establish a basis for relief on the grounds set forth in the statute. Consequently, to be successful on this motion the petitioners must allege substantial issues of fact, which, if proven, would entitle them to the relief they seek. See Taylor v. United States, 229 F.2d 826 (8th Cir.), cert. denied, 351 U.S. 986, 100 L. Ed. 1500, 76 S. Ct. 1055 (1956); United States v. Pisciotta, 199 F.2d 603 (2d Cir. 1952). In determining whether to grant an evidentiary hearing on the petition, the Court is mindful of its obligation to do so "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Title 28 U.S.C. § 2255. See Torres v. United States, 370 F. Supp. 1348 (E.D.N.Y. 1974).

 Since petitioners argue ineffective assistance of counsel it is doubtful that an affidavit from their attorneys would support their claim. If such an affidavit had been submitted, three possible alternatives suggest themselves: (1) a denial that such advice was given; (2) a statement that an appeal was discussed but that petitioners instructed counsel not to appeal; or, (3) a statement that such advice was given. If either of the first two alternatives were the contents of the affidavit a hearing would be required to resolve the issue of fact. If the third possibility were the answer, there would be no question of fact but rather a question of law as to whether petitioners were denied effective assistance of counsel by the advice.

 The initial question to be determined is whether petitioners sufficiently meet the custody requirements of Title 28 U.S.C. § 2255 to confer jurisdiction on this Court to consider the merits of petitioners' contentions. As previously stated, petitioners are in State custody and have yet to begin serving their federal sentences. Section 2255 states in pertinent part, " A prisoner in custody under sentence of a court established by an Act of Congress. . . may move the court which imposed the sentence to vacate, set aside or correct the sentence" (emphasis added). The Eighth Circuit has held that a district court does have jurisdiction to hear a petition under circumstances similar to the case sub judice. In Jackson v. United States, 423 F.2d 1146, 1149 (8th Cir. 1970), a defendant had been sentenced to three years imprisonment to run consecutively to the State sentence he was already serving. The district court dismissed the petition without prejudice to renew the petition after the petitioner was in federal custody and serving his federal sentence. In reversing the lower court, the Eighth Circuit held that the rationale of Peyton v. Rowe, 391 U.S. 54, 20 L. Ed. 2d 426, 88 S. Ct. 1549 (1968), involving a section 2241 habeas corpus petition, should be extended to section 2255 proceedings:

"'Custody' under Peyton v. Rowe, supra, relates to a petitioner's 'status for the entire duration of [his] imprisonment '. Under these circumstances, we think the petitioner, a state prisoner, may challenge his federal sentence although he has not yet commenced to serve that sentence."

 The First Circuit also adopted the extension of the Peyton holding to a section 2255 proceeding in Desmond v. United States Board of Parole, 397 F.2d 386, 389 (1st Cir.), cert. denied, 393 U.S. 919, 21 L. Ed. 2d 206, 89 S. Ct. 249 (1968):

"In Peyton v. Rowe, . . . the Court held that a defendant while serving the first of two consecutive sentences could attack the second. It does not seem to us a significant stretch to say that he may attack a federal sentence, yet to be served, while defendant is in custody completing a state sentence. The same principles which dictated Peyton v. Rowe, seem to us to support jurisdiction here. To be sure, defendant is not physically 'in custody under sentence of a court established by Act of Congress', but if custody is to be construed as single and continuous, we may join the courts as well. There is just as much reason to resolve the legality of resumed incarceration under an existing sentence before such resumption occurs as to resolve the legality of continued incarceration under a consecutive sentence yet to commence."

 The Fifth Circuit in Simmons v. United States, 437 F.2d 156, 159 (5th Cir. 1971), has also extended the Peyton rationale to section 2255 proceedings, "We agree with the First and Eighth Circuits' construction of section 2255 and therefore join them in holding that 28 U.S.C. § 2255 is available to a prisoner in state custody attacking a federal sentence scheduled to be served in the future." Although the Second Circuit has yet to express its opinion as to this issue it has held, in a section 2241 habeas corpus proceeding, that a prisoner in federal custody may attack a State sentence yet to be commenced. United States ex rel. Meadows v. New York, 426 F.2d 1176 (2d Cir. 1970), cert. denied, 401 U.S. 941, 28 L. Ed. 2d 222, 91 S. Ct. 944 (1971). We agree that the logical extension of the Supreme Court's holding in Peyton points to ...

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