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SOBELL v. AG OF THE UNITED STATES

July 1, 1968

Morton SOBELL, Plaintiff,
v.
ATTORNEY GENERAL OF the UNITED STATES and Director, United States Bureau of Prisons, Defendants



The opinion of the court was delivered by: FOLLMER

 This matter is before the court on plaintiff's motion for summary judgment, and defendants' motion to dismiss or in the alternative for summary judgment.

 Plaintiff originally filed a complaint in the United States District Court for the District of Columbia seeking a declaratory judgment and injunctive relief. The defendants filed a motion to change venue, requesting that the court transfer the case to the United States District Court for the Southern District of New York. Plaintiff then filed a motion for summary judgment, and by Order dated February 27, 1968, the defendants were permitted to postpone answering that motion until the motion for a change of venue was decided.

 Defendants' motion for a change of venue was denied on March 6, 1968, and the government immediately filed a motion for reconsideration. Oral argument was heard on the motion and on March 28, 1968, the case was ordered transferred to this district. On March 26, 1968, the government moved to have the action dismissed, or in the alternative for summary judgment.

 A hearing was held before this court on April 28, 1968, and extensive oral argument heard. In addition, both sides have filed supplemental briefs.

 Plaintiff is presently incarcerated in the United States Penitentiary at Lewisburg, Pennsylvania, serving a sentence of thirty years, the maximum penalty for the offense of which he was convicted. He was arrested on August 18, 1950, and remained in custody from that date because of his inability to meet his bond, which was set at $100,000.00. He was sentenced on April 5, 1951, at which time he was transferred to the Federal Penitentiary at Atlanta, Georgia. On July 20, 1951, he was transferred back to New York City to enable him to consult with his attorney concerning his pending appeal. He remained there until November 19, 1952, two days after the Supreme Court denied a petition for rehearing in his case.

 The issues in this case are whether the plaintiff is entitled to credit for (1) the period from August 18, 1950, the date of his arrest, to April 5, 1951, the date of his sentencing, and for (2) the period from July 20, 1951 to February 25, 1952, during which time his appeal was pending before the Court of Appeals. (After plaintiff instituted this action, the Bureau of Prisons, in accordance with its pre-existing policy, corrected plaintiff's sentence so as to give him credit for the time served between the affirmance by the Court of Appeals and the mandate of the Supreme Court.)

 I

 TIME SPENT IN CUSTODY BETWEEN ARREST AND SENTENCE

 Plaintiff contends that he is entitled to credit for the time he spent in custody between his arrest and the date of imposition of sentence for several reasons. He argues that since he was given the maximum sentence allowable for his offense, failure to give him credit for the time spent in presentence custody would result in his serving more than the maximum sentence imposed, in violation of 18 U.S.C. § 3568. He also asserts that the sentencing judge intended that such credit be given. Finally, plaintiff contends that this additional penalty has been imposed upon him solely because of his financial inability to meet the bond set for his release, in contravention of the constitutional principles of equal protection.

 The first question that must be answered is whether this is the proper court to decide the issue. The defendants have from the very outset of this case taken the position that the question of presentence credit properly should have been presented to the sentencing court of the Southern District of New York, since it is, in essence, an attack on the legality of plaintiff's sentence. Plaintiff, however, contends that he is not seeking to correct the sentence, but to obtain judicial review of an administrative decision of the Attorney General as to how the sentence should be calculated.

 Plaintiff asserts that the District Court for the District of Columbia has ruled that this proceeding is rightly brought under the Administrative Procedure Act and the declaratory judgment provision, and that it is not a proceeding which could only be brought under 28 U.S.C. § 2255. To support this contention plaintiff points out that by transferring the case to this district, the judge necessarily ruled that it was not a § 2255 proceeding, since this court would not have jurisdiction over such an action. Also, plaintiff states that if the District of Columbia Court had conceived that plaintiff's only remedy was under § 2255, so that it therefore did not have jurisdiction, it could not have transferred the case under 28 U.S.C. § 1404(a) at all; it would have been compelled to dismiss it.

 Plaintiff's argument is not convincing. The record of this case clearly reveals that the court in the District of Columbia did not at any time consider the merits of this action, but merely ruled on the government's motion for change of venue. Further, the transcript of the argument on the government's motion for reconsideration clearly shows that the judge thought that the Southern District of New York was the proper forum (T. p. 8, 14), and only transferred the case to this district because plaintiff preferred this district to the Southern District of New York. (T. p. 16).

 Plaintiff also argues that the Attorney General has acquiesced in the transfer of the case to this district. Plaintiff points out that, in his reply to plaintiff's memorandum in opposition to a change in venue, the Attorney General stated that, while he adhered to his position that the case should be transferred to New York, "[We] have no objection to the transfer of this case to Lewisburg, if the plaintiff prefers Lewisburg." However, plaintiff neglects to mention that the Attorney General footnoted that particular sentence with the following statement:

 
Since Stapf held that the sentencing court is the appropriate body to grant credit for pre-sentence custody, if any is available, we do caution that the United States District Court at Lewisburg may not believe itself appropriate for disposition of the issue of pre-sentence custody. P. 1, n. 1.

 Plaintiff complains that in the defendants' motion to dismiss the Attorney General rested only "on the ground that the complaint fails to state a claim upon which relief can be granted," and that nowhere in his memorandum in support of this motion did he suggest that this court does not have jurisdiction or that the case should be transferred a second time. Plaintiff feels that under these circumstances the Attorney General is precluded from urging this court to retransfer the case to New York.

 This argument is easily answered. Rule 12(h)(3) of the Federal Rules of Civil Procedure states:

 
Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the ...

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