The opinion of the court was delivered by: HIGGINBOTHAM
Petitioner, George Wise Duval, moves this Court pursuant to 18 U.S.C. § 2255 (1970) to vacate his sentence or, in the alternative, to grant him full credit against his federal sentence for time spent in state custody prior to his transfer to federal custody.
For reasons that will hereinafter appear, I have concluded that petitioner is not entitled to relief and that both his § 2255 motion to vacate sentence and his additional claim for relief, construed as a petition for a writ of habeas corpus, must be denied.
On July 14, 1969, officers of the Philadelphia Police Department apprehended petitioner and three other men under suspicious circumstances in a theater adjacent to a federally insured savings and loan institution. All four men were turned over to federal authorities that same day. Subsequently, while free on bail, petitioner was convicted of a weapons offense in New Jersey and incarcerated on August 1, 1969, at Trenton State Prison.
On November 9, 1970, petitioner pleaded guilty to the federal offense. On February 10, 1971, this Court imposed a sentence of five years imprisonment on petitioner under 18 U.S.C. § 4208(a)(2) (1970). At sentencing, the Court remarked that:
"I have no objection to this sentence being concurrent at the discretion of the Bureau of Prisons with his present sentence which he is now serving." (N.T. at 7.)
On August 26, 1971, New Jersey officials released petitioner to the custody of the United States. Petitioner's federal sentence will expire on August 25, 1976.
Petitioner instituted this action pursuant to 18 U.S.C. § 2255 (1970) on April 10, 1974. Because of administrative error in the Clerk's Office, petitioner's file was not called to the attention of either a United States Magistrate or this Court until August 7, 1974, when a copy of a petition to the Court of Appeals for a writ of mandamus was filed in the District Court. On August 14, 1974, I entered an Order granting petitioner leave to proceed in forma pauperis and directing the United States Attorney to answer petitioner's motion by August 30, 1974.
On August 27, 1974, the Court of Appeals for the Third Circuit denied Duval's petition for a writ of mandamus. The United States Attorney subsequently filed an answer to petitioner's motion, and petitioner responded by way of traverse. Petitioner has advised this Court that he has complied with the commands of Soyka v. Alldredge, supra, and exhausted his administrative remedies. The matter is therefore ripe for adjudication by this Court.
Petitioner argues first that his sentence is "conditional" and therefore unconstitutional. As support for his contention, he relies on United States v. Sams, 340 F.2d 1014 (3d Cir.), cert. denied, 380 U.S. 974, 85 S. Ct. 1336, 14 L. Ed. 2d 270 (1965). His reliance, however, is misplaced. The sentence found defective in Sams, supra, is clearly distinguishable from the sentence imposed on petitioner. In Sams, supra, the sentencing court made the suspension of a term of imprisonment conditional upon the payment of certain fines and further neglected to provide for probation if defendant's term of imprisonment was in fact suspended. Neither of these conditions is present in petitioner's case. At sentencing, I merely stated for the record that I did not object if the Bureau of Prisons, in its discretion, allowed petitioner to serve his federal sentence concurrently with the state sentence he was then serving. The sentence was "conditional," in one sense of that word, but in the same way that every federal sentence is "conditional" where the defendant who is sentenced is serving a state sentence at the time federal sentence is imposed.
The "condition" stems not from the sentence that this Court imposed, but from the discretionary power of the Attorney General of the United States to make the state and federal sentences run concurrently. That power is vested in him, because he "shall designate the place of confinement where the sentence shall be served." 18 U.S.C. § 4082(a) (1970). This Court had no power to order that the federal and state sentences run concurrently. United States v. Myers, 451 F.2d 402 (9th Cir. 1972); Hash v. Henderson, 262 F. Supp. 1016 (E.D. Ark.), aff'd, 385 F.2d 475 (8th Cir. 1967). At most, I might have recommended this course of action to the Attorney General, but he would not have been obliged to follow the recommendation, even if I had made it. United States v. Myers, supra ; Hash v. Henderson, supra. If I had made such a recommendation, it would have been mere "surplusage." Hash v. Henderson, supra, 385 F.2d at 477. The statement I did make, which fell far short of a positive recommendation, was also "surplusage." It did not render the sentence I imposed "conditional" within the scope of United States v. Sams, supra, and therefore 5ulnerable to collateral attack under 18 U.S.C. § 2255 (1970). Contrary to ...