Thereafter counsel filed a Petition for Reconsideration of Sentence. A hearing was held on February 24, 1971, at the conclusion of which the sentence was reduced to 15 years under the provisions of § 4208(a)(2).
The sentence and the amended sentence were imposed prior to the adoption of the 1973 Parole Guidelines, thus petitioner meets one of the requirements for § 2255 relief, but he fails completely in establishing the other, i.e., frustration of the sentencing judge's intent and expectation in imposing the (a)(2) sentence. The 20 pages of colloquy at the hearing on the Petition for Reconsideration of Sentence makes it abundantly clear that everyone, the court, counsel and the defendant himself, fully expected that, in view of the seriousness of the crime and his extensive prior record, Myles would likely serve the maximum time less mandatory good time earned. A few excerpts from the transcript of the February 24, 1971 hearing, set forth in the Appendix attached hereto, demonstrate that beyond question.
To dispel any possible remaining doubt as to my intent, as the sentencing judge, in making the sentence subject to the provisions of § 4208(a)(2), I state now my reasons.
Over the years, in almost all instances in which I imposed a lengthy prison sentence, I made it subject to § 4208(a)(2). This was done because obviously I could not safely predict the defendant's future conduct. The Parole Board, on the other hand, would have the benefit of the defendant-prisoner's actual institutional conduct and performance. Making the sentence subject to (a)(2) was not intended as a prediction that the person so sentenced would merit early parole consideration, it was designed only to remove the legal impediment to early parole consideration in the event (however unlikely that might appear at time of sentencing) that the prisoner might demonstrate a remarkable transformation, an outstanding degree of rehabilitation, while in custody.
Along with many other judges, I have been disappointed with the Parole Board's apparent failure to make meaningful use of the flexibility afforded by (a)(2) sentences, but I cannot fault it for failing to use it in this specific case. In any event, even if I were to disagree with its judgment in this case (which, I repeat, I do not), such disagreement would not empower me, under the guise of § 2255 relief, to substitute my judgment for that of the Parole Board. See United States v. Somers, 552 F.2d 108 (3d Cir., 1977).
ALFRED L. LUONGO / J.
This 14th day of March, 1977, it appearing conclusively from the files and records that petitioner is entitled to no relief, it is
ORDERED that the Motion of Herbert Myles for Relief under 28 U.S.C. § 2255 is DENIED without hearing.
ALFRED L. LUONGO / J.
Excerpts from Transcript of Hearing on Petition for Reconsideration of Sentence February 24, 1971.
"MR. HELLER: * * *