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UNITED STATES v. JACKSON

December 3, 1982

UNITED STATES OF AMERICA
v.
AINSWORTH CHARLES JACKSON



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Petitioner Ainsworth Jackson ("Jackson") has filed a pro se motion pursuant to 28 U.S.C. § 2255 seeking to vacate a sentence imposed in the Eastern District of Pennsylvania in 1973, a sentence from which he was unconditionally released in 1979. Because petitioner was no longer under custody of that sentence, the Court dismissed his petition for lack of subject matter jurisdiction. See Order of August 10, 1981. On appeal, the United States Court of Appeals for the Third Circuit noted that Jackson might still be "in custody" within the meaning of 28 U.S.C. § 2255 if the existence of his 1973 conviction had resulted in his receiving a greater sentence when he was sentenced for another crime in the District of Columbia in 1977. For the reasons hereinafter set forth, the Court finds that Jackson's sentence in the Eastern District of Pennsylvania did affect his sentence in the District of Columbia and that this Court has subject matter jurisdiction to hear petitioner's complaint.

 Mr. Jackson pleaded guilty to charges of forgery of a U.S. Treasury check and possession of stolen property before the Honorable A. Leon Higginbotham on September 11, 1973 and was sentenced to an indeterminate sentence pursuant to the Youth Corrections Act, 18 U.S.C. § 5010(b) until discharged by the Federal Youth Correction Division of the United States Board of Parole as provided in 18 U.S.C. § 5017(c). Jackson pleaded guilty to two counts of a 13-count indictment. Count One charged him with possession of stolen property. Count Two charged him with forgery of a U.S. Treasury check. According to this Eastern District sentence, Mr. Jackson was to have a mandatory release date of September 11, 1979. However, he did receive credit for pretrial incarceration and his sentence officially expired and he was unconditionally released from the Eastern District sentence on May 4, 1979. It is this sentence which petitioner now seeks to vacate through his motion to vacate sentence pursuant to 28 U.S.C. § 2255. Specifically, petitioner attacks his conviction on Count Two of the Eastern District indictment and contends that his plea of guilty as to that Count was involuntary. On July 25, 1975, Jackson was arrested in Washington, D.C. on charges of uttering bank checks with intent to defraud and for forgery and false pretenses. He was in custody awaiting trial on this charge from July 25, 1975 to December 1, 1975, a total of 130 days. He was convicted on June 7, 1977, and received 9 concurrent sentences, the longest of which was 5 to 15 years. Jackson is currently serving this sentence. Jackson has been arrested, tried, convicted, and paroled on other charges as well. Mr. Jackson's "odyssey through the Courts and penal institutions" is more fully recounted in the Report and Recommendation of United States Magistrate Peter B. Scuderi of April 24, 1981.

 On July 19, 1982, the Third Circuit remanded Jackson's petition to this Court "for a determination of whether the conviction appellant challenges positively and demonstrably affects the duration of his confinement under the second [1977 District of Columbia] sentence and therefore meets the custody requirement of § 2255." The United States v. Ainsworth Charles Jackson, 684 F.2d 245 at 247 (3d Cir. 1982). If the petitioner is not "in custody" due to the sentence being attacked, this Court is without jurisdiction to hear this motion. See 28 U.S.C. § 2255 foll. Rule 1; United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976); Bjerkan v. United States, 529 F.2d 125 (7th Cir. 1975). In remanding to this Court, the Third Circuit instructed this Court to examine the record of the 1977 District of Columbia sentencing proceedings "to determine whether the 1973 sentence directly affects the duration of appellant's confinement under the sentence which he is presently serving." 684 F.2d at 247. Unless this record shows that the Eastern District sentence "positively and demonstrably" has lengthened the duration of Jackson's District of Columbia sentence, this Court is without jurisdiction to consider Jackson's petition.

 After Jackson filed this § 2255 motion, the government first took the position that this Court was without subject matter jurisdiction to hear the petition. The Court granted the government's motion to dismiss for lack of jurisdiction. On appeal, the government moved the Third Circuit to remand the petition to this Court for a redetermination of the jurisdictional issue because the government had changed its mind and argued that jurisdiction was present. The Third Circuit granted this motion on December 3, 1980. On remand, the government submitted nothing to support its contention that this Court had jurisdiction. As heretofore noted, this Court determined it was without jurisdiction and dismissed the petition on August 10, 1981. On appeal, the government again reversed itself and argued before the Third Circuit that no jurisdiction existed. As heretofore noted, however, the Third Circuit remanded and adopted a legal standard for determining jurisdiction that when applied to this case shows that subject matter jurisdiction is present in this case.

 The United States Attorney has provided to this Court the complete record of sentencing proceedings in United States v. George Jackson a/k/a Ainsworth Charles Jackson, District of Columbia Cr. Nos. 31840 and 65583-76 in the District of Columbia Superior Court. In examining this record, this Court notes that D.C. Code Ann. § 22-104 provides in relevant part:

 
(a) If any person: (1) is convicted of a criminal offense (other than a non-moving traffic offense) under a law applicable exclusively to the District of Columbia; and (2) was previously convicted of a criminal offense under any law of the United States or of a state or territory of the United States which offense, at the time of the conviction referred to in clause (1) of this subsection, is the same as, constitutes, or necessarily includes, the offense referred to in that clause, such person may be sentenced . . . to imprisonment for a term not more than one and one-half times the maximum term of imprisonment prescribed for that conviction.

 Thus, this Court has reviewed the record of Jackson's sentencing in the District of Columbia to determine whether the District of Columbia sentencing judge "positively and demonstrably" gave the petitioner a greater sentence than he would have received had he not been convicted in the Eastern District in 1973.

 Prior to sentencing, the District of Columbia prosecutor had informed the Court that Jackson had been previously convicted in the Eastern District. Jackson denied that he was the same man convicted in Pennsylvania in 1973. The D.C. Court held a hearing on the matter, received evidence, and concluded

 
the defendant [Jackson] has been previously convicted of the same or similar offenses as defined in the two statutes [D.C. Code § 22-1301, 22-1401, 1410]. And, therefore, is subject to the increased punishment -- penalties provided for in the two sections [pursuant to D.C. Code § 22-104].

 N.T. at 17.

 On June 7, 1977, Jackson was sentenced on 9 counts of a criminal indictment. He was sentenced on one count of forgery, one count of false pretenses, and seven counts of uttering checks with intent to defraud. D.C. Code § 22-1401 provides that one convicted of forgery "shall be imprisoned for not less than 1 year nor more than 10 years." The Honorable Donald S. Smith, Associate Judge of the Superior Court of the District of Columbia, sentenced Jackson to "not less than 5 years and not more than 15 years" in connection with the forgery count of the indictment against Jackson. This is the greatest sentence of the 9 imposed on Jackson, all of which run concurrently. Clearly, Judge Smith, who had held a hearing and determined that the George C. Jackson on trial before him was the same Ainsworth Jackson convicted in the Eastern District on charges of forgery and possession of stolen property, employed D.C. Code § 22-104 to give the petitioner a sentence half again as long as would have otherwise been permitted under the D.C. Code. But for his forgery conviction and sentence in this Court, Jackson could not have received a sentence of more than 10 years for his crime of forgery in the District of Columbia. Because of his Eastern District conviction and sentence, Jackson received a District of Columbia sentence of up to 15 years. Thus, the Eastern District conviction "positively and demonstrably" resulted in the increased sentence Jackson received in the District of Columbia and this Court has subject matter jurisdiction to consider Jackson's instant petition to vacate his Eastern District sentence, even though he is no longer serving that sentence.

 That Judge Smith considered Jackson's previous conviction for a similar crime is indicated by the transcript of the sentencing ...


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