The opinion of the court was delivered by: YOUNGDAHL
Youngdahl, Senior District Judge.
On September 10, 1968, petitioner Charles E. Hartwell waived trial by jury and was subsequently found guilty by this Court of an offense in violation of 26 U.S.C. § 4704(a)
on one count and an offense in violation of 21 U.S.C. § 174
on a second count. After having determined that petitioner was an offender eligible for sentencing under Title II of NARA,
and at his request, this Court on October 25, 1968 ordered him committed to the custody of the Attorney General for a period not to exceed thirty days
for an examination to determine whether he was an addict
and likely to be rehabilitated through treatment. Following that examination
by the Staff at the Federal Correctional Institution at Danbury, Connecticut, the Court sentenced petitioner to an indeterminate period not to exceed ten years under NARA.
Petitioner entered Danbury on November 11, 1968 and began in the drug therapy program in force at that institution. After fourteen months of successful participation, the staff there indicated that he was ready for parole and on December 16, 1969, parole was granted. Petitioner's freedom was short lived, however, for on July 31, 1970, a warrant
was issued by the parole board and he was returned to Danbury. Upon returning he found that the Daytop Program
had been instituted replacing the program in which he had successfully participated earlier. He entered the Daytop Program and participated in it until his removal following an "incident"
on May 7, 1971, and has not participated in a NARA program since that time.
Without successful participation in a NARA approved program, petitioner is ineligible for parole. As a result of his nonparticipation, therefore, he faces the prospect of completing the ten year sentence without an opportunity for parole.
Petitioner brings this motion pursuant to 28 U.S.C. § 2255 asking the Court to vacate his sentence, resentence him to time served, resentence him in some other manner as will render him eligible for parole without participation in the NARA Daytop Program, or grant such other relief as the Court deems proper.
Jurisdiction under § 2255
Preliminarily, an issue is raised by the Government's opposition to resentencing petitioner urging that this Court decline jurisdiction on the ground that petitioner's proper remedy lies in the District of Connecticut by way of writ of habeas corpus. Petitioner answers that a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 is the proper remedy.
It is settled in this jurisdiction and elsewhere that § 2255 will lie only to attack the imposition of a sentence and that an attack on the execution thereof may be accomplished only by way of habeas corpus in the district of confinement. United States v. Wilson, 153 U.S. App. D.C. 104, 471 F.2d 1072 (D.C. Cir. 1972); Mordecai v. United States, 137 U.S. App. D.C. 198, 421 F.2d 1133 (1969),
cert. denied, 397 U.S. 977, 90 S. Ct. 1098, 25 L. Ed. 2d 272 (1970); Freeman v. United States, 103 U.S. App. D.C. 15, 254 F.2d 352 (1958); Allen v. United States, 327 F.2d 58 (5th Cir. 1964); Halprin v. United States, 295 F.2d 458 (9th Cir. 1961). "[A § 2255] motion may be maintained only if the judgment of conviction is itself subject to collateral attack. It may not be invoked for matters occurring subsequent to the judgment." United States v. Carrell, 231 F. Supp. 724 at 728 (D.D.C. 1950). "If predicated on facts that existed prior to the imposition of sentence, a motion under section 2255 may encompass all the grounds that might be included in a habeas corpus petition." (Emphasis added). Stirone v. Markley, 345 F.2d 473 at 474 (7th Cir. 1965), cert. denied, 382 U.S. 829, 86 S. Ct. 67, 15 L. Ed. 2d 73 (1965). Unlike the Great Writ, however, § 2255 is not plenary in its application.
As the law of habeas corpus developed, the number of applications for the writ increased greatly. Many were found to be patently without merit when compared with the records of the sentencing court.
But, since a habeas corpus action must be brought in the district of confinement, those records [were] not readily available to the habeas corpus court. . . . These practical problems [were] greatly aggravated by the fact that the few District Courts in whose territorial jurisdiction major federal penal institutions are located were required to handle an inordinate number of habeas corpus actions far from the scene of the facts, the homes of the witnesses and the records of the sentencing court solely because of the fortuitous concentration of federal prisoners within the district." (Emphasis added). United States v. Hayman, 342 U.S. 205 at 213-214, 72 S. Ct. 263, 269, 96 L. Ed. 232 (1952).
The Court is thus faced with a two-pronged inquiry: Does the present motion attack the imposition of the sentence complained of, and is the sentencing court the most convenient forum in which to litigate the present complaint? Petitioner need not show that both answers are affirmative. The Court holds, however, that he has not shown that either is the case.
Petitioner does not allege an infirmity in his conviction or in the original sentencing procedure. (Petitioner's Memorandum, p. 2, filed Oct. 11, 1972). Instead he argues that the original sentencing has been invalidated by subsequent events. Close consideration of this contention reveals that all of petitioner's contentions relate to the manner of execution of his sentence, concededly valid when imposed. Petitioner first contends that "the government [ sic ] unlawfully required petitioner to participate in the Daytop program as a prerequisite for parole eligibility after he returned to Danbury as a parole violator in October, 1970." (Petitioner's Memorandum, p. 1, filed Dec. 7, 1972). It is alleged that the NARA Staff deprived petitioner of an opportunity to volunteer for Daytop and that the NARA Staff never conducted a diagnostic study to determine petitioner's likelihood of rehabilitation in the program.
These contentions clearly deal with an aspect of the execution of the NARA sentence and as such are not properly raised in a § 2255 proceeding. Similarly, the balance of petitioner's claims deal with execution.
Petitioner refers the Court to United States ex rel. Campbell v. Pate, 401 F.2d 55 (7th Cir. 1968) for the proposition that an administrative decision, depriving an inmate of the opportunity to appear before the parole board or possibly persuade it to grant him parole, could not be made in a capricious or unreliable manner. However, that reasoning is inapposite to the facts in the present action as it has been consistently held that § 2255 is not available to question the action vel non of the Board of Parole or the Bureau of Prisons regarding the manner in which the prison sentence has been or was being executed, Allen v. United States, 327 F.2d 58 (5th Cir. 1964), United States v. Marchese, 341 F.2d 782 (9th Cir. 1965), cert. denied, 382 U.S. 817, 86 S. Ct. 41, 15 L. Ed. 2d 64 (1965), and may not be used to challenge the validity of incarceration without parole since this is a challenge to the execution rather than the imposition of the sentence, habeas corpus being the proper remedy. Halprin v. United States, 295 F.2d 458 (9th Cir. 1961). Neither does the claim of excessive disciplinary treatment at a federal institution (such as Alcatraz) present a ground for relief under § 2255. Sanders v. United States, 183 F.2d 748 (4th Cir. 1950), cert. denied, 340 U.S. 921, 71 S. Ct. 352, 95 L. Ed. 665 (1951).
Petitioner urges this Court to resentence him on the ground that this is the most convenient forum. It is indeed correct that § 2255 was designed to provide a more convenient forum where the records of the case are more readily available. Kaufman v. United States, 394 U.S. 217, 89 S. Ct. 1068, 22 L. Ed. 2d 227 (1969). However, this "convenience" rationale has no application except in an attack upon the judgment. In that case the sentencing court is clearly the most convenient forum because of the location of trial transcripts, presentence reports, witnesses, etc. In the instant case, however, not unlike an attack on the conditions of incarceration, the most convenient forum is obviously the district of confinement for it is there that the habeas corpus court will most likely find the evidence (records, prison officials, etc.) to support or refute the allegation of illegal detention. For example, if fifty-one inmates at Danbury, one from each state and the District of Columbia, were to contest the Daytop Program as petitioner has done, it becomes clear that the sentencing courts are not the most convenient forums. Officials at Danbury would be overwhelmed if required to testify at even one-half of the oral hearings in such a case.
In sum, the clear intention of § 2255 would be frustrated if such motions were allowed. The Court therefore holds that the motion is not appropriate, the proper procedure being a writ of habeas corpus in the District of Connecticut.
The Daytop Program at Danbury
Notwithstanding the fact that habeas corpus, rather than § 2255 is the appropriate vehicle for relief in this case, the Court, having taken testimony in the matter, turns now to a discussion on the merits so that in the event of a review on the issue of jurisdiction, and the Court of Appeals should hold that this Court does have jurisdiction, the Court of Appeals will have before it the findings of this Court ...