MEMORANDUM AND ORDER
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).