520 F.2d 598 | 2d Cir. | 1975
Lead Opinion
The defendants, Richard Huss and Jeffrey Smilow, appeal from an order dated May 5, 1975 denying their application for an order directing the Federal Bureau of Prisons to provide them with meals meeting the Orthodox Jewish kosher dietary laws during their incarceration pursuant to a judgment of sentence. The application was made to the sentencing judge in the district court by a written motion in the above-entitled criminal case. The district court, without considering whether here was a jurisdictional predicate for doing so, held an evidentiary hearing and rejected the defend
I The Procedural Posture
Following the January 26, 1972 fire bombing of the Manhattan offices of Columbia Artists Management, Inc. and Hurok Concerts, Inc. three persons were indicted for violation of 18 U.S.C. §§ 844(i) and 2. Defendant Jeffrey Smilow, who was then a 17-year old high school student, was directed to testify before the grand jury in June, 1972 under a grant of use immunity made pursuant to 18 U.S.C. § 6002. Smilow refused to testify despite a district court order on the ground that the Jewish religion prohibited him from being an informer. He was held in civil contempt pursuant to 28 U.S.C. § 1826(a) and that judgment was affirmed by this court on July 20, 1972.
In June 1973 Huss and Smilow were called as witnesses to testify at the trial of those charged with the fire bombings. Both relied upon their religious scruples in refusing to testify despite grants of use immunity. They were adjudged in civil contempt, and that judgment was affirmed by this court.
By an arrangement with the United States Attorney to which the court, so far as appears of record, was not a party, Huss and Smilow were scheduled to surrender to commence the service of their sentences on March 10, 1975. (Tr. March 6, 1975, at 9.) See 18 U.S.C. § 3568. On March 6, 1975 their attorney appeared before the district court in the presence of an Assistant United States Attorney and presented an informal application
On Wednesday, March 27, 1975 the defendants filed a motion returnable on
On May 5, 1975 the district court filed an opinion and order denying defendants’ applications. The court rejected Huss’ application on the ground that he was not, in fact, a strict observer of the kosher dietary laws. As to Smilow’s application, the court held that neither the first nor the eighth amendment required the Bureau of Prisons to go beyond its official policy of “limited accommodation” with religious dietary laws.
The court’s opinion makes no reference to the source of its jurisdiction to entertain the applications. On March 6, 1975, it will be recalled, the court agreed to postpone the defendants’ surrender date until April 4, 1975, the day after the completion of Passover. Thus, on March 27, 1975 when the moving papers were filed below, the defendants were free on bail. When the order appealed from was entered on May 12, 1975, the defendants were still in custody at the Federal Detention Center in Manhattan. However, on May 22, 1975, they were transferred to the Federal Youth Correctional Facility at Ashland, Kentucky where they are currently incarcerated.
Just two days after the district court denied defendants’ applications, Judge Weinstein of the Eastern District of New York, in a similar case, came to an opposite conclusion on its merits.
“for an order pursuant to Rule 59(a) and (e) of the Federal Rules of Civil Procedure amending, or modifying the opinion in this case, or granting a new trial, in order that upon reconsideration of its opinion, the court may make such additional findings of fact and conclusions of law as it deems necessary.” (App. at 565a).
The government’s memorandum in support of this motion suggests that the district court’s May 5, 1975 opinion does not sufficiently articulate the proper burden of persuasion or scope of review. On May 14, 1975 the district court filed a supplemental opinion in which it adhered to its May 5, 1975 holdings. However, neither the government’s May 9, 1975 memorandum nor the court’s supplemental opinion mention the source of the district court’s jurisdiction. And while the government’s motion refers to Rule 59(a) and (e) of the Federal Rules of Civil Procedure, both it and the court’s supplemental opinion are captioned in the respective criminal cases of “United States v. Smilow, 73 Cr.Misc. 24,” and “United States v. Huss, 73 Cr.Misc. 25.” Presumably, however, the government at one point considered the defendants’ application as civil in nature rather than as
II The Suggested Bases of Jurisdiction
As mentioned earlier, an application made to this court for injunctive relief pending appeal, Rule 8, Fed.R.App.P., was denied.
(A) Inherent Power to Control Place or Conditions of Confinement
Defendants urge that a sentencing court has the inherent power to control the place and conditions of confinement. If such inherent' power existed, it would have been exercised when the district court originally imposed sentence, some eight months before the filing of the instant application. Such supposed authority would have been employed well before this court reviewed any judgment of sentence. However, the statutory scheme which forms the basis of federal sentencing and confinement authority permits a trial judge no such power.
A federal sentence of imprisonment commences running when the defendant is received in the custody of the agents of the Attorney General. 18 U.S.C. § 3568. The limit of the court’s custodial sentencing power is to commit the defendant “to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served.” 18 U.S.C. § 4082(a). A provision in a federal judgment of sentence that it be served concurrently with a state sentence already being served, for example, is surplusage which the Attorney General may disregard. E. g., Hash v. Henderson, 385 F.2d 475, 477-78 (8th Cir. 1967) and cases cited therein. A fortiori, the claim of inherent authority to impose conditions of confinement as a part of the sentencing process must fail. This does not mean that the Attorney General has unfettered discretion with respect to conditions of confinement. However, except where specific statutory authority exists,
(B) Rule 35, Fed.R.Crim.P.
The district court under Rule 35, Fed.R.Crim.P., has the power to correct an illegal sentence at any time, and to reduce a sentence within 120 days of the issuance of a mandate on affirmance. Simultaneously with the filing of the instant motion, defendants did present a Rule 35 motion for reduction of sentence. The court denied such relief and that action is not before us on this appeal. An illegal sentence for purposes of Rule 35 is one in excess of a statutory provision or otherwise contrary to the applicable statute. See 2 C. Wright & A. Miller, Federal Practice and Procedure § 581, at 552-53 (1969). The Rule does not even afford a means for correcting the failure of the district court to comply with Rule 32, Fed.R.Crim.P. in imposing sentence.
“[A]s the Rule’s language and history make clear, the narrow function of Rule 35 is to permit correction at anytime of an illegal sentence, not to reexamine errors occurring at the trial or other proceedings prior to the impo*603 sition of sentence.” Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962) (emphasis in original) (footnote omitted).
It does not afford a jurisdictional predicate for the control of the manner of execution of sentence, such as credit for time served. See Lee v. United States, 400 F.2d 185, 188 (9th Cir. 1968). The judgment of sentence in this case was not illegal. It remanded the defendants to the custody of the Attorney General for a period within the statutory maximum, and it imposed no conditions. The illegality which the defendants allege is not in the sentence, but in the manner in which the Attorney General, to whose custody that judgment remits them, operates the prisons in his charge. Rule 35 adds nothing of substance to the sentencing court’s sentencing power.
(C) 28 U.S.C. § 2255
Appellants contend that their application should be treated as a motion pursuant to 28 U.S.C. § 2255 to correct or vacate a sentence that was imposed by the district court. There is a threshold difficulty with reliance on this section. A § 2255 proceeding, like a petition for habeas corpus, is not a proceeding in the original criminal prosecution, but an independent civil suit. Heflin v. United States, 358 U.S. 415, 418 n.7, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). Since it is an independent civil action, the clerk of the district court must collect a docket fee. See Martin v. United States, 273 F.2d 775 (10th Cir. 1960). None was collected here, and we have not been advised of any in forma pauperis determination. Moreover, this proceeding has throughout been treated by Huss and Smilow as a part of the original criminal prosecution. There is no reason why for these litigants, well-represented by prominent counsel, we should disregard the form of pleading they have chosen and construe as a civil proceeding what they have denominated as criminal.
But there is a more fundamental objection to predicating district court jurisdiction upon § 2255. That statute, enacted as a part of the 1948 revision to Judicial Code, which also dealt with the basic habeas corpus statute, was intended to provide a statutory remedy for collateral attack on judgments of sentence following conviction. In United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), the Supreme Court reviewed the intended purpose of the 1948 reform. It pointed out that under the Habeas Corpus Act of 1867,
We are reenforced in that construction by Costner v. United States, 180 F.2d 892 (4th Cir. 1950). That case held that § 2255 is not available to challenge federal prison authorities’ calculations of good time credit. Chief Judge Parker, the chairman of the Judicial Conference Committee which drafted § 2255, was a member of the panel which decided Costner. Cases holding that a § 2255 motion is not available to challenge parole board decisions, though not directly controlling, are closely analogous. See, e. g., Stinson v. United States, 342 F.2d 507 (8th Cir. 1965); Allen v. United States, 327 F.2d 58 (5th Cir. 1964); United States v. Hock, 275 F.2d 726 (3d Cir. 1960). Thus we agree with the interpretation of the statute announced in the District of Columbia Circuit:
“Although a motion under Section 2255 may be utilized to attack a sentence which is ‘in excess of the maximum authorized by law,’ this refers only to the sentence as imposed, as distinct from the sentence as it is being executed. If appellant’s sentence is being executed in a manner contrary to law ... he may seek habeas corpus in the district of his confinement. Section 2255 is not broad enough to reach matters dealing with the execution of sentence. . . ” Freeman v. United States, 103 U.S.App.D.C. 15, 254 F.2d 352, 353-54 (1958) (emphasis in original) (footnote omitted).
See also Mordecai v. United States, 137 U.S.App.D.C. 198, 421 F.2d 1133, 1139-40 (1969). Since the defendants in this proceeding do not challenge the admittedly lawful sentence, § 2255 affords no basis for the district court adjudication.
(D) 28 U.S.C. § 1361
Pursuant to the mandamus statute enacted in 1962, district courts have “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
“be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved.” 28 U.S.C. § 1391(e).
This same section also provides for the extraterritorial service of the summons and complaint. It has been held that § 1361 affords a district court with proper venue the jurisdiction to consider a claim that actions of federal prison officials violate first amendment rights. E. g., Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995 (1969); Long v. Parker, 390 F.2d 816, 819 (3d Cir. 1968), vacated and remanded on other grounds, 384 U.S. 32, 86 S.Ct. 1285, 16 L.Ed.2d 333 (1969). But there are insurmountable difficulties with an attempt to justify
In the first place, the application below was not filed as a civil action, no docketing fee was paid, no summons or complaint was filed or served, and no federal respondent was named or served. Secondly, neither the two-page motion nor the testimony indicates facts which would establish venue in the Southern District of New York. Certainly on this barren record, we cannot hold that any appropriate federal mandamus respondent resides in the Southern District of New York. Nor can we undertake to litigate a mandamus action against unknown federal respondents, who, for all we know, if confronted with the kosher food issue in the context of the situation at the Youth Correctional Facility in Ashland, Kentucky, would work out an accommodation which would make the claim moot. There are, after all, orderly processes designed to assure that civil litigation will go forward in a genuinely adversarial context, and 28 U.S.C. § 1653 which permits amendment of pleadings to show jurisdiction, does not permit us to disregard those processes entirely. There was no mandamus respondent before the district court which would give that court jurisdiction over a genuine § 1361 lawsuit.
(E) 28 U.S.C. § 2241
When the March 27, 1975 application was made, the defendants were free on bond but under sentence in the Southern District of New York. The conditions of the bond do not appear in the record before us, but we may assume that some minimum degree of custody was involved. In any event, by the time the district court handed down its May 5, 1975 decision, the defendants had actually surrendered and were lodged in the Federal Detention Center on West Street in Manhattan. Thus, the warden of that facility was an appropriate habeas corpus respondent. Moreover, since the Southern District of New York was the district of confinement, the district court would have jurisdiction to issue a writ of habeas corpus pursuant to § 2241. See Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); Braden v. Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Whether defendants’ presence in the Southern District of New York would also afford habeas corpus jurisdiction to litigate the future conditions of their confinement in Ashland, Kentucky need not concern us, since if habeas corpus jurisdiction existed by virtue of the West Street custody, the legal principles established in the New York case would undoubtedly bind the federal government in Kentucky. Cf. United States ex rel. Meadows v. New York, 426 F.2d 1176 (2d Cir. 1970).
But here again the stumbling block is that the defendants, represented by counsel, did not choose to file a petition for habeas corpus. There is no pleading in the record before us except a motion in the criminal proceeding. At oral argument on this appeal, the court, in an effort to find a basis for district court jurisdiction, pointed out that Warden Louis J. Gengler, the actual custodian at the West Street Detention Center had testified in the proceedings below. We requested the Assistant United States Attorney arguing the appeal to consult with the Bureau of Prisons and the Department of Justice and inquire whether the United States Attorney for the Southern District court could waive service of appropriate civil process and treat the ease as if Warden Gengler or some other appropriate § 2241 respondent had been before the district court. We have been informed by letter that the United States Attorney is not authorized to make any jurisdictional conces
(F) Other Authorities Relied on by Appellants
Appellants point to a number of cases in which federal district courts have undertaken to litigate challenges to conditions of confinement on constitutional grounds. However, in each of the cases cited, there was unquestioned district court jurisdiction absent here. We set to one side, as entirely irrelevant to the jurisdictional issues in this case, those instances in which actions of state prison officials have been challenged in suits brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983, and for which jurisdiction lies under § 28 U.S.C. § 1343(3). E. g., Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Ross v. Blackledge, 477 F.2d 616 (4th Cir. 1973); Wilson v. Prasse, 463 F.2d 109 (3d Cir. 1972); Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970); Abernathy v. Cunningham, 393 F.2d 775 (4th Cir. 1968); Pierce v. La Vallee, 293 F.2d 233 (2d Cir. 1961). Here, unlike the cases cited above, no action “under color of” state law is alleged.
Reference to leading federal prisoner cases is also inapposite. In Barnett v. Rodgers, supra, the district court treated the action as an alternative application for habeas corpus or mandamus, for either of which, an appropriate respondent was before the court. In Long v. Parker, supra, a mandamus case was brought against an appropriate respondent, and in Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966), another mandamus case was instituted against a proper respondent. None of these federal prisoner cases lend support to the appellants’ jurisdictional contentions in this case, where there was no appropriate respondent for purposes of either habeas corpus or mandamus before the district court. Rather, for these defendants, represented by able counsel, there are appropriate remedies which they have thus far chosen to disregard.
Ill Conclusion
The district court lacked jurisdiction to adjudicate either the sincerity of appellant Huss’ religious commitments, or the constitutionality of the Federal Bureau of Prisons’ accommodation with the religious dietary practices of appellant Smilow, an Orthodox Jew. The order appealed from will be vacated, and the district court will be directed to enter an order dismissing the defendant’s motion without prejudice to any subsequent litigation of the tendered issues in appropriate proceedings in a court having subject matter jurisdiction over the claim and personal jurisdiction over the proper parties.
. Smilow v. United States, 465 F.2d 802 (2d Cir. 1972).
. Smilow v. United States, 409 U.S. 944, 93 S.Ct. 268, 34 L.Ed.2d 215 (1972).
. United States v. Smilow, 472 F.2d 1193 (2d Cir. 1973).
. United States v. Huss, 482 F.2d 38 (2d Cir. 1973).
. The record discloses that this informal application was arranged following, and apparently as a result of, telephone calls to the court and the United States Attorney from the Congressman for the Congressional district in which Huss and Smilow reside. (Tr. March 6, 1975, at 3-4, 8-10).
. United States v. Kahane, 396 F.Supp. 687 (E.D.N.Y., 1975).
. Following Judge Griesa’s refusal on May 8, 1975 to grant Smilow’s request for interim relief pending appeal, a motion was made before this court for such an order. On May 20, 1975, a panel of this court denied the motion. A motion for an injunction pending appeal was then submitted on May 22, 1975, to the Supreme Court. It was denied by the full Court on June 2, 1975. Smilow v. United States, 421 U.S. 997, 95 S.Ct. 2393, 44 L.Ed.2d 664 (1975).
. See note 7 supra, and accompanying text.
. E. g., 18 U.S.C. §§ 4252, 4253 (addicts); 18 U.S.C. § 5010 (youth offenders).
. Act of Feb. 5, 1867, ch. 28, 14 Stat. 385, now incorporated in 28 U.S.C. § 2241.
. In United States v. Kahane, supra, note 6, Judge Weinstein suggests 28 U.S.C. § 2255 as an alternative basis of jurisdiction in the sentencing court on the ground that effective judicial administration supports this conclusion.
More recently, Judge Platt, sitting in the Eastern District of New York, without discuss
. 28 U.S.C. § 1361. See discussion in subsection “D” of opinion, infra.
. Act of Oct. 5, 1962, Pub.L. No. -87-748, § 1(a), 76 Stat. 744, 28 U.S.C. § 1361.
. Act of Oct. 5, 1962, Pub.L. No. 87-748, § 2, 76 Stat. 744, 28 U.S.C. § 1391(e).
. We note that Judge Weinstein’s opinion in United States v. Kahane, supra, note 6, has a dual civil and criminal caption. Of course, we express no view as to the propriety of civil mandamus jurisdiction in that case.
. In view of the fact that Warden Gengler, an appropriate § 2241 respondent, actually testified in the proceedings, and that the case was fully litigated and briefed on the merits in the district court and on appeal, we are disturbed that in the interest of justice the United States Attorney could not have been authorized to waive the personal jurisdiction defect. That, however, is not a matter within our control,
Concurrence Opinion
(concurring):
I agree with the majority that the district court lacked jurisdiction to adjudicate the claims of Huss and Smilow. I take issue with and disassociate myself from the sentiments expressed in the majority opinion at footnote 16. I am not “disturbed” that the Bureau of Prisons and the Justice Department felt it unwise to cure a jurisdictional defect caused by the defendants.
As the majority points out, Majority Opinion at 606, “[F]or these defendants, represented by able counsel, there are appropriate remedies which they have
