Robert Freeman, Appellant, v. United States of America, Appellee, 254 F.2d 352 (D.C. Cir. 1958)

This is an appeal from the denial by the District Court of relief under 28 U.S.C. § 2255 (1952). The facts are as follows:

On January 24, 1952, appellant pleaded guilty to a one-count indictment charging unauthorized use of a motor vehicle in violation of D.C.Code, § 22-2204 (1951). On February 28, 1952, he was sentenced to serve from one to three years. Execution of the sentence was suspended and appellant was placed on probation for three years. It was further ordered "that restitution be made through the Probation Officer of the Court." Restitution was imposed as a probationary condition to encourage appellant to make good the damage he had caused to the "borrowed" vehicle and to another car with which he collided while joy-riding.

Shortly before the probationary period was to expire the probation officer notified the District Court, pursuant to D.C. Code, § 24-104 (1951),¹  that appellant had failed to make proper restitution. On February 11, 1955, the District Court, ex parte, extended probation for two years from February 27, 1955. On January 30, 1957, the probation officer recommended to the court that probation be revoked because of appellant's failure (1) to make restitution, and (2) to conduct himself as a law-abiding citizen. On February 4, 1957, the District Court issued a bench warrant for appellant's arrest and, in view of the imminent expiration of the probationary period, the court extended probation, again ex parte, for one year from February 27, 1957. On March 1, 1957, appellant and court-appointed counsel appeared before the District Court. After hearing, probation was revoked and the one-to-three-year sentence imposed in 1952 was ordered into execution. No appeal was taken.

On May 2, 1957, appellant pro se moved to vacate sentence under 28 U.S.C. § 2255. The District Court appointed counsel for appellant. Counsel so appointed and the United States Attorney submitted memoranda on the legality of the ex parte extensions of probation, and of ordering the sentence executed. No evidentiary hearing was held on the motion to vacate. Judge Youngdahl denied the motion, filing a memorandum opinion. See D.D.C. 1957, 160 F. Supp. 532.

Appellant here argues that the District Court lost its power to order the sentence executed when it twice — ex parte — extended appellant's probation. This is more particularly true, says appellant, since the maximum permissible sentence for the original crime was five years, and the sentence was not ordered into execution within five years after conviction. But no challenge is here made to the validity of appellant's conviction on a plea of guilty, or the manner in which sentence was initially imposed,²  or the length of the original sentence.

In cases under Section 2255 where relief is appropriate a court is given power only to "vacate and set the judgment aside and * * * discharge the prisoner or resentence him or grant a new trial or correct the sentence * * *." None of these alternatives is applicable here. There is no infirmity alleged in the judgment or in the proceedings leading up to the judgment. 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, though we do not suggest that it is, he may seek habeas corpus in the district of his confinement.³  Section 2255 is not broad enough to reach matters dealing with the execution of sentence. See Costner v. United States, 4 Cir., 1950, 180 F.2d 892.

We note that if the issues raised by appellant were cognizable under Section 2255, we would consider the District Court's disposition quite proper.

Affirmed.