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Gray v. United States

May 25, 1979

JOHN AUGUSTIN GRAY, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE,



Present: HONORABLE WALTER R. MANSFIELD, HONORABLE MURRAY I. GURFEIN, Circuit Judges. HONORABLE PIERRE N. LEVAL, District Judge.

Upon this appeal from an order of the Eastern District of New York entered by Judge Edward R. Neaher on July 26, 1978, denying appellant's application pursuant to 28 U.S.C. § 2255 to vacate sentences imposing a total of 15 years imprisonment upon him pursuant to a judgment entered by Judge Travia on June 28, 1974, and amended on September 17, 1974, after he had pleaded guilty to bank robbery and conspiracy, 18 U.S.C. §§ 2113(b) and 371, and denying his application for other collateral relief, including revision of his sentence and an evidentiary hearing, the order of the district court is

AFFIRMED. Since Gray was incarcerated in Georgia at the time when appellant filed his application, the District Court for the Eastern District of New York lacked jurisdiction to grant habeas relief. Billiteri v. United States Board of Parole, 541 F.2d 938 (2d Cir. 1976). However, even assuming jurisdiction (the appellant having recently been moved to New York), the District Court, in the absence of any allegation of fact indicating that the sentence imposed by Judge Travia was unlawful, was powerless to change it. The sentence could not be revised because of the later action or inaction of parole authorities, or the Parole Commission's adoption of parole guidelines. Dioguardi v. United States, 587 F.2d 572 (2d Cir. 1978). Nor is there any evidence that the Parole Commission's guidelines and action conflict with the intent of the sentencing judge. In any event the claims have largely been mooted by appellant's partial release daily and his prospect of parole in August, 1979.

19790525

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