Freedman and Seitz, Circuit Judges, and Layton, District Judge.
On April 5, 1951, the plaintiff, appellant here, was sentenced in the United States District Court for the Southern District of New York to serve a thirty year sentence for conspiracy to violate the espionage statute (50 U.S.C. § 32(a) (1946 ed.)). He is now a prisoner in the federal penitentiary at Lewisburg, Pennsylvania. On January 18, 1968, after unsuccessfully seeking relief from the Attorney General, he brought the present action in the district court*fn1 under the Administrative Procedure Act (5 U.S.C.A. §§ 702, 703, 704 and 706) and the Declaratory Judgment Act (28 U.S.C.A. § 2201) seeking a determination as to whether he was entitled to credit on his prison sentence for the periods:
1. from August 18, 1950, the date of arrest, to April 5, 1951, the date of his sentencing, and
2. from July 20, 1951, to February 25, 1952, the period during which his appeal was pending.
The district court denied plaintiff's claim for the period of pre-sentence imprisonment on the ground of lack of jurisdiction. It denied on the merits the request for appeal time credit. Plaintiff appeals both determinations. We are acting promptly because plaintiff is entitled to be released if there is merit to both of his claims.
We first consider the claim for presentence credit. The district court held that although the plaintiff was incarcerated within its district, neither the Administrative Procedure Act nor the Declaratory Judgment Act gave that court jurisdiction. Rather, it held that under both 28 U.S.C.A. § 2255 and Rule 35 of the Federal Rules of Criminal Procedure the sentencing court (Southern District of New York) was the proper forum to decide this type of issue.
This action was brought against the Attorney General of the United States and the Director of the United States Bureau of Prisons. We need not decide whether the question is one going to the district court's jurisdiction because we are satisfied, in any event, that the claim for pre-sentence credit is within the ambit of 28 U.S.C.A. § 2255, and therefore a matter for the sentencing court. Plaintiff's term of imprisonment is considered by defendants to have commenced on the date of sentencing. Plaintiff claims that 18 U.S.C.A. § 3568, as then in effect, required that his sentence commence on the date of his arrest. He also contends that the sentencing court intended to employ the earlier commencement date. Thus, plaintiff is asking this court, in substance, to make a determination regarding the commencement date of the sentence intended or required to be set by the sentencing court. The relief granted, if any, would come within that provision of § 2255 which permits the sentencing court to "correct the sentence." So viewed, plaintiff is attacking the correctness of the sentence as imposed. Under these circumstances, we conclude, as did the district court, that relief, if any, with respect to this claim is a matter for the sentencing court. Moreover, the Attorney General was not confronted with a situation where the governing law was clear. The statute applicable at the time of sentencing was by no means decisive of the present issue and no controlling opinion of the United States Supreme Court or of the Second Circuit was before the Attorney General.
Plaintiff says that the Attorney General exercised an administrative power when he issued a "Policy Statement" on February 9, 1968, in which he said that implementation was to be given to court decisions regarding jailtime credit on sentences imposed between October 2, 1960, and September 19, 1966. It is true that the Attorney General declared such a policy, but neither the policy by its terms nor its underlying authority would apply to plaintiff's sentence which, of course, was imposed before October 2, 1960. This is not to say that some of the reasoning of the policy statement might not be applicable to plaintiff's sentence. However, since we find that the authority to grant the relief requested was in the sentencing court, our decision is not affected by his policy statement. Other reasons advanced by plaintiff are equally without merit and indeed, in some instances, point to the practical desirability of a determination of the present issue by the sentencing court. The district court's dismissal of this claim will be affirmed without prejudice to the merits thereof.
We next consider plaintiff's claim to credit for the period spent in custody while his appeal to the Second Circuit Court of Appeals was pending.
Plaintiff was sentenced on April 5, 1951. He was transferred to the federal penitentiary at Atlanta, Georgia. After transfer, he sought to be transferred back to New York in order to consult and assist his counsel concerning the appeal. To that end, and on the basis of his counsel's advice, he signed the following form:
" Election Not To Begin Service of Sentence
"Having heretofore taken an appeal from my sentence imposed on April 5, 1951, in the United States District Court for the Southern District of New York, I now ...