Cite as Deckard v. U.S., 260 F.Supp. 565 (E.D.Mo. 1966)

                    Ivan L. Deckard, Movant,

                               v.

              United States of America, Respondent.

                 Nos. 58 Cr 287(2), 61 Cr 24(3).

       United States District Court, E. D. Missouri, E. D.

                          Nov. 2, 1966.

     Ivan L. Deckard, pro se.

     Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for
respondent.

                           MEMORANDUM 

     MEREDITH, District Judge.

     This matter arises on the petition of Ivan L. Deckard for writ
of error coram nobis nullifying his conviction for violation of 26
U.S.C. section 5841 (unregistered firearm) in a cause formerly
before this Court and number 58 Cr 287(1). Petitioner also seeks
credit for time spent in Federal custody prior to the trial in this
Court of cause No. 61 Cr 24(3), in which he was convicted of
violating 18 U.S.C. section 2314 (transporting forged draft). On
February 1, 1961, petitioner was sentenced in these two causes and
in cause No. 61 Cr 25(3) (escape). The sentences in 61 Cr 24(3) and
61 Cr 25 (3) were five years each, to run consecutively. Petitioner
was sentenced to four years in 58 Cr 287(1), to run consecutively
to the five-year terms. He has now served the sentence in cause No.
61 Cr 24(3) and is less than a year from the end of his service of
that in 61 Cr 25(3). The four-year sentence imposed in cause No. 58
Cr 287(1) remains to be served.

     Petitioner will have the valuable opportunity, when he reaches
the last six months of imprisonment, to participate in the
work-release program of the Atlanta, Georgia, Federal Penitentiary.
By working at a newly acquired trade in his last six months in
prison, petitioner could acquire experience, funds, and an assured
job on the outside. This is important to him because he has a large
family to support. However, as long as the judgment in cause No. 58
Cr 287(1) remains effective and on the books of his prison record
he cannot begin such a work-release program. If petitioner's
grounds for asking that the judgment be vacated are good, he will
rather unfairly lose any chance to participate in this program
unless he is allowed to attack the conviction prior to beginning
the sentence under it.

     Petitioner has had an earlier motion to vacate denied in cause
No. 66 C 177(2), because 28 U.S.C. section 2255 does not allow such
actions when the petitioner has not yet begun to serve the sentence
and Federal Rule 35 relates to situations where only the sentence,
not the conviction, is under attack. See Heflin v. United States,
358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), Johnson v. United
States, 334 F.2d 880 (6 Cir. 1964); Redfield v. United States, 315
F.2d 76 (9 Cir. 1963). Thus, petitioner brings this action for the
extraordinary writ of error coram nobis charging that the statute,
26 U.S.C. section 5841, under which he was convicted in cause No.
58 Cr 287(1) is unconstitutional.

     Petitioner charges, in essence, that 26 U.S.C. section 5841
requires all persons to whom it applies to incriminate themselves
by registering as possessors of firearms. The statute requires
every person possessing a "firearm" to register. It states that no
person shall be required to register who acquires his firearm in
specified ways covered by the chapter, if the chapter provisions in
regard to such firearms have been satisfied. In other words, one
need not register unless he has broken one of the provisions of the
chapter.

     Petitioner's position is not necessarily without merit. The
Seventh and Ninth Circuits have held that 26 U.S.C. section 5841
requires self-incrimination to such an extent that it is
unconstitutional as a violation of the Fifth Amendment. Dugan v.
United States, 341 F.2d 85 (7 Cir. 1965); Russell v. United States,
306 F.2d 402 (9 Cir. 1962). However, our own Eighth Circuit has
declined to pass on the statute's constitutionality until the
Supreme Court does so with uniform binding effect. Page v. United
States, 282 F.2d 807 (8 Cir. 1950); and see Sipes v. United States,
321 F.2d 174 (8 Cir. 1963). This Court must, therefore, deny the
motion for writ of error coram nobis.

     Petitioner's motion for credit of time cannot be treated by
this Court. Habeas corpus is the only proper judicial vehicle for
the raising of such a motion, and it can be brought only in the
judicial district where the petitioner is being held. 28 U.S.C.
section 2241; United States v. Welch, 189 F.Supp. 517 (W.D.Ark.
1960); Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898
(1948) Accordingly, the Court will enter an order denying without
prejudice the motion for credit of time spent in custody.