U.S. v. Owens

Full title: UNITED STATES OF AMERICA, v. CARROL LEE OWENS

Court: United States District Court, W.D. North Carolina, Asheville Division

Date published: Nov 22, 2010

CRIMINAL CASE NO. 1:08cr25 (W.D.N.C. Nov. 22, 2010)

Opinion

CRIMINAL CASE NO. 1:08cr25.

November 22, 2010

ORDER

MARTIN REIDINGER, District Judge

THIS MATTER is before the Court on the Defendant's pro se Motion for: "Credit for Time Served in Confinement" [Doc. 77].

In February 2008, the Defendant was charged with larceny, destruction of personal property within the Pisgah National Forest, bank fraud and aggravated identity theft. [Doc. 1]. At the time of his indictment, the Defendant was in state custody. [Doc. 3]. The Defendant was transferred to federal custody for prosecution pursuant to a writ of habeas corpus ad prosequendum in February 2008. The indictment was superseded in April 2008 to add additional charges. [Doc. 13]. In May 2008, the Defendant entered into a plea agreement with the Government pursuant to which he plead guilty to one count of bank fraud and one count of aggravated identity theft. [Doc. 19]. On November 24, 2008, the Defendant was sentenced to serve 48 months imprisonment. [Doc. 56]. He appealed. [Doc. 58]. Although the record does not so disclose, the Defendant alleges that in December 2008, he was returned to state custody.

The record shows that the Defendant was delivered to the Federal Correctional Facility Beckley to serve his federal sentence on August 18, 2010. [Doc. 75].

The judgment of conviction in this case contains the following provision:

The [federal] offenses were committed while the defendant was serving an undischarged term of imprisonment. Therefore, the imprisonment term imposed in this case shall run consecutive to the undischarged imprisonment term imposed [in the state court] in Henderson County, North Carolina.

[Doc. 56, at 2].

The time the Defendant spent in state custody was credited toward his state sentence. 18 U.S.C. § 3585(b) ("A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences . . . as a result of the offense for which the sentence was imposed . . . that has not been credited against another sentence."). It is undisputed that the Defendant was in state custody at the time he was indicted in federal court and that he was transferred into federal custody for prosecution by federal authorities.

A prisoner detained pursuant to a writ ad prosequendum is considered to remain in the primary custody of the first jurisdiction unless and until the first sovereign relinquishes jurisdiction over the person. The receiving sovereign-in this case, the federal government-is, therefore, considered simply to be "borrowing" the prisoner from the sending sovereign for the purposes of indicting, arraigning, trying, and sentencing him. For the purposes of computing [the Defendant's] sentence, therefore, the time spent in federal custody pursuant to a writ ad prosequendum is credited toward his state sentence, not his federal sentence.

Ruggliano v. Reish, 307 F.3d 121, 125 n. 1 (3^rd Cir. 2002), abrogated on other grounds by Application Note 3(e) to U.S.S.G. § 5G1.3; accord, United States v. Poole, 531 F.3d 263, 271 (4^th Cir. 2008); United States v. Fermin, 252 F.3d 102, 108 (2^nd Cir. 2001); United States v. Evans, 159 F.3d 908, 912 (4^th Cir. 1998);Martin v. Lamanna, 2009 WL 690686 (D.S.C. 2009) ("Prisoners who are in state custody and are removed on a federal writ of habeas corpus ad prosequendum are not entitled to credit on a subsequent federal sentence for the days detained in federal custody on the writ when they received the credit towards their state sentence."); Hines v. Schult, 2009 WL 384043 (N.D.N.Y. 2009).

Moreover, the Defendant has not shown that he exhausted administrative remedies within the Bureau of Prisons itself. King v. Federal Bureau of Prisons, 285 Fed.Appx. 2 (3^rd Cir. 2008), certiorari denied 129 S.Ct. 451, 172 L.Ed.2d 309 (2008), citing United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); United States v. Casas, 425 F.3d 23, 67 (1^st Cir. 2005), certiorari denied sub nom Casas v. United States, 547 U.S. 1061, 126 S.Ct. 1670, 164 L.Ed.2d 409 (2006); United States v. Evans, 159 F.3d 908, 911-12 (4^th Cir. 1998). The Defendant is not entitled to any relief.

IT IS, THEREFORE, ORDERED that the Defendant's pro se Motion for: "Credit for Time Served in Confinement" [Doc. 77] is hereby DENIED.

Signed: November 20, 2010