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United States v. Brown

United States Court of Appeals, Fifth Circuit
Feb 21, 1985
753 F.2d 455 (5th Cir. 1985)

Summary

holding that prisoner's sentence commenced following the declaration of his federal prison term, when he was received at a the facility designated for service of his federal sentence

Summary of this case from Gonzalez v. Nash

Opinion

No. 84-3744.

February 21, 1985.

Andrew Kennedy Brown, defendant-appellant, pro se.

Donald L. Beckner, U.S. Atty., James Stanley Lemelle, Asst. U.S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before CLARK, Chief Judge, RANDALL and GARWOOD, Circuit Judges.


IT IS ORDERED that the motions to proceed in forma pauperis and for appointment of counsel are DENIED. IT IS FURTHER ORDERED that the district court's judgment is VACATED, and this matter is REMANDED with instructions to DISMISS for lack of jurisdiction.

Brown has appealed the October 2, 1984, denial of his September 26, 1984, motion for relief under 28 U.S.C. § 2255. He does not question the legality of his conviction or the validity of the five-year federal prison term imposed by the sentencing court. His attack instead focuses on the extent to which his sentence has been executed, a function statutorily committed to the Attorney General in the first instance. See U.S. v. Mathis, 689 F.2d 1364, 1365 (11th Cir. 1982). Claims for presentence credit under 18 U.S.C. § 3568, for sentences imposed after the effective date of the 1966 amendment, are not cognizable in § 2255 or Fed.R.Crim.P. 35 proceedings. They must be addressed as habeas corpus petitions under 28 U.S.C. § 2241. U.S. v. Giddings, 740 F.2d 770, 771-72 (9th Cir. 1984); Soyka v. Alldredge, 481 F.2d 303, 304-06 (3d Cir. 1973); see Blau v. U.S., 566 F.2d 526, 527-28 (5th Cir. 1978) (denial of parole).

To entertain a § 2241 habeas petition, the district court must, upon the filing of the petition, have jurisdiction over the prisoner or his custodian. Blau, 566 F.2d at 527; McClure v. Hopper, 577 F.2d 938, 939-40 (5th Cir. 1978), cert. denied, 439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979). The petition giving rise to the judgment appealed from was filed when Brown was incarcerated in an Oklahoma federal penitentiary. Therefore, the court in Louisiana's Middle District lacked jurisdiction to afford Brown habeas relief. Blau, 566 F.2d at 527.

If we construed the appeal as from an earlier judgment relating back to initial filings, when Brown was imprisoned in Louisiana, the court still was without jurisdiction to afford habeas relief. Brown evidently did not exhaust administrative remedies known to him, as set forth in Mathis, 689 F.2d at 1365.

Jurisdictional considerations aside, Brown would still not be entitled to habeas relief in this Circuit on the basis of his factual allegations. Ordinarily, § 3568 credit need not be given to an individual incarcerated by another jurisdiction for an unrelated offense. U.S. v. Dovalina, 711 F.2d 737, 740 (5th Cir. 1983). Brown has not alleged that release on state bail while his state charges were pending was prevented solely because of a federal detainer. Rather, he simply contends he was financially unable to post bail on either the state or federal charges. Thus, the federal detainer was not the exclusive cause of his state detention, and § 3568 credit would not be required. Boyd v. U.S., 448 F.2d 477, 478-79 (5th Cir. 1971), cert. denied, 405 U.S. 992, 92 S.Ct. 1264, 31 L.Ed.2d 460 (1972).

Brown's federal sentence commenced following the declaration of his federal prison term, when he was received at the facility designated for service of his federal sentence. Blackshear v. U.S., 434 F.2d 58, 59 (5th Cir. 1970). Previous to that time, including short intervals while "on loan" to federal authorities pursuant to writs of habeas corpus ad prosequendum, the state's custody over Brown remained uninterrupted, and he was therefore due no § 3568 credit. See id.; Crawford v. Jackson, 589 F.2d 693, 695-96 (D.C. Cir. 1978), cert. denied, 441 U.S. 934, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979).


Summaries of

United States v. Brown

United States Court of Appeals, Fifth Circuit
Feb 21, 1985
753 F.2d 455 (5th Cir. 1985)

holding that prisoner's sentence commenced following the declaration of his federal prison term, when he was received at a the facility designated for service of his federal sentence

Summary of this case from Gonzalez v. Nash

holding claims for presentence credit are not cognizable in § 2255 or Rule 35 proceedings; they must be addressed as habeas corpus petitions under 28 U.S.C. § 2241

Summary of this case from Morales v. United States

holding that prisoner's sentence commenced following the declaration of his federal prison term, when he was received at a the facility designated for service of his federal sentence

Summary of this case from Carter v. Pearce

holding that credit for time served action properly brought pursuant to § 2241 and not § 2255

Summary of this case from Youngworth v. U.S. Parole Com'n

finding petitioner was not due any credit toward his federal sentence for short intervals while "on loan" to federal authorities pursuant to writ of habeas corpus ad prosequendum since the state's custody over him remained uninterrupted

Summary of this case from Cleveland v. Pearce

finding that petitioner was not due any credit toward his federal sentence for short intervals while "on loan" to federal authorities pursuant to writ of habeas corpus ad prosequendum since the state's custody over him remained uninterrupted, and he was therefore due no § 3568 credit

Summary of this case from Cleveland v. Pearce

determining an appellant remained in state custody even while on temporary loan to federal authorities pursuant to writs of habeas corpus ad prosequendum

Summary of this case from United States v. Torres

indicating that if a defendant in state custody was merely "on loan" to federal officials for sentencing purposes, he remained in state custody during the federal proceedings

Summary of this case from Arreola-Amaya v. Fed. Bureau of Prisons

explaining that claims for presentence credit are attacks "on the extent to which sentence has been executed," and therefore they must be addressed as habeas corpus petitions under 28 U.S.C. § 2241

Summary of this case from U.S. v. Wiggins

construing an attack that focused on the manner in which a sentence was executed as a petition under 28 U.S.C. § 2241

Summary of this case from U.S. v. Branson
Case details for

United States v. Brown

Case Details

Full title:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ANDREW KENNEDY BROWN…

Court:United States Court of Appeals, Fifth Circuit

Date published: Feb 21, 1985

Citations

753 F.2d 455 (5th Cir. 1985)

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