Application of Nelson, 20232.

• Decision Date: 01 December 1970
• Docket Number: No. 20232.,20232.
• Parties: Application of Lyle NELSON for a Writ of Habeas Corpus.
• Court: U.S. Court of Appeals — Eighth Circuit

434 F.2d 748 (1970)

Application of Lyle NELSON for a Writ of Habeas Corpus.

No. 20232.

United States Court of Appeals, Eighth Circuit.

December 1, 1970.

William J. Brauer, Rosebud, S. D., for appellant.

William F. Clayton, U. S. Atty., Sioux Falls, S. D., and R. D. Hurd, Asst. U. S. Atty., for appellee.

Before VAN OOSTERHOUT and BRIGHT, Circuit Judges, and NEVILLE, District Judge.

PER CURIAM.

Lyle Nelson appeals the district court's denial of his petition for a writ of habeas corpus. He seeks to credit approximately twenty-eight months spent in jail in Pennington County, South Dakota and in the South Dakota state penitentiary against a federal sentence of three-years imprisonment for interstate transportation of and conspiracy to transport stolen cattle. The district court, Judge Beck, refused to grant the requested credit. Appellee raises no question concerning jurisdiction or procedure. We affirm.

We briefly review the relevant and undisputed facts. Petitioner was convicted of the federal charges in the United States District Court for the District of South Dakota on October 7, 1966, but remained free on bond pending his appeal to this court. We dismissed the appeal on April 17, 1967, and filed our mandate with the district court, ordering the defendant to surrender himself to the United States Marshal for the District of South Dakota in execution of the judgment and sentence. Petitioner was unable to physically surrender because he was arrested by South Dakota law enforcement officers on April 19, 1967, and charged with third-degree burglary under South Dakota state law. While awaiting trial on this charge, petitioner was lodged in the Pennington County, South Dakota jail. He could not raise the $10,000.00 bail and therefore remained incarcerated in the county jail until July 18, 1967. At that time, a jury found him guilty of the state charge and the court sentenced him to serve ten years in the South Dakota state penitentiary.

While in state custody, at both the Pennington County jail and the state penitentiary, petitioner requested that the United States Marshal take custody of him so that he could commence serving his federal sentence. The deputy marshal requested Pennington County officials to turn petitioner over to the federal government, but the county sheriff and the state's attorney refused any release unless Nelson provided bail. The United States Marshal did nothing further to obtain custody, except to file detainers with the Pennington County sheriff and, later, the state prison officials. Petitioner appealed and successfully reversed his state burglary conviction. See State v. Nelson, 169 N.W.2d 533 (S. D.1969). The state declined to retry him and released him to federal authorities during August, 1969, to serve his 1966 federal sentence. Judge Beck interrupted petitioner's federal incarceration by releasing him on bail pending hearing on his habeas corpus petition.

Petitioner urges the following propositions as a basis for obtaining credit on his federal sentence for his twenty-eight months of state incarceration: (a) while serving his state sentence, petitioner remained in constructive custody of the United States, and therefore, his imprisonment in the county jail and the state penitentiary constituted service of his federal sentence; and (b) unless he is given credit for his state incarceration, petitioner will serve approximately five years in prison for a three-year federal sentence, such result violating his Fifth Amendment right to due process and his Eighth Amendment right to be free of cruel and unusual punishment. On the latter contention, he argues that the demand for excessive bail by the state caused an extension of his federal sentence.

In considering these arguments, we first turn to the federal statute which expressly governs federal sentence credit for time spent in custody. Section 3568 of Title 18, U.S.C., provides in pertinent part:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. * * *

If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.

* * * * * *

This statute dictates that a federal sentence remains without punitive operation until the United States obtains custody enabling and entitling it to enforce the sentence. Burge v. United States, 332 F.2d 171, 175 (8th Cir.), cert. denied, 379 U.S. 883, 85 S.Ct. 155, 13 L.Ed.2d 89 (1964).

To avoid the effect of the explicit language of the foregoing statute, petitioner constructs a syllogism. He reasons that while released on bond pending his federal appeal, he remained constructively in federal custody; that the mandate of this court issued contemporaneous with the dismissal of petitioner's federal appeal obligated the Marshal then to take him physically into federal custody; and that the Marshal's failure to fulfill this obligation should not prejudice petitioner. From these premises, petitioner concludes that he remained in constructive custody of the United States while physically held in the Pennington County jail and the South Dakota state penitentiary.

We find this reasoning specious. The state of South Dakota lawfully obtained physical custody of Nelson. This custody resulted from the act of South Dakota and not of the federal government. It is well-settled as...