Boyd v. United States, 71-2217 Summary Calendar.
| Decision Date | 14 September 1971 |
| Docket Number | No. 71-2217 Summary Calendar.,71-2217 Summary Calendar. |
| Parties | Harry BOYD, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Harry Boyd, Jr., pro se.
John W. Stokes, Jr., U. S. Atty., E. Ray Taylor, Jr., Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
Before COLEMAN, SIMPSON, and MORGAN, Circuit Judges.
Harry Boyd, Jr. has appealed from the district court's denial of his mandamus petition seeking credit on his federal sentence for certain time spent in state custody. We affirm, for the reasons stated in the district court's final order and order on rehearing, which are appended hereto. Jackson v. Attorney General, 5th Cir. 1971, 447 F.2d 747.
Affirmed.
APPENDIX
Civil Action Number 14,833 United States District Court Northern District of Georgia Atlanta Division Filed: Apr. 13, 1971 Harry Boyd, Jr. Petitioner versus United States of America Respondent.
This case came on for decision on the uncontroverted facts shown by the parties' responses to the show cause order filed March 8, 1971. Since the relevant facts are undisputed, there is no need for an evidentiary hearing. Petitioner's motion for the same and for appointed counsel are denied. The petition, too, must be denied.
Petitioner was arrested March 14, 1969, by state officials in Montgomery, Alabama, and was extradited to Louisiana May 9, 1969, where he was held by Louisiana officials in connection with traffic violations and state charges of forgery and knowing receipt of stolen money orders. Bail of $20,000 was set on the state charges. On May 17, 1969, a detainer was filed against the petitioner with Louisiana officials, by local Texas authorities in connection with certain Texas charges. On August 4, 1969, a federal detainer was also lodged against the petitioner, based upon charges that he committed certain bailable federal offenses. He was indicted on the federal charges February 5, 1970, and bail was set at $3,000. He was returned to Alabama, tried in the United States District Court for the Middle District of Alabama, and convicted of violating 18 U. S.C.A. § 2314 () and 18 U.S.C.A. § 371 (conspiracy). The state charges of forgery, and receipt of stolen money orders were nol-prossed, and petitioner was committed to serve his federal sentence June 25, 1970.
Petitioner claims that under 18 U.S.C.A. § 3568 and Davis v. Attorney General, 425 F.2d 238 (5th Cir. 1970) he is entitled to credit on his federal sentence for the time he spent in custody between his original arrest and his federal commitment. However, the Court does not agree that during that period, petitioner was in custody "in connection with the offense or acts for which the federal sentence was imposed." In Davis the petitioner was refused release on state bail because a federal detainer had been lodged against him. Since that detainer had been issued on a mandatory release violator's warrant, in Davis the prisoner could not have secured his release by obtaining admission to federal bail as well as state bail. Here, to the contrary, petitioner could have obtained his release by posting state bond, applying to be admitted to federal bail, and then posting federal bond or obtaining release on his personal recognizance or unsecured bond pursuant to Section 3(a) of the Bail Reform Act of 1966, 18 U.S.C.A. § 3146. In short, petitioner was not in custody "in connection with" his federal offenses because, at any time during his pre-trial state custody, he could have been admitted to federal bail by taking appropriate steps under the Bail Reform Act of 1966, Pub.L. 89-465, 80 Stat. 217.
The thrust of Davis is to the effect that denial of state bail must be caused by the federal detainer. If state bail is granted, petitioner is then free to seek federal bail and no credit for state custody is allowed. As a corollary, it seems useless for a prisoner to make state bail if immediate federal custody — not subject to bail — is to follow. Consequently, in those two instances the courts will grant credit towards a subsequent federal sentence for the "jail time" spent in state custody. However, some petitioners appear to contend that the mere presence of a state and federal charge at the same time automatically grants credit. It does not. If both charges are bailable, a prisoner is free to seek the right of bail in each instance. Failure to do so does not inure to receive double credit. Thus, Davis applies only where a prisoner continues in state custody solely because of the presence of a federal detainer issued in connection with a non-bailable federal offense, or a federal offense for which bail has been refused.
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