McIntyre v. U.S., 74-1881
| Decision Date | 13 January 1975 |
| Docket Number | No. 74-1881,74-1881 |
| Parties | Herbert McINTYRE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Herbert McIntyre, filed brief pro se.
Donald Stohr, U.S. Atty. and Richard E. Coughlin, Asst. U.S. Atty., St. Louis, Mo., filed typewritten brief for respondent-appellee.
Before GIBSON, Chief Judge, and HEANEY and ROSS, Circuit Judges.
The district court rejected Herbert McIntyre's petition for credit against a federal sentence for time spent in the St. Louis City Jail. McIntyre has appealed, and we affirm the decision of the trial court. 1
The relevant facts are as follows:
(1) On August 29, 1973, McIntyre was arrested on a federal charge of theft from an interstate shipment.
(2) On September 21, 1973, he was released from custody on a $5,000.00 bond.
(3) On September 24, 1973, McIntyre waived indictment and entered a not guilty plea to the federal charge. On November 5, 1973, he changed his plea to guilty but was not then sentenced.
(4) On November 7, 1973, he was arrested by the St. Louis police and was charged in a warrant issued the next day with second-degree burglary by the State of Missouri. He was held in the city jail.
(5) On November 9, 1973, McIntyre's federal bond was raised to $25,000.00.
(6) On December 7, 1973, he was sentenced in federal court to three years imprisonment on the charge under which he was arrested on August 29, 1973.
(7) McIntyre continued to be incarcerated in the city jail until August 26, 1974, when he entered a guilty plea in the state case to the reduced charge of accessory after the fact to second-degree burglary. The state court sentenced him to one year imprisonment on that date.
(8) On August 29, 1974, McIntyre was turned over to federal authorities by the state authorities. However, he continued to be held in the city jail until he was transported to the United States Penitentiary at Terre Haute, Indiana on September 19, 1974.
McIntyre claims that he was taken into custody by federal marshals on November 9, 1973, and held in their custody at the city jail until September 11, 1974. He wants this time credited to his three year federal sentence pursuant to 18 U.S.C. 3568 which provides that '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.'
The record reveals, however, that from November 7, 1973, until August 29, 1974, McIntyre was being held by state authorities on the state burglary charge. His only appearances before the federal court were obtained by means of writs of habeas corpus ad prosequendum directing the United States Marshal to secure McIntyre's release from state custody in order to bring him before the federal judge and then to return him to state custody.
Furthermore, it is clear that Missouri credited McIntyre with the time spent in jail from November 7, 1973, to August 26, 1974, because only three days after being sentenced by the state court to one year imprisonment he was released from state custody and turned over to...
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