U.S. v. Avery
| Decision Date | 15 August 1990 |
| Docket Number | No. 90-5216,90-5216 |
| Citation | 911 F.2d 734 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES Of America, Plaintiff Appellee, v. Mattie Louise AVERY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KENNEDY and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.
Defendant-appellant Mattie Louise Avery appeals the district court's order denying her motion for sentence credit. For the following reasons, we affirm.
On May 19, 1988, defendant was charged on a federal indictment with conspiracy to distribute dilaudid, conspiracy to unlawfully possess food stamps, distribution of dilaudid, and unlawful possession of food stamps. The offenses for which defendant was charged occurred between December 1, 1987 through February 29, 1988. At the time of the federal plea and sentence, defendant was in the custody of the state of Tennessee pending disposition of a probation violation in state case 88-W-238 and pending disposition of a charge for an unrelated state offense committed October 21, 1988 (case no. 89-W-4). The district court therefore issued an order to produce the prisoner ad prosequendum so that the U.S. Marshal could obtain temporary custody of defendant from the Sheriff of Davidson County, Tennessee, and produce her before the district court on November 29, 1988.
On November 29, 1988, defendant pled guilty to the conspiracy counts of the federal indictment and then pursuant to the ad prosequendum order was returned to the custody of the Davidson County Sheriff. On January 25th, 1989, defendant was still in state custody and the federal district court issued a second habeas corpus ad prosequendum order to produce defendant before the district court for sentencing in the federal case on January 26, 1989. On January 26, 1989, the defendant was sentenced to 11 months and 29 days on each conspiracy count of the federal indictment with the sentences to be served concurrently. After the sentencing hearing, defendant was returned to state custody at the Davidson County Sheriff's Department pursuant to the habeas corpus ad prosequendum order.
On February 2, 1989, a federal judgment and commitment was entered, and on February 6, 1989, a writ of detainer was placed against the defendant with the Davidson County Sheriff's Department, requesting that defendant be released to federal custody upon the completion of her state confinement.
On February 7, 1989, an order was entered in Tennessee state court which resolved the probation violation in case 88-W-238 by holding the state probation in abeyance until defendant was released from federal custody, at which time she would again be on state probation. The state charge in case No. 89-W-4 for the offense occurring on October 21, 1988 was resolved in a plea agreement entered in state court on March 29, 1989. The plea agreement stated that the sentence for the state charge in case No. 89-W-4 was to be two years--30%--to run concurrently with the federal sentence. However, the state sentencing order merely stated that her term of imprisonment for the state charge in case No. 89-W-4 was for two years without mentioning that her state sentence was to run concurrently with her federal sentence.
On April 13, 1989, the United States Marshal's Office requested designation of a facility for defendant to serve her period of confinement for the federal sentence. According to the testimony of Lex Lancaster, the Chief Deputy Marshal of the U.S. Marshal's Office, he believed that the Marshal's Office had been notified that defendant was to be released to federal custody, which was the reason for requesting the designation of a federal facility. However, he stated that he was relying on memory and was not certain why the request for designation of facility had been made. Defendant was not released by the state into federal custody at this time.
On August 10, 1989, Judge Johns, the presiding Tennessee judge in state case 89-W-4, issued an order directing the Sheriff of Davidson County to release defendant to the federal detainer. The order stated, "Mattie Louise Avery was sentenced to a two year period of confinement to be served concurrently ... with the Federal sentence ...." This was the first official order stating that her state sentence was to be concurrent with her federal sentence. The order also clearly stated, "[i]f any additional service is required upon the state sentence imposed in this case the place of confinement is designated as the United States Bureau of Prisons' designated facility." Mr. Paul Capps, the Curator of Records in charge of the Sentence Computation Division of the Davidson County Sheriff's Department acknowledged that he received this order, but he did not release defendant to federal custody as directed.
The normal procedure upon the receipt of such an order is for the Sheriff's Department to make a verbal communication to the U.S. Marshal's Office to advise them that an inmate is ready to be released to the federal detainer. The Marshal's Office then advises the Sheriff's Department to transfer the prisoner over to the federal board bill. An electronic transfer is made through the teletype machine connecting with the Sheriff's Department or the U.S. Marshal hand delivers remand receipts providing documentation of the transfer to federal custody.
In the present case, this procedure was not followed. Instead of executing the state court's order to release defendant to the federal detainer, Paul Capps of the Davidson County Sheriff's Department without any authority determined that because Judge Johns' August 10, 1989 order did not specify that defendant's state sentence in case 88-W-4 had been served, defendant should not be released. He stated that he consulted the United States Marshal's Office about this decision. He acknowledged, however, that he failed to consult with any state superior about his decision.
Lex Lancaster, the Chief Deputy U.S. Marshal, testified that he had told the Sheriff's Department that it was his understanding that the federal judgment and commitment was to follow the state sentence, but that the Sheriff's Department should check with the state court to see if that were legally correct. 1 Mr. Lancaster also testified that he advised the Sheriff's Department that if the state wished to release defendant, the U.S. Marshal's Office would take custody of her at any time. However, the Sheriff's Department did nothing.
On August 28, 1989, defendant wrote a letter to the federal district court stating her plight. The federal judge made inquiry of the U.S. Marshal's Office on defendant's status. A note in the file of the U.S. Marshal's Office dated August 31, 1989, concerning a telephone conversation with the judge, indicated that he was advised that defendant was in state custody as she had been at the time of federal sentencing and that it was their understanding that the federal sentence imposed was to run consecutively to the state sentence. The district judge therefore issued an order on August 31, 1989, stating that defendant would be taken into federal custody upon the detainer "to serve the federal sentence at the completion of her state sentence." The order stated that the sentence imposed in the federal case "was to run consecutively to the state sentence."
On September 5, 1989, defendant filed a motion for reconsideration concerning the district court's August 31st order on the grounds that defendant had not been serving a state sentence at the time the federal sentence was imposed, 2 the state sentence imposed on March 29, 1989 was to be served concurrently with the federal sentence, and the August 10, 1989 order of the state court judge had ordered the release of defendant to the federal detainer. The district court denied the motion to reconsider without a hearing.
On September 7, 1989, a representative of the U.S. Marshal's Office made inquiry with Paul Capps of the Davidson County Sheriff's Department about defendant's status and was informed that she was still in state custody and not ready to be released. On November 9, 1989, a representative of the U.S. Marshal's Office again checked with Mr. Capps and was told that the Sheriff's Department had not received documentation from the state court authorizing them to release the defendant from state custody. On December 20, 1989, defendant was released by the Sheriff's Department to the custody of the United States Marshal.
On December 18, 1989, a motion for sentence credit was filed on behalf of defendant asserting that through no fault of her own, she had "either not been made available to or not been accepted by the federal authorities for service of her sentence in this case as intended and ordered by the state court."
A hearing was held on the motion on January 19, 1990 before the district court judge. At the hearing, the district court judge determined that the August 10, 1989 order of Judge Johns, ordering defendant to be released to the federal detainer, had not been executed by the state. If defendant had a complaint, it was not with the federal court but with the state court and should have been corrected in state court by a motion to show cause why defendant had not been released. The state court order, which in plain language directed the sheriff to turn defendant over to federal authorities, simply was not obeyed. The district court determined that because defendant was in state custody, a federal detainer had been placed with the Davidson County Sheriff's Office on February 6, 1989. Defendant had remained in state custody until being released to the United States Marshal Service upon the detainer on December 20, 1989. Since defendant was not in...
To continue reading
Request your trial