United States v. Ayscue
| Citation | 187 F. Supp. 946 |
| Decision Date | 12 October 1960 |
| Docket Number | No. 3709-CR.,3709-CR. |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | UNITED STATES of America v. Largie Thomas AYSCUE. |
No appearance for the United States.
Largie Thomas Ayscue, pro se.
There has been filed in this court, under the provisions of 28 U.S.C. § 2255, a motion to vacate the sentence entered on September 23, 1955, in the United States District Court for the Eastern District of North Carolina, under which the movant, Largie Thomas Ayscue, is presently confined in the United States Penitentiary at Atlanta, Georgia.
The record shows that movant was arrested and taken into custody by state authorities, and held in the City Jail, Fayetteville, North Carolina. While he was being so held the United States Attorney applied for a writ of habeas corpus ad prosequendum requiring the City Jailer to bring movant before the United States District Court for trial. The application stated that movant would be returned to state custody after trial before the federal court. The writ was issued and under its terms movant was brought before the United States District Court, where, on September 23, 1955, he entered a plea of guilty to the offense of theft of personal property on a United States military reservation. He was sentenced to serve a term of five years, the sentence "to begin at expiration of sentence defendant is now serving under North Carolina state jurisdiction". Thereafter, the defendant was returned to the custody of the City Jailer, Fayetteville, North Carolina.
The movant alleges that at the time he was sentenced in the United States District Court he was not serving any sentence under North Carolina state jurisdiction, but that he was subsequently tried in the state courts on September 28, 1955, and again on October 6, 1955, and received sentences in the aggregate of six to ten years for violations of state law. He further alleges that at the conclusion of his term in the state prisons he was delivered to the United States Marshal, who, by authority of the judgment and commitment which issued out of the United States District Court on September 23, 1955, took movant to the United States Penitentiary at Atlanta, Georgia, to serve the five-year sentence.
It is the contention of the movant that the sentence of the United States District Court was illegal and should be vacated because of the provision that the sentence imposed was "to begin at expiration of sentence defendant is now serving under North Carolina state jurisdiction", when, in fact, he was not serving any state sentence but was held in jail by state authorities pending trial.
18 U.S.C. § 3568 reads as follows:
The commencement date of every prison term as prescribed by 18 U.S.C. § 3568 is included by implication in every federal sentence, and any provision to the contrary is surplusage. Harrell v. Shuttleworth, 5 Cir., 1952, 200 F.2d 490. It is also recognized that, while the state which first arrests one accused of crime cannot without its consent be deprived of his custody until it is through with him, it may allow the federal government temporary custody in order to afford him a speedy trial without a complete surrender of the prior jurisdiction which the state has...
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Finnegan v. United States, Civ. A. No. 7976.
...to the contrary is surplusage. The Federal sentence cannot commence until the State relinquishes its custody. United States v. Ayscue, D.C.E.D. N.C., 187 F.Supp. 946 (1960), aff. 4 Cir., 287 F.2d 887 (1961); McIntosh v. Looney, 10 Cir., 249 F.2d 62 (1957); Harrell v. Shuttleworth, 5 Cir., 2......
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United States v. Tomaiolo
...of Title 18, is included by implication in every Federal sentence and any provision to the contrary is surplusage. United States v. Ayscue, D.C.N.C.1960, 187 F.Supp. 946, affirmed 4 Cir., 287 F.2d When a State surrenders a prisoner to the Federal Government for the purpose of criminal trial......
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Farley v. Nelson, Civ. No. B-78-284.
...Anderson v. U. S., 405 F.2d 492 (10th Cir. 1968), cert. denied, 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); U. S. v. Ayscue, 187 F.Supp. 946 (E.D.N.C.), aff'd 287 F.2d 887 (4th Cir. 1960). 3. The facts in this case fail to establish that the United States waived jurisdiction over th......
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Burge v. United States
...with the language of § 3568 is surplusage and of no effect. See e. g. Harrell v. Shuttleworth, 5 Cir., 200 F.2d 490; United States v. Ayscue, D.C. E.D.N.C., 187 F.Supp. 946, aff'd. per curiam 4 Cir., 287 F.2d 887. However that may be, it is in any event certain that under § 3568 it would no......