Watson v. Henderson, Civ. A. No. 16197.

• Decision Date: 29 June 1972
• Docket Number: Civ. A. No. 16197.
• Citation: 350 F. Supp. 249
• Parties: Hubert E. WATSON, Jr., Petitioner, v. J. D. HENDERSON, Warden, Respondent.
• Court: U.S. District Court — Northern District of Georgia

350 F. Supp. 249

Hubert E. WATSON, Jr., Petitioner, v. J. D. HENDERSON, Warden, Respondent.

Civ. A. No. 16197.

United States District Court, N. D. Georgia, Atlanta Division.

June 29, 1972.

Hubert E. Watson, Jr., pro se.

Anthony Arnold, Asst. U. S. Atty., N. D. Ga., Atlanta, Ga., for respondent.

ORDER OF COURT

MOYE, District Judge.

Hubert E. Watson, Jr., a federal prisoner incarcerated in the Atlanta Federal Penitentiary, filed a petition which the Court construed as a petition for relief in the nature of mandamus. In his petition, petitioner alleged that he had exhausted his administrative remedies. Because of the possibility that petitioner may have been entitled to relief, the Court ordered respondent to show cause. Respondent has now filed his response. Petitioner has filed a "Traverse to Respondent's Response to the Order of Court."

From the pleadings, the Court has elicited the following facts: On March 13, 1968, petitioner was arrested and charged with multiple forgeries in Charleston, West Virginia. Bail was set at $5,000, but petitioner, because of his alleged indigency, could not post bond. On May 28, 1968, a federal indictment was returned in the Middle District of Florida charging petitioner with two counts of interstate transportation of forged securities in violation of 18 U.S. C. § 2314. A federal detainer charging such violation was lodged against prisoner on June 5, 1968. On August 1, 1968, petitioner was convicted on the state charges of forgery and was subsequently sentenced to an indeterminate term of one to ten years at the West Virginia Penitentiary.

On April 2, 1969, in a state habeas corpus proceeding, petitioner was ordered discharged from state custody on the grounds that his state conviction and the sentence imposed were in violation of the state and federal constitutions. Petitioner was discharged on April 16, 1969, from state custody and was immediately taken into federal custody upon execution of the federal warrant. On June 6, 1969, petitioner was arraigned in the Middle District of Florida at Tampa and was released on his own recognizance bond on July 16, 1969. Petitioner was then taken into custody by the State of Florida and commenced serving an 18-month Florida sentence on September 12, 1969. On February 23, 1970, petitioner was removed from state custody upon a writ of habeas corpus for re-arraignment on the federal indictment returned on May 28, 1969. On April 3, 1970, petitioner was convicted of the federal offense and subsequently sentenced to serve three years consecutive to his state sentence.

Petitioner contends that he is entitled to credit on the federal sentence he is now serving for the "dead time" he spent in presentence state custody and in serving his invalid state (West Virginia) sentence. He argues that he is entitled to this credit, because at the time of his state custody a federal detainer was lodged against him and he was unable to supply a bail bond because of his indigency.

A federal prisoner is entitled to credit on an outstanding parole violator sentence for time served on an invalid intervening federal sentence, if at the time he was serving the intervening sentence a parole violator warrant was issued. Meadows v. Blackwell, 433 F.2d 1298 (5th Cir. 1970). A federal prisoner is likewise entitled to credit on his outstanding federal sentence for "dead time" spent awaiting trial and serving an invalid intervening state sentence, if he was unable, because of his indigency, to supply a state bond while a federal detainer was present. Nelson v. United States, 402 U.S. 1006, 91 S.Ct. 2193, 29 L.Ed.2d 428 (1971). The rationale for giving credit for this "dead time" is that, had the prisoner not been serving his invalid intervening sentence, he could have been serving his existing federal sentence. Meadows, supra, 433 F. 2d at 1299. However, where a prisoner has served a prior invalid state sentence, he would not be entitled under this rationale to credit on a subsequent federal sentence for the "dead time" served, because during the time he was serving his invalid state sentence, no federal sentence was in existence which could have been served. See Green v. United States, 334 F.2d 733 (1st Cir. 1964), cert. denied, 380 U.S. 980, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965).

In the instant case, at the time petitioner was in state custody awaiting trial and serving the invalid state sentence, no federal sentence was extant. A federal detainer had been lodged against petitioner, but this detainer had been issued in connection with a bailable federal offense, an offense for which only an indictment had been returned. Petitioner's contention that he is entitled...