Newman v. Cozza-Rhodes

Filing 27

ORDER denying 21 Motion for Reconsideration by Chief Judge Wiley Y. Daniel on 09/19/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-03262-WYD
RICHARD ALLEN NEWMAN,
Applicant,
v.
T.K. COZZA-RHODES,
Respondent.

ORDER

THIS MATTER comes before the Court on Applicant Richard Allen Newman’s
Motion for Reconsideration filed on June 15, 2012. Mr. Newman is a federal prisoner
who is in the custody of the United States Bureau of Prisons [“BOP”].
By way of background, Mr. Newman initiated this pro se action by filing an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on December 13,
2011. He sought an order, pursuant to 18 U.S.C. § 3585, requiring the Bureau of
Prisons to grant him credit towards his federal sentence for the period December 26,
2006 to August 10, 2010. He alleged that he is entitled to this credit as he was primarily
in federal custody during that time.
In the dismissal order of May 29, 2012, I determined that Mr. Newman was under
the primary jurisdiction of state authorities during the period December 26, 2006,
through August 10, 2010, and that for the brief period he remained in federal custody
after he was released by the state court on a PR bond, the BOP credited that time

against Applicant’s federal sentence. I also determined that Mr. Newman received
credit toward his state sentence for the 285 days he spent in state custody between
December 26, 2006, and October 11, 2007. Accordingly, I found that Mr. Newman has
received full credit for his prior custody, and that he is not entitled to additional
sentencing credit against his current sentence for time he spent incarcerated between
December 26, 2006, and August 10, 2010.
In the Motion for Reconsideration, Mr. Newman again asserts that he should get
credit on his federal sentence for the period of time he was detained by the state court
from December 26, 2006, to August 20, 2010. He notes in that regard that on
November 6, 2007, he was removed from federal custody pursuant to a writ to attend a
state hearing held on December 11, 2007. Although he was supposed to be returned to
federal custody thereafter, Mr. Newman asserts that the U.S. Marshal’s Office failed to
request this as ordered in the writ. Since he allegedly should have been in federal
custody during the period at issue but was not due to errors by the Marshal’s office,
Mr. Newman asserts that he should receive credit toward his federal sentence.
Turning to my analysis, a litigant subject to an adverse judgment, and who seeks
reconsideration by the district court of that adverse judgment, may “file either a motion
to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking
relief from the judgment pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States,
952 F.2d 1241, 1243 (10th Cir. 1991). Mr. Newman filed the motion for reconsideration
within twenty-eight days after the Order of Dismissal and the Judgment were entered in

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the instant action on May 29, 2012. The Court, therefore, finds that the motion to
reconsider is filed pursuant to Rule 59(e). See Fed. R. Civ. P. 59(e).
The three major grounds that justify reconsideration are: (1) an intervening
change in the controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). Mr. Newman’s motion must be construed
liberally because he is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
I find that Mr. Newman has not asserted any of the major grounds that would
justify reconsideration in his case. He has now shown or argued an intervening change
in the controlling law or the availability of new evidence. I also find that Mr. Newman
has not shown a need to correct clear error or prevent manifest injustice, as he has not
demonstrated that the Court erred in determining that he was primarily in state custody
during the applicable period.
I first note that Mr. Newman does not dispute the ruling in the May 29, 2012,
Order that when charges are pending in both state and federal courts, principles of
“primary jurisdiction” control which sovereign, the state or federal government, has
priority over a defendant for trial, sentencing, and incarceration. Weekes v. Fleming,
301 F.3d 1175, 1180 (10th Cir. 2002). In this case, while Mr. Newman was initially
arrested in December 2006 by U.S. Postal Inspectors on a warrant from this Court (Ex.
B. to Memo., ECF No. 2), it is undisputed that he was immediately turned over to state
authorities and charged in state court. He was not transferred into federal custody until
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February 2007, and this was done pursuant to a writ of habeas corpus ad
prosequendum.
Under these facts, the State of Colorado clearly retained primary jurisdiction over
Mr. Newman until he was transferred to FCI Florence in August 2010. See Binford v.
United States, 436 F.3d 1252, 1255 (10th Cir. 2006) (“‘[t]he sovereign that first acquires
custody of a defendant in a criminal case is entitled to custody until it has exhausted its
remedy against the defendant’”; the transfer by the state authorities to federal court on
April 19, 2007 ,was “conditional or temporary, i.e., pursuant to a writ of habeas corpus
ad prosequendum”) (quotation omitted); see also Weekes, 301 F.3d at 1180-81.
Mr. Newman has not shown that this ruling is erroneous or pointed to anything in the
record that indicates the state surrendered primary custody to federal authorities during
that period of time.
Based upon the foregoing, it is
ORDERED that the Motion for Reconsideration (ECF No. 21) filed pro se by
Applicant on June 15, 2012 is DENIED.
Dated: September 19, 2012.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE

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