De Los Santos v. Connors et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations Signed by District Judge David C. Bramlette, III on 1/6/2020 (cwl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
GUADALUPE DE LOS SANTOS
v.

PETITIONER
CIVIL ACTION NO. 5:17-cv-107-DCB-MTP

STEPHEN D. JULIAN

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on the pro se Petition of
Guadalupe De Los Santos for a writ of habeas corpus under 28
U.S.C. § 2241 [ECF No. 1], and the Report and Recommendation of
Magistrate Judge Michael T. Parker. [ECF No. 11]. Magistrate
Judge Parker entered a Report and Recommendation on October 16,
2019 and directed the Petitioner to serve and file written
objections within fourteen days pursuant to 28 U.S.C. §
636(b)(1). On October 28, 2019, the copy of the Report and
Recommendation that the Court mailed to Petitioner was returned
as undeliverable because he was no longer at the address he
provided to the Court. Therefore, as of the date of this Order,
the Petitioner has not objected to the Report and
Recommendation.
Discussion
On August 28, 2019, officers of the Texas Department of
Public Safety arrested Petitioner for possession of marijuana
and evading arrest. The Petitioner was sentenced to a two-year

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term of imprisonment by a Texas state court. Petitioner’s state
sentence commenced on August 28, 2019. On October 21, 2014, the
United States Marshals Service temporarily took custody of
Petitioner pursuant to a federal writ of habeas corpus ad
prosequendum. On May 21, 2105, after pleading guilty, the
Petitioner was sentenced in the United States District Court for
the Southern District of Texas for illegal reentry by a removed
alien.
On May 21, 2015, the Marshals Service returned the
Petitioner to state custody. On April 28, 2019, Petitioner was
paroled by Texas and returned to federal custody to serve his
federal sentence, which the Bureau of Prisons computed the
commencement date to be April 28, 2019. Relying on 18 U.S.C. §
3585(b), Petitioner asserts that he should have received credit
against his federal sentence for the time he spent in temporary
federal custody – October 21, 2014 through May 21, 2015.
When a prisoner is in primary state custody and is taken on
writ into federal custody to answer federal charges, he is not
entitled to have that time credited against his federal
sentence. See United States v. Wilson, 503, U.S. 329, 337
(1992); see also, Chaplin v. U.S., 451 F.2d 179, 181 (5th Cir.
1971)(finding that petitioner was not entitled to credit toward
his federal sentence when the “petitioner was exclusively in

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state custody for a state parole violation, except when
appearing in federal court via habeas corpus ad prosequendum.”)
An inmate in federal custody on a writ of habeas corpus ad
prosequendum from state custody remains in state custody. Causey
v. Civiletti, 621 F.2d 691, 693 (5th Cir. 1988)(“The law is
clear in this Circuit [Fifth] that, if a defendant is in state
custody and he is turned over to federal officials for federal
prosecution, the state government’s loss of jurisdiction is only
temporary… A writ of habeas corpus ad prosequendum is only a
‘loan’ of a prisoner to another jurisdiction for criminal
proceedings in the receiving jurisdiction.”).
Magistrate Judge Parker finds that Petitioner has failed to
demonstrate that he is entitled to credit on his federal
sentence for the time he spent in federal custody pursuant to a
writ of habeas corpus ad prosequendum and that the Petition for
writ of habeas corpus be DISMISSED with prejudice. Magistrate
Judge Parker’s Report and Recommendation is well taken.
Accordingly,
IT IS HEREBY ORDERED AND ADJUDGED that the Report and
Recommendation is ADOPTED as the findings of the Court.
Therefore, the Petitioner’s writ of habeas corpus ad
prosequendum is DISMISSED with prejudice.

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SO ORDERED, this the 6th day of January, 2020.
_s/ David Bramlette__________
UNITED STATES DISTRICT JUDGE

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