Cowart v. USA

Filing 10

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 7 Report and Recommendations. ORDERED Movant's motion to vacate, set aside, or correct sentence (Dkt. #1) is DENIED and the case DISMISSED with prejudice. All motions not previously ruled on are DENIED. Signed by District Judge Marcia A. Crone on 3/5/2018. (daj, )

UNITED STATES DISTRICT COURT

CHASE COWART, #20801-078

EASTERN DISTRICT OF TEXAS

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versus
UNITED STATES OF AMERICA

CIVIL ACTION NO. 4:16CV364
CRIMINAL ACTION NO. 4:12CR263(4)

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly C. Priest Johnson.

The Magistrate Judge issued a Report and Recommendation

(Dkt. #7), which contains proposed findings of fact and recommendations for the disposition of
Movant’s § 2255 motion (Dkt. #1).

Movant filed timely objections.

In his objections, Movant

argues the Report and Recommendation failed to recognize Movant argues the one-year statute of
limitations began to run on July 17, 2015, when Movant was paroled to federal custody and first
discovered he had received no federal credit for the time spent in federal pre-trial custody.
Dkt. 8 at 2-3.

See

Movant alleges the Report and Recommendation did not address this issue.

After a de novo review of the record and considering the Report and Recommendation and
the Movant’s objections, the Court concludes that the findings and conclusions of the Magistrate
Judge are correct, and adopts the same as the findings and conclusions of the Court.

In his § 2255

motion, Movant states he was placed in custody by state authorities, and a hold was placed on
Movant’s parole. See Dkt. #1-1 at 1.

Subsequently, pursuant to a Writ of Habeas Corpus ad

Prosequendum, Movant states that he was under the temporary custody of the United States to
complete the criminal proceedings against Movant in federal court.
621 F.2d 691, 693 (5th Cir. 1980)).

Id. (citing Causey v. Civiletti,

Stated differently, Movant was in state custody, who held

primary jurisdiction over Movant, when the United State “borrowed” Movant for temporary

custody during the duration of the federal criminal proceedings. Thus, when Movant was placed
in temporary federal custody, he was currently serving his sentence under state custody despite
technically being in pre-trial custody in the federal jurisdiction. Therefore, when the Court
admonished Movant that his sentence would be served consecutively to his state sentence, he
was aware that the period of time Movant was in temporary federal custody would not be credited
against his federal sentence, as he was in the process of serving the state sentence. See United
States v. Seelye, 2014 U.S. Dist. LEXIS 21357, *3-6 (D. Minn. Feb. 19, 2014) (finding that
prisoner is not eligible to receive pre-trial credit against his federal sentence, despite being in
temporary federal custody pursuant to a writ of habeas corpus ad prosequendum, until the state
sentence expires); Munz v. Michael, 28 F.3d 795, 798 (8th Cir. 1994) (“‘Issuance of [a] writ of
habeas corpus ad prosequendum does not alter [the defendant's] custody status. It merely changes
the location of his custody for the sentence he was already serving.’”).
It is accordingly ORDERED Movant’s motion to vacate, set aside, or correct sentence
(Dkt. #1) is DENIED and the case DISMISSED with prejudice. All motions not previously ruled
on are DENIED.
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SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 5th day of March, 2018.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE