Richardson v. Outlaw , 274 F. App'x 353 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2008
No. 07-40156
Conference Calendar Charles R. Fulbruge III
Clerk
DONALD RICHARDSON
Petitioner-Appellant
v.
T L OUTLAW
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CV-598
Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Donald Richardson, federal prisoner # 01523-164, appeals the district
court’s denial of his 28 U.S.C. § 2241 petition. He argues that he is entitled to
credit against his federal sentences from the date he was sentenced on bank
robbery charges in the Southern District of Texas. We review the district court’s
determinations of law de novo and its findings of fact for clear error. Royal v.
Tombone, 141 F.3d 596, 599 (5th Cir. 1998).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-40156
From the time that Richardson was arrested by Oklahoma state law
enforcement officers on state charges of shooting a police officer with intent to
kill, he was under the primary custody of Oklahoma. See Causey v. Civileti, 621
F.2d 691, 693-94 (5th Cir. 1980); Zerbst v. McPike, 97 F.2d 253, 254 (5th Cir.
1938). His subsequent transfers pursuant to writs of habeas corpus ad
prosequendum to face federal prosecutions did not place him in the primary
custody of federal authorities, and his federal sentences were scheduled to
commence on the date that Oklahoma released him to the United States
Marshal. When a prisoner is transferred from state to federal custody pursuant
to a writ of habeas corpus ad prosequendum, the transfer is “only a ‘loan’ of the
prisoner” to the federal jurisdiction such that primary custody remains with the
state. Causey, 621 F.2d at 693. Whether the prisoner has yet been convicted or
sentenced by the state at the time of the transfer is immaterial. Id. Richardson
was never received at a federal prison to serve his sentence during the period at
issue and is therefore not entitled to federal credit for time served. See 18 U.S.C.
§ 3568 (repealed, but applicable to offenses such as Richardson’s that were
committed before 1984).
Richardson further argues that he is entitled to federal credit because he
committed the state offense of shooting with intent to kill when authorities
attempted to arrest him on federal charges. Richardson’s argument relies upon
case law that is inapposite to his case and that runs contrary to the law of this
circuit. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (noting that
sentencing errors generally must be addressed in a 28 U.S.C. § 2255 motion, not
a § 2241 petition); United States v. Shillingford, 586 F.2d 372, 375 (5th Cir.
1978) (prisoner has burden of proving continuing state confinement was
exclusively result of federal detainer).
AFFIRMED.
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