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438 F.2d 923

Docket No. 30700.

Willis v. United States

Fifth Circuit Court of Appeals

Decided Feb. 10, 1971.

Fifth Circuit Court of Appeals · decided 1971-02-10

2 counsel of record

Applies 28 U.S.C. § 2244 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Kimbrough v. Beto · Davis v. Attorney General of United States · United States v. Morgan

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1971-02-10

How this case has been cited

Cited by 47 later decisions — most recently June 2020 · most notably Francisco Rios v. Ron Wiley Ron Wiley (2000), Doyle v. Elsea (1981)

14 federal appellate · 1 district ·

180197119801990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*924Tony Willis, pro se.

¶2John W. Stokes, Jr., U. S. Atty., Allen I. Hirsch, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.

¶3Before GEWIN, GOLDBERG and DYER, Circuit Judges.

¶4*925PER CURIAM:

¶5Willis has appealed1 from the District Court’s denial of his petition to obtain credit on his federal prison sentence for certain time spent in custody prior to sentencing.2 We affirm in part and reverse in part, and remand the cause for a hearing.

¶6Willis alleges that while he was free on bail on the federal charge, he was arrested on October 31, 1968, by Georgia state authorities. He avers that his federal bail then was revoked and bail on the state charges was precluded by the lodging of a federal detainer against him.

¶7Willis was sentenced on the state charges on December 10, 1968, to serve a sentence running concurrently with the federal sentence which he had received on November 29, 1968. He was transferred to the United States Penitentiary to commence service of his federal (and concurrent state) sentence on December 31, 1968. Willis claims that he is entitled to credit on his federal sentence for the 61 days from October 31 to December 31,1968.3

¶8Clearly Willis is not entitled to credit for the period of December 10 to December 30 or 31, 1968. During that time he was actually serving his state sentence for offenses unrelated to the federal charges. Sanders v. McGuire, 5 Cir. 1968, 405 F.2d 881.

¶9The state court purported to give Willis credit for his presentence custody from October 31 to December 10, 1968. This did not help Willis, however, because his federal sentence is due to expire more than a year after his state terms.

¶10In previous proceedings, the District Court denied relief to Willis because the sentences being concurrent, the state already had given credit for the presen-tence jail time. The instant petition was denied as being a successive application for similar relief. 28 U.S.C.A. § 2244.

¶11This case is governed by our decision in Davis v. Attorney General, 5 Cir. 1970, 425 F.2d 238. There we held that if Davis “was denied release on bail because the federal detainer was lodged against him, then that was time ‘spent in custody in connection with the [federal] offense,’ [18 U.S.C.A. § 3568] since the detainer was issued upon authority of the appellant’s federal conviction and sentence.” 425 F.2d at 240.

¶12Accordingly the judgment of the District Court is affirmed in part and reversed in part; and the case is remanded for an evidentiary hearing on Willis’ contention that he should be accorded credit on his federal sentence for his presentence custody of October 31 to December 10,1968.

¶13Affirmed in part; reversed in part; and remanded.

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