1

Wooderts was under the supervision of the Texas parole authority until August 31,

2004. See PreSentence Investigation report at ¶¶ 59-65.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LEVI WOODERTS, JR. )

)

V. ) 3-05-CV-188-D

)

WARDEN OF FCI SEAGOVILLE )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. §636(b), and an order of the District Court in

implementation thereof, the subject cause has previously been referred to the United States

Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as

evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Levi Wooderts, Jr., is confined as an inmate at FCI, Seagoville, pursuant to a sentence

imposed by the District Court in No. 3-97-CR-54-D on February 27, 1998, to a term of 240 months

imprisonment. The present petition seeks credit for additional time spent in custody after Wooderts,

unsuccessfully pursued remedies through the Bureau of Prisons’ administrative process.

Specifically Petitioner claims that he is entitled to credit against his federal sentence for the period

commencing on October 1, 1996.

The record establishes that Wooderts was arrested on state criminal charges on October 1,

1996, and that the Texas Board of Pardons and Paroles issued a parole violator’s warrant on

October 25, 1996, for violation of the terms of his parole supervision.1

 

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2

Following the return of the indictment in No. 3-97-CR-54-D the State of Texas dropped its

criminal charges based upon the same course of conduct alleged in the federal indictment.

Thereafter he remained in custody on the parole violator’s warrant and his appearances in federal

court were pursuant to a writ of habeas corpus ad prosequendum issued by the federal court.

Pursuant to the District Court’s letter to the Bureau of Prisons dated February 19, 2003, Wooderts’s

federal sentence is consecutive to the undischarged terms of imprisonment imposed by the Texas

state courts. See Respondent’s Appendix at 27.

The record shows that during the pendency of the charges in No. 3-97-CR-54-D, Petitioner

was placed in the physical custody of the United States Marshals Service at Seagoville, FCI, and that

following his sentencing on February 27, 1998, he was returned to the custody of the Texas

Department of Corrections on April 2, 1998. See Respondent’s Appendix at 22-23.

Upon Petitioner’s return to the physical custody of the Texas state authorities his previously

issued parole was revoked. He was given credit for time on his previously imposed state convictions

beginning on October 1, 1996, the date on which he was originally arrested on state criminal charges

and was subsequently re-released on parole to the custody of the United States Marshals Service on

November 10, 2003, for designation of the federal institution in which he would be confined for

service of his sentence imposed in No. 3-97-CR-54-D.

It is well settled that a writ of habeas corpus which affects the status of a prisoner’s physical

custody does not affect his constructive custody as a state prisoner. E.g. see United States v. Brown,

753 F.2d 455, 456 (5th Cir. 1985). When a prisoner’s appearance is obtained pursuant to a writ of

habeas corpus he is considered to have been “borrowed” from the authority in whose custody the

prisoner was confined.

 

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2

Petitioner was returned to Texas state custody on April 2, 1998 (See Respondent’s

Appendix at 23) eleven days before the warrant attached to his response appendix was issued,

which constitutes strong, if not conclusive evidence that the prior warrant was never withdrawn

or vacated.

3

Wooderts argues that the parole violator’s warrant issued on October 25, 1996, was

withdrawn on or about April 25, 1997. In support of this assertion he relies on Dallas County Jail

Records reflecting that he was delivered to the United States Marshals Service’s custody on that date

(See Petitioner’s Appendix B - Dallas County Sheriff’s Rapsheet) and the fact that a second

violator’s warrant was issued by the Texas Board of Pardons and Paroles (Id.).

Dispositive of this argument is the fact that Wooderts has not demonstrated that the October

25, 1996, violator’s warrant was ever formally withdrawn.2 The Dallas County Sheriff’s log reflects

nothing more than the fact that he was transferred out of the Dallas County Jail to the physical

custody of the Marshals Service, and in no way constitutes evidence of a relinquishment of custody

under the authority of the Texas state parole board.

However, dispositive of the petition is the fact that 18 U.S.C. § 3585(b) permits credit for

time in custody, prior to commencement of the service of a federal sentence only when such time

“has not been credited against another sentence.” See also Leal v. Tombone, 341 F.3d 427, 428 (5th

Cir. 2003). In the present case the Bureau of Prisons determined that Wooderts received credit

against the service of his prior state convictions from October 1, 1996, the date of his initial arrest.

See Respondent’s Appendix at 3, ¶ 7. Therefore, he can show no error in the Bureau of Prisons’ 

 

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4

refusal to grant him additional credit toward the service of his sentence imposed in No. 3-97-CR-54-

D.

RECOMMENDATION:

For the foregoing reasons it is recommended that the petition be denied.

SIGNED this 20th day of May, 2005.

 ___________________________________

 WM. F. SANDERSON, JR.

 UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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