IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 12, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
THEODORE SCOTT SCHERR, DEFENDANT.
The opinion of the court was delivered by: Judge Hon. Gregory G. Hollows
APPLICATION FOR WRIT OF HABEAS CORPUS AD PROSEQUENDUM; ORDER
The Office of the Federal Defender hereby applies to the Court for the issuance of a writ of habeas corpus ad prosequendum on behalf of Theodore Scott Scherr, who is charged in the above indictment filed November 13, 2008, with a violation of 18 U.S.C. § 922(g)(1). Mr. Scherr is presently in the custody of the Sacramento County Sheriff at the Rio Cosumnes Correctional Center in Elk Grove, California, XRef. No. 222098.
Mr. Scherr seeks this writ so that he can make his initial appearance before the Magistrate Judge and begin to resolve the indictment pending against him. He is presently in custody on a parole hold but the parole proceedings have been stayed at his request pending resolution of the federal indictment, leaving him in limbo. The Federal Defender applies for this writ on Mr. Scherr's behalf because the United States Attorney has not acted on earlier requests to facilitate Mr. Scherr's appearance in the District Court. Mr. Scherr first contacted the Office of the Federal Defender through his parole attorney and family several months ago.
Mr. Scherr further asks that he be retained in federal custody at Sacramento until final disposition of the above indictment, to be returned to state custody (if appropriate) when the federal proceedings are concluded.
A proposed order is attached for the Court's convenience.
DATED: May 11, 2009
ORDER DENYING ISSUING WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
The Federal Defender has requested, under the All Writs Act, a writ of habeas corpus ad prosequendum in order that the defendant herein (currently serving a sentence issued by state authorities)be brought to trial in federal court on the federal pending charges.
The undersigned does not view this request as properly made. A defendant who is serving a sentence of another jurisdiction, and who desires to proceed in the United States' case, must bring his request pursuant to the Interstate Agreement on Detainers, 18 U.S.C. App. § 2 (to which the United States is a party),and must comply with all its provisions in order that the defendants' rights and those of the United States are properly preserved. The provisions include notification by the defendant to his present custodian of his request to be sent to the "receiving State", and the notice and request for final disposition must be accompanied by the warden's certificate. § 2, Article III (a), (b).
Therefore, defendant shall make his request to proceed to trial in the District Court pursuant to the Agreement. The undersigned finds that at present, none of the time triggers of the Agreement are set or running.
IT IS SO ORDERED.
HON. GREGORY G. HOLLOWS United States Magistrate Judge
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