When in Doubt, Choose “D is Screwed”

Sample question for the Texas Board of Legal Specialization board-certification exam in criminal law:


Defendant Dillon committed a bank robbery on January 1, 2004. On March 3, 2005 he was arrested on an unrelated state drug charge. Tired of being on the run, Dillon copped a plea on the state case and got 10 years TDCJ. Dillon’s accomplice on the bank robbery snitched him out and feds charge him with bank robbery.


The Assistant U.S. Attorney filed a writ of habeas corpus ad presequendum to get Mr. Dillon into federal custody for his prosecution.
Mr. Dillon cut another deal and got another ten year sentence. The federal judgment was silent on whether the sentences would be concurrent or consecutive. Dillon looked forward to being in federal custody, the food is so much better. 


Which of the following is true?

a. Dillon will serve both sentences in federal custody because he was “writted” into federal custody.
b. Dillon’s federal time will “eat up” his state time and the sentences will run concurrently.
c. Dillon is screwed. He will be sent back to state custody to serve his state sentence. When he completes his state sentence he will be sent to the feds to begin serving his federal sentence.
d. None of the above.

4 responses to “When in Doubt, Choose “D is Screwed””

  1. C. I think your title gave it away, but I did write an article about this for The Champion. The only way out is for the federal judge to recommend that TDCJ be designated as the place to serve the federal sentence. That can be done post judgement, but I would not count on it. Like you said … Screwed.

    • My original title, some of you will have noticed, was “Term of Art.” I found the language with which the test question describes D’s position amusing.

      In Victoria County once, a feckless judge criticized me for using the adjectival phrase “cover-your-ass” in a letter to effete previous counsel (referring to said counsel’s attempt to put the client on the stand to make a record). The Board Certification exam would no doubt give said judge the vapors.

  2. It’s C. The State has primary custody of him and he will be returned to the state to finish his state sentence before beginning the fedeal sentence.
    Mixing and matching state and federal sentences is tricky. For example, I recently did a writ on home invasions in both state and federal courts. Luckily for the client, the federal PSR included as relevant conduct the offenses for which he was sentenced in state court. That means that under the guidelines, the sentences run concurrently.
    It’s really easy to screw a client who has both state and federal cases. Alex is right, the general rule is your client gets screwed.

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