State v. Leatherwood: Jail Credit Belongs to the Sovereign with Primary Jurisdiction When a Defendant Is “On Loan” Under a Writ of Habeas Corpus ad Prosequendum

Introduction

In State v. Leatherwood, 320 Neb. 242 (Neb. Oct. 31, 2025), the Nebraska Supreme Court resolved a previously open question in Nebraska law: when a defendant is “borrowed” from another sovereign via a writ of habeas corpus ad prosequendum, who gets the benefit of presentence jail credit for the time the defendant spends in custody awaiting prosecution in the borrowing jurisdiction? The Court holds that such time is credited to the sovereign with primary jurisdiction—the sovereign that first obtained custody—rather than to the jurisdiction that temporarily borrows the defendant under the writ.

This decision clarifies the interaction between Nebraska’s mandatory jail-credit statute, Neb. Rev. Stat. § 83-1,106(1), and the federal-state comity and primary-jurisdiction doctrines recognized in Ponzi v. Fessenden, 258 U.S. 254 (1922), and its progeny. The Court’s ruling has immediate practical implications for criminal practitioners, sentencing courts, and corrections agencies: when a defendant is on loan to Nebraska from federal custody (or vice versa) via a writ of habeas corpus ad prosequendum, the days spent in the borrowing jurisdiction do not accrue credit against the borrowing jurisdiction’s sentence.

Case Background

Jason M. Leatherwood was on federal supervised release, absconded, and was arrested on a federal warrant in Lincoln, Nebraska. During the federal arrest, state officers discovered drugs, leading to state drug charges (possession with intent to deliver). Leatherwood was initially held at the Lancaster County jail, was released to federal custody on September 19, 2022, and then, after Nebraska filed state charges in November 2022, the State obtained a writ of habeas corpus ad prosequendum on January 20, 2023, to borrow Leatherwood from federal authorities for prosecution in state court. He was transported back to the Lancaster County jail on February 15, 2023, and remained there until state sentencing on November 14, 2024—a total of 638 days in county jail while on loan from federal custody.

At sentencing, defense counsel requested 638 days of credit for time served. The district court declined due to uncertainty over which sovereign controlled custody and because the record did not establish that the detention was attributable to the state charges. The court imposed a sentence of 12 to 15 years’ imprisonment, consecutive to any other sentences, with no credit for time served. Leatherwood appealed; the Nebraska Supreme Court moved the case to its docket and affirmed.

Summary of the Opinion

The Court answers a previously unresolved question (left open in State v. Castillo-Rodriguez, 313 Neb. 763 (2023)): when a defendant is borrowed via a writ of habeas corpus ad prosequendum, credit for time served accrues to the sovereign with primary jurisdiction—not to the borrowing sovereign.
Because federal authorities first arrested Leatherwood on the federal warrant, the federal sovereign held primary jurisdiction. Nebraska merely borrowed him under the writ for prosecution and sentencing. Therefore, Leatherwood’s 638 days in the Lancaster County jail while on loan are attributable to the federal case, not the state case.
Nebraska’s jail-credit statute (§ 83-1,106(1)) mandates credit only for time spent in custody “as a result of” the Nebraska charge; credit may be awarded only once and must match the objective record. The record showed Leatherwood was in custody due to federal authority; thus, no state credit was available.
The Court declined the State’s request to take judicial notice of later federal proceedings (which purportedly awarded federal credit), explaining that the legal issue is resolvable without such notice.
The Court distinguished State v. Mueller, 301 Neb. 778 (2018), noting differences between detainers and ad prosequendum writs and the State’s non-objection in Mueller.

Analysis

Precedents Cited and Their Influence

Nebraska statutory framework: Neb. Rev. Stat. § 83-1,106(1) (Cum. Supp. 2024) mandates that credit “shall” be given for time spent in custody “as a result of” the charge for which a prison sentence is imposed, and credit can be awarded only once. The Court reiterates that jail credit is an objective, record-based figure; sentencing courts have no discretion to grant more or less than the record supports (State v. Nelson, 318 Neb. 484, 16 N.W.3d 883 (2025)).
Burden and correction: The party seeking a specific credit calculation bears the burden to supply a record establishing it; if a trial court miscalculates, that portion of the sentence can be corrected (Nelson; State v. Rivera-Meister, 318 Neb. 164, 14 N.W.3d 1 (2024)).
Comity and primary jurisdiction: The Court relies on Ponzi v. Fessenden (U.S. 1922) and Nebraska precedent (State v. Start, 229 Neb. 575 (1988)) to explain that when two sovereigns assert custody, the sovereign that first obtains custody holds primary jurisdiction and may lend the prisoner to the other sovereign without relinquishing that priority. Primary jurisdiction ends only upon specific events (release on bail, dismissal, parole, or sentence expiration) (U.S. v. Cole, 416 F.3d 894 (8th Cir. 2005)).
“On loan” principle: A writ of habeas corpus ad prosequendum does not transfer primary jurisdiction; the defendant is “on loan” to the borrowing sovereign for prosecution and sentencing (Cole; In re Liberatore, 574 F.2d 78 (2d Cir. 1978)). While on loan, the credit accrues to the primary sovereign.
Nebraska analogues on causation: In State v. Leahy, 301 Neb. 228 (2018), the Court denied Nebraska jail credit when the defendant, borrowed from Colorado, was in custody because of the Colorado sentence. The Court emphasized the “because of” (but-for) causation requirement. In contrast, in State v. Rivera-Meister (2024), the defendant’s custody in Guatemala was solely due to Nebraska charges (no local charges), so Nebraska credit was required. Leatherwood fits Leahy, not Rivera-Meister.
Out-of-state comparators: The Court aligned with decisions such as Harkins v. Lauf, 532 S.W.2d 459 (Mo. 1976) (credit belongs to the primary sovereign even if later the primary sentence is dismissed) and Sweeney v. State, 704 N.E.2d 86 (Ind. 1998) (writ functions as a transport order; credit not available to the borrower). Other authorities concur that time in the borrowing jurisdiction under ad prosequendum is credited to the sending sovereign (e.g., Thomas v. Whalen, 962 F.2d 358 (4th Cir. 1992)).
Distinguishing Mueller: State v. Mueller, 301 Neb. 778 (2018), is inapposite. There, Nebraska had lodged a detainer (a different legal instrument with a different effect from a writ ad prosequendum; see State v. Williams, 253 Neb. 619 (1997)), and the State did not object to credit. Leatherwood’s case involves an ad prosequendum writ and an asserted objection, with federal primary jurisdiction intact.

Legal Reasoning

The Court’s reasoning proceeds in three intertwined steps:

Statutory mandate is conditioned by causation and “only once”: Section 83-1,106(1) requires courts to give credit for time spent in custody as a result of the Nebraska charge, but credit can be awarded only once and must be supported by the record. Mandatory “shall” does not obliterate the causation requirement or the prohibition on double credit.
Primary jurisdiction controls attribution of custody: Applying comity and primary-jurisdiction doctrine, the Court holds that custody remains with the sovereign that first arrests or otherwise obtains control unless one of four divesting events occurs (bail, dismissal, parole, sentence expiration). A writ of habeas corpus ad prosequendum temporarily borrows the defendant without transferring primary jurisdiction; the defendant is “on loan.”
Therefore, custody was “because of” federal authority, not Nebraska charges: Leatherwood’s confinement in the Lancaster County jail—while physically in state custody—was legally attributable to the federal warrant and federal supervision case. The Nebraska prosecution, enabled by the writ, did not convert that custody into custody “as a result of” the state charge. Consequently, § 83-1,106(1) did not authorize Nebraska credit for those 638 days.

The Court further underscores that trial courts cannot guess or speculate when the record is unclear; the party seeking credit must present a record demonstrating entitlement. Here, defense submissions (including emails among the U.S. Marshals Service, federal defender, and state counsel) reflected confusion, not proof, that the days were due to the Nebraska charge. The district court correctly withheld credit in the absence of a supporting record.

Impact and Practical Implications

Definitive Nebraska rule on ad prosequendum and jail credit: The Court has now expressly adopted the primary-jurisdiction rule in the ad prosequendum context, closing the gap left open in Castillo-Rodriguez. Nebraska courts should not award state jail credit for time a defendant spends in a Nebraska jail “on loan” from another sovereign.
Record-building is essential: Defense counsel must assemble a clear record demonstrating that custody was “because of” the Nebraska charge (e.g., no other pending holds/sentences; no primary jurisdiction elsewhere). Absent such proof, courts will deny credit.
Coordination across sovereigns: When a client is on federal supervised release or serving a federal sentence, Nebraska counsel should coordinate with federal counsel to ensure that the Bureau of Prisons or the federal sentencing court awards appropriate credit on the federal side. Nebraska courts will not duplicate that credit.
Sentencing strategy: In ad prosequendum cases, defense counsel may seek concurrency or other adjustments, but should not expect Nebraska jail credit for “loaned” time. Here, the district court ordered the state sentence to run consecutively to other sentences, further limiting overlap.
Corrections and PSIR practices: Presentence investigation reports and jail records should expressly indicate when a defendant is “borrowed” from another sovereign and identify the primary jurisdiction holder. This will streamline accurate credit determinations.
Fairness arguments unlikely to prevail: The Court favorably cites cases holding that even if the primary sovereign later dismisses its charges or otherwise fails to award credit, the borrowing sovereign still cannot retroactively claim those days. The policy preference is for jurisdictional clarity and avoidance of double credit.

Complex Concepts Simplified

Jail credit (credit for time served): A reduction in a prison sentence for time a defendant already spent in custody due to the same charge or conduct. In Nebraska prison cases, § 83-1,106(1) governs. It is mandatory when its conditions are met, but it can be awarded only once and must be grounded in the record.
“As a result of” the charge: The key causation test. Ask: Was the defendant in custody because of the Nebraska charge? If the answer is “no” (e.g., the custody was due to unrelated federal charges or a federal sentence), Nebraska jail credit does not apply.
Primary jurisdiction: When two sovereigns (e.g., federal and state) both have interest in prosecuting a person, the sovereign that first arrested or obtained custody holds primary jurisdiction, and it keeps that status until bail, dismissal, parole, or sentence expiration. The other sovereign can prosecute but does not gain primary custody through a loan.
Writ of habeas corpus ad prosequendum: A court order used to temporarily obtain physical custody of a prisoner from another sovereign for prosecution and/or sentencing. It is effectively a transport order; it does not transfer primary jurisdiction.
Detainer vs. writ: A detainer is a notice that another jurisdiction seeks custody after the current sovereign is done; it does not immediately transfer the prisoner. A writ ad prosequendum, by contrast, temporarily moves the prisoner for court proceedings. Nebraska recognizes these as distinct tools with different legal effects (see State v. Williams).
“On loan” concept: When a prisoner appears in the borrowing jurisdiction under an ad prosequendum writ, they remain in the legal custody of the primary sovereign. The borrowing jurisdiction may prosecute and sentence, but time in custody during the loan counts toward the primary sovereign’s case.

Key Distinctions and Clarifications

Why Rivera-Meister is different: There, the defendant was held in Guatemala with no Guatemalan charges; custody existed solely due to Nebraska charges. Nebraska credit was therefore required. Leatherwood, by contrast, was in custody because of federal authority; the Nebraska prosecution was possible only by borrowing him under a writ.
Why Mueller is distinguishable: Mueller involved a detainer and a different procedural posture (including no State objection), not a writ ad prosequendum with federal primary jurisdiction intact.
Judicial notice declined: The State asked the Court to take notice that federal court later awarded the credit. The Court declined as unnecessary, underscoring that, as a matter of law, credit would belong to the federal matter regardless.
No discretion to “split the difference”: Jail credit is a “yes or no” question keyed to what the record objectively shows. Courts cannot apportion or award equitable credit beyond what the statute permits.

Practical Checklist for Practitioners

Identify the primary jurisdiction at the outset (who arrested first; any bail/dismissal/parole/expiration events?).
If your client is borrowed under an ad prosequendum writ, assume Nebraska jail credit will not accrue for that time. Plan sentencing strategy accordingly.
Build the record: obtain and file the writ, jail custody logs, commitment orders, and any correspondence confirming “borrowed” status; clarify whether any other holds/sentences exist.
Coordinate with counsel in the primary jurisdiction to secure credit there; Nebraska courts will not duplicate credit.
When arguing credit in Nebraska, tie each day claimed to custody “as a result of” the Nebraska charge, and confirm no other sovereign’s sentence or hold is the causal basis for custody.

Conclusion

State v. Leatherwood establishes a clear and administrable rule for Nebraska: when a defendant is borrowed from another sovereign under a writ of habeas corpus ad prosequendum, presentence jail credit for that period belongs to the sovereign with primary jurisdiction, not the borrowing sovereign. This holding harmonizes Nebraska’s mandatory credit statute with long-standing principles of comity and primary jurisdiction, aligns Nebraska with the majority of jurisdictions, and clarifies a point left open in Castillo-Rodriguez.

The Court reaffirms that jail credit is a matter of law, rooted in objective record evidence, and can be awarded only once—when the custody is “as a result of” the charge for which the sentence is imposed. By emphasizing the causation requirement and the primacy of the sovereign that first arrested the defendant, Leatherwood provides essential guidance to courts and practitioners handling multi-sovereign prosecutions. The key takeaway: physical location is not determinative; legal custody is. If the defendant is “on loan,” the time belongs to the lender.