Aubry Johnson v. A. Gill, 883 F.3d 756

Aubry Johnson was serving a Texas state sentence when federal authorities later sentenced him to an 88‑month federal term to run consecutively to the state term.
The Texas authorities mistakenly transferred Johnson to U.S. Marshals twice while he still had remaining state time (Aug–Nov 2009 and Dec 2009–Feb 2010); Marshals returned him when the errors were discovered.
Texas credited Johnson for the periods he was mistakenly in federal physical custody; later Texas paroled him Feb 23, 2011, but due to an oversight he was released; Marshals did not pick him up until June 6, 2011, when he was taken into federal custody to begin his federal term.
The BOP calculated the federal sentence as commencing June 6, 2011, but gave him credit for the brief uncustodial interval between parole and federal apprehension (Feb 23–June 5, 2011).
Johnson sought habeas relief under 28 U.S.C. § 2241, arguing his federal sentence commenced on one of the 2009 erroneous transfers and that he should receive credit for Aug 2009–June 2011 (even though the state already credited that time).
The district court denied relief; the Ninth Circuit affirmed, holding a federal sentence begins only when the federal sovereign has physical custody plus primary jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a federal sentence commences when federal authorities obtain mere physical custody of a state prisoner via mistaken transfer	Johnson: federal custody during Aug–Nov 2009 or Dec 2009–Feb 2010 commenced his federal sentence and warrants federal credit	Government/BOP: custody for § 3585(a) requires both physical custody and the federal government’s primary jurisdiction; mistaken transfers did not reflect state consent	Held: § 3585(a) requires federal physical custody plus primary jurisdiction; mistaken transfers where state retained priority do not commence the federal sentence
Whether prisoner can receive federal credit for time already credited to a state sentence (double‑counting)	Johnson: even if state credited the time, he should get federal credit because federal custody began on the mistaken transfers	Government: § 3585(b) forbids credit for prior custody that has been credited against another sentence; allowing the claimed start would improperly double‑credit and frustrate Congress’s sentencing scheme	Held: Double‑credit is not permitted; because Texas credited the periods, treating the federal sentence as commencing earlier would violate § 3585(b) and congressional intent

Ponzi v. Fessenden, 258 U.S. 254 (1922) (established primary‑jurisdiction/comity principle between sovereigns)
Zerbst v. McPike, 97 F.2d 253 (5th Cir. 1938) (state ‘lending’ prisoner does not relinquish primary jurisdiction absent intent to surrender)
Taylor v. Reno, 164 F.3d 440 (9th Cir. 1998) (federal sentence does not commence where prisoner is in federal custody only by state’s agreement under an ad prosequendum writ)
Jonah R. v. Carmona, 446 F.3d 1000 (9th Cir. 2006) (discussing statutory history of § 3585 and BOP interpretations)
Free v. Miles, 333 F.3d 550 (5th Cir. 2003) (discussed consequences of mistaken federal custody; did not squarely decide primary‑jurisdiction start issue on appeal)
Burge v. United States, 332 F.2d 171 (8th Cir.) (interpreting commencement as requiring legal custody enabling enforcement of the federal sentence)