AUBRY REA JOHNSON, Petitioner-Appellant, v. A. GILL, Warden, Respondent-Appellee.
No. 15-16400
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
February 20, 2018
D.C. No. 1:12-cv-02043-AWI-MJS
Opinion by Judge Ikuta; Dissent by Chief District Judge Oliver
FOR PUBLICATION
Appeal from the United States District Court for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted May 18, 2017 San Francisco, California
Filed February 20, 2018
Before: Richard C. Tallman and Sandra S. Ikuta, Circuit Judges, and Solomon Oliver, Jr.,* Chief District Judge.
SUMMARY**
Habeas Corpus
The panel affirmed the district court‘s denial of Aubry Rea Johnson‘s
Johnson was convicted in state and federal court, with the federal sentence to run consecutively to the state sentence. While serving his state sentence, Johnson was twice erroneously turned over to federal authorities. The state credited the time Johnson spent in federal custody against his state sentence. Once his state sentence was complete and the Marshals Service took him into federal custody, the BOP concluded that Johnson‘s federal sentence commenced in June 2011, when the federal government for the first time gained primary jurisdiction over him. Johnson argued that his federal sentence commenced on one of the instances when the state prematurely transferred him to federal authorities, and that, in addition to the credit he received against his state sentence, he should receive credit against his federal sentence for the period starting on the date he was erroneously turned over to federal authorities and including all his time in state prison after he was returned to state custody.
The panel held that because the erroneous transfers did not manifest the state‘s consent to terminate its primary jurisdiction over Johnson, he was not in federal custody for purposes of
Chief District Judge Oliver dissented. He would find (1) that the federal authorities obtained primary jurisdiction over Johnson when they took physical custody of his body, and his sentence commenced pursuant to
COUNSEL
Lisa Sciandra (argued), San Leandro, California, for Petitioner-Appellant.
Michael G. Tierney (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; Phillip A. Talbert, United States Attorney; United States Attorney‘s Office, Fresno, California; for Respondent-Appellee.
IKUTA, Circuit Judge:
Aubry Johnson was criminally convicted in both state and federal court. Both courts sentenced him to serve periods
Johnson filed a petition for a writ of habeas corpus challenging that determination. He argues that his federal sentence actually commenced on one of the instances when the state prematurely transferred him to the federal authorities. As a result, Johnson contends that he should receive credit against his federal sentence for the period starting on the date he was erroneously turned over to federal authorities and including all his time in state prison after he was returned to state custody. Because the state credited the time the federal authorities erroneously held Johnson against his state sentence, Johnson effectively seeks double-credit against both his state and federal sentences for the period between August 2009 and June 2011. We disagree and hold that because these erroneous transfers did not manifest the state‘s consent to terminate its primary jurisdiction over Johnson, he was not in federal custody for purposes of
I
The Sheriff‘s Department in Harris County, Texas, arrested Aubry Johnson in February 2007 for fraudulently using identifying information and for violating his probation for a prior robbery conviction. In June 2007, a state court sentenced Johnson to a six-year term of imprisonment for aggravated robbery as a result of the probation violation. After sentencing, the court committed Johnson to the custody of the Texas Department of Criminal Justice (TDCJ) to serve his sentence. In August 2007, the TDCJ transferred Johnson to Fort Bend County, where a state court sentenced Johnson to a twelve-month concurrent sentence of imprisonment for fraudulent use of identifying information.
While Johnson was in state custody, the United States indicted him on federal charges for aiding and abetting device fraud and identity theft. The federal court issued writs of habeas corpus ad prosequendum for Johnson on May 10, 2007, June 29, 2007, and August 29, 2007, so that he could attend federal court proceedings.2 Upon conviction for the
federal charges, the district court sentenced Johnson to an 88-month term of imprisonment, to run consecutively to his state sentence for aggravated robbery. The Marshals Service filed a federal detainer with the state
The two errors central to this appeal occurred in late 2009. While Johnson was still serving his state sentence in the Texas prison system, the TDCJ transferred Johnson to the custody of the Dallas County Sheriff‘s Department to answer for additional state charges that were ultimately dismissed. Rather than return Johnson to the TDCJ, however, the Dallas County Sheriff‘s Department mistakenly transferred Johnson to the Marshals Service on August 7, 2009, pursuant to the federal detainer. When the error was discovered, the Marshals Service returned Johnson to the Dallas County Sheriff‘s Department on November 3. A short while later, on December 9, 2009, the Dallas County Sheriff‘s Department informed the Marshals Service that Johnson had completed his state sentence and that the department intended to release Johnson unless the Marshals Service took custody of him.
On December 14, the Dallas County Sheriff‘s Department transferred Johnson to the Marshals Service. This was also a mistake. Johnson remained with the federal authorities until February 12, 2010, when the Marshals Service returned him to the TDCJ. Johnson received credit toward his state sentence for the periods during which the Marshals Service erroneously had physical custody of him.
Texas paroled Johnson on February 23, 2011. Because the Marshals Service had filed a federal detainer with the state, the state authorities held Johnson for federal pick-up, but due to an oversight the Marshals Service failed to retrieve him, and so Johnson was released the same day. Several months later, on June 6, 2011, Johnson visited his parole officer, at which time the Marshals Service apprehended him and turned him over to the BOP to serve his federal sentence.
The BOP determined that Johnson‘s federal sentence commenced on June 6, 2011, when the Marshals Service took Johnson into federal custody. Nevertheless, Johnson received credit against his federal sentence for the period during which he was released from all custody, between February 23, 2011 (when he was paroled from state custody) through June 5, 2011, when the Marshals Service apprehended him.4 Johnson objected to this calculation; he argued that his federal sentence commenced on one of the occasions when the state erroneously transferred him to the Marshals Service, either on
August 7, 2009, or December 14, 2009. Therefore, Johnson contends, he is entitled to credit against his federal sentence for the time period between August 2009 and June 2011, even though the state already gave him credit for this same time period. After unsuccessfully pursuing administrative
We have jurisdiction under
II
The federal statute governing when a term of imprisonment commences,
“[a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.”
A
Although “custody” can mean mere physical possession or control of a person, it may also refer to lawful authority over a person. See Black‘s Law Dictionary 441 (9th ed. 2009) (defining “constructive custody” as “[c]ustody of a person (such as a parolee or probationer) whose freedom is controlled by legal authority but who is not under direct physical control“); Webster‘s Third New International Dictionary 559 (2002) (“[C]ontrol of a thing or person with such actual or constructive possession as fulfills the purpose of the law or duty requiring it.“). Courts have long interpreted “custody” in the context of
The concept of primary jurisdiction was established by the Supreme Court nearly a century ago, when it acknowledged the need for comity between state and federal authorities with respect to managing defendants who are subject to both state and federal criminal prosecutions and sentences. See Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). In Ponzi, the Supreme Court stated the general rule that the first sovereign to arrest a defendant obtains primary jurisdiction over him as against other sovereigns. Id. at 260 (“The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose.“). Nevertheless, the sovereign with primary jurisdiction could consent to the defendant‘s transfer to another sovereign for trial or other proceedings. Id. at 261. Such a decision is vested “solely to the discretion of the sovereignty making it,” acting through “its representatives with power to grant it.” Id. at 260. In the federal system, for example, a “transfer of a federal prisoner to a state court for such purposes” may be “exercised with the consent of the Attorney General.” Id. at 261-62.
Congress enacted the earliest predecessor of
Courts interpreted
was recodified as
maintained its priority, and “the district court did not have authority to order [the defendant] into federal custody to commence his federal sentence.” Id.
Absent a clear indication to the contrary, we assume that Congress was aware that courts interpreted the predecessors to
Our interpretation is also consistent with the BOP‘s understanding of the statutory scheme, to which we ordinarily afford “substantial deference.” Jonah R., 446 F.3d at 1006; see also Reno v. Koray, 515 U.S. 50, 61 (1995) (holding that courts may defer to BOP program statements). Pursuant to a BOP Program Statement, “[w]hen it has been determined [that] an inmate was committed improperly to federal custody and primary jurisdiction resides with a state sovereign (i.e., the inmate was under jurisdiction of the federal sentencing court on the basis of a writ of habeas corpus ad prosequendum), [the BOP] will make every effort to return the inmate to state custody.” U.S. Dep‘t of Justice, Fed. Bureau of Prisons, Program Statement No. 5160.05: Designation of State Institution for Service of Federal Sentence 11 (2003) (“Program Statement“). In such situations, the BOP‘s Program Statement provides that “[a] return to the state means that the federal sentence should be considered as not having commenced since transfer to the Bureau was in error and the prisoner should have been returned to the state.” Id. at 12. Although the Program Statement refers to the situation in which a prisoner‘s erroneous federal custody is pursuant to a writ of habeas corpus ad prosequendum, see id. 11–12, the BOP‘s policy with regard to such writs recognizes that a federal sentence does not commence merely because a prisoner is in the federal government‘s physical custody. Because the BOP‘s interpretation is a permissible construction of the statute, we defer to it. See Reno, 515 U.S. at 61.10
B
Having determined that a federal sentence commences only when the federal government has physical possession of and primary jurisdiction over the defendant, we must next determine when the federal government obtains such primary jurisdiction. It is well established that if a sovereign takes a defendant into its custody before another sovereign has done so, then the arresting sovereign establishes its primary jurisdiction and may
The more difficult situation arises when one sovereign transfers a defendant to another sovereign. Such a case requires an exercise of comity between the sovereigns, and turns on whether the state with primary jurisdiction intended to surrender its priority upon transfer or merely transferred temporary control of the defendant to the federal government. See United States v. Warren, 610 F.2d 680, 685 (9th Cir. 1980) (a sovereign with priority “may elect under the doctrine of comity to relinquish” control of a defendant); see also Ponzi, 258 U.S. at 266 (stating that the Attorney General may give “the consent of the United States” to permit a federal prisoner to be tried in a state‘s courts, but this consent does not relinquish priority). Because a state‘s transfer of temporary control of the defendant “extends no further than it is intended to extend,” Zerbst, 97 F.2d at 254, and a state that mistakenly transferred a prisoner to the federal government lacked the intent to surrender primary jurisdiction, such a mistaken transfer does not constitute a relinquishment of primary jurisdiction. If the state retains primary jurisdiction, the federal sentence does not commence pursuant to
This conclusion raises a second question: how to determine whether the state‘s transfer of a prisoner is a mistake. In determining whether a state‘s transfer of a defendant to a second sovereign is intended to be “a complete surrender of the prior jurisdiction” that the state acquired over the defendant, Zerbst, 97 F.2d at 254, we consider the record as a whole. In light of the obligations of comity, we give
particular weight to the state‘s own determination that the transfer of the prisoner to the federal government was a mistake. See Ponzi, 258 U.S. at 260. If the state is silent on this issue, we may consider whether the state and federal government made a formal temporary transfer of physical control pursuant to a writ of habeas corpus ad prosequendum or written request for temporary custody, see Taylor, 164 F.3d at 445, and whether a properly authorized representative of the state approved the transfer, see Ponzi, 258 U.S. at 260. Because the “[d]etermination of priority of custody and service of sentence between state and federal sovereigns is a matter of comity to be resolved by the executive branches of the two sovereigns,” Warren, 610 F.2d at 684, two sovereigns are not bound “by the actions of mere subordinate administrative officials such as the state sheriff and federal marshal,” Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937).
The Tenth Circuit‘s decision in Weekes v. Fleming, 301 F.3d 1175 (10th Cir. 2002), illustrates such a record-specific analysis. In that case, a state arrested a defendant; transferred him to federal authorities for criminal proceedings in federal court; obtained his return to state court on a writ of habeas corpus ad prosequendum where he was sentenced to a term of imprisonment; and finally returned him to federal court where he pleaded guilty and was sentenced to imprisonment. Id. at 1177. After the federal authorities transferred the defendant to federal prison, the BOP determined that the defendant had not yet served his prior state sentence and returned him to state prison. Id. at 1177-78. Upon the conclusion of his state term of imprisonment and his return to federal prison, the defendant claimed that his federal sentence began when he was first transported to the federal prison. Id. at 1179.
The Tenth Circuit agreed, holding that the record demonstrated that the state had intentionally relinquished primary jurisdiction over the defendant. Id. at 1181. In determining the state‘s intent, the court first noted that the United States had not presented “either a written request for temporary custody or a writ of habeas corpus ad prosequendum” when it took the defendant away from state authorities, which gave rise to a presumption that both the federal government and the state government had “agreed to a permanent change of custody.” Id. Further, the state‘s subsequent acts confirmed this presumption was correct. These acts included “(1) the subsequent use of an ad prosequendum writ to regain custody, (2) a sentencing order expressly providing that the state sentence should be served concurrently with a future federal sentence, and (3) a state-lodged detainer requesting [the defendant‘s] return to the state prison system upon completion of his federal sentence.” Binford v. United States, 436 F.3d 1252, 1255 (10th Cir. 2006) (discussing Weekes) (emphasis omitted). Because the record demonstrated that the state had agreed to surrender primary jurisdiction over the defendant and that “[t]he United States was under no duty to return [the defendant] to state custody after federal sentencing,” the court concluded that he “must be given federal credit for time served since ... the date his federal sentence actually commenced.” Id. (first and third alterations in original) (quoting Weekes, 301 F.3d at 1181).
The dissent argues that our conclusion may prevent a prisoner from being given credit for all time served in official custody. Dissent at 30–31. It therefore urges the adoption of a rule that the state must be deemed to have surrendered its primary jurisdiction when it transfers the prisoner to the federal government unless the state expressly preserves its primary jurisdiction through a writ of habeas corpus ad prosequendum. Dissent at 32. We disagree. Such an approach is contrary to the principles of comity expressed in Ponzi, which establish that the sovereign which is first to arrest a defendant obtains primary jurisdiction over him as against other sovereigns, and any transfer must be with that sovereign‘s consent. 258 U.S. at 260. We would interfere with the comity necessary for managing defendants who are subject to criminal prosecution
Moreover, the dissent‘s concern that prisoners will not be fully credited for time served is misplaced. Dissent at 30–31. In this case, for instance, Johnson received credit against his state sentence for time erroneously spent in federal custody. Even the dissent agrees that Johnson is not entitled to receiving credit against both his state and federal sentence for the time spent in federal custody, the result he seeks on appeal. See Dissent at 37. Nor does our interpretation of
III
We now consider whether, under
Johnson argues that the record establishes that Texas relinquished its primary jurisdiction in 2009 when the Dallas County Sheriff‘s Department twice transferred him to the federal government and represented on one occasion that his the state sentence was complete. Moreover, as in Weekes, Johnson‘s transfer to federal control was not pursuant to a writ of habeas corpus ad prosequendum or a written request for temporary custody from the federal government. Thus, in Johnson‘s view the federal government had legal custody over him upon his erroneous transfer.
Johnson argues that we should follow Weekes and hold that the state intended to relinquish primary jurisdiction because the state did not transfer him to the federal government pursuant to a writ of habeas corpus ad prosequendum or a written request for temporary custody. Again we disagree. In Weekes, the absence of a writ of habeas corpus ad prosequendum was only one relevant factor, and “the further acts of the two sovereigns” confirmed the court‘s conclusion that the state and federal sovereigns had reached an agreement for a transfer of primary jurisdiction. 301 F.3d at 1181. Here, unlike in Weekes, there is no indication (1) that either sovereign believed that Texas would have to “borrow” Johnson by means of a writ of habeas corpus ad prosequendum in order to get physical custody, (2) that Texas consented to Johnson‘s serving his state sentence concurrently with his federal sentence, or (3) that Texas lodged a detainer with the federal authorities acknowledging the federal government‘s priority.14 See id. at 1181. Rather, the record best reflects a mutual understanding between the sovereigns that Texas‘s error was not a surrender of priority and that comity counseled in favor of returning Johnson to the state authorities.
We conclude that on this record, Texas established its priority of jurisdiction when it arrested Johnson in February 2007. From the time of arrest through the time Texas paroled Johnson, the state did not manifest an intent to surrender its priority in favor of the federal government. The Sheriff Department‘s transfers of Johnson to the federal government in August and December of 2009 were merely mistakes. Therefore, the federal government did not obtain legal custody, i.e., “custody enabling and entitling it to enforce the [consecutive federal] sentence,” Burge, 332 F.2d at 175, until after Johnson completed his state sentence. The BOP accordingly did not err in determining that Johnson‘s federal sentence commenced on June 6, 2011, when the federal government for the first time
AFFIRMED.
OLIVER, Chief District Judge, dissenting:
I respectfully dissent. I disagree with the majority that Johnson is not entitled to credit toward his federal sentence for the time he was held in detention by the U.S. Marshal Service on two occasions: August 7 through November 3, 2009, and December 14, 2009 through February 12, 2010, after being released by the Dallas County Sheriff‘s Department to the U.S. Marshal Service. I would find that the federal authorities obtained primary jurisdiction over him when they took physical custody of his body, and his sentence commenced pursuant to
I do agree with the majority that the existing case law in this Circuit, like that in others, holds that as between state and federal sovereigns, the one having primary jurisdiction over a defendant obtains priority in terms of custody and service of sentence. Taylor v. Reno, 164 F.3d 440, 444 (9th Cir. 1998). Furthermore, it is clear that the sovereign which first gains custody of a defendant maintains primary jurisdiction over him unless it is relinquished. Id. In this Circuit, unlike in some others, primary jurisdiction is relinquished by a federal court when it places a defendant on bond, for example. Id. at 444-45. But, primary jurisdiction by a sovereign is not relinquished if it transfers a prisoner in custody to another sovereign pursuant to a writ of habeas corpus ad prosequendum to answer charges in that jurisdiction. Id. at 444. Under such circumstances, the prisoner is deemed to be “on loan.” U.S. v. Evans, 159 F.3d 908, 912 (4th Cir. 1998); Thomas v. Brewer, 923 F.2d 1361, 1367 (9th Cir. 1991); Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978). Thus, a prisoner is not entitled to have his federal sentence commence immediately upon sentencing in federal court if he has been held pursuant to a writ prior to sentencing.
This court has not, however, addressed before today the issue of whether a prisoner is entitled to credit for time served in federal custody where he was mistakenly turned over to federal officials to commence his federal sentence by a state having primary jurisdiction over him. I think that the majority, in holding that Johnson would not be entitled to any credit for the time he served in federal custody, misinterprets Circuit precedent. It also interprets the doctrine of primary jurisdiction in a way that is inconsistent with
In my view, Taylor and the line of cases that establish when a prisoner may be “on loan” to another sovereign do not support the majority‘s conclusion that the prisoner in this case, who was mistakenly released from state to federal custody, should not receive credit for the time he spent in federal custody. See, e.g., Ponzi v. Fessenden, 258 U.S. 254, 260-61 (1922); Zerbst v. McPike, 97 F.2d 254, 254 (5th Cir. 1938).
Indeed, I read Taylor to do no more than confirm the universally-accepted principle that when a state allows a prisoner in its custody to appear in federal court by a writ, that prisoner is “on loan” to the
I do not think the relevant case law supports the proposition that a sovereign must always consent in order to lose its primary jurisdiction. That is certainly one way that it could happen. For example, a court might be confronted with the issue of whether a sovereign from whom a prisoner was acquired by another sovereign pursuant to a writ may have nevertheless consented to the latter sovereign‘s having priority in regard to a prisoner‘s service of his sentence. See, e.g., Binford v. U.S., 436 F.3d 1252, 1256 (10th Cir. 2006) (concluding that parties had reached no agreement to alter fact that the state had primary jurisdiction over defendant who was loaned to federal authorities through a writ). There may also be circumstances under which the court has to determine whether a sovereign who relinquished a prisoner to another without requiring a writ may nevertheless have reached agreement with the second sovereign that it would maintain primary jurisdiction. See, e.g., Weekes v. Fleming, 301 F.3d 1175, 1181 (10th Cir. 2002) (concluding that Idaho, who first had primary jurisdiction, consented to a relinquishment of custody to the United States because the United States was allowed to take possession of the prisoner without a writ, and there was other evidence of the parties’ consent to such an arrangement). Indeed, in Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937), this court acknowledged the possibility of sovereigns making various arrangements in regard to sentencing, including staggering them, but found no evidence of such an agreement in that case. In making a determination of this type, one would look to the administrative and judicial officers charged with making such decisions, not subordinate officials, such as Marshals or sheriffs. But there is nothing to suggest in Taylor and the line of cases dealing with prisoners “on loan” to another sovereign, as concluded by the majority, that consent is always dispositive of whether primary jurisdiction is relinquished.
The court made clear in Taylor that the doctrine of primary jurisdiction is based on who has custody or control of the “body” of the prisoner. In deciding that the federal court, which first had primary jurisdiction, had relinquished it by placing the defendant on bond, the court stated in Taylor:
As in Strand,1 the state in this case, not the federal government maintained physical control of Taylor. The sovereign who lacks possession of the body permits another to proceed against the accused.
164 F.3d at 445 (internal quotations omitted). Thus, Taylor instructs that just as the federal court relinquished primary jurisdiction in that case because it no longer had custody of the body, the state twice relinquished primary jurisdiction over Johnson in this case on the two occasions
The law establishing that the temporary relinquishment of a prisoner pursuant to a writ does not alter primary jurisdiction itself suggests that the consent theory on which the majority relies in this case is not well-founded. By consent, they do not mean just consent to the turnover of the prisoner, but that the turnover was not through their mistake or accident. Suppose that, through accident or mistake, a state prisoner is turned over by a state with primary jurisdiction to federal authorities for sentencing without a writ and that the federal prisoner is sent to a federal prison facility thereafter to commence his sentence. I do not believe the majority would argue, or the case law supports, the conclusion that the state would have maintained jurisdiction under these circumstances. In Taylor, it was because the prisoner was delivered to federal court pursuant to a “valid writ” that the state court was able to maintain primary jurisdiction over the defendant. Id. at 444. There was no inquiry about the intent of the judge who had responsibility for deciding the issue of whether he should release the defendant on bond. Indeed, the judge‘s intent was deemed irrelevant to the inquiry as evidenced by the fact that on appeal in that case, the court found his pronouncement upon imposition of sentence, that defendant was “now in federal custody“, to be of no significance. Id. at 445–46.
But beyond concluding that a sovereign‘s intent to transfer must be determined by consideration of the record as a whole, the majority goes further by concluding, citing Smith, 91 F.2d at 262, that sovereigns are not bound by subordinate officials such as sheriffs and U.S. Marshals. Yet Smith was a much different case than this one. That case involved circumstances where a defendant was convicted and sentenced in federal court and immediately commenced his sentence in the custody of the U.S. Marshal, who was instructed to transfer him to a federal penitentiary. Id. at 261. The Marshal did not. Some time thereafter, he transferred the defendant to state custody to commence his state sentence. Id. Upon completion of the service of his time in state custody, he was being held for the commencement of his federal sentence. Id. We held that he properly commenced his federal sentence in the custody of the Marshal. Consequently, the Marshal‘s delivery of the prisoner to state authorities, contrary to his instructions that he deliver him to the federal penitentiary, did not toll the running of his federal sentence. Id. at 262. There was no question that the federal court had primary jurisdiction and that the defendant commenced his sentence in federal custody. As such, the court acknowledged that it was not called upon to determine whether or not there was an agreement between sovereigns that the defendant would serve a staggered sentence. Under the circumstances of that case, the federal authorities were bound to give credit to the prisoner despite the ministerial error of the Marshal. However, this determination was not based on whether the state obtained primary jurisdiction, but on the federal common law doctrine that once a defendant‘s sentence has begun, it should be continued uninterrupted, unless interrupted by fault of the prisoner. Id. As a result, the court concluded that he was entitled to credit toward his federal sentence for the time he spent in a state institution.
I do not think that Smith, or the case law in general, supports the notion that federal courts, in determining whether jurisdiction has been relinquished by a sovereign, must always engage in a prolix exercise of combing through the state statute
commence merely because a prisoner is in the federal government‘s physical custody.” Maj. Op. 15. However, as discussed previously, I do not think that the authority regarding prisoners being “on loan” by one sovereign to another through a writ has any applicability to the very different circumstances of this case. Consequently, I find the majority‘s reliance on the Program Statement to be unpersuasive.
I conclude that the federal government acquired primary jurisdiction over Johnson on the two occasions when the Sheriff turned him over to the Marshal and that he should be given credit for the time spent in the custody of the Marshal. This result is supported by cases in this Circuit and others, which teach that physical custody of the body of the prisoner determines which sovereign has primary jurisdiction in the absence of the prisoner being in the custody of a sovereign pursuant to a writ or an agreement of the sovereigns to the contrary. On the two occasions when the prisoner was released into the possession of the Marshal it was not pursuant to
Admittedly, courts have varied regarding whether to give federal credit to a prisoner mistakenly taken into federal custody by federal authorities when the state had, and never relinquished, primary jurisdiction. Some courts have read the doctrine of primary jurisdiction into the definition of “received into custody,” concluding that a federal prisoner who is mistakenly delivered to a federal penal institution to begin his sentence is not received in custody for the purpose of commencing his federal sentence. For example, in Binford, the court held that a prisoner, who appeared before the federal court pursuant to a writ and was mistakenly delivered to a federal facility after sentencing in federal court, was not entitled to the time he spent at the federal facility before being returned to the state because the state court had primary jurisdiction. Reading the doctrine of primary jurisdiction as a gloss on
Other courts, while acknowledging the importance of the doctrine of primary jurisdiction in determining which sovereign has priority in regard to the service of its sentence, have not viewed the doctrine as altering the plain meaning of the words “received in custody” in
I find that the cases indicating that a prisoner‘s sentence commences when he arrives at a federal facility to begin his sentence, even if it is later determined that the state had primary jurisdiction at the time of his sentence, are more persuasive than those holding to the contrary. The doctrine of primary jurisdiction was developed as a rule of comity between sovereigns to assist them in determining which had priority in terms of whose sentence would be served first when a defendant had charges pending before more than one sovereign. It was not developed to determine when a federal sentence commences.
A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.
I submit that, when Johnson was taken into custody by the Marshal upon delivery by the Sheriff on the two occasions involved in this case, it was clearly for the purpose of commencing his federal sentence. The fact that the comity contemplated by the sovereigns failed to work on a particular occasion because of a mistake should not affect Johnson‘s right to have his sentence commenced under the terms required by the plain meaning of the words set forth in the statute. The sovereign in this case, the federal government, was not deprived of its authority or jurisdiction to act by the primary jurisdiction doctrine, a doctrine of comity only.
Having concluded that Johnson should be given credit for the time he actually spent in federal custody, I do not think he is entitled to credit toward his federal sentence for the time he spent in state custody. There is some federal common law authority for the proposition that once a prisoner begins the commencement of his federal sentence, that sentence must continue uninterrupted until completed. Smith, 91 F.2d at 260; Weekes, 301 F.3d at 1180. Johnson was entitled to have his sentence commence on either of the days he was turned over to the Marshal, and if that doctrine were applicable here, he would be entitled to federal credit for the time he spent in state custody after his federal sentence had commenced. However, “[t]raditionally, the doctrine for credit for time at liberty has only been applied where a convicted person has served some part of his sentence and then been erroneously released.” U.S. v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988). The court did find the doctrine to be applicable in Smith, awarding credit toward his federal sentence to the defendant for time spent in state custody after he began his sentence in federal custody and was transferred to state custody before completing his federal sentence. 91 F.2d at 260; Weekes, 301 F.3d at 1181-82 (also concluding that where federal sentence was interrupted by service of state sentence that defendant should receive credit toward federal sentence for time spent in state custody). However, it does not seem to have been regularly applied to a situation such as in this case where Johnson was mistakenly given the opportunity to begin his federal sentence first. Generally, courts have not applied this doctrine in situations where the state
I would reach the same result in regard to the prisoner in this case, give him credit for the time he served in federal custody, but I would find that he is not entitled to credit for the time he spent in state custody. As the court indicated in Free,
The rule against piecemeal incarceration precludes the government from artificially extending the expiration date of a prison sentence; the rule does not, however, justify or mandate that a prisoner receive a ‘get out of jail early’ card...even when the prisoner is not at fault.
333 F.3d at 555. As in Free, the prisoner‘s sentence in this case was not elongated as a result of the transfer from federal to state custody.
Finally, I address another concern of the majority: allowing Johnson credit for the time he spent in the custody of the U.S. Marshal Service under the circumstances of this case would be in violation of
For all of these reasons, I would REVERSE the decision of the district court and grant Johnson‘s request for a writ requiring that the Bureau of Prisons give him credit toward his federal sentence for
Notes
(a) Commencement of sentence.-A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.
(b) Credit for prior custody.-A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences-
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.