Lonnie Ray Wiseman, Petitioner - Appellant, v. Patti Wachendorf, Warden; Federal Bureau of Prisons, Respondents - Appellees.
No. 19-2393
United States Court of Appeals For the Eighth Circuit
January 5, 2021
Submitted: September 24, 2020
Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
This appeal concerns a dispute over how to credit time served by a prisoner. Lonnie Wiseman is an inmate at the Iowa State Penitentiary. Under a prisoner transfer arrangement, he is serving a thirty-year sentence imposed in Arkansas state court in 1996. After Wiseman was sentenced in Arkansas, the federal government prosecuted him for offenses committed before his incarceration, and a federal court in New Mexico sentenced him in September 1997 to a term of 595 months’ imprisonment. The federal government briefly assigned Wiseman to a federal prison, but then concluded that he should have been returned to Arkansas and transferred him back there in October 1997.
Wiseman maintains that his federal sentence began to run once he was sentenced to 595 months in the federal case and transferred to the federal prison. On that theory, he brought a petition for writ of habeas corpus alleging that time served since September 1997 on his Arkansas sentence should also be credited against his federal sentence. The government contends that the 595-month federal term of imprisonment has not yet commenced, and that it will not begin to run until Wiseman finishes serving his Arkansas state sentence.
I.
The saga begins in 1995, when Wiseman was serving an Idaho state sentence and escaped from a detention facility with another man who was a federal detainee. After his escape, Wiseman committed several armed robberies in New Mexico and Arkansas. In November 1995, a state trooper in Arkansas arrested Wiseman on a state charge of aggravated robbery. Wiseman pleaded guilty, and the Arkansas state court sentenced him to 360 months’ imprisonment. Wiseman began to serve that term on April 9, 1996.
On April 18, 1996, federal authorities took custody of Wiseman for the purpose of prosecuting him in Idaho on federal charges of aiding and abetting a federal prisoner to escape. The district court found that the government obtained custody pursuant to a writ of habeas corpus ad prosequendum—that is, a federal court order that demanded Wiseman‘s presence in federal court on a particular date. On the same day that the United States Marshal in Arkansas took custody of Wiseman, he appeared before a federal magistrate judge in the Western District of Arkansas. The court, citing
After the sentencing in Idaho, the Marshals Service transferred Wiseman to the District of New Mexico for prosecution on federal charges of robbery affecting interstate commerce and use of a firearm during a crime of violence. A jury found Wiseman guilty, and the district court sentenced him to 595 months’ imprisonment on September 9, 1997.
The Marshals Service then transported Wiseman to a federal prison in Beaumont, Texas. By October 1, 1997, however, a staff member at the Bureau of Prisons determined that Wiseman‘s incarceration at Beaumont was a mistake, and acted to ensure that Wiseman was returned to state custody. The staff member wrote to the Marshals Service that Wiseman was inadvertently designated to the facility in Beaumont, and that “primary jurisdiction of Mr. Wiseman lies with the state of Arkansas.” As a result, the Marshals Service removed Wiseman from the federal facility on October 7, and he arrived back in Arkansas on October 22, 1997.
II.
Under the “doctrine of primary jurisdiction,” a prisoner serving a term in state custody generally begins to serve a federal sentence when the United States assumes primary jurisdiction over the prisoner and the prisoner is presented to serve his federal sentence. Elwell v. Fisher, 716 F.3d 477, 481 (8th Cir. 2013); see also
Not every change in custody constitutes a release of primary jurisdiction. When a State with primary jurisdiction transfers a prisoner to the United States pursuant to a writ of habeas corpus ad prosequendum, for example, the prisoner is considered merely “on loan” from the State. Id. at 481-82; see also Binford v. United States, 436 F.3d 1252, 1255-56 (10th Cir. 2006). The key question is whether the first sovereign intended to relinquish its primary jurisdiction. See Johnson v. Gill, 883 F.3d 756, 765 (9th Cir. 2018).
Wiseman acknowledges that Arkansas obtained primary jurisdiction over him when state authorities arrested him on charges of aggravated robbery in 1995. He contends, however, that the State relinquished primary jurisdiction when it transferred him into the custody of the United States Marshal in April 1996 for prosecution on the federal escape charge in Idaho. For the first time on appeal, Wiseman asserts that the State did not transfer him to the United States based on a writ, but rather “waived” primary jurisdiction when it voluntarily released him into the custody of federal authorities.
The district court found that the State transferred custody pursuant to a writ of habeas corpus ad prosequendum, and this finding is not clearly erroneous. See
Wiseman suggests two reasons why the district court erred in finding that custody was transferred under a writ. Even assuming that Wiseman did not waive these arguments by pleading to the contrary, the cited reasons do not establish clear error. First, Wiseman suggests that the fact of a hearing under
Because the writ itself does not appear in the record, Wiseman urges based on Weekes v. Fleming, 301 F.3d 1175 (10th Cir. 2002), that we should order the government to produce the document. In Weekes, however, the prisoner “vigorously contended” in the district court that no writ of habeas corpus ad prosequendum was issued, and the district court failed to address the question. Id. at 1178-79. Under those circumstances, the court of appeals asked the United States to produce a writ, and the government was unable to do so. Id. at 1179. Here, by contrast, Wiseman did not dispute the existence of a writ, and alleged that his custody was transferred pursuant to a writ of habeas corpus ad prosequendum. This court is not the proper forum for evidentiary proceedings, and the district court was not required to order production of the writ when Wiseman and the Bureau of Prisons agreed that a writ had been issued.
Wiseman next argues that even with transfer of custody under a writ of habeas corpus ad prosequendum, Arkansas relinquished primary jurisdiction. He contends that the federal government‘s act of transferring him between federal districts in Idaho and New Mexico, and the lengthy period of eighteen months that he spent in federal custody, show that the United States assumed primary jurisdiction.
Wiseman was in federal custody while he was prosecuted under separate indictments in two different judicial districts. When a prisoner is subject to multiple prosecutions, the federal government‘s movement of the prisoner within its jurisdiction, while he is “on loan” from a State, does not show an assumption of primary jurisdiction by the United States. In this case, after the federal prosecutions were concluded, the Marshals Service mistakenly transferred Wiseman to a federal penitentiary. But the government identified the error within three weeks and promptly returned Wiseman to Arkansas. The federal government‘s mistaken retention of custody does not constitute an assumption of primary jurisdiction where the State never intended to relinquish jurisdiction and the error was quickly rectified. See Binford, 436 F.3d at 1256. Nor does the fact that Wiseman was “on loan” for eighteen months in order to resolve two federal prosecutions in different districts justify concluding that Arkansas gave up primary jurisdiction. See Rios v. Wiley, 201 F.3d 257, 274 (3d Cir. 2000).
Wiseman last asserts that because other jurisdictions filed detainers with the United States, the federal government must have assumed primary jurisdiction over him. A detainer, however, does not alter the custody status of a prisoner, Thomas v. Whalen, 962 F.2d 358, 360-61 (4th Cir. 1992); it “merely puts the officials of the institution in which the prisoner is
For these reasons, we conclude that Wiseman is not entitled to credit against his federal sentence.
III.
Wiseman also argues that the district court erred by denying his motion for appointment of counsel. A district court may appoint counsel for a habeas petitioner if it “determines that the interests of justice so require.”
The district court denied Wiseman‘s request for counsel, explaining that Wiseman had “thoroughly presented his claim to [the] Court, and no additional factual discovery [was] necessary to resolve the issue.” The court also observed that Wiseman enjoyed access to a law library with a database that was updated every ninety days.
Wiseman now contends that the legal and factual issues were complex, and maintains that appointed counsel “could have investigated” and “cleared up any confusion” about whether a writ of habeas corpus ad prosequendum was issued in 1996. As the case was presented to the district court, however, the parties agreed that a writ was issued, and there was no reason for the district court to believe that complex factual investigation was required. Nor were the legal issues so complex as to require appointment of counsel. The district court identified and analyzed the relevant doctrine and leading authorities before rendering a decision, and legal issues are subject to de novo review on appeal.
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The judgment of the district court is affirmed.