Opinion
No. CV 00-9374-RC
February 2, 2001
JUDGMENT
Pursuant to the Memorandum Decision and Order on a Petition for Habeas Corpus,
IT IS ADJUDGED that the Petition for Writ of Habeas Corpus is denied and the action is dismissed with prejudice.
MEMORANDUM DECISION AND ORDER
On September 1, 2000, petitioner Elliott Alexander Dugan filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 claiming he has not received proper credit toward his sentence for time spent in federal custody commencing August 14, 1997. Petition at 4-5, 8. On November 21, 2000, the respondent filed a return to the petition in which he disputes the merits of petitioner's claim, but does not contest the propriety of petitioner filing a habeas petition under 28 U.S.C. § 2241, Return at 8:2-8, and admits that petitioner has exhausted his administrative remedies. Return at 7-8-22. On December 28, 2000, respondent filed a document at the request of the Court. The petitioner did not timely file a traverse. The parties have consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636 (c).
BACKGROUND
On May 13, 1997, in the United States District Court for the Eastern District of Michigan, a criminal complaint was filed against petitioner (and another) charging conspiracy to distribute cocaine in violation of 21 U.S.C. § 841 (a) and 846. Declaration of Michael D. Frazier ("Frazier Decl."), Exh. 2. The petitioner initially appeared on May 13, 1997, and was temporarily detained without bail; however, bail was later set and then canceled when the complaint against petitioner was dismissed without prejudice on May 27, 1997. Id. On May 29, 1997, petitioner was released from federal custody. Frazier Decl., Exh. 3. On June 12, 1997, an indictment was filed against petitioner charging the same offenses as charged in the complaint. United States v. Dugan, case no. CR 97-80513 ("Dugan I") Frazier Dec., Exh. 2.
The petitioner received credit against his federal sentence for the time he spent in federal custody between May 13 and May 29, 1997. Declaration of Rosetta Edwards, Att. 2.
Between May 27 and June 12, 1997, no federal charges were pending against petitioner because the initial complaint had been dismissed without prejudice and the indictment had not yet been filed.
On June 5, 1997, petitioner was arrested by California authorities and charged with violating his parole (following a state conviction for second degree robbery) by leaving California without permission and possessing a controlled substance in Michigan. Edwards Decl., Att. 2; Frazier Decl., Exhs. 2, 4-5. On the same date, a parole hold was placed on petitioner. Frazier Decl., Exh. 7. On July 3, 1997, the California Board of Prison Terms ("BPT") held a parole revocation hearing, determined to revoke petitioner's parole for leaving California without permission, and sentenced petitioner to four months for violating parole; however, no findings were made regarding the charge of possession of a controlled substance in Michigan. Edwards Decl., Att. 2; Frazier Decl., Exh. 5.
On August 14, 1997, while remaining in California custody, petitioner was transferred to the district court in Michigan under a writ of habeas corpus ad prosequendum so that he could be arraigned and tried (and sentenced, if found guilty) on the charges in Dugan I. Frazier Decl., Exh. 3. The petitioner was arraigned on August 15, 1997, and his trial by jury commenced on January 15, 1998; however, on January 16, 1998, a First Superseding Information was filed charging petitioner with one count of unlawful use of a communication facility in violation of 21 U.S.C. § 843 (b), and pursuant to a plea agreement, petitioner pleaded guilty to, and was convicted of, the new charge. Frazier Decl. Exh. 2. On April 14, 1998, petitioner was sentenced to 46 months in prison and one-year of supervised release. Frazier Decl., Exh. 6. He has a projected release date of October 11, 2001. Frazier Decl., Exh. 1.
The writ of habeas corpus ad prosequendum directed petitioner's California jailor to produce petitioner at the United States District Court for the Eastern District of Michigan on August 15, 1997, at 1:00 p.m., to "appear . . . and when his appearance is no longer required, to return him forthwith to the [California] institution." Notice of Filing, December 28, 2000.
On May 1, 1998, petitioner was returned to California to serve the remainder of his parole violation term. Frazier Decl., Exh 3. On June 5, 1998, the BPT determined it would not consider the charge of possession of a controlled substance and removed petitioner's parole hold, and petitioner was transferred to federal custody. Edwards Decl., Att. 2; Frazier Decl., Exhs. 3, 7.
In making these determinations, the BPT reasoned that "[t]he maximum amount of time that the [BPT] can assess for [petitioner's parole] violations is one year, and that time expired on 6/5/98." Edwards Decl., Att. 2; Frazier Decl., Exh. 7.
DISCUSSION
The authority to compute a federal prisoner's sentence is delegated to the Attorney General, who exercises it through the Bureau of Prisons ("BOP"). United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992); Allen v. Crabtree, 153 F.3d 1030, 1033 (9th Cir. 1998), cert. denied, 525 U.S. 1091 (1999). "Computing a federal sentence requires two separate determinations: first, when the sentence commences; and, second, to what extent the defendant in question may receive credit for any time already spent in custody." United States v. Smith, 812 F. Supp. 368, 370 (E.D. N.Y. 1993); Chambers v. Holland, 920 F. Supp. 618, 621 (M.D. Pa. 1996), affirmed by, 100 F.3d 946 (3d Cir. 1996) (Table) (unpublished disposition).
A federal sentence "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." 18 U.S.C. § 3585 (a). Here, petitioner was received into custody to commence service of his federal sentence on June 5, 1998, after he completed serving his California parole violation term, and respondent now agrees that petitioner is entitled to credit against his federal sentence for the time he has spent in federal custody since June 5, 1998. Edwards Decl., ¶ 9. The petitioner contends, however, that he also is entitled to credit against his federal sentence for the time he spent in federal custody from August 14, 1997, when he was transported to the district court in Michigan under a writ of habeas corpus ad prosequendum, to June 5, 1998. The petitioner is mistaken.
"As a general rule, the first sovereign to arrest a defendant has priority of jurisdiction for trial, sentencing, and incarceration." Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir. 1991); United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980). Although petitioner initially was arrested by federal authorities on May 13, 1997, the federal authorities relinquished their priority of jurisdiction or primary jurisdiction when the petitioner was released from federal custody on May 29, 1997. Taylor v. Reno, 164 F.3d 440, 444-45 (9th Cir. 1998), cert. denied, 527 U.S. 1027 (1999); Smith, 812 F. Supp. at 370-71 n. 2. Thus, when the California authorities arrested petitioner for violating his parole on June 5, 1997, California gained priority of jurisdiction or primary jurisdiction over petitioner. Taylor, 164 F.3d at 444-45.
Moreover, the production of a defendant to a federal court pursuant to writ of habeas corpus ad prosequendum does not constitute the commencement of a sentence under federal law. Thomas, 923 F.2d at 1366-67. Rather, the state retains priority of jurisdiction or primary jurisdiction over the prisoner, and federal custody commences only when the state authorities relinquish their custody upon the satisfaction of the state term. Taylor, 164 F.3d at 441 n. 1, 445; Thomas, 923 F.2d at 1366-67; Smith, 812 F. Supp. at 370-71. As the Ninth Circuit has held:
"When an accused [in state custody] is transferred [to federal custody] pursuant to a writ of habeas corpus ad prosequendum he is considered to be 'on loan' to the federal authorities so that the sending state's jurisdiction over the accused continues uninterruptedly."
Thomas, 923 F/2d at 1367 (quoting Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978), cert. denied, 441 U.S. 934 (1979)).
Accordingly, petitioner is not entitled to credit against his federal sentence for time spent in federal custody pursuant to the writ of habeas corpus ad prosequendum.
Nor is petitioner entitled to such credit under 18 U.S.C. § 3585 (b), which states that "[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; [par;] that has not been credited against another sentence."
Here, petitioner received a four-month term of imprisonment for violating his parole by leaving California, and he remained in state custody on a parole hold for an additional eight months while awaiting a parole revocation hearing on the charge of possession of a controlled substance; however, such charge was not determined, and the BPT released petitioner from state custody because he had served the maximum time allowed for a parole violation — one year. Frazier Decl., Exh. 7. Since petitioner received credit against his state sentence for the time he spent in state custody prior to June 5, 1998, he is not entitled to credit against his federal sentence for the same period of time. Boniface v. Carlson, 856 F.2d 1434, 1436 (9th Cir. 1988) (per curiam); see also Wilson, 503 U.S. at 337, 112 S.Ct. at 1355-56 ("Congress made clear [in Section 3585(b)] that a defendant could not receive a double credit for his detention time."); Rios v. Wiley, 201 F.3d 257, 274-75 (3d Cir. 2000) ("[T]he general rule prohibiting double credit articulated in section 3585(b) applies equally to situations where, as here, the prisoner was in federal control pursuant to a writ of habeas corpus ad prosequendum during the time period for which a pre-sentence credit is sought."); United States v. LaBeille-Soto, 163 F.3d 93 (2d Cir. 1998) ("[A] defendant has no right to credit on his federal sentence for time that has been credited against his prior state sentence."); United States v. Winter, 730 F.2d 825, 826-27 (1st Cir. 1984) (applying former Section 3568, and holding that defendant was not entitled to credit for time served in state prison because state parole board delayed parole decision pending outcome of federal appeal when there was no claim federal authorities requested or received any postponement).
See California Penal Code ("P.C.") § 3057(a)("Confinement pursuant to a revocation of parole . . . shall not exceed 12 months. . . ."); 15 C.C.R. § 2635.1(c) (2000) ("[C]onfinement pursuant to parole revocation shall not exceed one year . . . cf. 15 C.C.R. § 2606(b) (2000) ([The] parole hold shall not remain in effect for longer than one year.")
For all the foregoing reasons, there is no merit to petitioner's claim he should receive sentence credits for the period of August 14, 1997, to June 5, 1998.
ORDER
IT IS ORDERED that Judgment be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.