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Johnson v. Gill

United States Court of Appeals, Ninth Circuit

February 20, 2018

Aubry Rea Johnson, Petitioner-Appellant,
v.
A. Gill, Warden, Respondent-Appellee.

          Argued and Submitted May 18, 2017 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Senior District Judge, Presiding D.C. No. 1:12-cv-02043-AWI-MJS

          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.

          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 28 U.S.C. § 2241 habeas corpus petition challenging the Bureau of Prisons' determination of when his federal sentence commenced.

         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 18 U.S.C. § 3585(a), and therefore the federal sentence did not commence until June 6, 2011, when the federal government for the first time exercised exclusive penal custody over Johnson.

         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 § 3585(a) at that time; and (2) even if the federal authorities did not have primary jurisdiction when he was being detained by the Marshals, he nevertheless began his sentence pursuant to § 3585(a) because he was being held for the purpose of commencing his federal sentence.

          OPINION

          IKUTA, CIRCUIT JUDGE:

         Aubry Johnson was criminally convicted in both state and federal court. Both courts sentenced him to serve periods of incarceration, with the federal sentence to run consecutively to the state sentence. While serving his state sentence, he was twice erroneously turned over to federal authorities, first from August through November of 2009 and then again from December 2009 through February 2010. Once his state sentence was complete and the Marshals Service took him into federal custody, the Bureau of Prisons (BOP) concluded that Johnson's federal sentence commenced in June 2011, when the federal government for the first time gained primary jurisdiction over him.[1]

         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 18 U.S.C. § 3585(a), and therefore the federal sentence did not commence.

         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 authorities, requesting that the state hold Johnson so that federal authorities could assume custody of him when he satisfied his state sentence.[3]

         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 remedies, Johnson filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, which the district court denied. He timely appealed.

         We have jurisdiction under 28 U.S.C. § 1291 and review the district court's ruling de novo. Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008). Although Johnson is currently incarcerated at the Federal Correctional Institution in Oakdale, Louisiana, habeas jurisdiction was proper in the district court because Johnson filed his petition while incarcerated at the Federal Correctional Institution in Mendota, California. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1980). His subsequent transfer does not destroy the jurisdiction established at the time of filing. Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990).

         II

         The federal statute governing when a term of imprisonment commences, 18 U.S.C. § 3585, [5] provides that "[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." 18 U.S.C. § 3585(a). In order to determine whether Johnson's federal sentence commenced when the state mistakenly transferred him to the federal government, we begin by interpreting § 3585(a) in its historical context.

         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 § 3585 and its predecessors as referring to the federal government's control over a prisoner when it has both physical custody and primary jurisdiction.

         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 § 3585, 18 U.S.C. § 709a, in 1932.[6] See Jonah R. v. Carmona, 446 F.3d 1000, 1003 (9th Cir. 2006) (discussing the history of § 3585). Courts interpreted § 709a in light of Ponzi and the concept of primary jurisdiction, concluding that a state's transfer of a defendant to the federal government does not trigger the commencement of the federal sentence unless the federal government obtains primary jurisdiction over the defendant. In Zerbst v. McPike, for instance, Louisiana state authorities had primary jurisdiction over a defendant, but transferred him to the federal government for the duration of a federal prosecution. 97 F.2d 253, 254 (5th Cir. 1938). When the federal sentencing was complete, the prisoner was returned to the state, which took him back to state jail and tried and sentenced him for a state crime. Id. After the defendant served his state sentence, he argued that his federal sentence began running when he was taken to the state jail following his federal sentencing. Id. The Fifth Circuit rejected this argument. It explained that the state had primary jurisdiction over the defendant and merely lent the prisoner to the federal government "without a complete surrender of the prior jurisdiction over him which the State had acquired." Id. Therefore, the federal sentence did not "commence" until the defendant was received at the federal penitentiary after the state sentence was complete.[7] Id.

         Courts interpreted 18 U.S.C. § 3568, [8] the successor statute to § 709a, in light of this doctrine of primary jurisdiction. See, e.g., Hayward v. Looney, 246 F.2d 56, 58 (10th Cir. 1957) (interpreting 18 U.S.C. § 3568, a recodification of 709a); United States ex rel. Moses v. Kipp, 232 F.2d 147, 150 (7th Cir. 1957) (same). In doing so, courts consistently concluded that a federal sentence did not commence until the federal government had "legal custody" of a defendant, meaning the primary jurisdiction necessary to enforce the federal sentence. Burge v. United States, 332 F.2d 171, 175 (8th Cir. 1964); see also Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978). When § 3568 was recodified as § 3585, our current statute, in 1984, [9] courts retained the same interpretation. See, e.g., Elwell v. Fisher, 716 F.3d 477, 481 (8th Cir. 2013) ("Pursuant to the doctrine of primary jurisdiction, service of a federal sentence generally commences when the United States takes primary jurisdiction and a prisoner is presented to serve his federal sentence, not when the United States merely takes physical custody of a prisoner who is subject to another sovereign's primary jurisdiction."); United States v. Evans, 159 F.3d 908, 911-12 (4th Cir. 1998) (same). We have implicitly reached the same conclusion. See Taylor v. Reno, 164 F.3d 440 (9th Cir. 1998). In Taylor, the federal government surrendered its primary jurisdiction over a federal defendant by releasing him on his own recognizance pending sentencing. Id. at 443. While at large, he was arrested by the state and jailed on a murder charge. Id. State officials later produced the defendant for federal sentencing pursuant to a writ of habeas corpus ad prosequendum. Id. At his federal sentencing, the district court stated that the defendant was "now in federal custody, " id., but ...


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