United States District Court, D. Arizona
REPORT AND RECOMMENDATION
JOHN Z. BOYLE, Magistrate Judge.
Petitioner Ellis Eugene Pittman, who is confined in an Arizona State Prison, has filed a pro se Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 13.) In 2012, Petitioner was in custody on state charges, and subsequently writ (but not released) to federal custody in Kentucky. Petitioner was sentenced in his federal case, and returned to Arizona. Petitioner was then sentenced in Arizona, with an order that his state sentence be served concurrently with his federal sentence. The trial court ordered Petitioner's transfer to federal custody, but that order was not enforced and Petitioner remains in state custody. Petitioner is now essentially serving a consecutive sentence. The trial court's failure to rule on Petitioner's subsequent motion that he be transferred to federal custody is a violation of federal law, which requires that state courts enforce their contractual plea obligations. The Court recommends Petitioner's and Respondents' request on Ground One be granted.
I. Procedural Background
A. Trial Court Proceedings
On November 21, 2012, the State of Arizona indicted Petitioner for two counts of aggravated assault. (Doc. 17-1, Ex. B, at 6.) On November 1, 2012, a grand jury in the Eastern District of Kentucky indicted Petitioner on two counts of Possession with Intent to Distribute Controlled Substances. (Doc. 17-1, Ex. C, at 9.) On January 17, -, the United States District Court for the Eastern District of Kentucky issued a writ of habeas corpus ad prosequendum ordering Petitioner to be brought to Kentucky to face federal prosecution. (Doc. 17-1, Ex. D, at 13.) On September 9, -, Petitioner pleaded guilty in district court to Attempted Possession with Intent to Distribute and Possession of a Firearm in Furtherance of a Drug Trafficking Offense. (Doc. 17-1, Ex. E, at 16.) On September 10, -, the district court sentenced Petitioner, in 12 CR 20-DLB-2, to 215 days of time served for the attempted distribution count and to a consecutive term of 60 months' imprisonment for the firearms count. (Doc. 17-1, Ex. F, at 24.)
Petitioner was transferred back to Arizona, and subsequently pleaded guilty on January 15, -, to one count of Aggravated Assault. (Doc. 17-1, Ex. G, at 31.) The plea stipulated that Petitioner's sentence run concurrently with his Eastern District of Kentucky sentence. (Id.) On February 20, -, the court sentenced Petitioner to six years of imprisonment with 505 days credit for time served. (Doc. 17-1, Ex. I, at 2.) Petitioner's order of confinement required that his state sentence would be "concurrent" with his federal sentence and that he was "to be housed in federal custody." (Doc. 17-1, Ex. H, at 35.
Petitioner was not transferred to federal custody and remains in the custody of the Arizona Department of Corrections.
B. Post-Conviction Proceedings
Petitioner filed motions in the trial court requesting the court order his transport to federal custody. (Doc. 17-1, Exs. J and K, at 43-48.) The court declined to take action on the motions due to a problem with service. (Doc. 17-1, Ex. L, at 49.) On August 4, -, Petitioner filed a motion in the trial court requesting he be transferred to federal custody. (Doc. 17-1, Ex. M, at 51.) That motion was not ruled upon. (Doc. 17-1, Ex. R, at 82.)
On April 15, -, Petitioner filed a "Petition for Order Shortening Time" in the District Court for the Eastern District of Kentucky. (Doc. 17-2, Ex. N, at 62.) The court denied Petitioner's request because Petitioner had not commenced his federal sentence. (Doc. 17-1, Ex. P, at 71-72.)
C. Federal Habeas Proceedings
Petitioner filed a Petition for a writ of habeas corpus. (Doc. 1.) He later received leave to amend his petition. (Doc. 3, 5.) On April 30, 2015, Petitioner filed the present Second Amended Petition for Writ of Habeas Corpus. (Doc. 13.)
In Ground One, Petitioner alleges the "Maricopa County Superior Court... violated Petitioner's constitutional rights" when it failed to ensure Petitioner's transfer to federal custody. (Doc. 13 at 6.) In Ground Two, Petitioner alleges ineffective assistance of counsel when his attorney failed to ensure that Petitioner would be ...