United States District Court, D. Arizona
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE
THE HONORABLE DOMINIC W. LANZA:
February 22, 2019, Petitioner William Chesmore filed a
petition seeking federal habeas corpus relief pursuant to 28
U.S.C. § 2241 and a motion seeking preliminary
injunctive relief. (ECF No. 1; ECF No. 4). Chesmore is
represented by the Federal Public Defender's office in
this matter and he was granted leave to proceed in forma
is currently in the custody of the Arizona Department of
Corrections (“ADOC”) pursuant to a sentence
imposed by the Cochise County Superior Court. Chesmore is
scheduled for release from ADOC custody on June 28, 2019. The
United States Marshals Service (“USMS”) has
placed a detainer against his custody based on a sentence
imposed in 2018 upon the revocation of supervised release in
United States v. Chesmore, 4:08-CR-378 FRZ (D.
Ariz.). Chesmore's § 2241 motion asks the Court to
find he has already served the six-month sentence imposed in
4:08-CR-378 and, accordingly, to quash the detainer.
March 10, 2009, pursuant to a guilty plea, Chesmore was
convicted of possession with intent to distribute
methamphetamine and using and carrying a firearm during a
drug trafficking crime, and sentenced to the custody of the
Bureau of Prisons (“BOP”) for an aggregate term
of 106 months imprisonment. United States v.
Chesmore, 4:08-CR-0378 (D. Ariz.) at ECF No. 24. The
Court also imposed concurrent terms of five years of
supervised release on each count of conviction.
(Id.). On February 24, 2016, Chesmore was released
from custody upon completion of the sentences imposed in
4:08-CR-0378. (ECF No. 14-1). On January 30, 2017, the Court
issued an arrest warrant for Chesmore, who was accused of
violating the terms of his supervised release.
Chesmore, 4:08-CR-0378 at ECF No. 30.
7, 2017, Chesmore was arrested by state authorities on
various state drug charges and detained at the Cochise County
Jail. (ECF No. 14-1 at 9). On May 8, 2017, the USMS lodged a
detainer on Chesmore's custody with the Cochise County
Sheriff's Office, based on the outstanding arrest warrant
in 4:08-CR-00378. (ECF No. 14-1 at 7).
November 27, 2017, pursuant to a guilty plea on one count of
possession of heroin, the Cochise County Superior Court
sentenced Chesmore to a term of 2.5 years imprisonment, with
credit for 204 days served in pre-trial custody. (ECF No.
14-1 at 9, 19, 21). The state court ordered Chesmore's
conviction be served concurrently with the yet-to-be-imposed
federal sentence upon the revocation of his supervised
release in 4:08-CR-00378. (ECF No. 14-1 at 21,
The state court's sentencing order also provided Chesmore
would “remain in the custody of the Cochise County
Sheriff and be transported back to the federal
[authorities].” (ECF No. 14-1 at 23). On November 28,
2017, Chesmore was transferred to the custody of the USMS,
pursuant to the detainer, and the USMS housed Chesmore at the
Central Arizona Detention Facility pending the resolution of
the federal court revocation proceedings. (Id.).
April 11, 2018, Chesmore's supervised release in
4:08-CR-0378 was revoked and Judge Zapata imposed a sentence
of six months' incarceration. Chesmore,
4:08-CR-0378 at ECF No. 49. The federal court did not order
the federal sentence to run concurrent with the
already-running state sentence and did not mention the state
sentence when entering judgment. Id.
25, 2018, the USMS updated Chesmore's
“USM-129” to reflect the following:
“Primary Custody belongs to state, BOP will not
designate - [subject picked up from] Cochise on USMS
[detainer] but owes state time/state has primary
jurisdiction.” (ECF No. 14-1 at 16). On June 15, 2018,
the USMS returned Chesmore to state custody and lodged a
detainer based on the judgment and sentence entered April 11,
2018. (ECF No. 14-1 at 12, 17). Chesmore was received back
into ADOC custody on June 19, 2018. (ECF No. 14-1 at 16).
Chesmore received credit against his state sentence for the
entire time spent in both state and federal custody
subsequent to his arrest on May 7, 2017, and his projected
release date is June 28, 2019.
November 23, 2018, Chesmore, through appointed counsel, filed
a motion in 4:08-CR-0378, seeking to quash the detainer.
Chesmore, 4:08-CR-0378 at ECF No. 52. The motion to
quash was denied in an order entered January 4, 2019.
Id. at ECF No. 56. In the order denying the motion
to quash Judge Zapata rejected Chesmore's contention that
primary jurisdiction had transferred to federal authorities
when Chesmore was received by the USMS in November of 2017,
noting the state court judge had explicitly ordered that
Chesmore was to “remain in the custody of the Cochise
County Sherriff and be transported back to the Federal Bureau
of Prisons.” Id.
January 11, 2019, Chesmore's counsel contacted the BOP,
asking the BOP to declare the state prison as the designated
place for the fulfillment of Chesmore's federal sentence
of incarceration in 4:08-CR-0378 pursuant to 18 U.S.C. §
3621(b). (ECF No. 1 at 6). Counsel argued that primary
jurisdiction had transferred to the federal authorities on
November 28, 2017, and, alternatively, that BOP should
designate the state prison for the service of Chesmore's
federal sentence nunc pro tunc. (ECF No. 1 at 6-7; ECF No.
1-2). On January 16, 2019, the BOP contacted the chambers of
Judge Zapata seeking clarification regarding Chesmore's
sentence in 4:08-CR-0378, and the Judge's Courtroom
Deputy verified the federal sentence “was not imposed
as to run concurrent with any state sentence.” (ECF No.
14-1 at 28). Additionally, that same day Judge Zapata issued
an order in Chesmore's criminal case, denying
Chesmore's motion for reconsideration of the order
denying the motion to quash the federal detainer and
explicitly stating that the federal sentence was not ordered
to be served concurrently with the state sentence.
Chesmore, 4:08-CR-0378 at ECF No. 59.
January 17, 2019, the BOP informed Chesmore's counsel
that his federal sentence was a consecutive sentence and that
federal law precluded the federal sentence from commencing
prior to the date Chesmore is released to the exclusive
custody of federal authorities. The BOP determined
“that commencement of his federal sentence by way of a
concurrent designation is not consistent with the goals of
the criminal justice system, Bureau of Prisons policy or
federal statute.” (ECF No. 1-2).
February 22, 2019, Chesmore filed the instant § 2241
habeas petition asserting his federal sentence has been
completely served. Alternatively, he argues BOP “is
illegally refusing to exercise the discretion it enjoys under
18 U.S.C. § 3621(b) and its own policies to designate
the Arizona Department of Corrections as the place for
service of the revocation sentence.” (ECF No. 1 at 2).
law, codified at 28 U.S.C. § 2241, extends habeas corpus
relief to a person in custody in violation of the
Constitution or laws or treaties of the United States. 28
U.S.C. § 2241(c)(3). The Court has jurisdiction over
Chesmore's claims pursuant to § 2241 because he is
challenging the manner of the execution of his sentence.
Brown v. United States, 610 F.2d 672, 677 (9th Cir.
1990). Additionally, although there is no subject matter
jurisdiction in the Court to review individualized,
discretionary determinations made by the BOP pursuant to 18
U.S.C. § 3621, judicial review is available for
allegations that a BOP action is contrary to established
federal law, violates the Constitution, or exceeds statutory
authority. Reeb v. Thomas, 636 F.3d 1224, 1228 (9th
jurisdiction is a legal doctrine which accommodates
“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.” Johnson v. Gill, 883 F.3d 756, 761
(9th Cir.), cert. denied sub nom. Johnson v.
Copenhaver, 139 S.Ct. 251 (2018), citing Ponzi v.
Fessenden, 258 U.S. 254, 259 (1922). “[T]he first
sovereign to arrest a defendant obtains primary jurisdiction
over him as against other sovereigns.” Id. at
761-62, citing Ponzi, 258 U.S. at 260. The parties
do not dispute that the State of Arizona obtained primary
jurisdiction over Chesmore by arresting him on May 7, 2017,
and that by doing so the State acquired the right to enforce
its sentence before any other sovereign, i.e., the United
States. See, e.g., Taylor v. Reno, 164 F.3d
440, 444 (9th Cir. 1998); United States v. Warren,
610 F.2d 680, 684-85 (9th Cir. 1980).
argues that, because he was physically transferred to federal
authorities on November 28, 2017, without the use of a writ
of habeas corpus ad prosequendum, primary jurisdiction was
transferred from the state to the federal authorities on that
date and, accordingly, he has spent six months in the primary
custody of the federal authorities. (ECF No. 1 at 9-10).
jurisdiction generally terminates when the prisoner's
sentence expires, the charges against the prisoner are
dismissed, “or the prisoner is allowed to go
free.” Johnson, 883 F.3d at 765. Because the
state charges against Chesmore had not been dismissed, his
state sentence had not expired, and Chesmore had not been set
free as of November 28, 2017, the only way primary
jurisdiction may be deemed to have transferred to the federal
authorities on that date is if the temporary transfer of
Chesmore from state to federal custody effected a transfer of
primary jurisdiction in some other fashion.
contends primary jurisdiction was transferred to the United
States because the transfer was not made pursuant to
a writ of habeas corpus ad prosequendum. (ECF No. 1 at 9).
However, although the use of a writ of habeas corpus ad
prosequendum is an appropriate way to “loan” an
inmate between sovereigns, the absence of such a writ does
not per se demonstrate the relinquishment of primary
jurisdiction. See Johnson, 883 F.3d at 766, 768.
Moreover, a federal sentence does not begin when a defendant
is produced for federal prosecution by a writ of habeas
corpus ad prosequendum from state custody. Thomas v.
Brewer, 923 F.2d 1361 (9th Cir. 1991); Thomas v.
Whalen, 962 F.2d 358 (4th Cir. 1992). A federal sentence
does not begin to run until the state authorities relinquish
the prisoner on satisfaction of the state obligation. Del
Guzzi v. United States, 980 F.2d 1269, 1271 (9th
whether primary jurisdiction was transferred in this
circumstance “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.” Johnson, 883 F.3d at
765. “[A] state's transfer of temporary control of
the defendant ‘extends no further than it is intended
to extend' . . .” Id., quoting Zerbst
v. McPike, 97 F.2d 253, 254 (5th Cir. 1938). “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,
[the Court] ...