Chesmore v. Gonzales

          REPORT AND RECOMMENDATION

          CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE DOMINIC W. LANZA:

         On 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 pauperis.

         Chesmore 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.

         I Background

         On 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.

         On May 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).

         On 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, 23).^[1] 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.).

         On 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.

         On May 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).^[2] 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.

         On 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.

         On 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.

         On 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).

         On 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).

         II Analysis

         Federal 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 Cir. 2010).

         A. Primary jurisdiction

         Primary 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).

         Chesmore 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).

         Primary 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.

         Chesmore 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 Cir.1992).

         Determining 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] ...