Thomas v. Brewer, 89-55498

Decision Date17 January 1991
Docket NumberNo. 89-55498,89-55498
Citation923 F.2d 1361
PartiesJames Ray THOMAS, Petitioner-Appellant, v. R.D. BREWER, Warden, et al., Respondents-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Diane Desfor, Law Student, U.S.C. Law Center, Charles D. Weisselberg, U.S.C. Law Center, Los Angeles, Cal., for petitioner-appellant.

John Libby, Asst. U.S. Atty., and Jimmye S. Warren, Asst. U.S. Atty., Los Angeles, Cal., for respondents-appellees.

Appeal from the United States District Court for the Central District of California.

Before REINHARDT, LEAVY, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

James Ray Thomas is a federal prisoner who appeals the district court's denial of his petition for writ of habeas corpus. He claims the right to immediate release on the ground that his federal sentence has been fully served.

At the time of his sentencing on federal charges August 4, 1964, Thomas was a state prisoner. He was transferred to federal authorities pursuant to a writ of habeas corpus ad prosequendum, which directed the defendant's return. After sentence was imposed committing Thomas for a diagnostic study under 18 U.S.C. Sec. 4208(c), he was returned to state authorities. Having served state sentences, he was released to federal authorities for commitment November 23, 1966. The study was then conducted and a judgment after study was ultimately entered for a maximum term of twenty-five years.

Thomas contends that the district court erred in three respects: first, in determining that he was a state prisoner at the time of his federal sentencing; second, in concluding that his federal sentence did not commence under 18 U.S.C. Sec. 3568 and that he was not entitled to credit toward his federal sentence from the time of his detention in the federal wing of the Los Angeles County Jail on the day of sentencing; and third, in failing to recognize that he should be credited from the date he was committed for study under 18 U.S.C. Sec. 4208(c).

We hold on the facts in this case that the federal sentence began to run from November 21, 1966, the date on which Thomas was released by state authorities to federal custody for commitment, and affirm.

I

On May 10, 1964, James Ray Thomas was arrested by the San Gabriel, California Police for the armed robbery of a local supermarket. While in state custody on this charge, Thomas was charged in federal court with one count of armed bank robbery in violation of 18 U.S.C. Sec. 2113(a), (b). On June 15, 1964, Thomas was brought before United States District Court Judge Stephens on the bank robbery charge pursuant to a writ of habeas corpus ad prosequendum issued June 11, 1964. 1 On June 22, 1964, a second writ of habeas corpus ad prosequendum was issued requiring Thomas's appearance before Judge Stephens on June 23, 1964. 2

On August 4, 1964, Thomas again appeared before Judge Stephens for sentencing after pleading guilty to one count of bank robbery. At this time, Thomas was being held in the federal wing of the Los Angeles County Jail. The record does not reflect whether a writ was used to secure Thomas's presence in the district court on August 4, 1964. On this date, however, Judge Stephens committed Thomas "to the custody of the Attorney General or his authorized representative for the maximum period prescribed by law for a study as described in Title 18, U.S.Code, Sec. 4208(c), the results of such study to be furnished this court within three months whereupon the sentence of imprisonment herein imposed shall be subject to modification in accordance with Title 18 U.S.Code, Sec. 4208(b)." 3

The federal marshal, subsequent to the sentencing, returned Thomas to the Los Angeles County Jail. On August 28, 1964, Thomas appeared before California Superior Court Judge Kaufman for sentencing on his guilty plea to assault with a deadly weapon. Judge Kaufman sentenced Thomas to two terms to run concurrent with each other. Judge Kaufman's judgment also recommended that Thomas be "released to the custody of the Federal Government (custody of the United States Attorney General)." On the judgment order form, following the standard printed language that "It is further Ordered that the defendant be remanded into the custody of the Director of Corrections at the California State Prison at Chino," were typed the words "when available."

Thomas was then returned to the custody of the Los Angeles County Sheriff. On February 11, 1965, Thomas appeared before Superior Court Judge Noble after pleading guilty to a charge of kidnapping for the purpose of robbery. Judge Noble sentenced Thomas "for the term of his natural life, which sentence is ordered to run concurrently with any sentence being served." Thomas was then taken to the California State Institution, Chino on February 23, 1965.

On November 23, 1966, Thomas was returned to U.S. marshals to enable concurrent service of Thomas's federal and state terms. On an unknown date in December 1966, Thomas was delivered to the Federal Correctional Institute, Lompoc, California, where the study ordered by Judge Stephens on August 4, 1964, was commenced. After completion of the three-month study, Thomas was placed in an "Out-to-Court" status on April 7, 1967 for return to the district court for the determination of his sentence. On September 21, 1967, Judge Stephens entered a "Judgment After Study," affirming the sentence of imprisonment for the maximum term of twenty-five years originally imposed on August 4, 1964. Thomas was then returned to the Federal Correctional Institution in Lompoc. On January 4, 1968, Thomas was received at the California State Prison, Folsom, Represa as a return from concurrent service. On December 13, 1974, Thomas was paroled by the State of California and turned over to the custody of the United States Marshals Service.

The United States Attorney General calculated Thomas's sentence as having commenced to run on November 23, 1966, the date Thomas was originally released from state prison and turned over to the custody of U.S. marshals for concurrent service. Based upon this determination, the Attorney General calculated Thomas's mandatory release date as April 19, 1991.

On April 4, 1988, Thomas filed a petition for a writ of habeas corpus in forma pauperis in the district court, pursuant to 28 U.S.C. Sec. 1915(a). Thomas sought credit toward his federal sentence for the time he spent in state prison from August 4, 1964 to November 23, 1966. He also alleged that due to the miscalculation of his sentence, he was being held beyond the expiration of his term.

The Magistrate's report and recommendation was filed on February 2, 1989. The district court adopted the Report and Recommendation of the Magistrate and denied Thomas's petition on March 15, 1989. The Magistrate's Report determined that since Thomas was not in the custody of the United States until November 23, 1966, Thomas's sentence was correctly calculated. The Magistrate did not address Thomas's argument that his sentence commenced on August 4, 1964 based on the language of 18 U.S.C. Sec. 3568 and former 18 U.S.C. Sec. 4208.

On April 28, 1989, Thomas timely filed an appeal to this court.

II

The district court's decision to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir.1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). To the extent it is necessary to review findings of fact, the clearly erroneous standard applies. Norris, 878 F.2d at 1180.

III
A

Thomas argues that he was in federal custody at the time of his initial federal sentencing on August 4, 1964, and that his federal sentence should therefore run from that date. He suggests that the manner in which he was brought into federal court, the express terms of the federal sentence imposed, and the language and intentions of the federal and state sentencing judges establish that he was in federal custody. In denying the petition for writ of habeas corpus, the district court concluded that "[i]t appears from the entire record that petitioner was in fact a state prisoner in the custody of the Los Angeles County Sheriff at the time he was brought out for the purpose of his appearances in federal court ... [and] at the time he received his federal sentence." Thomas contends that this conclusion is clearly erroneous.

Thomas was first arrested by state authorities on May 10, 1964. As a general rule, the first sovereign to arrest a defendant has priority of jurisdiction for trial, sentencing, and incarceration. See United States v. Warren, 610 F.2d 680, 684-85 (9th Cir.1980). While in state custody, however, Thomas was charged in federal court with bank robbery. He appeared in federal court on June 15 and June 24, 1964, pursuant to specific writs of habeas corpus ad prosequendum. The record does not reveal a similar writ for the date August 4, 1964, at which time Thomas received an initial, tentative sentence under 18 U.S.C. Sec. 4208. Thomas was subsequently sentenced in state court on August 28, 1964 and on February 11, 1965. He was released to United States Marshals on November 23, 1966, and taken to the federal penitentiary at Lompoc in December of that year. On September 21, 1967, Thomas was returned to Judge Stephens' court, at which time his final sentence following the Sec. 4208 study was imposed.

Thomas argues that because writs were obtained for his two prior appearances, the absence of a writ for his August 4 appearance demonstrates that a writ was unnecessary. The only reason that a writ would be unnecessary, he suggests, is because state authorities had relinquished jurisdiction over him to federal authorities and he was already in federal custody.

We disagree. The second writ ad prosequendum, issued June 22, 1964, and commanding Thomas's appearance on June 23, also authorized his appearance on August 4, 1964. This writ commanded that Thomas be produced "in order...

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