Cozine v. Crabtree

Decision Date02 July 1998
Docket NumberNo. CV-97-1510-ST.,CV-97-1510-ST.
Citation15 F.Supp.2d 997
PartiesDonald E. COZINE, Petitioner, v. Joseph H. CRABTREE, Warden, Federal Correctional Institution, Sheridan, Oregon, Respondent.
CourtU.S. District Court — District of Oregon

Michael Levine, Federal Public Defender's Office, Portland, OR, for Petitioner.

Craig Casey, Asst. U.S. Atty., Portland, OR, Teresa Cruise, for Respondent.


STEWART, United States Magistrate Judge.

Petitioner Donald E. Cozine ("Cozine") brings this habeas corpus petition under 28 USC § 2241 against respondent, Joseph Crabtree, the warden of the federal institution in which Cozine is presently imprisoned. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). For the reasons set forth below, the petition is granted. The court concludes that Cozine was entitled to be released from prison on November 25, 1996, and has been wrongly confined ever since. Respondent must release Cozine no later than July 13, 1998, unless the United States Court of Appeals for the Ninth Circuit grants a stay.


On April 9, 1992, Cozine was arrested in California by the Santa Clara Police Department on state narcotics charges. Santa Clara Municipal Court Case No. D9279977. On April 10, 1992, he was released on bond. On December 4, 1992, Cozine was arrested in Alabama by the Huntsville Police Department on Alabama charges of conspiracy to traffic cocaine. Madison County District Court Case No. DC92-7642. At some point, a bench warrant was issued by California authorities after Cozine failed to appear on the state drug charges. According to respondent, "[o]n December 8, 1992, while in Alabama state custody, California authorities served a fugitive from justice warrant on [Cozine] for failing to appear on the April 9, 1992 charges. On December 9, 1992, [Cozine] waived extradition to California [but] remained in the primary custody of Alabama authorities." Respondent's Supplemental Answer, p. 6. At oral argument, the parties were unable to provide further details in response to this court's questions concerning the California warrant, e.g., whether it was actually executed or simply lodged as a detainer. However, it is undisputed that Cozine remained in an Alabama jail, where he was being held to face Alabama charges.

In March 1993, a federal grand jury in Alabama indicted Cozine on federal drug charges arising out of the same conduct for which he had been arrested by the Huntsville Police Department. On April 13, 1993, federal authorities obtained physical custody of Cozine via a writ of habeas corpus ad prosequendum. Although Cozine was in federal custody, he was lodged in the Jefferson County Jail. On May 14, 1993, an Alabama grand jury "no billed" the state charges against Cozine, which were then dismissed. On May 18, 1993, Cozine appeared in federal court in Alabama and pled guilty to federal narcotics charges. United States v. Cozine, No. CF-93-H-065-NE-001. On or about June 10, 1993, Cozine appeared before the United States District Court for the Northern District of Alabama, and was sentenced to 37 months of imprisonment, to be followed by a 36 month term of supervised release. The judgment provides that:

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of THIRTY-SEVEN (37) MONTHS.

The court makes the following recommendations to the Bureau of Prisons: the court expressly directs that the defendant is to receive credit on his sentence for each day he has served in custody since his arrest on December 4, 1992.

Judgment of Conviction in No. CF-93-H-065-NE-001, p. 2 (Respondent's Answer, Ex. A, p. 30).

What happened next remains somewhat murky, despite this court's attempt to obtain clarification. According to respondent, on June 29, 1993, federal authorities purported to "return" Cozine to Alabama authorities, notwithstanding that Alabama had dismissed all charges against Cozine. Respondent's Supplemental Answer, pp. 6-7. Since federal authorities already were lodging Cozine in the Jefferson County Jail, even while he was in federal custody, it is unclear whether the June 29, 1993 "transfer" was a physical transfer of Cozine to another location or whether the transfer occurred only on paper.

On July 14, 1993, Cozine was extradited to California to face state charges unrelated to the federal and Alabama charges. On April 18, 1994, Cozine was sentenced to ten years in prison on the California charges. The judgment of conviction in that case expressly provides that:


Judgement of Conviction, Santa Clara County Superior Court Cases No. 169442, 169443, 169444 (Petition, Ex. A).

On May 2, 1994, the California state court ordered that Cozine be given 3831 days credit toward his state sentence for time already served. On April 4, 1995, the California sentence was modified to an 80-month term, apparently to correct an error in sentence computation, but otherwise was unchanged. Answer, Ex. A, p. 40.

With respect to concurrent sentences imposed by California and another jurisdiction, California law provides:

In any case in which ... a prisoner of another jurisdiction is, before completion of actual confinement in a penal or correctional institution of a jurisdiction other than the State of California, sentenced by a California court to a term of imprisonment for a violation of California law, and the judge of the California court orders that the California sentence shall run concurrently with the sentence which such person is already serving, the Director of Corrections shall designate the institution of the other jurisdiction as the place for reception of such person within the meaning of the preceding provision of this section. He may also designate the place in California for reception of such person in the event that actual confinement under the prior sentence ends before the period of actual confinement required under the California sentence.

Calif. Penal Code § 2900(b)(2).

Consistent with that statutory mandate, a long line of California cases holds that when a criminal defendant receives a California sentence which is to run concurrently with a preexisting foreign sentence (i.e., one imposed by another jurisdiction), the defendant is entitled to be transferred to the foreign authorities, and to have the foreign prison designated as the place for service of the California sentence. See, e.g., In re Stoliker, 49 Cal.2d 75, 76, 315 P.2d 12, 13 (1957); In re Altstatt, 227 Cal.App.2d 305, 306, 38 Cal.Rptr. 616, 617 (1964). This ensures that the concurrent aspect of the sentence is made effectual and not nullified. Id.

Alternatively, if the California sentence is longer than the sentence from the other jurisdiction, § 2900(b)(2) also allows the California prison to be designated as the site for concurrent service of both sentences. The California sentencing judge clearly anticipated that the latter scenario would apply here, and expressly recommended that the California prison be designated as the site for service of the federal sentence.

While the details are a little hazy, the parties agree that California authorities formally notified their federal counterparts that Cozine was serving a California sentence that had been ordered to run concurrent with a pre-existing federal sentence. Unfortunately, respondent has been unable to provide this court with copies of that correspondence, or of prior communications (if any) on the same topic.

Respondent has provided this court with a copy of the following letter dated June 3, 1996, which was signed by Charles A. Dickerson, Regional Designator of the Bureau of Prisons ("BOP") and addressed to "M. Wilson, CCRM, CMC East Records, California Department of Corrections, California Men's Colony East" in San Luis Obispo, California:

We are in receipt of your correspondence requesting that Mr. Donald Edward Cozine serve his State and Federal terms concurrently in a Federal facility.

A review of the enclosed documentation reflects that Mr. Cozine is currently serving a six year, eight month California State sentence. Additionally, Mr. Cozine has a detainer filed by the United States Marshals Service for Narcotic Violations for which he received a 37 month term to be served consecutive to his State term. His tentative parole date is scheduled for November 26, 1996. At that time he will be released to the custody of the United States Marshals Service who will execute the detainer for service of his Federal term.

We trust the above information adequately responds to your In re Stoliker request.

Ex. 1, May 28, 1998 hearing.

On November 25, 1996, Cozine was paroled from his California sentence and immediately taken into custody by federal authorities, who insisted that he had not yet served the 37-month term imposed by the federal court in Alabama. Respondent has refused to credit Cozine with any of the time that he spent in a California prison serving a sentence that was expressly ordered to run concurrently with his pre-existing federal sentence. Cozine also complains that, notwithstanding the express directive in the federal judgment that Cozine receive credit "on his sentence for each day he has served in custody since his arrest on December 4, 1992," respondent has credited him for only 115 days, from December 4, 1992, through March 28, 1993.

Respondent has calculated Cozine's release date as April 8, 1999, contingent upon qualifying for good time credits. Otherwise, his release date could be as late as August 31, 1999. Following his release, Cozine is subject to a three-year term of supervised release. Cozine also will be on parole from California, assuming that state's term of...

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