Jake v. Herschberger

• Citation: 173 F.3d 1059
• Decision Date: 06 April 1999
• Docket Number: No. 96-2780,ADX-F,96-2780
• Parties: Tony R. JAKE, Petitioner-Appellant, v. G.L. HERSCHBERGER, Warden,lorence, Florence, Colorado, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1059

173 F.3d 1059

Tony R. JAKE, Petitioner-Appellant, v. G.L. HERSCHBERGER, Warden, ADX-Florence, Florence, Colorado Respondent-Appellee.

No. 96-2780.

United States Court of Appeals Seventh Circuit.

Argued Jan. 11, 1999.

Decided April 6, 1999.

Tony R. Jake, White Deer, PA, pro se.

William E. Coonan, Mark R. Niemeyer (argued), Office of United States Attorney, Civil Division, Fairview Heights, IL, for Respondent-Appellee.

Robert J. Palmer, May, Oberfell & Lorber, South Bend, IN, for Amicus Curiae, pro se.

Before FAIRCHILD, MANION and KANNE, Circuit Judges.

MANION, Circuit Judge.

Federal prisoner Tony R. Jake appeals from the denial of his petition for habeas corpus under 28 U.S.C. § 2241 to correct his sentence. Jake seeks credit on his federal sentence for at least some of the time he was in state custody prior to his arrival at the federal penitentiary. Jake's sentence, which was imposed in 1984, is governed by statutory provisions which have since been repealed by the Sentencing Reform Act of 1984, P.L. 98-473. Jake first seeks credit for about four years of time he spent in the state prison after receiving a state sentence that was to be concurrent with his prior federal sentence. We agree with the district court that Jake is not entitled to credit for all the time he served after he received his concurrent state sentence. In the alternative, Jake seeks credit for about three years of time after he was offered by the state prison officials to the federal authorities, when the federal authorities declined to accept him. Again we agree with the district court that he is not entitled to credit for all this time. But we disagree with the district court that Jake was not entitled to credit for any time served prior to arriving at the federal penitentiary. We conclude, as did the magistrate judge, that Jake was entitled to credit for the time he was in state custody after his state sentence was stayed and he was ordered transferred to the federal authorities in accord with a previously lodged federal detainer--a period of about six months. We therefore reverse the district court's judgment denying Jake any relief and remand.

Facts

Jake has a long history of committing violent felonies. On July 22, 1983, federal law enforcement officers in the Central District of California arrested Jake for his involvement in a bank robbery. He was indicted on August 8, 1983, and released on bond on August 19. While out on federal bond, on October 2, 1983, California law enforcement officers arrested Jake on kidnaping and rape charges. (Those charges were entirely unrelated to his pending federal charges.)

On October 24, 1983, Jake was arraigned in the federal district court. His appearance was obtained by a writ of habeas corpus ad prosequendum. ¹ Jake pleaded not guilty to the charges, and the court scheduled a jury trial for November 22, 1983. This date was subsequently continued one week so his trial began on November 29. On that day he again appeared by means of a writ of habeas corpus ad prosequendum. After a four-day trial, Jake was found guilty on December 2. On January 16, 1984, the district court sentenced Jake to 16 years imprisonment. (The federal judgment was silent as to its relation to any subsequent state sentence.) He was then returned to the state authorities. And on a date not disclosed in the record, the U.S. Marshal lodged a detainer for Jake with the state.

Jake entered into a plea agreement with the state prosecutor. He agreed to plead guilty to all five counts against him on two conditions: that his state sentence be concurrent with his federal sentence, and that he be permitted to serve his state sentence in any federal penitentiary. On June 10, 1985, Jake pleaded guilty under the terms of this agreement, and the state trial judge sentenced him to a 20-year sentence to run concurrently with his prior federal sentence. The judge ordered that he be turned over to the federal authorities, but due to a scrivener's error the wrong box was checked on his judgment of conviction so Jake was remanded to the California prison system and no attempt was then made to tender him to federal authorities.

On March 17, 1986, after a letter-writing campaign by Jake's family and attorney, the state trial court realized the error on the judgment and granted a writ coram nobis to correct it. The corrected judgment indicated that his state sentence was to be served in any federal penitentiary. In response, on April 10, 1986, state prison officials contacted the Federal Bureau of Prisons (BOP) and offered Jake to the BOP to serve his state sentence concurrently with his federal sentence in a federal prison. On May 21, 1986, the BOP responded that it would not accept Jake as offered. The BOP relied on a general rule that unless the federal judgment of conviction indicated that the sentence was to be concurrent with a state sentence, the BOP would not accept the prisoner until after he had been released by the state. Of course this rule appears to be irrelevant in cases such as Jake's because the federal sentence preceded the state sentence--indeed, here the federal sentence preceded the state one by eighteen months. Obviously a federal judgment would make no reference to a state sentence that does not yet exist. But such a rule seems to have been recognized in the case law, including in this court. See, e.g., United States v. Kanton, 362 F.2d 178 (7th Cir.1966) (per curiam). ²

Eight months later, on February 25, 1987, Jake's attorney contacted the systems administrator of the BOP's Western Region, seeking assurance that the BOP would credit Jake's time in state prison against his federal sentence. On March 4, the systems administrator responded, stating that Jake's federal sentence would not begin to run until he arrived in federal custody. The exact maneuvers in which Jake's attorney then engaged are unclear from the record, but their result became evident a little more than a year later.

In January 1988, Jake and another prisoner attacked several deputies, and he was charged with multiple counts of assault with a deadly weapon on a peace officer. On June 30, 1988, Jake pleaded guilty to one of the counts against him. He was sentenced to 5 years imprisonment to run concurrently with any uncompleted sentences. This sentence was stayed until September 23, 1988. On July 22, 1988, Jake pleaded guilty to another of the counts against him. He was sentenced to 9 years, again to run concurrently with any uncompleted sentences. This sentence was also stayed. At this same time, Jake's original guilty plea to the kidnaping and rape charges was set aside. Presumably this was done because the agreement that produced that plea--that he would serve a concurrent sentence in the federal penitentiary--had not yet been accomplished. Jake then pleaded guilty to these offenses again and was again sentenced to 20 years to run concurrently with his prior federal sentence. But this time the court did not err in executing its intention. The court also stayed this sentence until November 23, and ordered Jake into the custody of the Los Angeles County Sheriff with instructions to deliver him to federal authorities. The stays of Jake's various sentences were continued more than once because, for reasons that are unclear on the record, Jake was not "paroled" to the LA County Sheriff until December 15, 1988. The U.S. Marshal took physical custody of Jake on January 20, 1989. The BOP calculated Jake's sentence as beginning on December 15, 1988, the day he was paroled to the Sheriff.

About eight months later, Jake apparently attempted to have the federal district court either alter his original judgment of conviction or make a recommendation to the BOP regarding crediting his time served in state prison. On August 11, 1989, Jake filed a request for a stipulation with the district court. It is unclear precisely to what he requested a stipulation. On September 6, 1989, the district court--the same judge who had originally sentenced him--entered an order that seems to have denied Jake any requested relief. The order does not appear in the record, but the docket sheet describes it thus: "The Court does not believe that there is any basis on which to alter the federal sentence or to make any recommendation relating to the state sentence."

Jake also used the administrative procedures of the BOP in an effort to get credit for his time served in state prison. He exhausted those remedies sometime in 1991. On August 16, 1994, Jake filed the present petition for habeas corpus under 28 U.S.C. § 2241 seeking credit for his time served in state prison. ³ This is the appropriate remedy for one in Jake's situation. The Attorney General's responsibility over federal prisoners is exercised through the BOP. See 18 U.S.C. § 3621(a); United States v. Wilson, 503 U.S. 329, 331, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). The prisoner's first avenue to seek relief is therefore through the BOP's administrative procedures. Under the prior statutory scheme, the district court did not participate in the computation of credit, but could review the BOP's determination after the prisoner exhausted his administrative remedies. See id. at 322.

After nearly two years of proceedings in the district court--where Jake was represented by appointed counsel--the parties filed cross-motions for summary judgment which were referred to a magistrate judge for a report and recommendation. On May 1, 1996, the magistrate judge recommended that each motion be granted in part and denied in part. He concluded that Jake was entitled to credit for his federal sentence beginning on July 22, 1988, the day Jake's state sentences were stayed and he was ordered transferred to the federal authorities. Both parties filed objections. On June 21, 1996, the district court accepted the magistrate judge's report in part and rejected it in part, concluding that Jake's federal sentence did not...