Taylor v. Reno, s. 97-36198

• Decision Date: 31 December 1998
• Docket Number: Nos. 97-36198,98-35013,s. 97-36198
• Parties: 99 Cal. Daily Op. Serv. 15, 98 Daily Journal D.A.R. 43 Miguel TAYLOR, Petitioner-Appellant, v. Janet RENO, Attorney General; Kathleen Hawk, Director of Bureau of Prisons; Eduardo Gonzales, Director U.S. Marshal Service, Respondents-Appellees. United States of America, Plaintiff-Appellee, v. Miguel Taylor, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 440

164 F.3d 440

99 Cal. Daily Op. Serv. 15, 98 Daily Journal

D.A.R. 43

Miguel TAYLOR, Petitioner-Appellant, v. Janet RENO, Attorney General; Kathleen Hawk, Director of

Bureau of Prisons; Eduardo Gonzales, Director

U.S. Marshal Service, Respondents-Appellees.

United States of America, Plaintiff-Appellee, v. Miguel Taylor, Defendant-Appellant.

Nos. 97-36198, 98-35013.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 1998.

Decided Dec. 31, 1998.

Steven T. Wax, Federal Public Defender's Office, Portland, Oregon, for the petitioner-appellant.

Michael J. Brown, Assistant United States Attorney, Portland, Oregon, for the respondent-appellee.

Appeals from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. Nos. CV-97-00592-MFM, CV-97-00593-MFM.

Before: THOMPSON and TROTT, Circuit Judges, and RHOADES, District Judge. ^*

DAVID R. THOMPSON, Circuit Judge:

The appellant Miguel Taylor ("Taylor") was sentenced to three concurrent 70-month terms of imprisonment by the United States District Court for his drug convictions in this case. He was also sentenced by the Oregon State Court to 115 months for a manslaughter conviction. In this appeal from the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241, and from the denial of his motion for a reduction of his sentence pursuant to 28 U.S.C. § 2255, Taylor challenges the district court's refusal to transfer his custody from the State of Oregon to the Federal Bureau of Prisons so that his federal sentence would commence. He also challenges Taylor contends that his federal sentence should have commenced prior to his state sentence because the federal government had primary jurisdiction over him when it imposed his federal sentence. He also argues that the district court's judgment and commitment order mandated that the United States Marshal ("Marshal") deliver him into federal custody, and the Marshal failed to do so. Taylor further argues that he received constitutionally ineffective assistance of counsel when his attorney informed him that his federal sentence would begin when the district court's commitment order was entered. Finally, he contends that statements about his custodial status made by the district judge during sentencing about his custodial status lulled him into relying on erroneous advice of his counsel, thereby denying him due process.

the district court's refusal to give him credit against his federal sentence for the time he has served and will serve in state custody.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

FACTS

In June 1992, Taylor was charged in federal court with conspiracy to distribute and distribution of crack cocaine. Approximately two weeks after his arrest, Taylor was released on his own recognizance. On October 27, 1992, Taylor pleaded guilty to three federal counts of distributing crack cocaine. Taylor remained released on his own recognizance pending sentencing.

While he was on release awaiting sentencing, state officials arrested him on December 14, 1992, charged him with murder, and jailed him.

Back in federal court, the district court set March 29, 1993 as the date for a hearing on Taylor's objections to his presentence report and on his motion to continue his federal sentencing hearing. On the March 29th date, pursuant to a writ of habeas corpus ad prosequendum, state officials produced Taylor at the United States District Court. During the hearing, the district judge expressed concern about the delay in sentencing:

[Taylor] is sitting in jail on state charges not giving him credit towards a federal charge.... [H]e is serving a term as far as I am concerned he should get credit for. I don't have the power to do this as long as he is in state custody.

The district judge continued the sentencing to May 10, 1993, at which time Taylor appeared for federal sentencing without the issuance of a new writ of habeas corpus ad prosequendum. The original writ required Taylor's presence for federal court sentencing on March 29, 1993, and for "such further proceedings as may be directed by the Court."

At the May 10, 1993 sentencing hearing, Taylor was sentenced to three concurrent terms of 70 months. His defense counsel raised the issue of whether Taylor would be granted federal credit for time that he served in state custody. Responding to that concern, the district judge stated:

I will recommend [that Taylor be sent to] the Federal Corrections Institute at Sheridan. [Taylor] will be sentenced to the custody of the Bureau of Prisons. I also considered that with the imposition of this sentence you are now in federal custody. I also feel that you are entitled to the credit for time that you were in custody from the time of your release until the time of the State arrest. However, you must be aware of the fact that the original determination of all credit for time served is made by the Bureau of Prisons. If it abuses its discretion or violates the law, that can be reviewed by a District Court. So my statements of what I feel you are entitled may meet with some resistance but those are the recommendations that I am making.

The district judge's written order specifically stated, "[w]ith the imposition of this sentence, the defendant is now in federal custody. The court recommends that the defendant be given credit for time served from the time of arrest on the federal charges until his release on federal charges." The order also contained language that Taylor was "hereby committed to the custody of the Federal Bureau of Prisons." At the conclusion of the May 10, 1993 sentencing hearing Taylor was subsequently acquitted on the state murder charge, but he was convicted of manslaughter. His manslaughter conviction was reversed on appeal, he was retried for manslaughter and once again convicted. The state court sentenced him to 115 months in state prison, gave him credit for the time he had served in state custody, and ordered that his state sentence run concurrently with his previously imposed 70-month federal sentence. Ever since Taylor's first conviction on the state manslaughter charge he has been serving his state sentence in the custody of the Oregon Department of Corrections.

the Marshal returned Taylor to the county detention center, where he was held as a state prisoner.

Following the imposition of Taylor's state sentence, the Bureau of Prisons refused to take custody of him and opted not to begin running his federal sentence until he completed his state sentence. The Bureau of Prisons advised Taylor, however, that it would be willing to designate the Oregon prison as the site for service of his federal sentence, thereby producing concurrent federal and state sentences, if the federal district court recommended it. The district court refused to make that recommendation. In refusing to do so, the district court referred to the fact that the imposition of concurrent state and federal sentences would render the 70-month federal drug trafficking sentences a nullity and that permitting Taylor to "trade" his concurrent federal drug sentences for the 115-month state manslaughter sentence would be unconscionable. Thus, Taylor continues to serve his state sentence in state custody; his federal sentence has not yet commenced.

Taylor filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion for reduction of his federal sentence pursuant to 28 U.S.C. § 2255. The district court denied relief, and this appeal followed.

We must first determine whether the state or federal government had primary jurisdiction ¹ over Taylor at the time his federal sentence was imposed on May 10, 1993. Taylor argues that the federal government had primary jurisdiction over him at that time because his federal custody continued while he was on release awaiting federal sentencing. In the alternative, Taylor contends that if the federal government relinquished primary jurisdiction over him when he was released awaiting his federal sentencing, the federal government regained primary jurisdiction when the state delivered him to federal court for the May 10, 1993 sentencing hearing, without a new writ of habeas corpus ad prosequendum. Because the federal government had primary jurisdiction over him at that time, Taylor argues, his federal sentence commenced before imposition of his state sentence.

While the federal government undoubtedly had primary jurisdiction over Taylor before it released him on his own recognizance, the question is whether this release relinquished federal primary jurisdiction. We conclude that it did. As a result, the state obtained primary jurisdiction over Taylor when it arrested him on the state murder charge. Further, because Taylor appeared pursuant to a valid writ of habeas corpus ad prosequendum, he was still in state custody when he was delivered to the federal court for the March 29, 1993 hearing and for the May 10, 1993 sentencing. Because he was still in state custody at the time the district court imposed Taylor's federal sentence, the district court did not have authority to order Taylor into federal custody to commence his federal sentence.

We reach this conclusion mindful of a split among the circuits on the issue of whether releasing a defendant on bail relinquishes primary jurisdiction. The Sixth Circuit, in United States v. Croft, 450 F.2d 1094 (6th Cir.1971), held that when a defendant is charged with a federal offense and released on bail, the federal government does not lose its primary jurisdiction. To the contrary, the Ninth Circuit precedent leads us to the Second Circuit's position that the federal government relinquished its custody and primary jurisdiction when it released Taylor on his own recognizance. In Strand v. Schmittroth, 251 F.2d 590 (9th Cir.1957), we held that the federal government gave up primary jurisdiction when it released a...