                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                  ABEL TELLEZ VELAZQUEZ, Petitioner,

                                        v.

THE HONORABLE SAM J. MYERS, Judge of the SUPERIOR COURT OF
  THE STATE OF ARIZONA, in and for the County of MARICOPA,
                     Respondent Judge,

                STATE OF ARIZONA, Real Party in Interest.

                             No. 1 CA-SA 17-0298
                               FILED 1-9-2018


 Petition for Special Action from the Superior Court in Maricopa County
                         No. CR2017-0138142-001
                    The Honorable Sam J. Myers, Judge

             JURISDICTION ACCEPTED; RELIEF DENIED


                                   COUNSEL

Karina Ordonez Law Office PLLC, Phoenix
By Karina J. Ordonez
Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Real Party in Interest
             TELLEZ VELAZQUEZ v. HON. MYERS/STATE
                       Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James B. Morse Jr. joined.


M c M U R D I E, Judge:

¶1            Abel Tellez Velazquez seeks special action relief from the
superior court’s order denying his request to release him to the custody of
the Immigration and Customs Enforcement (“ICE”) agency, so that he can
post a bond pursuant to a federal court order. For the following reasons, we
accept jurisdiction, but deny relief.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On August 19, 2017, Velazquez was arrested for assaulting a
uniformed police officer, who attempted to separate him from a fight with
another man. Velazquez was charged with aggravated assault, a Class 4
felony, and resisting arrest, a Class 6 felony.

¶3             On August 20, 2017, Velazquez was released from custody on
his “Own Recognizance.” On the same day, ICE took Velazquez into
custody and detained him in the Eloy Detention Center for purposes of
removal proceedings. On September 8, 2017, Velazquez filed a Petition for
Writ of Habeas Corpus Ad Prosequendum (“Writ”) requesting that he be
allowed to attend any hearings in superior court, but be remanded back to
ICE custody once a state hearing was concluded. In response, the State filed
its own petition for a Writ and requested Velazquez be kept in State custody
until the State proceedings were concluded.

¶4           On September 12, 2017, the superior court issued a Writ
addressed to the Warden of the Eloy Detention Center that ordered
Velazquez to “remain in custody of the Sheriff of Maricopa County until all
further proceedings are completed” in the State matter.

¶5             After Velazquez had been released to the State pursuant to
the Writ, the immigration court ordered that Velazquez could be “released
from custody under bond of $45,000.” On October 9, 2017, Velazquez filed
a motion to modify his release conditions with the superior court requesting
he be released on his own recognizance, to the custody of a third party, or
on bond, so he could appear in immigration court for an October 30 hearing.


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              TELLEZ VELAZQUEZ v. HON. MYERS/STATE
                        Decision of the Court

Velazquez also provided a copy of a cashier’s check for $45,000. On October
17, 2017, Velazquez filed an amended Motion to Modify Order of Habeas
Corpus Ad Prosequendum, requesting he be released back to ICE custody to
post the federal bond. On November 7, 2017, the superior court denied
Velazquez’s motion. Velazquez then filed a petition for special action with
this court.

¶6             On December 18, 2017, Velazquez changed his plea and pled
guilty to resisting arrest. Under the terms of the plea agreement, Velazquez
was to be placed on supervised probation, and the State would dismiss the
aggravated assault charge. The court set time for a sentencing hearing to be
held on January 18, 2018.

            JURISDICTION AND STANDARD OF REVIEW

¶7             Special action jurisdiction is discretionary, but appropriate
when no “equally plain, speedy, and adequate remedy by appeal” exists.
Ariz. R.P. Spec. Act. 1(a). “Issues involving pretrial incarceration and
release conditions become moot once a trial is conducted and any appeal
can be filed.” Costa v. Mackey, 227 Ariz. 565, 569, ¶ 6 (App. 2011). We accept
special action jurisdiction pursuant to the Arizona Revised Statutes
§ 12-120.21(A)(4) and Arizona Rule of Procedure for Special Actions 1(a).

                                DISCUSSION

¶8           Velazquez contends the superior court abused its discretion
by denying his motion to modify the conditions of the Writ and keeping
him in custody “in a case where [he] has already been ordered released on
his own recognizance.” Velazquez further argues his rights to equal
protection of the laws and due process were violated because he was
treated disparately solely due to his immigration status and poses no risk
of non-appearance in court proceedings.

¶9             In reviewing a court’s decision on a common-law writ, we
restrict our review to “whether the lower court abused its discretion.”
Caruso v. Superior Court, 100 Ariz. 167, 172 (1966) (internal quotation
omitted). Abuse of discretion occurs when “no evidence . . . supports the
superior court’s conclusion, or the reasons given by the superior court [are]
‘clearly untenable, legally incorrect, or amount to a denial of justice.’” In re
Estate of Long, 229 Ariz. 458, 464, ¶ 22 (App. 2012). “We will uphold the trial
court’s decision if it is correct for any reason.” Citibank (Ariz.) v. Van Velzer,
194 Ariz. 358, 359, ¶ 5 (App. 1998).




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             TELLEZ VELAZQUEZ v. HON. MYERS/STATE
                       Decision of the Court

A.     The Superior Court Did Not Abuse its Discretion by Refusing to
       Modify the Writ.

       1.     The Federal Government Has Primary Jurisdiction over
              Velazquez.

¶10            “We live in the jurisdiction of two sovereignties, each having
its own system of courts to declare and enforce its laws in common
territory.” Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). To prevent conflicts
of jurisdiction, “the situation requires . . . a spirit of reciprocal comity and
mutual assistance to promote due and orderly procedure.” Id. Therefore,
“the court which first takes the subject-matter of the litigation into its
control . . . must be permitted to exhaust its remedy, to attain which it
assumed control, before the other court shall attempt to take it for its
purpose.” Id. at 260. Thus, “the first sovereign to arrest a defendant has
priority of jurisdiction for trial, sentencing, and incarceration.” Thomas v.
Brewer, 923 F.2d 1361, 1365 (9th Cir. 1991); Reynolds v. Thomas, 603 F.3d 1144,
1152 (9th Cir. 2010), abrogated on other grounds by Setser v. United States, 566
U.S. 231 (2012). Because “each sovereign—whether the Federal
Government or a State—is responsible for the administration of its own
criminal justice system,” these principles are equally applicable to the states
and the federal government. Setser v. United States, 566 U.S. 231, 241 (2012)
(internal quotation omitted).

¶11           Priority of jurisdiction may be relinquished by bail release,
dismissal of the state charges, parole release, or expiration of the sentence.
United States v. Warren, 610 F.2d 680, 684–85 (9th Cir. 1980); United States v.
Cole, 416 F.3d 894, 897 (8th Cir. 2005). Releasing a defendant on his own
recognizance also releases priority of jurisdiction over the defendant. See
Taylor v. Reno, 164 F.3d 440, 444 (9th Cir. 1998).

¶12          Here, the State released Velazquez on own recognizance on
August 20, 2017. Arizona, therefore relinquished its priority of jurisdiction
over Velazquez. See Taylor, 164 F.3d at 444. By his subsequent arrest, the
federal government acquired priority of jurisdiction. See Thomas, 923 F.2d
at 1365.

       2.     The Writ of Habeas Corpus ad Prosequendum Did Not
              Extinguish the Federal Government’s Primary Jurisdiction.

¶13           A writ of habeas corpus ad prosequendum is a “[w]rit used in
criminal cases to bring before a court a prisoner to be tried on charges other
than those for which the prisoner is currently being confined.” Habeas
Corpus, Black’s Law Dictionary (10th ed. 2014). The Writ is “the equivalent


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              TELLEZ VELAZQUEZ v. HON. MYERS/STATE
                        Decision of the Court

of a request for temporary custody.” State v. Seay, 232 Ariz. 146, 148, ¶ 7
(App. 2013); Morgan v. United States, 380 F.2d 686, 699 (9th Cir. 1967) (“The
writ of habeas corpus ad prosequendum is proper to bring a prisoner under
incarceration by state or federal court to trial for alleged violations of
laws.”).

¶14            A sovereign does not abandon or relinquish its priority of
jurisdiction by transferring a defendant pursuant to the Writ. Thomas, 923
F.2d at 1366−67 (“When an accused is transferred pursuant to a writ of
habeas corpus ad prosequendum he is considered to be “on loan” to the federal
authorities so that the sending state’s jurisdiction over the accused
continues uninterruptedly.”) (quoting Crawford v. Jackson, 589 F.2d 693, 695
(D.C. Cir. 1978)); see also Reynolds, 603 F.3d at 1152 (a federal government’s
writ of habeas corpus ad prosequendum was found to serve as a further
indication the state had primary jurisdiction over defendant); Taccetta v.
Fed. Bureau of Prisons, 606 Fed. Appx. 661, 663 (3d Cir. 2015) (citing Rios v.
Wiley, 201 F.3d 257, 274–75 (3d Cir. 2000) (collecting cases)).

¶15           The sovereign with priority of jurisdiction retains custody of
the defendant, even though the defendant was temporarily transferred to
the requesting sovereign’s jail pursuant to the Writ. See Taylor, 164 F.3d at
444 (“[B]ecause [petitioner] 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 . . . hearing and for the . . . sentencing.”); see also
Thomas v. Whalen, 962 F.2d 358, 361, n.3 (4th Cir. 1992) (“A prisoner is not
even in custody for purposes of [sentence computation] when he appears in
federal court pursuant to a writ ad prosequendum; he is merely ‘on loan’ to
federal authorities.”) (emphasis added) (citing cases).

¶16             Moreover, the Writ is issued by a court, but it is addressed to
the executive branch. When a state issues the Writ, the federal Bureau of
Prisons will consider the Writ, see 28 C.F.R. § 527.30, but the Warden has
discretion to reject the state’s Writ and “shall authorize transfer only when
satisfied that the inmate’s appearance is necessary, that state and local
arrangements are satisfactory, that the safety or other interests of the inmate
. . . are not seriously jeopardized, and that federal interests . . . will not be
interfered with, or harmed.” 28 C.F.R. § 527.31(b) (emphasis added).

¶17           Once the Writ is executed and the defendant transferred, the
principles of comity apply and the receiving state “must be permitted to
exhaust its remedy.” Ponzi, 258 U.S. at 260; see Causey v. Civiletti, 621 F.2d
691, 693 (5th Cir. 1980) (“[I]f a defendant is in state custody and he is turned
over to federal officials for federal prosecution, the state government’s loss


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             TELLEZ VELAZQUEZ v. HON. MYERS/STATE
                       Decision of the Court

of jurisdiction is only temporary.”). Upon the complete disposition of the
case and satisfaction of the Writ, the defendant must be returned to the
sovereign with primary custody. Delima v. United States, 41 F. Supp. 2d 359,
363 (E.D.N.Y. 1999), aff’d, 213 F.3d 625 (2d Cir. 2000); see also Dutton v. U.S.
Attorney Gen., 713 F. Supp. 2d 194, 201 (W.D.N.Y. 2010) (“When a defendant
is borrowed from the primary custodian via writ of habeas corpus ad
prosequendum, principles of comity require the return of the defendant to
the primary custodian when the prosecution has been completed.”).

¶18           Here, by enabling the physical transportation of Velazquez to
the Maricopa County jail, the federal government, in its discretion, loaned
Velazquez to the State according to the Writ’s terms “until all further
proceedings are completed.” See 28 C.F.R. § 527.31(b). Upon the completion
of the Writ, the State promised to “[t]hereafter[] return ABEL TELLEZ
VELAZQUEZ to the ELOY DETENTION CENTER from which his presence
was obtained; the ICE facility at 2035 N. Central, Phoenix, Arizona; or to an
ICE agent within a reasonable time.” The State is entitled to first complete
“all further proceedings,” including sentencing currently scheduled for
January 18, 2018, before it is obligated to return Velazquez to the federal
government.

¶19           Because of Velazquez’s “on loan” status, the federal
government retains custody over Velazquez, although he is not physically
incarcerated at its detention facility. See Whalen, 962 F.2d at 361, n.3. While
the federal government issued an order regarding its custody and “released
[Velazquez] from custody under bond of $45,000,” Velazquez has not
posted the federal bond. Once the bond is posted, the Maricopa County
Sheriff should release Velazquez because Velazquez is not in State custody,
but merely “on loan.” See Taylor, 164 F.3d at 444; Whalen, 962 F.2d at 361,
n.3.

¶20            Velazquez argues his physical presence in the immigration
court is necessary to post the bond. However, in its order the immigration
court did not expressly mandate Velazquez’s presence to post the bond.
And Velazquez has not presented any authority that would support his
argument that his presence in federal court is necessary to post the bond.
Until Velazquez posts the bond and meets the federal conditions of release,
the State is obligated to enforce the conditions of the Writ that promised the
State would hold Velazquez incarcerated until the proceedings conclude.

¶21          Because the State is not at liberty to release Velazquez during
his “on loan” status without the federal government’s authorization, the




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             TELLEZ VELAZQUEZ v. HON. MYERS/STATE
                       Decision of the Court

superior court did not abuse its discretion by keeping Velazquez in jail
pursuant to the Writ.1

                              CONCLUSION

¶22            For the reasons stated above, we accept special action
jurisdiction, but deny relief.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




1      Because we conclude that the superior court was not authorized to
release Velazquez under the terms of the Writ until he complied with the
federal release conditions, we do not address the other arguments raised by
Velazquez. See In re Eric L., 189 Ariz. 482, 486 (App. 1997) (the court does
not need to review other arguments if one argument is dispositive).


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