                                                                              FILED
                           NOT FOR PUBLICATION                                APR 06 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


HOWARD BLOOMGARDEN,                              No. 09-56670

              Petitioner-Appellant,              D.C. No. 2:06-cv-1426-DSF-OP

  v.
                                                 ORDER*
BUREAU OF PRISONS;
STATE OF CALIFORNIA,

              Respondents-Appellees.


                 On Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                      Argued and Submitted February 7, 2011
                               Pasadena, California

Before: HAWKINS and FISHER, Circuit Judges, and ZOUHARY, District
Judge.**


       Petitioner-Appellant Howard Bloomgarden appeals the district court’s denial

of his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Bloomgarden

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Jack Zouhary, District Judge for the Northern District
of Ohio, sitting by designation.
alleges his transfer from federal to state custody violated the thirty-day waiting

period in Article IV(a) of the Interstate Agreement on Detainers Act (“IAD”), 18

U.S.C. app. 2 § 2.

      Bloomgarden is a federal prisoner serving a 405-month sentence pursuant to

his 1996 guilty plea in connection with multiple charges in the Eastern District of

New York. This plea allocution implicated Bloomgarden in two California

murders, and California officials later charged Bloomgarden with two counts of

capital murder.

      In 1999, California officials lodged a detainer, pursuant to the IAD, with the

Bureau of Prisons (“BOP”), requesting Bloomgarden’s transfer to California state

custody to try Bloomgarden on the capital murder charges. Bloomgarden, who had

been transferred to Florida state custody on other charges prior to California’s

detainer, was returned to federal custody in Texas in 2005.

      Shortly after his return to federal custody, California again requested

Bloomgarden be transferred. This time, California submitted a writ of habeas

corpus ad prosequendum (“Writ”) to the BOP. BOP officials treated the Writ as a

second request for temporary custody detainer and accordingly informed

Bloomgarden of his rights under the IAD, notifying the state prosecutors that it had

done so. In response, California officials indicated they did not intend for the Writ


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to be treated as a second detainer request under the IAD, requested the prior

detainer be removed, and provided the BOP with instructions to transfer

Bloomgarden under the Writ.

      BOP officials presented Bloomgarden with a document waiving the IAD

thirty-day waiting period, which he refused to sign. During the thirty-day period,

Bloomgarden expressed his intent to contest the transfer and submitted three

requests to prison officials seeking information about the transfer. Prison officials

ignored the requests. One official told Bloomgarden he had no rights to contest the

transfer and that his transfer was a “fait accompli.”

      Just prior to his transfer to California, Bloomgarden filed the pleading that is

the basis for this appeal, claiming the BOP failed to comply with IAD Article

IV(a), which allows a prisoner to file a motion with the U.S. Attorney General

requesting the Attorney General disapprove the transfer. See 18 U.S.C. app. 2 §§

2, 3. Construing his pleading as a habeas petition, the district court denied relief,

holding that habeas relief for a violation of Article IV(a) of the IAD was not

available and that Bloomgarden’s right to contest the transfer under the IAD had

not been violated. Bloomgarden was transferred in May 2005 from federal custody

in Texas to state custody in California where he awaits trial.

      The relevant portion of IAD Article IV states:


                                           3
             (a) The appropriate officer of the jurisdiction in which an untried
      indictment, information, or complaint is pending shall be entitled to have
      a prisoner against whom he has lodged a detainer and who is serving a
      term of imprisonment in any party State made available in accordance
      with article V(a) hereof upon presentation of a written request for
      temporary custody or availability to the appropriate authorities of the
      State in which the prisoner is incarcerated: Provided, That the court
      having jurisdiction of such indictment, information, or complaint shall
      have duly approved, recorded, and transmitted the request: And provided
      further, That there shall be a period of thirty days after receipt by the
      appropriate authorities before the request be honored, within which
      period the Governor of the sending State may disapprove the request for
      temporary custody or availability, either upon his own motion or upon
      motion of the prisoner.

18 U.S.C. app. 2 § 2, art. IV(a) (emphasis in original).

      The IAD, as an interstate compact approved by Congress, is a federal law

subject to federal, not state, construction. See Cuyler v. Adams, 449 U.S. 433,

438–42 (1981). The United States is a party bound by the IAD, whether sending or

receiving prisoners. See United States v. Mauro, 436 U.S. 340, 354 (1978). When

the sending state is the United States, the term “Governor” as used in the IAD

means the Attorney General. 18 U.S.C. app. 2 § 3.

      The IAD applies when the United States or a state “activates its provisions

by filing a detainer against a state prisoner and then obtains his custody by means

of a writ of habeas corpus ad prosequendum.” Mauro, 436 U.S. at 349. “[T]he

detainer remains lodged against the prisoner until the underlying charges are



                                          4
finally resolved.” Id. at 362. Furthermore, “it must be conceded that: . . . a

detainer, once filed, brings the Act into play whereas a writ of habeas corpus ad

prosequendum, standing alone, would not.” United States v. Schrum, 504 F. Supp.

23, 25 (D. Kan. 1980), aff’d, 638 F.2d 214 (10th Cir. 1981). California’s

application for the Writ acknowledged that a detainer for Bloomgarden had been

lodged with the BOP in 1999. California’s attempt to circumvent the requirements

of the IAD by proceeding solely under an ad prosequendum writ, after a detainer

had already been filed, was foreclosed by Mauro. See, e.g., United States v.

Knight, 562 F.3d 1314, 1325–26 (11th Cir. 2009) (citing Mauro, 436 U.S. at 340,

362). Once the detainer was entered, California could not “remove [the] detainer”

without complying with the IAD.

      Because Bloomgarden refused to waive his thirty-day window allowed

under the IAD, the BOP’s refusal to respond to Bloomgarden’s requests for

information regarding his transfer, let alone acknowledge his right to contest his

transfer, resulted in a violation of the IAD’s clear directive affording a prisoner the

opportunity to contest a transfer. BOP officials, by thwarting Bloomgarden’s

attempts to contest his transfer, denied Bloomgarden his rights under the IAD.

      Accordingly, while he is being held in state custody, Bloomgarden may file

a motion with the U.S. Attorney General, in accordance with IAD Article IV(a),


                                           5
within thirty (30) days of this Order, requesting the Attorney General exercise his

discretion to disapprove Bloomgarden’s transfer to California. The Attorney

General shall promptly review Bloomgarden’s motion and shall notify

Bloomgarden and the California district court of his decision. The Petition is

remanded to the district court for further proceedings in accordance with this Order

and the decision of the Attorney General.

      PETITION REMANDED.




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