                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 18-1241
                                      _____________

                             ALONZO LAMAR JOHNSON,
                                          Appellant

                                              v.

                          WARDEN MCDOWELL FCI;
                  THE ATTORNEY GENERAL OF PENNSYLVANIA
                             _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. No. 2-16-cv-01250)
                          District Judge: Hon. Lisa P. Lenihan
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 15, 2019

             Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges.

                                (Filed: November 26, 2019)
                                     _______________

                                        OPINION ∗
                                     _______________




       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Alonzo Johnson appeals from the District Court’s order dismissing his petition for

a writ of habeas corpus. The Court based that dismissal on the conclusion that it lacked

jurisdiction because Johnson was not “in custody” when he filed his habeas petition. We

will vacate and remand to the District Court so that it can hold an evidentiary hearing.

I.     BACKGROUND

       On July 13, 2010, a Pennsylvania state-court judge sentenced Johnson to serve a

prison term of three to six years for drug-related charges. On April 25, 2013, following a

complicated procedural history, Johnson was resentenced in that same state-court case to

the same prison term and given credit of 1,019 days for the time he had already served for

that sentence. On July 30, 2013, a federal judge in the Western District of Pennsylvania

sentenced Johnson for different drug-related charges. The sentence was for a term of

imprisonment of “300 months with 15 months of the sentence imposed in [the federal]

case to concurrently run with the undischarged term of imprisonment” imposed in the

state court case. (App. at 46.) It is unclear whether, at the time of his federal sentencing,

Johnson was in state or federal custody, and whether he had time left to serve as part of

his state sentence. Based on the District Court record, it appears that Johnson has been in

federal custody since no later than October 2013.

       On August 15, 2016, while in federal custody, Johnson filed a pro se petition for a

writ of habeas corpus, challenging his state conviction. He filed his petition in the United

States District Court for the Western District of Pennsylvania, where it was assigned to a

magistrate judge for disposition with the parties’ consent. The magistrate judge ordered

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the government (but not Johnson) to file a brief on the issue of whether Johnson “ha[d]

satisfied the ‘in custody’ jurisdictional requirement to invoke habeas review under 28

USC 2254.” (App. at 15.) The government filed a brief in which it acknowledged that it

did not have paperwork showing either that Johnson had finished his state sentence or

that he would be returned to the custody of the Commonwealth to finish serving his state

sentence after he completed his federal sentence. Johnson, on his own initiative, filed a

response to the government’s brief.

       After receiving the parties’ submissions, the District Court dismissed Johnson’s

habeas petition for lack of jurisdiction because it concluded that he was not in custody

when he filed the petition. The Court’s jurisdictional determination rested on two

conclusions: first, Johnson finished serving his state court sentence on July 13, 2016, six

years after the date of his state conviction; and second, Johnson’s federal sentence did not

disrupt his state sentence because “the Judge ordered it to run concurrently to the

undischarged remainder of [Johnson’s] state sentence.” (App. at 8-9.) Johnson timely

appealed, and we granted a certificate of appealability on the issue of whether the District

Court erred in determining that Johnson was not in custody when he filed his habeas

petition.




                                             3
II.      DISCUSSION 1

         Johnson argues that the District Court erred in concluding that it lacked

jurisdiction because he was not in state custody when he filed his habeas petition. We

agree.

         “A federal court has jurisdiction to entertain a petition for a writ of habeas corpus

under § 2254 only if the petitioner was ‘in custody pursuant to the judgment of a State

court’ when the petition was filed.” Piasecki v. Court of Common Pleas, 917 F.3d 161,

165-66 (3d Cir. 2019) (quoting 28 U.S.C. § 2254(a)). For there to be jurisdiction, the

petitioner must be in “‘custody’ that arises ‘pursuant to the judgment of a state court’ that

is under attack.” Id. at 166. At issue here is whether Johnson was in state custody when

he filed his habeas petition challenging his state conviction.

         On the present record, the District Court could not properly conclude that

Johnson’s state sentence ended on July 13, 2016. The Commonwealth conceded in its

brief before the District Court that it had no information one way or the other regarding

whether Johnson had completed his state sentence or whether he had more time left to

serve at the time he filed his habeas petition. The District Court, nevertheless, accepted

the Commonwealth’s invitation to simply assume that Johnson’s state sentence was not

interrupted by his transfer to federal custody and thus necessarily terminated in July



         1
         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. “In a federal habeas corpus
proceeding, we exercise plenary review of the district court’s legal conclusions and apply
a clearly erroneous standard to the court’s factual findings.” Lambert v. Blackwell, 134
F.3d 506, 512 (3d Cir. 1997).
                                                4
2016. That assumption, however, finds no support in the record. The record lacks any

evidence as to when Johnson was transferred from state to federal custody or what

conditions may have attended that transfer. What the record does show is that Johnson

has spent at least some, and likely all, of the time since October 2013 in federal prisons.

There is no evidence that the Commonwealth certified Johnson’s three- to six-year

sentence as complete as of October 2013 (or any time thereafter). It was clear error for

the District Court to conclude, without any supporting evidence, that Johnson had

finished serving his state sentence on July 13, 2016.

       The District Court likewise erred in reading Johnson’s federal sentencing order to

require that his federal sentence run concurrently with the remainder of his state sentence.

The federal sentencing order states that only 15 months of the federal sentence is to run

concurrently with the state sentence. When Johnson was sentenced in the federal case, he

could have had more than 15 months remaining on his state court sentence, depending on

the length of time in the three- to six-year sentence he was to serve. 2 Accordingly, the


       2
        Again, there is a lack of information in the record for us to determine how many
months Johnson had left on his state sentence when he was sentenced in federal court.
His state sentence was between three and six years. The only thing we know about how
much of his state sentence he completed is that, on April 25, 2013 when he was
resentenced, he had served 1,019 days, or approximately two years and nine months. We
do not know how much more of his state sentence he served before he was transferred to
federal custody or how much of the three- to six-year range he was required to serve in
state custody. It is possible that he served three more months after his April 25, 2013
resentencing, that the state only required him to serve three years, and that he had
completed his state sentence. It is also possible that he did not serve any more of his state
sentence before being transferred to federal custody, that the state was going to require
him to serve six years, and that he thus had more than 15 months of his state sentence
remaining when he was sentenced in his federal case. The point is that, on this record,
we cannot know.
                                             5
federal sentencing order did not necessarily require the federal sentence to run

concurrently with the remainder of the state sentence, and the District Court was wrong

in saying that it did. Moreover, there is no evidence that the Commonwealth agreed to

Johnson’s serving a portion of his state sentence in federal custody, concurrent with his

federal sentence. Thus, it is unclear why, as the Commonwealth argues, the federal

court’s decision to run its sentence partially concurrent with his state sentence is relevant

to whether Johnson completed his state sentence.

       The Commonwealth argues that, despite the lack of any evidence that Johnson

completed his state sentence before filing his habeas petition, he must have done so

because the Commonwealth had primary jurisdiction over him and relinquished control

over him to federal authorities. The problem is that the Commonwealth has not produced

any paperwork explaining when and under what conditions it relinquished its control over

Johnson to the federal authorities. It has provided neither discharge paperwork, showing

that Johnson had finished his sentence, nor detainer paperwork, which would be

necessary for the Commonwealth to regain custody of Johnson when he completes his

federal sentence. Accordingly, the record as it stands is insufficient to make any factual

determination about whether the Commonwealth discharged Johnson or whether he has

more of his state sentence yet to serve. We cannot, and the District Court rightly could

not, resolve the jurisdictional “in custody” question. The District Court accordingly

needs to develop a factual record to answer that question at least.




                                              6
III.   CONCLUSION

       Because the record is insufficient to answer whether Johnson was in custody when

he filed his habeas petition, we will vacate and remand for the District Court to develop

an appropriate factual record.




                                             7
