BLD-164                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-3779
                                      ____________

                                   EDWIN PATILLO,
                                                Appellant,

                                             v.

                            WARDEN ALLENWOOD FCI
                        __________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 4-18-cv-01388)
                           District Judge: Matthew W. Brann
                       __________________________________

               Submitted for Possible Summary Action Pursuant to Third
                Circuit LAR 27.4 and I.O.P. 10.6 and on a Motion for a
             Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c)(1)
                                     April 18, 2019

               Before: AMBRO, KRAUSE and PORTER, Circuit Judges

                               (Opinion filed: May 6, 2019)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          Edwin Patillo appeals from an order of the District Court denying his petition for

writ of habeas corpus, 28 U.S.C. § 2241. For the reasons that follow, we will summarily

affirm.

          On May 17, 2006, Patillo was arrested by federal authorities and taken into federal

custody where he remained. On several occasions in 2006, 2007, and 2008, however,

Patillo was produced via state writ of habeas corpus ad prosequendum to face criminal

charges in New Jersey state court. On July 14, 2008, Patillo, while present on one such

writ, was sentenced in the New Jersey Superior Court to a term of imprisonment of 15

years, following convictions for the use of personal identifying information of another, in

violation of N.J. Stat. Ann. § 2C:21-17.2a; tampering with a public record, in violation of

N.J. Stat. Ann. § 2C:28-7a(1); and one other charge. Consistent with state law, the state

court deferred to the federal court on the issue of concurrent/consecutive sentences; the

Judgment of Conviction noted that whether the state sentence is “concurrent or

consecutive will be decided by the federal court.” See N.J. Stat. Ann. § 2C:44-5d

(providing that multiple terms of imprisonment “shall run concurrently or consecutively

as the court determines when the second or subsequent sentence is imposed) (emphasis

added).

          About one month later, on August 14, 2008, Patillo was sentenced in the United

States District Court for the District of New Jersey to a term of imprisonment of 360

months, following convictions for conspiracy to distribute and possess with intent to

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distribute more than 5 grams of cocaine base, in violation of 21 U.S.C. § 846; distribution

and possession with intent to distribute 5 or more grams of cocaine base, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(B); and distribution and possession with intent to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The federal

sentencing court directed that the federal sentence run consecutively to any other

sentence that Patillo was presently serving “or that was previously imposed in any

Court.”1

         On August 13, 2018, the Bureau of Prisons calculated Patillo’s federal sentence

and determined that service of that federal sentence commenced on August 14, 2008, the

date Patillo was sentenced in the District of New Jersey; and that, with good conduct

time, his projected statutory release date from federal custody would be February 2, 2028.

The BOP sentencing report also noted, however, that the New Jersey Department of

Corrections has lodged a detainer against Patillo, in connection with the 15-year sentence

imposed in state court on July 14, 2008.

         On July 13, 2018, after exhausting his administrative remedies, Patillo filed a

petition for writ of habeas corpus, 28 U.S.C. § 2241, in the United States District Court

for the Middle District of Pennsylvania, the district where he is confined. Patillo

challenged the execution of his sentence, contending that his federal constitutional due

process rights were violated when his federal sentence was imposed to run consecutively


1
    Patillo’s federal sentence later was reduced to 292 months.
                                                3
to his state sentence. Based on the order of his sentences – that is, because his state

sentence was imposed earlier in time -- he asked the District Court to transfer his custody

to New Jersey and to direct that his federal and state sentences be served concurrently.

After briefing, the District Court, in an order entered on November 30, 2018, denied the

habeas corpus petition.

         Patillo appeals. We have jurisdiction under 28 U.S.C. § 1291.2 Our Clerk advised

the parties that we might act summarily to dispose of the appeal under Third Cir. LAR

27.4 and I.O.P. 10.6. Patillo has submitted a motion for a certificate of appealability,

which we will construe as his summary action response.

         We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. A federal

prisoner may resort to a § 2241 petition to challenge the execution of his sentence, see

Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012) (citing Woodall v. Federal Bureau

of Prisons, 432 F.3d 235, 241 (3d Cir. 2005)).

         The sovereign that first arrests an individual has primary custody over the

individual until custody is relinquished, ordinarily by bail, parole, expiration of the

individual’s sentence, or dismissal of the charges. See Weekes v. Fleming, 301 F.3d

1175, 1180 (10th Cir. 2002) (citing Ponzi v. Fessenden, 258 U.S. 254, 260 (1922)). The

primary custodian’s claim over the individual has priority over all other sovereigns that


2
    A certificate of appealability is not required to appeal from the denial of a § 2241
                                                 4
subsequently arrest him. Id. Moreover, the sovereign with primary custody is entitled to

have the defendant serve a sentence it imposes before he serves a sentence imposed by

any other jurisdiction. Id.

       In Patillo’s case, the order in which the sentences were imposed is not relevant.

Although the state sentence was imposed first, federal authorities had primary custody

over him. First, ad prosequendum writs do not constitute a transfer of custody. See

Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002). The second sovereign – in this

case, the State of New Jersey – was therefore merely “borrowing” Patillo from the United

States for the purpose of trying and sentencing him on state charges. Id. Second,

although Patillo was first arrested by New Jersey authorities (on charges unrelated to his

15-year sentence) on September 11, 2005, he was released on bail on September 21,

2005. Accordingly, he was not in state custody when he was arrested by federal

authorities on May 17, 2006.

       Primary jurisdiction will remain with federal authorities until federal authorities

relinquish custody of Patillo. As explained by the District Court, a federal sentence

generally does not commence until the Attorney General of the United States receives a

defendant into custody for service of his sentence. 18 U.S.C. § 3585(a). Accordingly,

the BOP acted properly in determining that service of Patillo’s federal sentence

commenced on August 14, 2008, the date he was sentenced in the District of New Jersey.


petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
                                           5
Moreover, the federal sentencing court expressly stated that Patillo’s federal sentence was

to run consecutively to any other sentence previously imposed. 18 U.S.C. § 3584(a)

(“Multiple terms of imprisonment imposed at different times run consecutively unless the

court orders that the terms run concurrently.”). Accordingly, the District Court properly

denied habeas corpus relief.

       For the foregoing reasons, we will summarily affirm the order of the District Court

denying Patillo’s § 2241 petition.




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