                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     October 17, 2006
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court


 CH AD A. STROBLE,

               Petitioner - A ppellant,                  No. 05-3373
          v.                                             (D. Kansas)
 DUKE TERR ELL, * W arden, USP -                (D.C. No. 03-CV-3155-RDR)
 Leavenworth,

               Respondent - Appellee.



                            OR D ER AND JUDGM ENT **


Before KELLY, A ND ER SO N, and BEAM , *** Circuit Judges.




      Petitioner Chad A. Stroble appeals the denial of his 28 U.S.C. § 2241

petition seeking credit on his federal sentence for time spent in state custody. W e

affirm.



      *
       In A ugust 2005, Duke Terrell became the W arden, USP-Leavenworth. In
accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
M r. Terrell is substituted for N. L. Conner as the Respondent in this action.
      **
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      ***
         The Honorable C . Arlen Beam, United States Circuit Judge, Eighth
Circuit Court of Appeals, sitting by designation.
                                 BACKGROUND

      Stroble was arrested on October 14, 1996, by Kansas City, Kansas, police

for possession of a firearm while on state parole. Federal authorities then

obtained custody of Stroble and charged and convicted him of being a felon in

possession of a firearm, in violation of federal law, 18 U.S.C. § 922(g)(1). H e

was sentenced to eighty-seven months’ imprisonment, to run consecutively to his

three- to ten-year sentence imposed under state law for violating parole by

possessing a firearm.

      After his federal conviction, Stroble w as returned to the custody of state

authorities at the Kansas D epartment of Corrections (“KDOC”) to serve his

sentence for violating parole. A federal detainer w as lodged at that time. W hile

he was in state prison for the parole violation, Stroble w as charged with

trafficking in contraband while in prison, in violation of state law. Stroble

completed his sentence for the state parole violation on August 4, 1999. He then

pled guilty to the state charge of trafficking in contraband. On October 13, 1999,

pursuant to the federal detainer lodged in October 1997 but before he was

sentenced on the state trafficking conviction, he was transferred into federal

custody, ultimately at the United States Penitentiary at Leavenworth (“USP




                                         -2-
Leavenworth”), ostensibly to commence his eighty-seven month federal sentence.

This transfer to the federal authorities w as the result of an administrative error. 1

      The State of Kansas then filed a “M otion for W rit of Habeas Corpus ad

Prosequendum” to take custody of Stroble so that he could be sentenced for the

state trafficking conviction. He was subsequently transferred into state custody,

sentenced to thirty-two months’ imprisonment for that conviction, and transferred

to the KDOC to commence serving that thirty-two month state sentence.

      Stroble finished serving his state sentence for trafficking on February 21,

2002. He was then transferred to a federal facility to serve his eighty-seven

month federal sentence. Stroble was given no credit for the thirty-two months he

spent in state prison on the trafficking charge following his brief stay in U.S.P.



      1
     An internal memorandum from authorities at U.S.P. Leavenworth dated
November 2, 1999, described the error as follow s:

      Inmate Chad Stroble . . . arrived at USP, Leavenworth , Kansas on
      10-27-1999. A review of his material indicates that he should not
      have been designated to us.

      He was released from the Kansas D OC on 08-04-1999 to
      Leavenworth County Sheriff’s Department for pending charges of
      contraband in prison. H e was erroneously moved to CCA,
      Leavenworth on 10-13-1999. For his federal detainer. According to
      the district attorney’s office for Leavenworth County, the county
      charges have not been completed and subject was not bonded from
      the charges.

      Stroble is being returned today 11-02-1999, to Leavenworth County.

R., tab 8.

                                           -3-
Leavenworth pursuant to the administratively erroneous transfer. He was,

however, credited with the time spent in the custody of federal authorities, from

October 13 to November 8, 1999.

      Stroble then filed this habeas petition pursuant to 18 U.S.C. § 2241,

arguing that his federal felon-in-possession sentence commenced on October 13,

1999, the date he was erroneously transferred to a federal holding facility

awaiting transfer to U.S.P. Leavenworth, or at the latest on October 27, 1999, the

date he physically arrived at U.S.P. Leavenworth. He further argued that his

federal sentence continued to run uninterrupted when he returned to state custody

on November 2, 1999, and that his thirty-two months spent in state prison should

be credited against his federal sentence.

      The district court denied Stroble’s petition, reasoning as follow s:

      First, the record does not suggest that petitioner’s period of
      incarceration has been extended due to the error which resulted in his
      brief transfer to federal custody. Petitioner is serving multiple,
      consecutive sentences, as ordered by the sentencing courts. Next, the
      court agrees with the [Fifth Circuit’s decision in Free v. M iles, 333
      F.3d 550 (5th Cir. 2003] . . . observ[ing] that an administrative error
      which results in transfers between sovereigns should not operate as
      “‘a get out of jail early card.’”

Stroble v. Conner, No. 03-3155-SA C, 2005 W L 2175161, at *2 (D. Kan. Sept. 8,

2005) (unpublished). The district court finally observed that its decision

      finds some support in Tenth Circuit case law. In Cathcart v. U.S.
      Bureau of Prisons, 211 F.3d 1277 (Table) (10th Cir. 2000), the
      petitioner was transferred to federal custody due to an administrative
      error while he was serving four state sentences. W hen the error was

                                            -4-
      discovered, petitioner was returned to state custody. He challenged
      the failure of the Bureau of Prisons to grant credit for time in federal
      custody on both his federal and state sentences and alleged he was
      being required to serve his sentence in installments. The Court of
      Appeals reviewed the provisions of 18 U.S.C. 3584(a) and 3585(b),
      determined Cathcart’s sentences were to be served consecutively, and
      noted that he received credit on his state sentences for the time spent
      in federal custody as a result of his erroneous transfer. Finding that
      the petitioner was “in the same position he would have been had he
      served the full state sentence in state custody”, id. at *2, the court
      denied habeas relief.

Id. The district court accordingly denied Stroble’s petition. This appeal

followed.

      Stroble argues his “federal sentence has been extended by 32-months

because of a government mistake.” Petitioner’s Br. at 10. He further argues that

the “plain language” of 18 U.S.C. § 3585(a) requires that his sentence began on

October 13, 1999, the date he was erroneously transferred into federal custody,

and that granting him thirty-two months credit toward his federal sentence does

not amount to granting him double credit, as prohibited by 18 U.S.C. § 3585(b).

Rather, he argues, not granting him credit amounts to forcing him to serve his

federal sentence in installments, which we have held is impermissible.




                                         -5-
                                   D ISC USSIO N

       “[W]e review de novo the district court’s decision to deny habeas relief”

under 28 U.S.C. § 2241. Binford v. United States, 436 F.3d 1252, 1253 (10th Cir.

2006). 2

       “The computation of a federal sentence requires consideration of two

separate issues. Initially, we determine the commencement date of the federal

sentence and then turn to the extent to which a defendant can receive credit for

time spent in custody prior to commencement of sentence.” Id. at 1254. Under

18 U.S.C. § 3585(a), a federal sentence commences “on the date the defendant is

received in custody awaiting transportation to, or arrives voluntarily to comm ence

service of sentence at, the official detention facility at which the sentence is to be

served.” “A federal sentence does not commence until a prisoner is actually

received into federal custody for that purpose.” Binford, 436 F.3d at 1255

(emphasis added).

       Additionally, once a federal sentence has comm enced, it “must generally be

served continuously ‘unless interrupted by . . . some fault of the prisoner, and he

cannot be required to serve it in installments.’” Id. (quoting W eekes v. Fleming,

301 F.3d 1175, 1179 (10th Cir. 2002)). W hen two sovereigns may claim custody

over a prisoner, “[t]he sovereign that first acquires custody of a defendant in a

       2
       It is not necessary for a federal prisoner to obtain a certificate of
appealability before bringing a § 2241 claim. M cIntosh v. United States Parole
Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997).

                                          -6-
criminal case is entitled to custody until it has exhausted its remedy against the

defendant.” W eekes, 301 F.3d at 1180. This “rule of comity” requires the second

sovereign “to postpone its exercise of jurisdiction until the first sovereign is

through with [the defendant] or until the first sovereign agrees to temporarily or

permanently relinquish custody.” Id.

      Two Tenth Circuit cases, W eekes and Binford, provide the framew ork for

our analysis of this case. Stroble relies upon W eekes to support his argument that

his federal sentence commenced in October 1999, when he was transferred,

briefly and erroneously, to federal custody. The government argues that Binford

compels the opposite result. W e compare the two cases.

      In W eekes, the petitioner, who was in state custody, was released into

federal custody for prosecution on federal drug offenses. He returned to state

custody pursuant to a w rit of habeas corpus ad prosequendum for a hearing on

state charges. After the hearing, W eekes was returned to federal custody,

sentenced on the federal charges and committed to the Federal Bureau of Prisons,

then delivered to a federal facility. Approximately two months later, he was

returned to state custody to serve his state sentence.

      W eekes argued, as does Stroble here, that “pursuant to § 3585(a), his

federal sentence actually commenced when he was designated to be transferred to

serve his time at the federal penitentiary . . . and continued to run despite the fact

that the United States sent him to [the state authorities] to serve his state

                                           -7-
sentence.” Id. W e agreed with W eekes, because the United States could not

establish that the transfer of custody by the state authorities to the federal

authorities was conditional or temporary. There was therefore a “presum[ption]

. . . that both the United States and [the state] agreed to a permanent change of

custody.” Id. at 1181. W e based this conclusion both upon the fact that the

transfer was not done pursuant to a document which evidences a clear intent that

the transfer is temporary, such as by a writ of habeas corpus ad prosequendum,

and because the subsequent conduct of both the United States and the state

reinforced the presumption that a permanent transfer was intended. 3 W e further

noted that the United States “consistently designated M r. W eekes as a federal

prisoner after it took custody” and “agreed to notify the State when M r. W eekes’

federal sentence was almost completed.” Id. W e accordingly determined that

W eekes “must be given federal credit for time served since . . . the date his

federal sentence actually commenced,” id., which was when he w as first

transferred into federal custody.




      3
       The specific subsequent conduct we noted was (1) that the state used an ad
prosequendum writ to regain custody of W eekes; (2) the state court’s “subsequent
sentencing order expressly provided that M r. W eekes’ state sentence should be
served concurrently with a future federal sentence”; and (3) the state “then lodged
a detainer expressly noting that his state sentence was concurrent and requesting
M r. W eekes’ return to the state prison system upon completion of his federal
sentence, further affirmatively showing its relinquishment of M r. W eekes to
federal primary custody.” W eekes, 301 F.3d at 1181.

                                           -8-
      In Binford, while the petitioner was in state custody charged with state law

violations, federal charges were brought against him. Pursuant to a writ of habeas

corpus ad prosequendum, the state authorities released him to federal custody to

face the federal charges. Binford was sentenced under federal law, but the

sentencing order “did not address whether the sentence would run consecutive to

or concurrently with any sentence arising from the pending state charges.”

Binford, 436 F.3d at 1253. Then, in a manner markedly similar to Stroble’s

situation:

      [i]nstead of returning Binford to state custody, the United States
      M arshals Service mistakenly delivered Binford to the Federal
      Correctional Institution in El Reno, Oklahoma on April 23, 1996.
      After reviewing Binford’s file, prison staff realized he should have
      been transferred immediately back to the state because the writ of
      habeas corpus ad prosequendum did not transfer the primary
      jurisdiction of custody to federal authorities. Accordingly, Binford
      was returned to Oklahoma state authorities on M ay 13, 1996.

Id.

      The state authorities then sentenced Binford for his state convictions, and

specified that the state sentences were to be “consecutive to the federal sentence.”

Id. at 1254. Binford made the same argument Stroble does, asserting that W eekes

is virtually indistinguishable and compels the result that his federal sentence

commenced when he was first mistakenly transferred to a federal facility. He did

concede, however, that “the only detail that is not completely parallel is the fact

that the federal government here produced an ad prosequendum writ by which it



                                          -9-
gained custody of Binford.” Id. at 1255-56 (internal quotation and alteration

omitted). W hile Binford argued that the state’s alleged use of an ad

prosequendum writ 4 to regain custody of Binford indicated that primary custody

remained with the United States, we dismissed the significance of that, stating:

      W hat is important is that the record contains the initial application
      and Order for W rit of H abeas Corpus Ad Prosequendum requesting
      Binford be brought before the federal court for the purpose of
      prosecution of the charges against him. The O rder of Temporary
      Custody was entered the next day. Binford remained in temporary
      custody until his sentencing. Therefore he was at all times held
      pursuant to the original writ and order.

Id. at 1256.

      W e therefore rejected Binford’s argument based upon W eekes and held that

his federal sentence did not begin when he was initially briefly, and mistakenly,

placed into federal custody. W e noted that “the continuous service rule is not a

‘get out of jail early card’ for prisoners.” Id. (quoting Free v. M iles, 333 F.3d

550, 555 (5th Cir. 2003). Finding “no evidence that Oklahoma surrendered

Binford’s custody to the federal authorities other than to accord Binford

expeditious administration of justice,” we held that his “mistaken delivery to the

El Reno facility was short-lived and corrected swiftly after the prison staff

discovered the error[] [and] the overall period of his incarceration is not extended

beyond the time contemplated by the sentencing courts.” Id. (internal quotation

      4
       Although Binford claimed the state used an ad prosequendum writ to
regain custody of Binford, we noted that the record contained no other evidence
that such a writ was in fact used.

                                         -10-
and alteration mark omitted). Thus, his “federal sentence never began until he

was finally received into federal custody for the purpose of serving his federal

sentence, after completing his state sentence.” Id.

       Stroble’s situation is not precisely like either that presented in W eekes or

in Binford. However, we conclude that it is closer to Binford than W eekes, and

we therefore conclude that Stroble’s federal sentence did not commence until he

was delivered to the federal facility to actually begin serving that sentence on

February 21, 2002. W e therefore need not address any argument about whether

giving him credit for the thirty-two month state sentence is impermissible double-

crediting.

      W e begin by observing that, as in W eekes and Binford, Stroble was

indisputably in state custody initially. Thus, we must determine, from both the

manner in which Stroble was turned over to the federal authorities and from the

subsequent conduct of both sovereigns, whether the parties intended that primary

custody would be transferred to the United States. W e conclude that they did not

so intend.

      First, although the record contains no evidence that the federal authorities

initially obtained custody over Stroble pursuant to a writ ad prosequendum or

some comparable document, we decline to find that one fact determinative. In

any event, Stroble was promptly returned to state custody after he was convicted

and sentenced on the federal charges.

                                         -11-
      Second, although Stroble argues that the filing of a detainer when the

federal authorities returned Stroble to state custody following his conviction

under federal law indicates that the parties intended primary custody over Stroble

would promptly shift from the state to the federal authorities once Stroble

finished his state sentence for parole violation, that argument assumes too much.

The detainer w as lodged before Stroble committed further violations of state law ,

necessitating further state law proceedings and another sentence. Stroble was

charged with and pled guilty to those new state charges before he was

inadvertently transferred to the care of federal authorities. That alone clarifies

the state’s primary custody over him. In any event, it renders implausible the

claim that the parties intended to transfer primary authority over Stroble to the

federal government once he finished his sentence for violating his state parole.

      Third, although the state did file an ad prosequendum writ to regain

custody over Stroble after his erroneous transfer to a federal facility, nothing else

in the parties’ conduct suggests they believed primary custody had transferred

from the state authorities to the federal authorities as a result of that erroneous

transfer. Indeed, all indications are that the federal authorities immediately

realized the error and promptly returned Stroble to state custody.

      Finally, as we observed in Binford, the sentencing courts clearly and

specifically expressed the intent that Stroble’s sentences would be consecutive.

In holding as we do, we give effect to that intent. See Binford, 436 F.3d at 1256

                                          -12-
(“Indeed, the overall period of his incarceration is not extended beyond the time

contemplated by the sentencing courts.”). W hile Stroble would have us believe

he has been sentenced to an extra thirty-two months because of the government’s

error, in reality, he has only been denied a windfall which would have been his

because the government made an error which it quickly rectified. 5 There was no

evidence of intentional manipulation by the federal authorities. Thus, on the facts

of this case, the government’s ministerial error was harmless.



                                 C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the denial of Stroble’s 28 U.S.C.

§ 2241 petition.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




      5
        Stroble argues that the very fact that the sentencing court credited to him
time spent in the custody of federal authorities from October 13, 1999, until
November 8, 1999, means that his sentence commenced on October 13. Stroble
misapprehends the nature of sentence credits. 18 U.S.C. § 3585(b)(1) provides
that “[a] defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to the date the
sentence commences[] as a result of the offense for which the sentence was
imposed.” That is precisely what Stroble got here— credit for time spent in
detention, prior to the commencement of his sentence, on account of the crime of
conviction. His receipt of credit for that time does not mean his sentence
comm enced when he began serving that time.

                                        -13-
