                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 AUBRY REA JOHNSON,                          No. 15-16400
      Petitioner-Appellant,
                                              D.C. No.
                v.                    1:12-cv-02043-AWI-MJS

 A. GILL, Warden,
       Respondent-Appellee.                    OPINION


       Appeal from the United States District Court
           for the Eastern District of California
     Anthony W. Ishii, Senior District Judge, Presiding

             Argued and Submitted May 18, 2017
                  San Francisco, California

                     Filed February 20, 2018

 Before: Richard C. Tallman and Sandra S. Ikuta, Circuit
  Judges, and Solomon Oliver, Jr.,* Chief District Judge.

                  Opinion by Judge Ikuta;
            Dissent by Chief District Judge Oliver




    *
      The Honorable Solomon Oliver, Jr., Chief United States District
Judge for the Northern District of Ohio, sitting by designation.
2                         JOHNSON V. GILL

                            SUMMARY**


                           Habeas Corpus

    The panel affirmed the district court’s denial of Aubry
Rea Johnson’s 28 U.S.C. § 2241 habeas corpus petition
challenging the Bureau of Prisons’ determination of when his
federal sentence commenced.

    Johnson was convicted in state and federal court, with the
federal sentence to run consecutively to the state sentence.
While serving his state sentence, Johnson was twice
erroneously turned over to federal authorities. The state
credited the time Johnson spent in federal custody against his
state sentence. Once his state sentence was complete and the
Marshals Service took him into federal custody, the BOP
concluded that Johnson’s federal sentence commenced in
June 2011, when the federal government for the first time
gained primary jurisdiction over him. Johnson argued that his
federal sentence commenced on one of the instances when the
state prematurely transferred him to federal authorities, and
that, in addition to the credit he received against his state
sentence, he should receive credit against his federal sentence
for the period starting on the date he was erroneously turned
over to federal authorities and including all his time in state
prison after he was returned to state custody.

    The panel held that because the erroneous transfers did
not manifest the state’s consent to terminate its primary
jurisdiction over Johnson, he was not in federal custody for

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      JOHNSON V. GILL                       3

purposes of 18 U.S.C. § 3585(a), and therefore the federal
sentence did not commence until June 6, 2011, when the
federal government for the first time exercised exclusive
penal custody over Johnson.

    Chief District Judge Oliver dissented. He would find
(1) that the federal authorities obtained primary jurisdiction
over Johnson when they took physical custody of his body,
and his sentence commenced pursuant to § 3585(a) at that
time; and (2) even if the federal authorities did not have
primary jurisdiction when he was being detained by the
Marshals, he nevertheless began his sentence pursuant to
§ 3585(a) because he was being held for the purpose of
commencing his federal sentence.


                        COUNSEL

Lisa Sciandra (argued), San Leandro, California, for
Petitioner-Appellant.

Michael G. Tierney (argued), Assistant United States
Attorney; Camil A. Skipper, Appellate Chief; Phillip A.
Talbert, United States Attorney; United States Attorney’s
Office, Fresno, California; for Respondent-Appellee.
4                          JOHNSON V. GILL

                               OPINION

IKUTA, Circuit Judge:

     Aubry Johnson was criminally convicted in both state and
federal court. Both courts sentenced him to serve periods of
incarceration, with the federal sentence to run consecutively
to the state sentence. While serving his state sentence, he was
twice erroneously turned over to federal authorities, first from
August through November of 2009 and then again from
December 2009 through February 2010. Once his state
sentence was complete and the Marshals Service took him
into federal custody, the Bureau of Prisons (BOP) concluded
that Johnson’s federal sentence commenced in June 2011,
when the federal government for the first time gained primary
jurisdiction over him.1

    Johnson filed a petition for a writ of habeas corpus
challenging that determination. He argues that his federal
sentence actually commenced on one of the instances when
the state prematurely transferred him to the federal
authorities. As a result, Johnson contends that he should
receive credit against his federal sentence for the period
starting on the date he was erroneously turned over to federal
authorities and including all his time in state prison after he
was returned to state custody. Because the state credited the
time the federal authorities erroneously held Johnson against

    1
       As we explained in Taylor v. Reno, “[t]he term ‘primary
jurisdiction’ in this context refers to the determination of priority of
custody and service of sentence between state and federal sovereigns.”
164 F.3d 440, 444 n.1 (9th Cir. 1998). “A lack of ‘primary jurisdiction’
does not mean that a sovereign does not have jurisdiction over a
defendant. It simply means that the sovereign lacks priority of jurisdiction
for purposes of trial, sentencing and incarceration.” Id.
                           JOHNSON V. GILL                                5

his state sentence, Johnson effectively seeks double-credit
against both his state and federal sentences for the period
between August 2009 and June 2011. We disagree and hold
that because these erroneous transfers did not manifest the
state’s consent to terminate its primary jurisdiction over
Johnson, he was not in federal custody for purposes of
18 U.S.C. § 3585(a), and therefore the federal sentence did
not commence.

                                     I

    The Sheriff’s Department in Harris County, Texas,
arrested Aubry Johnson in February 2007 for fraudulently
using identifying information and for violating his probation
for a prior robbery conviction. In June 2007, a state court
sentenced Johnson to a six-year term of imprisonment for
aggravated robbery as a result of the probation violation.
After sentencing, the court committed Johnson to the custody
of the Texas Department of Criminal Justice (TDCJ) to serve
his sentence. In August 2007, the TDCJ transferred Johnson
to Fort Bend County, where a state court sentenced Johnson
to a twelve-month concurrent sentence of imprisonment for
fraudulent use of identifying information.

    While Johnson was in state custody, the United States
indicted him on federal charges for aiding and abetting device
fraud and identity theft. The federal court issued writs of
habeas corpus ad prosequendum for Johnson on May 10,
2007, June 29, 2007, and August 29, 2007, so that he could
attend federal court proceedings.2 Upon conviction for the


    2
      A federal writ of habeas corpus ad prosequendum secures the
presence for trial of a criminal defendant who is held in a state’s custody.
United States v. Mauro, 436 U.S. 340, 357–58 (1978); see also 28 U.S.C.
6                            JOHNSON V. GILL

federal charges, the district court sentenced Johnson to an 88-
month term of imprisonment, to run consecutively to his state
sentence for aggravated robbery. The Marshals Service filed
a federal detainer with the state authorities, requesting that
the state hold Johnson so that federal authorities could
assume custody of him when he satisfied his state sentence.3

    The two errors central to this appeal occurred in late
2009. While Johnson was still serving his state sentence in
the Texas prison system, the TDCJ transferred Johnson to the
custody of the Dallas County Sheriff’s Department to answer
for additional state charges that were ultimately dismissed.
Rather than return Johnson to the TDCJ, however, the Dallas
County Sheriff’s Department mistakenly transferred Johnson
to the Marshals Service on August 7, 2009, pursuant to the
federal detainer. When the error was discovered, the
Marshals Service returned Johnson to the Dallas County
Sheriff’s Department on November 3. A short while later, on
December 9, 2009, the Dallas County Sheriff’s Department
informed the Marshals Service that Johnson had completed
his state sentence and that the department intended to release
Johnson unless the Marshals Service took custody of him.


§ 2241(c)(5) (“The writ of habeas corpus shall not extend to a prisoner
unless . . . [i]t is necessary to bring him into court to testify or for trial.”).
     3
       A detainer “may be lodged against a prisoner on the initiative of a
prosecutor or law enforcement officer” and “puts the officials of the
institution in which the prisoner is incarcerated on notice that the prisoner
is wanted in another jurisdiction . . . upon his release from prison.”
Mauro, 436 U.S. at 358; see also 28 U.S.C. § 566(c) (“Except as
otherwise provided by law or Rule of Procedure, the United States
Marshals Service shall execute all lawful writs, process, and orders issued
under the authority of the United States, and shall command all necessary
assistance to execute its duties.”).
                           JOHNSON V. GILL                                 7

On December 14, the Dallas County Sheriff’s Department
transferred Johnson to the Marshals Service. This was also
a mistake. Johnson remained with the federal authorities
until February 12, 2010, when the Marshals Service returned
him to the TDCJ. Johnson received credit toward his state
sentence for the periods during which the Marshals Service
erroneously had physical custody of him.

    Texas paroled Johnson on February 23, 2011. Because
the Marshals Service had filed a federal detainer with the
state, the state authorities held Johnson for federal pick-up,
but due to an oversight the Marshals Service failed to retrieve
him, and so Johnson was released the same day. Several
months later, on June 6, 2011, Johnson visited his parole
officer, at which time the Marshals Service apprehended him
and turned him over to the BOP to serve his federal sentence.

    The BOP determined that Johnson’s federal sentence
commenced on June 6, 2011, when the Marshals Service took
Johnson into federal custody. Nevertheless, Johnson received
credit against his federal sentence for the period during which
he was released from all custody, between February 23, 2011
(when he was paroled from state custody) through June 5,
2011, when the Marshals Service apprehended him.4 Johnson
objected to this calculation; he argued that his federal
sentence commenced on one of the occasions when the state
erroneously transferred him to the Marshals Service, either on


    4
       “Under the doctrine of credit for time at liberty, a convicted person
is entitled to credit against his sentence for the time he was erroneously at
liberty provided there is a showing of simple or mere negligence on behalf
of the government and provided the delay in execution of sentence was
through no fault of his own.” United States v. Martinez, 837 F.2d 861,
865 (9th Cir. 1988).
8                            JOHNSON V. GILL

August 7, 2009, or December 14, 2009. Therefore, Johnson
contends, he is entitled to credit against his federal sentence
for the time period between August 2009 and June 2011, even
though the state already gave him credit for this same time
period.     After unsuccessfully pursuing administrative
remedies, Johnson filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, which the district court denied.
He timely appealed.

    We have jurisdiction under 28 U.S.C. § 1291 and review
the district court’s ruling de novo. Tablada v. Thomas,
533 F.3d 800, 805 (9th Cir. 2008). Although Johnson is
currently incarcerated at the Federal Correctional Institution
in Oakdale, Louisiana, habeas jurisdiction was proper in the
district court because Johnson filed his petition while
incarcerated at the Federal Correctional Institution in
Mendota, California. Brown v. United States, 610 F.2d 672,
677 (9th Cir. 1980). His subsequent transfer does not destroy
the jurisdiction established at the time of filing. Francis v.
Rison, 894 F.2d 353, 354 (9th Cir. 1990).

                                       II

   The federal statute governing when a term of
imprisonment commences, 18 U.S.C. § 3585,5 provides that



    5
        This provision provides, in full:

           (a) Commencement of sentence.–A sentence to a term
           of imprisonment commences on the date the defendant
           is received in custody awaiting transportation to, or
           arrives voluntarily to commence service of sentence at,
           the official detention facility at which the sentence is to
           be served.
                        JOHNSON V. GILL                            9

“[a] sentence to a term of imprisonment commences on the
date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence service
of sentence at, the official detention facility at which the
sentence is to be served.” 18 U.S.C. § 3585(a). In order to
determine whether Johnson’s federal sentence commenced
when the state mistakenly transferred him to the federal
government, we begin by interpreting § 3585(a) in its
historical context.

                                 A

    Although “custody” can mean mere physical possession
or control of a person, it may also refer to lawful authority
over a person. See Black’s Law Dictionary 441 (9th ed. 2009)
(defining “constructive custody” as “[c]ustody of a person
(such as a parolee or probationer) whose freedom is
controlled by legal authority but who is not under direct
physical control”); Webster’s Third New International
Dictionary 559 (2002) (“[C]ontrol of a thing or person with
such actual or constructive possession as fulfills the purpose
of the law or duty requiring it.”). Courts have long


       (b) Credit for prior custody.–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–

           (1) as a result of the offense for which the sentence
           was imposed; or

           (2) as a result of any other charge for which the
           defendant was arrested after the commission of the
           offense for which the sentence was imposed;

       that has not been credited against another sentence.
10                     JOHNSON V. GILL

interpreted “custody” in the context of § 3585 and its
predecessors as referring to the federal government’s control
over a prisoner when it has both physical custody and primary
jurisdiction.

     The concept of primary jurisdiction was established by
the Supreme Court nearly a century ago, when it
acknowledged the need for comity between state and federal
authorities with respect to managing defendants who are
subject to both state and federal criminal prosecutions and
sentences. See Ponzi v. Fessenden, 258 U.S. 254, 259 (1922).
In Ponzi, the Supreme Court stated the general rule that the
first sovereign to arrest a defendant obtains primary
jurisdiction over him as against other sovereigns. Id. at 260
(“The chief rule which preserves our two systems of courts
from actual conflict of jurisdiction is that the court which first
takes the subject-matter of the litigation into its control,
whether this be person or property, 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.”).
Nevertheless, the sovereign with primary jurisdiction could
consent to the defendant’s transfer to another sovereign for
trial or other proceedings. Id. at 261. Such a decision is
vested “solely to the discretion of the sovereignty making it,”
acting through “its representatives with power to grant it.” Id.
at 260. In the federal system, for example, a “transfer of a
federal prisoner to a state court for such purposes” may be
“exercised with the consent of the Attorney General.” Id. at
261–62.
                           JOHNSON V. GILL                              11

    Congress enacted the earliest predecessor of § 3585, 18
U.S.C. § 709a, in 1932.6 See Jonah R. v. Carmona, 446 F.3d
1000, 1003 (9th Cir. 2006) (discussing the history of § 3585).
Courts interpreted § 709a in light of Ponzi and the concept of
primary jurisdiction, concluding that a state’s transfer of a
defendant to the federal government does not trigger the
commencement of the federal sentence unless the federal
government obtains primary jurisdiction over the defendant.
In Zerbst v. McPike, for instance, Louisiana state authorities
had primary jurisdiction over a defendant, but transferred him
to the federal government for the duration of a federal
prosecution. 97 F.2d 253, 254 (5th Cir. 1938). When the
federal sentencing was complete, the prisoner was returned to
the state, which took him back to state jail and tried and
sentenced him for a state crime. Id. After the defendant
served his state sentence, he argued that his federal sentence
began running when he was taken to the state jail following
his federal sentencing. Id. The Fifth Circuit rejected this
argument. It explained that the state had primary jurisdiction
over the defendant and merely lent the prisoner to the federal
government “without a complete surrender of the prior
jurisdiction over him which the State had acquired.” Id.
Therefore, the federal sentence did not “commence” until the
defendant was received at the federal penitentiary after the
state sentence was complete.7 Id.


    6
      Section 709a provided, in pertinent part, that “the sentence of
imprisonment of any person convicted of a crime in a court of the United
States shall commence to run from the date on which such person is
received at the penitentiary, reformatory, or jail for service of said
sentence.” Act of June 29, 1932, Pub. L. 72-210, § 1, 47 Stat. 381, 381.
    7
      Other courts agreed with the Fifth Circuit. Applying § 709a, the
D.C. Circuit held that “when a prisoner is in the custody of a state and the
federal government receives him for the purposes of trial only, the
12                        JOHNSON V. GILL

    Courts interpreted 18 U.S.C. § 3568,8 the successor
statute to § 709a, in light of this doctrine of primary
jurisdiction. See, e.g., Hayward v. Looney, 246 F.2d 56, 58
(10th Cir. 1957) (interpreting 18 U.S.C. § 3568, a
recodification of 709a); United States ex rel. Moses v. Kipp,
232 F.2d 147, 150 (7th Cir. 1957) (same). In doing so, courts
consistently concluded that a federal sentence did not
commence until the federal government had “legal custody”
of a defendant, meaning the primary jurisdiction necessary to
enforce the federal sentence. Burge v. United States,
332 F.2d 171, 175 (8th Cir. 1964); see also Crawford v.
Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978). When § 3568



sentence imposed by the federal court does not begin to run until the state
has exhausted its demands against him and yields him to the federal
government.” Strewl v. McGrath, 191 F.2d 347, 348 (D.C. Cir. 1951).
And in Vanover v. Cox, the Eighth Circuit applied the same general rule,
holding that a Virginia state prisoner’s federal sentence could not have
commenced under § 709a unless “[t]he consent of the Virginia authorities”
to a surrender of primary jurisdiction was “expressly shown.” 136 F.2d
442, 444 (8th Cir. 1943).
     8
       In pertinent part, 18 U.S.C. § 3568 stated: “The sentence of
imprisonment of any person convicted of an offense in a court of the
United States shall commence to run from the date on which such person
is received at the penitentiary, reformatory, or jail for service of said
sentence.” Act of June 25, 1948, Pub. L. 80-772, 62 Stat. 683, 838. As
the reviser’s notes to the Act explained, the amended § 3568 reflected only
a “[m]inor change in phraseology.” H.R. Rep. 80-304, app. at 171 (1947),
reprinted in 18 U.S.C.S. at 2636 (West 1948). In 1960 and 1966,
Congress amended § 3568 with respect to the provision governing credit
for presentence custody, but the provision governing the commencement
of federal sentences remained unchanged. See Act of Sept. 2, 1960, Pub.
L. 86-691, § 1, 74 Stat. 738, 738; Bail Reform Act of 1966, Pub. L. 89-
465, § 4, 80 Stat. 214, 217; see also Jonah R., 446 F.3d at 1003–04
(discussing these amendments).
                            JOHNSON V. GILL                                 13

was recodified as § 3585, our current statute, in 1984,9 courts
retained the same interpretation. See, e.g., Elwell v. Fisher,
716 F.3d 477, 481 (8th Cir. 2013) (“Pursuant to the doctrine
of primary jurisdiction, service of a federal sentence generally
commences when the United States takes primary jurisdiction
and a prisoner is presented to serve his federal sentence, not
when the United States merely takes physical custody of a
prisoner who is subject to another sovereign’s primary
jurisdiction.”); United States v. Evans, 159 F.3d 908, 911–12
(4th Cir. 1998) (same). We have implicitly reached the same
conclusion. See Taylor v. Reno, 164 F.3d 440 (9th Cir. 1998).
In Taylor, the federal government surrendered its primary
jurisdiction over a federal defendant by releasing him on his
own recognizance pending sentencing. Id. at 443. While at
large, he was arrested by the state and jailed on a murder
charge. Id. State officials later produced the defendant for
federal sentencing pursuant to a writ of habeas corpus ad
prosequendum. Id. At his federal sentencing, the district
court stated that the defendant was “now in federal custody,”
id., but federal officials returned him to state custody to serve
his sentence. Id. at 444. We rejected the defendant’s
argument that his federal sentence commenced on the date of
his federal sentencing. See id. Because the defendant was in
federal custody only by the state’s agreement, the state


     9
      Section 3585 did not materially change § 3568: § 3585 referred to
“a sentence to a term of imprisonment” rather than “the sentence of
imprisonment” in § 3568; and § 3585 provided that the sentence
“commences on the date the defendant is received in custody awaiting
transportation to . . . the official detention facility at which the sentence is
to be served,” rather than providing that the sentence “shall commence to
run from the date on which such person is received at the penitentiary,
reformatory, or jail for service of said sentence” in § 3568. Compare Bail
Reform Act of 1966, 80 Stat. at 217, with Sentencing Reform Act of 1984,
Pub. L. 98-473, § 212(a)(2), 98 Stat. 1837, 2001.
14                    JOHNSON V. GILL

maintained its priority, and “the district court did not have
authority to order [the defendant] into federal custody to
commence his federal sentence.” Id.

    Absent a clear indication to the contrary, we assume that
Congress was aware that courts interpreted the predecessors
to § 3585 in light of the primary jurisdiction doctrine and
intended to carry that doctrine forward in enacting the
materially similar § 3585. Cf., e.g., Tex. Dep’t of Hous. &
Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct.
2507, 2519–20 (2015) (reasoning that Congress can be
understood to acquiesce to widespread views in the courts of
appeal); United States v. Wilson, 503 U.S. 329, 336 (1992)
(interpreting § 3585(b) and reasoning that courts should not
lightly assume “that Congress intended to depart from a long
established policy” (internal quotation marks omitted)
(quoting Robertson v. R.R. Labor Bd., 268 U.S. 619, 627
(1925))). Consistent with our implicit conclusion in Taylor,
and with the many decades of judicial interpretation of § 3585
and its predecessors, we therefore interpret “custody” in
§ 3585(a) as “legal custody,” meaning that the federal
government has both physical custody of the defendant and
the primary jurisdiction necessary to enforce the federal
sentence. Accordingly, under § 3585(a), “[a] sentence to a
term of imprisonment commences on the date” that the
federal government has primary jurisdiction over a defendant
who is “received in custody awaiting transportation to” the
official detention facility.

    Our interpretation is also consistent with the BOP’s
understanding of the statutory scheme, to which we ordinarily
afford “substantial deference.” Jonah R., 446 F.3d at 1006;
see also Reno v. Koray, 515 U.S. 50, 61 (1995) (holding that
courts may defer to BOP program statements). Pursuant to a
                           JOHNSON V. GILL                                15

BOP Program Statement, “[w]hen it has been determined
[that] an inmate was committed improperly to federal custody
and primary jurisdiction resides with a state sovereign (i.e.,
the inmate was under jurisdiction of the federal sentencing
court on the basis of a writ of habeas corpus ad
prosequendum), [the BOP] will make every effort to return
the inmate to state custody.” U.S. Dep’t of Justice, Fed.
Bureau of Prisons, Program Statement No. 5160.05:
Designation of State Institution for Service of Federal
Sentence 11 (2003) (“Program Statement”). In such
situations, the BOP’s Program Statement provides that “[a]
return to the state means that the federal sentence should be
considered as not having commenced since transfer to the
Bureau was in error and the prisoner should have been
returned to the state.” Id. at 12. Although the Program
Statement refers to the situation in which a prisoner’s
erroneous federal custody is pursuant to a writ of habeas
corpus ad prosequendum, see id. 11–12, the BOP’s policy
with regard to such writs recognizes that a federal sentence
does not commence merely because a prisoner is in the
federal government’s physical custody. Because the BOP’s
interpretation is a permissible construction of the statute, we
defer to it. See Reno, 515 U.S. at 61.10



    10
       The dissent argues that the doctrine of primary jurisdiction should
not alter “the plain meaning of the words ‘received in custody’ in
§ 3585(a),” Dissent at 33. Yet the dissent acknowledges that “primary
jurisdiction by a sovereign is not relinquished if it transfers a prisoner in
custody to another sovereign pursuant to a writ of habeas corpus ad
prosequendum.” Dissent at 25, see also Dissent at 28–29, 30–32. The
dissent does not dispute that if a state retains primary jurisdiction pursuant
to a writ, the prisoner’s federal sentence does not commence even though
the federal government has physical custody of the prisoner. Dissent at
24–26. Accordingly, the dissent implicitly agrees with us that the federal
16                       JOHNSON V. GILL

                                  B

    Having determined that a federal sentence commences
only when the federal government has physical possession of
and primary jurisdiction over the defendant, we must next
determine when the federal government obtains such primary
jurisdiction. It is well established that if a sovereign takes a
defendant into its custody before another sovereign has done
so, then the arresting sovereign establishes its primary
jurisdiction and may give effect to its sentence before other
sovereigns may do so. Thomas v. Brewer, 923 F.2d 1361,
1365 (9th Cir. 1991). A sovereign’s priority terminates when
the sentence expires, charges are dismissed, or the prisoner is
allowed to go free. See Elwell, 716 F.3d at 481; Taylor, 164
F.3d at 445; cf. Strand v. Schmittroth, 251 F.2d 590, 599 (9th
Cir. 1957) (en banc) (“When a defendant or a parolee or a
probationer is released from actual physical custody, even for
temporary purposes, he may be arrested, tried and convicted
by any other such sovereign in the territory in which he may
be without the consent of the first sovereign, which may have
a judgment against him as yet unsatisfied or which may be
seeking to try him.”).

    The more difficult situation arises when one sovereign
transfers a defendant to another sovereign. Such a case
requires an exercise of comity between the sovereigns, and
turns on whether the state with primary jurisdiction intended
to surrender its priority upon transfer or merely transferred
temporary control of the defendant to the federal government.
See United States v. Warren, 610 F.2d 680, 685 (9th Cir.
1980) (a sovereign with priority “may elect under the doctrine


government’s mere physical custody of a prisoner is not always the sort
of “custody” that commences a federal sentence under § 3585.
                            JOHNSON V. GILL                                 17

of comity to relinquish” control of a defendant); see also
Ponzi, 258 U.S. at 266 (stating that the Attorney General may
give “the consent of the United States” to permit a federal
prisoner to be tried in a state’s courts, but this consent does
not relinquish priority). Because a state’s transfer of
temporary control of the defendant “extends no further than
it is intended to extend,” Zerbst, 97 F.2d at 254, and a state
that mistakenly transferred a prisoner to the federal
government lacked the intent to surrender primary
jurisdiction, such a mistaken transfer does not constitute a
relinquishment of primary jurisdiction. If the state retains
primary jurisdiction, the federal sentence does not commence
pursuant to § 3585. Therefore, a prisoner’s federal sentence
does not commence when the state mistakenly transfers a
prisoner to the federal government.11

    This conclusion raises a second question: how to
determine whether the state’s transfer of a prisoner is a
mistake. In determining whether a state’s transfer of a
defendant to a second sovereign is intended to be “a complete
surrender of the prior jurisdiction” that the state acquired over
the defendant, Zerbst, 97 F.2d at 254, we consider the record
as a whole. In light of the obligations of comity, we give


    11
       The dissent errs in claiming that Free v. Miles, 333 F.3d 550 (5th
Cir. 2003) is to the contrary. Dissent at 33–34. In Free, after the state
transferred a prisoner to the federal government for prosecution pursuant
to a writ, the prisoner was mistakenly incarcerated in a federal prison for
six months. 333 F.3d at 551. When the error was discovered, the prisoner
was returned to state prison to serve out his state sentence, before being
ultimately returned to federal prison to serve out his federal sentence. Id.
The government did not appeal the district court’s ruling that the
prisoner’s federal sentence commenced when the prisoner was mistakenly
transferred to a federal facility, and so the Fifth Circuit did not address this
issue. Id. at 552, 555.
18                     JOHNSON V. GILL

particular weight to the state’s own determination that the
transfer of the prisoner to the federal government was a
mistake. See Ponzi, 258 U.S. at 260. If the state is silent on
this issue, we may consider whether the state and federal
government made a formal temporary transfer of physical
control pursuant to a writ of habeas corpus ad prosequendum
or written request for temporary custody, see Taylor,
164 F.3d at 445, and whether a properly authorized
representative of the state approved the transfer, see Ponzi,
258 U.S. at 260. Because the “[d]etermination of priority of
custody and service of sentence between state and federal
sovereigns is a matter of comity to be resolved by the
executive branches of the two sovereigns,” Warren, 610 F.2d
at 684, two sovereigns are not bound “by the actions of mere
subordinate administrative officials such as the state sheriff
and federal marshal,” Smith v. Swope, 91 F.2d 260, 262 (9th
Cir. 1937).

    The Tenth Circuit’s decision in Weekes v. Fleming,
301 F.3d 1175 (10th Cir. 2002), illustrates such a record-
specific analysis. In that case, a state arrested a defendant;
transferred him to federal authorities for criminal proceedings
in federal court; obtained his return to state court on a writ of
habeas corpus ad prosequendum where he was sentenced to
a term of imprisonment; and finally returned him to federal
court where he pleaded guilty and was sentenced to
imprisonment. Id. at 1177. After the federal authorities
transferred the defendant to federal prison, the BOP
determined that the defendant had not yet served his prior
state sentence and returned him to state prison. Id. at
1177–78. Upon the conclusion of his state term of
imprisonment and his return to federal prison, the defendant
claimed that his federal sentence began when he was first
transported to the federal prison. Id. at 1179.
                      JOHNSON V. GILL                        19

    The Tenth Circuit agreed, holding that the record
demonstrated that the state had intentionally relinquished
primary jurisdiction over the defendant. Id. at 1181. In
determining the state’s intent, the court first noted that the
United States had not presented “either a written request for
temporary custody or a writ of habeas corpus ad
prosequendum” when it took the defendant away from state
authorities, which gave rise to a presumption that both the
federal government and the state government had “agreed to
a permanent change of custody.” Id. Further, the state’s
subsequent acts confirmed this presumption was correct.
These acts included “(1) the subsequent use of an ad
prosequendum writ to regain custody, (2) a sentencing order
expressly providing that the state sentence should be served
concurrently with a future federal sentence, and (3) a state-
lodged detainer requesting [the defendant’s] return to the
state prison system upon completion of his federal sentence.”
Binford v. United States, 436 F.3d 1252, 1255 (10th Cir.
2006) (discussing Weekes) (emphasis omitted). Because the
record demonstrated that the state had agreed to surrender
primary jurisdiction over the defendant and that “[t]he United
States was under no duty to return [the defendant] to state
custody after federal sentencing,” the court concluded that he
“must be given federal credit for time served since . . . the
date his federal sentence actually commenced.” Id. (first and
third alterations in original) (quoting Weekes, 436 F.3d at
1181).

    The dissent argues that our conclusion may prevent a
prisoner from being given credit for all time served in official
custody. Dissent at 30–31. It therefore urges the adoption of
a rule that the state must be deemed to have surrendered its
primary jurisdiction when it transfers the prisoner to the
federal government unless the state expressly preserves its
20                     JOHNSON V. GILL

primary jurisdiction through a writ of habeas corpus ad
prosequendum. Dissent at 32. We disagree. Such an
approach is contrary to the principles of comity expressed in
Ponzi, which establish that the sovereign which is first to
arrest a defendant obtains primary jurisdiction over him as
against other sovereigns, and any transfer must be with that
sovereign’s consent. 258 U.S. at 260. We would interfere
with the comity necessary for managing defendants who are
subject to criminal prosecution and sentences by both state
and federal sovereigns by adopting a rule that prevents
sovereigns from rectifying a mistaken transfer or by holding
as a matter of law that the state surrendered its primary
jurisdiction when it merely made a mistake. For instance, a
rule that a state’s mistaken transfer of a prisoner triggers the
commencement of a federal sentence might motivate federal
authorities to retain such a prisoner against the wishes of the
state, so as to ensure that the prisoner serves the full sentence
imposed by federal law.

    Moreover, the dissent’s concern that prisoners will not be
fully credited for time served is misplaced. Dissent at 30–31.
In this case, for instance, Johnson received credit against his
state sentence for time erroneously spent in federal custody.
Even the dissent agrees that Johnson is not entitled to
receiving credit against both his state and federal sentence for
the time spent in federal custody, the result he seeks on
appeal. See Dissent at 37. Nor does our interpretation of
§ 3585 preclude courts from fashioning remedies “to prevent
the government from abusing its coercive power to imprison
a person by artificially extending the duration of his sentence
through releases and re-incarcerations,” Free, 333 F.3d at
                           JOHNSON V. GILL                                21

554, where necessary to ensure that the prisoner’s period of
incarceration is not extended due to a mistaken transfer.12

                                     III

    We now consider whether, under § 3585(a), Johnson’s
federal sentence commenced on June 6, 2011, or on one of
the two occasions when the state erroneously transferred him
to the Marshals Service on August 7, 2009, or December 14,
2009. The parties do not dispute that Texas was the first
sovereign to obtain jurisdiction over Johnson when the state
arrested him in February 2007, and Texas therefore had initial
primary jurisdiction. See Thomas, 923 F.2d at 1365 (citing
Warren, 610 F.2d at 684–85).            Because Johnson’s
consecutive federal sentence could not commence under
§ 3585(a) until the federal government obtained primary
jurisdiction over him, we must decide whether and when
Texas relinquished its primary jurisdiction to the federal
government.


    12
        Our conclusion, therefore, is consistent with Free, which rejected
the defendant’s claim that he should receive credit against his federal
sentence for all time served after his original mistaken incarceration in
federal prison. Id. at 553–55. Instead, the court held that the defendant
was entitled to federal credit only for the time actually served in federal
prison. It declined to apply the common law rule that “a prisoner is
entitled to credit for time served when he is incarcerated discontinuously
through no fault of his own,” because the prisoner’s “total time of
incarceration in both federal and state prisons has not been-and will not
be-increased by even a single day as a result of his mistakenly serving”
time in federal prison. 333 F.3d at 555 (italics in original). We likewise
reject Johnson’s claim that he is entitled to credit for all time served after
his mistaken transfer to the federal government. Because the state gave
Johnson credit for all time in federal control, Johnson’s sentence likewise
will “not be increased by even a single day,” and we need not consider the
applicability of the common law rule here.
22                         JOHNSON V. GILL

     Johnson argues that the record establishes that Texas
relinquished its primary jurisdiction in 2009 when the Dallas
County Sheriff’s Department twice transferred him to the
federal government and represented on one occasion that his
the state sentence was complete. Moreover, as in Weekes,
Johnson’s transfer to federal control was not pursuant to a
writ of habeas corpus ad prosequendum or a written request
for temporary custody from the federal government. Thus, in
Johnson’s view the federal government had legal custody
over him upon his erroneous transfer.

     We disagree. As explained above, the crucial question is
whether, in view of the record as a whole, the state intended
to relinquish its primary jurisdiction over Johnson on August
7, 2009, or December 14, 2009, when it transferred him to the
Marshals Service. Here, Johnson does not dispute that the
Sheriff’s Department made a mistake. Highlighting this fact,
the Marshals Service’s returned Johnson to state authorities
when the error was discovered, and Texas took him back. By
acknowledging and correcting the error, the state and federal
sovereigns made clear that they had not reached an agreement
to transfer primary jurisdiction over Johnson.13 Cf. Zerbst, 97
F.2d at 254 (“The prior right acquired by first arrest continues
unchanged until the arresting government has completed the
exercise of its powers, and a waiver extends no further than
it is intended to extend.” (emphasis added)).

    Johnson argues that we should follow Weekes and hold
that the state intended to relinquish primary jurisdiction
because the state did not transfer him to the federal


     13
      Further substantiating this conclusion, a BOP memorandum dated
July 14, 2011, records the BOP’s view that Texas never “relinquished
primary jurisdiction to Federal authorities” through the mistaken transfers.
                          JOHNSON V. GILL                              23

government pursuant to a writ of habeas corpus ad
prosequendum or a written request for temporary custody.
Again we disagree. In Weekes, the absence of a writ of
habeas corpus ad prosequendum was only one relevant factor,
and “the further acts of the two sovereigns” confirmed the
court’s conclusion that the state and federal sovereigns had
reached an agreement for a transfer of primary jurisdiction.
301 F.3d at 1181. Here, unlike in Weekes, there is no
indication (1) that either sovereign believed that Texas would
have to “borrow” Johnson by means of a writ of habeas
corpus ad prosequendum in order to get physical custody,
(2) that Texas consented to Johnson’s serving his state
sentence concurrently with his federal sentence, or (3) that
Texas lodged a detainer with the federal authorities
acknowledging the federal government’s priority.14 See id. at
1181. Rather, the record best reflects a mutual understanding
between the sovereigns that Texas’s error was not a surrender
of priority and that comity counseled in favor of returning
Johnson to the state authorities.

    We conclude that on this record, Texas established its
priority of jurisdiction when it arrested Johnson in February
2007. From the time of arrest through the time Texas paroled
Johnson, the state did not manifest an intent to surrender its


    14
       As discussed previously, see supra at 17–18, there is still another
reason to reject Johnson’s argument: It would undermine the substantive
rule against double counting codified at § 3585(b), which prohibits giving
a defendant federal credit for time that has “been credited against another
sentence.” Because Texas already credited all the time Johnson was in
custody from August 2009 until he was released in June 2011, if
Johnson’s federal sentence commenced in August 2009, then all the time
he spent in state custody from that date would also be credited to his
federal sentence. This result would frustrate Congress’s chosen
sentencing scheme.
24                    JOHNSON V. GILL

priority in favor of the federal government. The Sheriff
Department’s transfers of Johnson to the federal government
in August and December of 2009 were merely mistakes.
Therefore, the federal government did not obtain legal
custody, i.e., “custody enabling and entitling it to enforce the
[consecutive federal] sentence,” Burge, 332 F.2d at 175, until
after Johnson completed his state sentence. The BOP
accordingly did not err in determining that Johnson’s federal
sentence commenced on June 6, 2011, when the federal
government for the first time exercised exclusive penal
custody over Johnson.

     AFFIRMED.



OLIVER, Chief District Judge, dissenting:

    I respectfully dissent. I disagree with the majority that
Johnson is not entitled to credit toward his federal sentence
for the time he was held in detention by the U.S. Marshal
Service on two occasions: August 7 through November 3,
2009, and December 14, 2009 through February 12, 2010,
after being released by the Dallas County Sheriff’s
Department to the U.S. Marshal Service. I would find that the
federal authorities obtained primary jurisdiction over him
when they took physical custody of his body, and his
sentence commenced pursuant to 18 U.S.C. § 3585(a) at that
time. Further, even if the federal authorities did not have
primary jurisdiction when he was being detained by the
Marshals, he nevertheless began his sentence pursuant to
18 U.S.C. § 3585(a) because he was being held for the
purpose of commencing his federal sentence.
                       JOHNSON V. GILL                         25

    I do agree with the majority that the existing case law in
this Circuit, like that in others, holds that as between state and
federal sovereigns, the one having primary jurisdiction over
a defendant obtains priority in terms of custody and service
of sentence. Taylor v. Reno, 164 F.3d 440, 444 (9th Cir.
1998). Furthermore, it is clear that the sovereign which first
gains custody of a defendant maintains primary jurisdiction
over him unless it is relinquished. Id. In this Circuit, unlike
in some others, primary jurisdiction is relinquished by a
federal court when it places a defendant on bond, for
example. Id. at 444–45. But, primary jurisdiction by a
sovereign is not relinquished if it transfers a prisoner in
custody to another sovereign pursuant to a writ of habeas
corpus ad prosequendum to answer charges in that
jurisdiction. Id. at 444. Under such circumstances, the
prisoner is deemed to be “on loan.” U.S. v. Evans, 159 F.3d
908, 912 (4th Cir. 1998); Thomas v. Brewer, 923 F.2d 1361,
1367 (9th Cir. 1991); Crawford v. Jackson, 589 F.2d 693,
695 (D.C. Cir. 1978). Thus, a prisoner is not entitled to have
his federal sentence commence immediately upon sentencing
in federal court if he has been held pursuant to a writ prior to
sentencing.

    This court has not, however, addressed before today the
issue of whether a prisoner is entitled to credit for time served
in federal custody where he was mistakenly turned over to
federal officials to commence his federal sentence by a state
having primary jurisdiction over him. I think that the
majority, in holding that Johnson would not be entitled to any
credit for the time he served in federal custody, misinterprets
Circuit precedent. It also interprets the doctrine of primary
jurisdiction in a way that is inconsistent with 18 U.S.C.
§ 3585(a), which defines when a federal prisoner commences
his sentence, and is likely to result in the denial of relief to
26                    JOHNSON V. GILL

prisoners involved in erroneous transfers between sovereigns
where significant prejudice would result.

    In my view, Taylor and the line of cases that establish
when a prisoner may be “on loan” to another sovereign do not
support the majority’s conclusion that the prisoner in this
case, who was mistakenly released from state to federal
custody, should not receive credit for the time he spent in
federal custody. See, e.g., Ponzi v. Fessenden, 258 U.S. 254,
260–61 (1922); Zerbst v. McPike, 97 F.2d 254, 254 (5th Cir.
1938).

    Indeed, I read Taylor to do no more than confirm the
universally-accepted principle that when a state allows a
prisoner in its custody to appear in federal court by a writ,
that prisoner is “on loan” to the federal court. Thus, the state
maintains its primary jurisdiction over the prisoner for
purposes of sentencing. In Taylor, the court specifically held
that, because the defendant was released on bond pending
sentencing in federal court, the state obtained jurisdiction
over him when they arrested him on a murder charge. Taylor,
164 F.3d at 445. Since the federal court did not have primary
jurisdiction over him at the time of sentencing in federal
court, he was not entitled to commence his sentence in federal
court before commencing his sentence in state court. Id.

    I do not think the relevant case law supports the
proposition that a sovereign must always consent in order to
lose its primary jurisdiction. That is certainly one way that it
could happen. For example, a court might be confronted with
the issue of whether a sovereign from whom a prisoner was
acquired by another sovereign pursuant to a writ may have
nevertheless consented to the latter sovereign’s having
priority in regard to a prisoner’s service of his sentence. See,
                      JOHNSON V. GILL                        27

e.g., Binford v. U.S., 436 F.3d 1252, 1256 (10th Cir. 2006)
(concluding that parties had reached no agreement to alter
fact that the state had primary jurisdiction over defendant
who was loaned to federal authorities through a writ). There
may also be circumstances under which the court has to
determine whether a sovereign who relinquished a prisoner to
another without requiring a writ may nevertheless have
reached agreement with the second sovereign that it would
maintain primary jurisdiction. See, e.g., Weekes v. Fleming,
301 F.3d 1175, 1181 (10th Cir. 2002) (concluding that Idaho,
who first had primary jurisdiction, consented to a
relinquishment of custody to the United States because the
United States was allowed to take possession of the prisoner
without a writ, and there was other evidence of the parties’
consent to such an arrangement). Indeed, in Smith v. Swope,
91 F.2d 260, 262 (9th Cir. 1937), this court acknowledged the
possibility of sovereigns making various arrangements in
regard to sentencing, including staggering them, but found no
evidence of such an agreement in that case. In making a
determination of this type, one would look to the
administrative and judicial officers charged with making such
decisions, not subordinate officials, such as Marshals or
sheriffs. But there is nothing to suggest in Taylor and the line
of cases dealing with prisoners “on loan” to another
sovereign, as concluded by the majority, that consent is
always dispositive of whether primary jurisdiction is
relinquished.

    The court made clear in Taylor that the doctrine of
primary jurisdiction is based on who has custody or control
of the “body” of the prisoner. In deciding that the federal
court, which first had primary jurisdiction, had relinquished
it by placing the defendant on bond, the court stated in
Taylor:
28                         JOHNSON V. GILL

         As in Strand,1 the state in this case, not the
         federal government maintained physical
         control of Taylor. The sovereign who lacks
         possession of the body permits another to
         proceed against the accused.

164 F.3d at 445 (internal quotations omitted). Thus, Taylor
instructs that just as the federal court relinquished primary
jurisdiction in that case because it no longer had custody of
the body, the state twice relinquished primary jurisdiction
over Johnson in this case on the two occasions when the
Dallas County Sheriff’s Department relinquished control of
him to the U.S. Marshal Service.

    The law establishing that the temporary relinquishment of
a prisoner pursuant to a writ does not alter primary
jurisdiction itself suggests that the consent theory on which
the majority relies in this case is not well-founded. By
consent, they do not mean just consent to the turnover of the
prisoner, but that the turnover was not through their mistake
or accident. Suppose that, through accident or mistake, a state
prisoner is turned over by a state with primary jurisdiction to
federal authorities for sentencing without a writ and that the
federal prisoner is sent to a federal prison facility thereafter
to commence his sentence. I do not believe the majority
would argue, or the case law supports, the conclusion that the
state would have maintained jurisdiction under these
circumstances. In Taylor, it was because the prisoner was


     1
      The court explained in Strand v. Schmittroth, 251 F.2d 590, 599 (9th
Cir. 1957), that the doctrine of in rem jurisdiction is applied in this area
and that possession of the res, the body, is dispositive. It stated, “[e]ven
though a person has been physically seized, his body must be held in
manual custody.” Id.
                       JOHNSON V. GILL                        29

delivered to federal court pursuant to a “valid writ” that the
state court was able to maintain primary jurisdiction over the
defendant. Id. at 444. There was no inquiry about the intent
of the judge who had responsibility for deciding the issue of
whether he should release the defendant on bond. Indeed, the
judge’s intent was deemed irrelevant to the inquiry as
evidenced by the fact that on appeal in that case, the court
found his pronouncement upon imposition of sentence, that
defendant was “now in federal custody”, to be of no
significance. Id. at 445–46.

    But beyond concluding that a sovereign’s intent to
transfer must be determined by consideration of the record as
a whole, the majority goes further by concluding, citing
Smith, 91 F.2d at 262, that sovereigns are not bound by
subordinate officials such as sheriffs and U.S. Marshals. Yet
Smith was a much different case than this one. That case
involved circumstances where a defendant was convicted and
sentenced in federal court and immediately commenced his
sentence in the custody of the U.S. Marshal, who was
instructed to transfer him to a federal penitentiary. Id. at 261.
The Marshal did not. Some time thereafter, he transferred the
defendant to state custody to commence his state sentence.
Id. Upon completion of the service of his time in state
custody, he was being held for the commencement of his
federal sentence. Id. We held that he properly commenced his
federal sentence in the custody of the Marshal.
Consequently, the Marshal’s delivery of the prisoner to state
authorities, contrary to his instructions that he deliver him to
the federal penitentiary, did not toll the running of his federal
sentence. Id. at 262. There was no question that the federal
court had primary jurisdiction and that the defendant
commenced his sentence in federal custody. As such, the
court acknowledged that it was not called upon to determine
30                     JOHNSON V. GILL

whether or not there was an agreement between sovereigns
that the defendant would serve a staggered sentence. Under
the circumstances of that case, the federal authorities were
bound to give credit to the prisoner despite the ministerial
error of the Marshal. However, this determination was not
based on whether the state obtained primary jurisdiction, but
on the federal common law doctrine that once a defendant’s
sentence has begun, it should be continued uninterrupted,
unless interrupted by fault of the prisoner. Id. As a result, the
court concluded that he was entitled to credit toward his
federal sentence for the time he spent in a state institution.

    I do not think that Smith, or the case law in general,
supports the notion that federal courts, in determining
whether jurisdiction has been relinquished by a sovereign,
must always engage in a prolix exercise of combing through
the state statute to determine which officials have the proper
authority to commit the sovereign and whether the sovereign
has potentially relinquished its authority. There is nothing in
the record to suggest that the Sheriff in this case was
engaging in fraud, subterfuge, or trickery, or that the Marshal
obtained possession of the prisoner through such means.
Furthermore, I think the majority’s position regarding the
need for consent from a properly-authorized state
representative ignores the practical reality that, in many
states, the power to release a prisoner, or take some other
affirmative act that might indicate a relinquishment of
priority, is exercised by subordinate officials, such as sheriffs.
There is nothing in this case to suggest that the Dallas County
Sheriff’s Department was not empowered to make decisions
regarding whether to release or retain prisoners who were
                          JOHNSON V. GILL                              31

legitimately entrusted to its custody and control.2 Thus, I am
left with a serious concern that this decision will result in the
denial of relief in even the most egregious cases where
significant prejudice to a prisoner could result from an
erroneous transfer. The majority’s position in this case
unnecessarily adds to uncertainty regarding the rights and
protections of prisoners subject to the jurisdiction of both
state and federal sovereigns. I also do not think that the
majority’s reliance on a U.S. DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF PRISONS, PROGRAM STATEMENT NO.
5160.05: DESIGNATION OF STATE INSTITUTION FOR SERVICE
OF FEDERAL SENTENCE 1 (2003) (“Program Statement”) is
well-founded. It states, in relevant part, “when it has been
determined [that] an inmate was committed improperly to
federal custody and primary jurisdiction resides with a state
sovereign (i.e., the inmate was under the jurisdiction of the
federal sentencing court on the basis of a writ of habeas ad
prosequendum), [the BOP] will make every effort to return
the inmate to state custody.” Id. at 11. The Program
Statement further provides that, “[a] return to the state means
that the federal sentence should be considered as not having
commenced since the transfer to the Bureau was in error and
the prisoner should have been returned to the state. . . .” Id.
at 12. Acknowledging that this Policy Statement refers only
to erroneous federal custody involving writs, the majority
nevertheless concludes that “the BOP’s policy with regard to
such writs recognizes that a federal sentence does not


    2
      The court in Strand suggested that even such authority might not be
required, stating, “if the accused by [sic] be brought before a court which
has jurisdiction of the subject matter, he may be tried, convicted,
sentenced, and imprisoned . . . . It makes no difference by what means,
rightful or wrongful, his body was brought into the court.” 251 F.2d at
600.
32                      JOHNSON V. GILL

commence merely because a prisoner is in the federal
government’s physical custody.” Maj. Op. 15. However, as
discussed previously, I do not think that the authority
regarding prisoners being “on loan” by one sovereign to
another through a writ has any applicability to the very
different circumstances of this case. Consequently, I find the
majority’s reliance on the Program Statement to be
unpersuasive.

    I conclude that the federal government acquired primary
jurisdiction over Johnson on the two occasions when the
Sheriff turned him over to the Marshal and that he should be
given credit for the time spent in the custody of the Marshal.
This result is supported by cases in this Circuit and others,
which teach that physical custody of the body of the prisoner
determines which sovereign has primary jurisdiction in the
absence of the prisoner being in the custody of a sovereign
pursuant to a writ or an agreement of the sovereigns to the
contrary. On the two occasions when the prisoner was
released into the possession of the Marshal it was not
pursuant to a writ. There was also no agreement between the
sovereigns at that time that primary jurisdiction would remain
with the state. It was not until later that the federal authorities,
recognizing that Johnson had been released to them by
mistake, consented to the state again having primary
jurisdiction. During the time that Johnson was in the custody
of the Marshal, the federal government had primary
jurisdiction over him and he should be given credit toward his
federal sentence for that time. Even if I were to conclude,
consistent with the majority, that the state maintained primary
jurisdiction over Johnson when he was delivered by the
Sheriff to the Marshal, I would still find that he had
commenced his sentence and should be given credit for the
time served in the custody of the Marshal.
                       JOHNSON V. GILL                         33

    Admittedly, courts have varied regarding whether to give
federal credit to a prisoner mistakenly taken into federal
custody by federal authorities when the state had, and never
relinquished, primary jurisdiction. Some courts have read the
doctrine of primary jurisdiction into the definition of
“received into custody,” concluding that a federal prisoner
who is mistakenly delivered to a federal penal institution to
begin his sentence is not received in custody for the purpose
of commencing his federal sentence. For example, in
Binford, the court held that a prisoner, who appeared before
the federal court pursuant to a writ and was mistakenly
delivered to a federal facility after sentencing in federal court,
was not entitled to the time he spent at the federal facility
before being returned to the state because the state court had
primary jurisdiction. Reading the doctrine of primary
jurisdiction as a gloss on 18 U.S.C. § 3585(a), the court
concluded that “his sentence never began until he was finally
received into federal custody for the purpose of serving his
sentence, after completing his state sentence.” Id. at 1256.

     Other courts, while acknowledging the importance of the
doctrine of primary jurisdiction in determining which
sovereign has priority in regard to the service of its sentence,
have not viewed the doctrine as altering the plain meaning of
the words “received in custody” in § 3585(a), and have
allowed credit for the time spent in federal detention. For
example, in Free v. Miles, 333 F.3d 550 (5th Cir. 2003), the
court implicitly reached this conclusion. In Free, a prisoner
had been brought before the federal court on a writ from a
state court, sentenced, and mistakenly sent to a federal
facility, rather than back to the state, to begin his sentence.
Id. at 551. After serving six months at the federal facility, the
error was discovered and he was sent back to the state to
commence his sentence there. Id. The Bureau of Prisons
34                    JOHNSON V. GILL

determined that the defendant’s federal sentence did not start
to run until he completed his state sentence. Id. The
defendant maintained that his federal sentence should be
deemed to have commenced on the date he was first
transferred to a federal facility. Id. at 552–53. Further, he
claimed that since his federal sentence had commenced
before his state sentence, he should be given credit toward his
federal sentence for the time he spent in state custody. Id.
The district court adopted the report and recommendation of
the magistrate judge, who determined that Free’s federal
sentence commenced when he was initially taken into custody
because 18 U.S.C. § 3585(a) states that, “a term of
imprisonment commences on the date the defendant is
received in custody. . . .” Id. at 552. The court, however, did
not grant the defendant credit toward his federal conviction
for the time he spent in state custody. Id. While denying
credit to the defendant for the time he spent in state custody,
the court noted in respect to the time he originally spent in
federal custody that, “[a]lthough the BOP originally did not
give Free credit for these six months, he rightfully and
successfully challenged that decision . . . .” Id. at 555; see
also Boston v. Att’y Gen. of U.S., 210 F. App’x 190, 192 (3d
Cir. 2006) (concluding that there should be a straightforward
determination of the commencement of a federal sentence
under 18 U.S.C. § 3585(a)).

    I find that the cases indicating that a prisoner’s sentence
commences when he arrives at a federal facility to begin his
sentence, even if it is later determined that the state had
primary jurisdiction at the time of his sentence, are more
persuasive than those holding to the contrary. The doctrine
of primary jurisdiction was developed as a rule of comity
between sovereigns to assist them in determining which had
priority in terms of whose sentence would be served first
                       JOHNSON V. GILL                        35

when a defendant had charges pending before more than one
sovereign. It was not developed to determine when a federal
sentence commences. 18 U.S.C. § 3585(a) defines when a
federal sentence commences, stating:

        A sentence to a term of imprisonment
        commences on the date the defendant is
        received in custody awaiting transportation to,
        or arrives voluntarily to commence service of
        sentence at, the official detention facility at
        which the sentence is to be served.

I submit that, when Johnson was taken into custody by the
Marshal upon delivery by the Sheriff on the two occasions
involved in this case, it was clearly for the purpose of
commencing his federal sentence. The fact that the comity
contemplated by the sovereigns failed to work on a particular
occasion because of a mistake should not affect Johnson’s
right to have his sentence commenced under the terms
required by the plain meaning of the words set forth in the
statute. The sovereign in this case, the federal government,
was not deprived of its authority or jurisdiction to act by the
primary jurisdiction doctrine, a doctrine of comity only.

    Having concluded that Johnson should be given credit for
the time he actually spent in federal custody, I do not think he
is entitled to credit toward his federal sentence for the time he
spent in state custody. There is some federal common law
authority for the proposition that once a prisoner begins the
commencement of his federal sentence, that sentence must
continue uninterrupted until completed. Smith, 91 F.2d at
260; Weekes, 301 F.3d at 1180. Johnson was entitled to have
his sentence commence on either of the days he was turned
over to the Marshal, and if that doctrine were applicable here,
36                    JOHNSON V. GILL

he would be entitled to federal credit for the time he spent in
state custody after his federal sentence had commenced.
However, “[t]raditionally, the doctrine for credit for time at
liberty has only been applied where a convicted person has
served some part of his sentence and then been erroneously
released.” U.S. v. Martinez, 837 F.2d 861, 865 (9th Cir.
1988). The court did find the doctrine to be applicable in
Smith, awarding credit toward his federal sentence to the
defendant for time spent in state custody after he began his
sentence in federal custody and was transferred to state
custody before completing his federal sentence. 91 F.2d at
260; Weekes, 301 F.3d at 1181–82 (also concluding that
where federal sentence was interrupted by service of state
sentence that defendant should receive credit toward federal
sentence for time spent in state custody). However, it does not
seem to have been regularly applied to a situation such as in
this case where Johnson was mistakenly given the
opportunity to begin his federal sentence first. Generally,
courts have not applied this doctrine in situations where the
state had primary jurisdiction and the defendant erroneously
began his federal sentence before serving his state sentence
and the sovereigns have agreed as a matter of comity that
primary jurisdiction should be restored to the first sovereign.
Further, courts recently addressing the issue have concluded,
in light of this common law doctrine’s main purpose, that it
has been, or should be, considerably narrowed. For example,
while acknowledging the common law rule that a prisoner is
entitled to credit where his prison sentence is interrupted
through no fault of his own, the court in Free stated, “[t]he
limited function of this rule is clear. Its sole purpose is to
prevent the government from abusing its coercive power to
imprison a person by artificially extending the duration of his
sentence through releases and re-incarcerations.” 333 F.3d at
554. In reaching its decision, the court relied on the Seventh
                      JOHNSON V. GILL                        37

Circuit decision in Dunne v. Keohane, 14 F.3d 335 (7th Cir.
1994). In Dunne, the court stated, “[t]he common law rule
has not been successfully invoked for many years, but we are
not disposed to question its continued vitality in its core area
of application, when the government is trying to delay the
expiration of the defendant’s sentence.” Id. at 336–37. That
court further stated, “[e]ven if reclassification from federal
prisoner to state boarder, with no release into the free
community might be thought to violate the rule if it resulted
in postponing the date at which the prisoner’s last sentence
must expire, there was no postponement.” Id. at 337.
Likewise, in Free, the court concluded that the defendant’s
sentence was not elongated as a result of his serving the first
six months of his federal sentence prior to serving his state
sentence. 333 F.3d at 555.

    I would reach the same result in regard to the prisoner in
this case, give him credit for the time he served in federal
custody, but I would find that he is not entitled to credit for
the time he spent in state custody. As the court indicated in
Free,

       The rule against piecemeal incarceration
       precludes the government from artificially
       extending the expiration date of a prison
       sentence; the rule does not, however, justify
       or mandate that a prisoner receive a ‘get out
       of jail early’ card...even when the prisoner is
       not at fault.

333 F.3d at 555. As in Free, the prisoner’s sentence in this
case was not elongated as a result of the transfer from federal
to state custody.
38                     JOHNSON V. GILL

     Finally, I address another concern of the majority:
allowing Johnson credit for the time he spent in the custody
of the U.S. Marshal Service under the circumstances of this
case would be in violation of 18 U.S.C. § 3585(b) because he
would be receiving credit against both his state and federal
sentences. Section 3585(b) permits the Bureau of Prisons to
give credit to a defendant “for certain periods spent in official
detention only if the time ‘has not been credited against
another sentence.’” However, that section deals with credit
for time a defendant has been detained prior to being taken
into custody to commence his sentence. It does not address
credit for time spent in custody after commencement of a
sentence. Furthermore, it is the prerogative of the state, as
sovereign, to determine whether it would give Johnson credit
for time served in federal custody. In any case, having already
concluded that Johnson is not entitled to credit toward his
federal sentence for the time he spent in state custody, the
dispositive issue here is whether Johnson is entitled to credit
toward his federal sentence for the time he mistakenly spent
in federal custody.

    For all of these reasons, I would REVERSE the decision
of the district court and grant Johnson’s request for a writ
requiring that the Bureau of Prisons give him credit toward
his federal sentence for the periods of time from August 7
through November 3, 2009, and December 14, 2009 through
February 12, 2010, finding that he had begun his sentence in
the custody of the U.S. Marshal Service during those periods.
I would find that Johnson is not eligible for credit toward his
federal sentence for time served in state custody.
