                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        October 4, 2005
                                 TENTH CIRCUIT
                                                                         Clerk of Court

 EDWARD PAUL SHAUGHNESSY,

               Petitioner - Appellant,
                                                        No. 05-1140
          v.                                           (D. Colorado)
 UNITED STATES OF AMERICA,                      (D.C. No. 00-S-1379 (OES))

               Respondent - Appellee.


                           ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Edward Paul Shaughnessy has filed a habeas application under 28 U.S.C.

§ 2241 contending that the federal government lost jurisdiction over him when he

was transferred to the State of Colorado for prosecution after he began serving a

federal sentence. He is currently serving a state sentence in Colorado. Upon



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
completion of that sentence he is to be returned to federal custody to complete his

federal sentence. The district court ruled, based on our opinion in Weekes v.

Fleming, 301 F.3d 1175 (10th Cir. 2002), that federal jurisdiction was not lost but

that Mr. Shaughnessy must be given credit toward his federal sentence for the

time in Colorado custody. We agree and affirm for substantially the same reasons

given by the district court.

                                         I.

      Edward Shaughnessy was arrested by Wyoming authorities on

September 26, 1998. The arrest was on a warrant issued by a Colorado state court

for failure to appear in court on drug charges. While effecting that arrest

Wyoming authorities discovered evidence of other crimes. Mr. Shaughnessy was

subsequently prosecuted in federal court in Wyoming for possession with intent to

distribute methamphetamine.

      Mr. Shaughnessy pleaded guilty in federal district court and was sentenced

on April 1, 1999, to 151 months in a federal prison. He arrived at the United

States Penitentiary in Lompoc, California, on June 4, 1999. After his arrival the

Bureau of Prisons (BOP) received detaining documents from the State of

Colorado. Mr. Shaughnessy was removed from Lompoc on October 6, 1999, and

turned over to Colorado authorities shortly thereafter. On October 13, 1999,

federal authorities filed a detainer against Mr. Shaughnessy requesting his return


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to federal custody upon release from state custody. A month later he pleaded

guilty to the Colorado charges and was sentenced to nine years in prison.

Mr. Shaughnessy states that he is scheduled to be released from state prison in

March 2006 and argues that he cannot be returned to finish out his federal

sentence because federal jurisdiction was lost by his release to state custody.

                                         II.

      A federal sentence must generally be served continuously “‘unless

interrupted by . . . some fault of the prisoner, and he cannot be required to serve it

in installments.’” Weekes, 301 F.3d at 1179, quoting White v. Pearlman, 42 F.2d

788, 789 (10th Cir. 1930). Mr. Shaughnessy’s sentence began when he was

committed to BOP custody and was interrupted, through no fault of his own, when

he was sent back to Colorado. In Weekes we determined that under such

circumstances the defendant “must be given federal credit for time served

since . . . the date his federal sentence actually commenced.” Weekes, 301 F.3d at

1181. The district court was therefore correct to conclude that the time

Mr. Shaughnessy has spent in Colorado must be credited toward his federal

sentence, and the government concedes the point. But cf. Hayward v. Looney,

246 F.2d 56, 58 (10th Cir. 1957) (when a prisoner is sentenced in federal court

but turned over to state authorities before being committed to a federal facility,

“the Federal sentence does not begin to run until such time as the prisoner is


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returned to Federal custody and received at the Federal penal institution for

service of his Federal sentence”).

      Mr. Shaughnessy’s argument goes further, however. First, he argues that

federal jurisdiction was lost when he was transferred to Colorado. One of the

four cases he cites supports his argument. In Barrett v. Bartley, 50 N.E. 2d 517,

521 (Ill. 1943), the court held that “a prisoner cannot be handed from one

jurisdiction to another for the purpose of trial, conviction and service of a new

sentence, before being returned to the asylum State for service of the unexpired

sentence, without violating his constitutional rights.” Two others, however, have

been overruled. Jones v. Rayborn, 346 S.W.2d 743 (Ky. 1961) overruled by,

Commonwealth v. Hale, 96 S.W.3d 24, 37 (Ky. 2003) (“forfeiture rule” rejected

as being the product of “judicial fiat” and having no basis in law); In re

Whittington, 167 P.2d 404 (Cal. App. 1917) overruled by In re Patterson, 411

P.2d 897, 900 (Cal. 1966) (“The language in In re Whittington that jurisdiction is

automatically waived when a prisoner is transferred to another state is

disapproved.”). And the fourth relies on state law for its result. Jones v.

Morrow, 121 P.2d 219 (Kan. 1942) (executive order releasing prisoner from state

prison to serve federal sentence operated as a commutation of the sentence).

      In any event, Mr. Shaughnessy’s authority is contrary to our case law. We

have held, “If the prisoner has violated the law of both sovereigns, he is subject to


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prosecution by both and he may not complain of or choose the manner or order in

which each sovereign proceeds against him.” Hayward, 246 F.2d at 57. Thus,

“[a]fter sentencing by a federal court, a prisoner may be held . . . for trial in a

state court, without the federal court’s losing jurisdiction of him . . . .” United

States v. Croft, 450 F.2d 1094, 1098 (6th Cir. 1971). Indeed, Mr. Shaughnessy’s

contention is inconsistent with our holding in Weekes, in which a prisoner who

had been released from Lompoc to serve a state sentence was returned to federal

custody. Weekes, 301 F.3d at 1177-78.

      Of course, a sovereign may decide to waive jurisdiction, just as it may

choose not to prosecute, but whether it has done so is a question of its intent. In

this case it is clear that when the BOP turned Mr. Shaughnessy over to Colorado

for prosecution on state charges, the federal government did not intend to waive

jurisdiction to require him to complete his federal sentence. On the contrary, a

detainer was filed with state authorities promptly after Mr. Shaughnessy was

released from federal custody. Intent to retain jurisdiction is suggested, not

undercut, by the BOP’s (mistaken) belief that Mr. Shaughnessy’s federal sentence

could simply be interrupted and recommenced upon release from state custody.

      Mr. Shaughnessy has two remaining arguments. First, he argues that the

transfer from federal custody to state custody violated his due process rights.

Second, he argues that returning him to finish his federal sentence after


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completion of his state sentence would violate his right to be free from double

jeopardy. But Mr. Shaughnessy concedes that if his federal sentence continued to

run when he was transferred to Colorado authorities, these arguments are without

merit. And these arguments, too, are inconsistent with Weekes.

      We AFFIRM the ruling of the district court granting in part and denying in

part Mr. Shaughnessy’s habeas petition under § 2241.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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