                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 1, 2010
                    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 ROBERT C. COMRIE,

               Petitioner - Appellant,                  No. 09-1230
          v.                                            (D. Colorado)
 J. M. WILNER,                                (D.C. No. 1:09-CV-00871-ZLW)

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before HARTZ, HENRY, and O’BRIEN, Circuit Judges.


      Robert M. Comrie, a federal prisoner, appeals the denial of his pro se

application for writ of habeas corpus under 28 U.S.C. § 2241. The application

challenges the refusal of the federal Bureau of Prisons (BOP) to credit his federal

sentence for time spent in state and federal custody before entering federal prison.

We AFFIRM the judgment of the district court.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    BACKGROUND

      On January 19, 2002, Mr. Comrie was arrested by a Pennsylvania state

trooper on a federal arrest warrant. Two days later, while he was being held in a

county jail awaiting transfer to Ohio to face the federal charges, new criminal

charges were filed against him in Pennsylvania state court. On February 4 the

United States District Court for the Northern District of Ohio issued a writ of

habeas corpus ad prosequendum to bring Mr. Comrie to that court to stand trial

on the federal charges. Mr. Comrie was convicted on the federal charges on

September 20. He was then returned to Pennsylvania state custody, where he was

convicted and sentenced on his state charges, before being transferred back to

federal custody (on a second writ of habeas corpus ad prosequendum) for

sentencing on the federal charges. On February 25, 2003, Mr. Comrie was

sentenced in federal court to 100 months’ imprisonment, to be served

consecutively to any state sentence. See United States v. Comrie, 136 F. App’x

883 (6th Cir. 2005) (appeal from conviction and initial sentence). He was

returned to state custody a month later to complete his state sentence. On

December 22, 2004, he was released to federal marshals to begin his federal

sentence. All the time spent by Mr. Comrie in federal or state custody before

December 22 was credited to his state sentence.

      On April 15, 2009, Mr. Comrie filed his § 2241 application in the United

States District Court for the District of Colorado. He challenged the BOP’s

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refusal to award him credit against his federal sentence for all his time in custody

from the date of his arrest by state officials on federal charges (January 19, 2002)

until his release to federal marshals (December 22, 2004). Mr. Comrie argued

that the federal government had primary jurisdiction over him from the time that

we was arrested on January 19, 2002, and that it was only through error by the

federal marshals that he was placed in state custody. He contended that because

it was not his fault that he was not continuously in federal custody, he is entitled

to credit toward his federal sentence for his time in state custody. Mr. Comrie

repeats this argument on appeal.

II.   DISCUSSION

      “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.” Binford v. United

States, 436 F.3d 1252, 1254 (10th Cir. 2006). A federal statute governs the

commencement date: “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). As we emphasized in

Binford, “A federal sentence does not commence until a prisoner is actually

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

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      Mr. Comrie’s federal sentence clearly did not commence until December

22, 2004, when the State of Pennsylvania released him to federal marshals to be

transported to federal prison. See 18 U.S.C. § 3585(a). Complications may arise

if a convicted person is delivered to a federal prison before being sent to state

custody and later returned to federal prison. See Binford, 436 F.3d 1252; Weekes

v. Fleming, 301 F.3d 1175, 1179 (10th Cir. 2002). But no such complication

arose here.

      As for credit for time in custody before December 22, 2004, we look to

18 U.S.C. § 3585(b), which states:

      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.

Because Mr. Comrie’s time in custody from January 19, 2002, to December 22,

2004, was credited to his Pennsylvania sentence, he was not entitled to credit

under § 3585(b).




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      Mr. Comrie nevertheless argues that he was entitled to credit under BOP

Program Statement 5880.30 (PS 5880.30). To be sure, if it applied in this case,

he might benefit from it. The relevant portion of that program statement says:

      (1) For time in non-federal custody when the non-federal custody is
      based on charges that later resulted in a federal sentence.

             (a) Credit shall be given for all time spent in non-federal or
      foreign custody when the underlying basis for custody in fact is a
      federal warrant. For example, if a federal warrant is issued and the
      defendant is arrested by county police or foreign officials on the
      basis of the federal warrant, credit shall be given from the date of
      arrest to the date of sentence for all days in custody. Inquiries or
      requests for foreign presentence time credit, along with copies of the
      judgment and commitment and copies of any documentation in the
      institution or in the possession of the prisoner, must be sent to the
      Chief of Inmate Systems Management for verification.

PS 5880.30, ch. VI § 7(c) (emphasis added). PS 5880.30 was promulgated under

18 U.S.C. § 3568, which stated, in relevant part:

      The sentence of imprisonment of any person convicted of an offense
      shall commence to run from the date on which such person is
      received at the penitentiary, reformatory, or jail for service of such
      sentence. The Attorney General shall give any such person credit
      toward service of his sentence for any days spent in custody in
      connection with the offense or acts for which sentence was imposed.

(emphasis added).

      But § 3568 does not apply here. It was repealed effective November 1,

1987, by Pub. L. No. 98-473, tit. II, § 212(a)(2), 98 Stat. 1987 (1984). For

offenses committed after November 1, 1987, the new statutory provision,

§ 3585(b), applies. See 18 U.S.C. § 3585; PS 5880.28, ch. I § 3(c) (explaining


                                         -5-
change in controlling law). Because Mr. Comrie’s offenses were committed in

1999-2000, see Comrie, 136 F. App’x at 886–87, the new statute governs his

sentence.

      In light of the statutory mandates, we fail to see the relevance of

Mr. Comrie’s primary-jurisdiction argument. But in any event, the undisputed

evidence demonstrates that if the United States began with primary jurisdiction

over Mr. Comrie, it promptly yielded that jurisdiction to Pennsylvania. Primary

jurisdiction is a doctrine of comity, and the sovereigns involved can agree

however they wish regarding which shall assume custody of a prisoner. See

Weekes, 301 F.3d at 1180 (Although “[t]he sovereign that first acquires custody

of a defendant in a criminal case is entitled to custody until it has exhausted its

remedy against the defendant[,] . . . [t]he law of comity is such that . . . two

sovereigns may decide between themselves which shall have custody of a

convicted prisoner . . . .” (internal quotation marks omitted)). The federal

government acknowledged that it had ceded primary jurisdiction to Pennsylvania

when it used a writ of habeas corpus ad prosequendum to gain temporary custody

over Mr. Comrie to prosecute him and later to sentence him, on each occasion

returning him to state custody. See Binford, 436 F.3d at 1255–56 (determining

that the state had primary custody over a prisoner when the federal government

obtained custody from the state by a writ of habeas corpus ad prosequendum);

Weekes, 301 F.3d at 1181 (presuming that Idaho relinquished custody when (1) it

                                          -6-
allowed the United States to take exclusive physical custody of the prisoner

without producing either a written request for temporary change of custody or a

writ of habeas corpus ad prosequendum and (2) it later used such a writ to regain

custody of the prisoner for a probation-violation hearing).

III.   CONCLUSION

       We AFFIRM the judgment of the district court. We GRANT Mr. Comrie’s

motion for leave to proceed in forma pauperis. We DENY his motions for

voluntary dismissal of the appeal, filed on October 27, 2009, and November 12,

2009, and his January 12, 2010, motion for severance and transfer of venue.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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