Sunday, February 25, 2018

Case o' The Week: Deep in the Heart of Texas - Aubry Johnson and Primary Jurisdiction for State and Federal Custody

 Release, release, release encore: Texas bungles, Ninth deplores ignores.
Aubry Johnson v. Gill, 2018 WL 943991 (9th Cir. Feb. 20, 2018), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Tallman. 
  Dissent by visiting Chief D.J. Oliver.

Facts: In Texas state court, Johnson received a long sentence for robbery. Id. at *2. While he was still in state custody, the Feds brought him to district court on different charges. Id. Johnson got another federal sentence – to be run consecutive to the Texas term. Id.
  The Sheriff of Dallas County then began a remarkable chain of mistakes.
  In August 2009, while Johnson was still serving his state sentence, the Sheriff mistakenly released him to the U.S. Marshal. Realizing their mistake, the Sheriff asked for Johnson back from the Feds. Id.
  “A short while later . . . 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. On December 14, the Dallas County Sheriff's Department transferred Johnson to the Marshals Service. This was also a mistake.” Id.
  Johnson finally finished his state sentence, but instead of then releasing him onto the federal detainer to finally start his federal term, the Sheriff mistakingly released him altogether. Id. at *3.
  Johnson was later re-arrested, started his federal term, and filed a § 2241 petition contesting the BOP’s time calcs.

Issue(s): “Johnson objected to [the BOP’s] calculation; he argued that his federal sentence commenced on one of the occasions when the state erroneously transferred him to the Marshals Service . . . . 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.” Id. at *3.

Held: “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.” Id. at *5.
  “Because a state’s transfer of temporary control of the defendant ‘extends no further than it is intended to extend,’ . . . 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.” Id. at *6.

Of Note: In a compelling dissent, DJ Oliver worries that this new “primary jurisdiction” rule will unfairly punish inmates who are mistakingly transferred between sovereigns. Id. at *9.
  Judge Ikuta tries to assuage that fear with assurances that the district court can then “fashion remedies.” Id. at *8. Cold comfort for inmates faced with bungling jailers, but seize this slim reed if clients are cheated of custodial credits.

How to Use: For federal clients who owe state time, determining which sovereign has “primary jurisdiction” is critical when advising of custodial exposure. Aubry Johnson gives a long and detailed explanation (and some fuzzy new rules) on how to answer that question -- it is now the place to start for this analysis.
                                        
For Further Reading: Whither the Ninth’s two Trump nominees? Hawaiian candidate Mark Bennett should start shopping for robes.
  Oregon candidate and former Judge O’Scannlain clerk Ryan Bounds is having a rougher go of it, though his confirmation appears to be moving forward.
  For an interesting analysis on these judicial developments from another O’Scannlain clerk, see Above the Law article here



Image of Dallas County Sheriff badge from https://www.facebook.com/Dallas.Sheriff.Dept/

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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