Johnson v. Gill, No. 15-16400 (2-20-18)(Ikuta w/Tallman; dissent by Oliver).

The petitioner ping-ponged between state and federal custody.  Serving a state sentence (6 years), and then a consecutive federal sentence (88 mos), the petitioner was released to federal custody not once, but twice — and was placed on state parole for a period before the Marshals came calling and took him in. Petitioner argued that his federal sentence should begin running when he was first taken into federal custody because BOP then had primary custody of him.

The 9th disagreed. The 9th pointed out that the State’s erroneous transfer did not mean it relinquished primary jurisdiction. The petitioner was in State custody first, and the transfers were errors, not manifestation of relinquishment. The State even gave petitioner credit for the federal custody.  The federal authorities also gave petitioner federal credit when he was placed on State parole.

Dissenting, Oliver argues that petitioner’s time in federal custody should count against his federal sentence.  The State had given up primary jurisdiction, whether intentional or erroneously, and the BOP had his body. When he was in federal custody, he was there to commence his federal sentence.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/20/15-16400.pdf