Brian Collins v. Warden ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN COLLINS, No. 22-55157
Petitioner-Appellant, D.C. No.
5:21-cv-00167-SB-MAR
v.
WARDEN, United States Penitentiary - MEMORANDUM*
Victorville,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stanley Blumenfeld, Jr., District Judge, Presiding
Submitted March 7, 2023**
Pasadena, California
Before: TASHIMA, HURWITZ, and BADE, Circuit Judges.
Brian Collins was arrested on federal robbery charges and, while those
charges were pending, was convicted in the district court of attempted escape. The
robbery charges were dismissed without prejudice, and Collins began serving his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
federal escape sentence. Collins was then temporarily transferred to New York
custody to face unrelated state charges. While Collins was in state custody, the
government reinstated the federal robbery charges, Collins completed his federal
escape sentence, and he was sentenced on the state charges. Two months after he
began serving his state sentence, Collins was temporarily transferred back to federal
custody to face the reinstated robbery charges. After his conviction on the robbery
charges, the district court imposed a sentence to be served consecutively to the state
sentence. 18 U.S.C. § 3584. Collins was returned to New York custody, where he
served out his state sentence. He was then taken into federal custody to serve the
robbery sentence.
Collins filed a 28 U.S.C. § 2241 habeas corpus petition seeking credit against
the robbery sentence for the time he spent in New York custody after the robbery
sentence was pronounced. The district court denied the petition. We have
jurisdiction over Collins’s timely appeal under 28 U.S.C. § 1291 and affirm.
1. For a federal sentence to commence, the government must have both
physical custody and primary jurisdiction over a defendant. See Johnson v. Gill, 883
F.3d 756, 761 (9th Cir. 2018); see also 18 U.S.C. § 3585(a). Although primary
jurisdiction generally terminates upon the expiration of a federal sentence, see
Johnson, 883 F.3d at 764–65, Collins argues that is not the case here because his
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federal robbery charges were pending when his sentence on his federal attempted
escape conviction expired.
But a sovereign may surrender its primary jurisdiction, id., and the federal
government did so here upon the completion of Collins’s escape sentence. The
government lodged a detainer in New York when it reindicted Collins on the federal
robbery charges. The lodging of a detainer acknowledges another sovereign’s
primary jurisdiction. See Johnson, 883 F.3d at 766; see also United States v. Mauro,
436 U.S. 340, 358 (1978). Rather than execute on the lodged detainer, the
government obtained physical custody of Collins to face the robbery charges
pursuant to a writ of habeas corpus ad prosequendum two months after Collins began
serving his state sentence. That writ also does not confer primary jurisdiction. See
Thomas v. Brewer, 923 F.2d 1361, 1366–67 (9th Cir. 1991). And, when Collins was
sentenced on the robbery charges, he was not placed in federal custody but instead
was returned to New York, and the federal government lodged another detainer.
Collins was thus under New York primary jurisdiction at the time he was sentenced
for his federal robbery conviction.
2. Collins received credit against his escape sentence for the time between
his arrest on that charge and the sentence’s expiration, including the time he spent
in New York custody awaiting disposition of the state charges. Collins also received
presentence credit against the robbery sentence for the time between his arrest on
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the robbery charges and the day before he was arrested on the escape charge. He is
not entitled to further presentence credit. See 18 U.S.C.§ 3585(b).
AFFIRMED.1
1
Collins’s unopposed motion for judicial notice, Dkt. 26, is granted.
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