Lanalsikov Lowe v. Russel Heisner

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANALSIKOV LOWE, AKA Lanalsikou No. 20-56057
Lowe,
D.C. No. 2:20-cv-01808-MWF-E
Petitioner-Appellant,
v. MEMORANDUM**
RUSSELL HEISNER*, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted December 14, 2021***
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Federal prisoner Lanalsikov Lowe appeals pro se from the district court’s
judgment denying his petition for a writ of habeas corpus under 28 U.S.C. § 2241.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Warden
Russell Heisner is substituted as Respondent.
**
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).
We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Tablada v.
Thomas, 533 F.3d 800, 805 (9th Cir. 2008), we affirm.
Lowe contends that he is entitled to 70 months of custody credit towards his
federal sentence from a prior period of state custody. Contrary to Lowe’s
argument, the state did not dismiss Lowe’s charges, nor did it take any other action
to terminate its jurisdiction and custody in March of 2014. Thus, he remained in
state custody and is not entitled to credit on his federal sentence for the time period
beginning in March 2014.
To the extent Lowe contends that he is entitled to credit for the period of
time in which he was in temporary federal custody on a writ of habeas corpus ad
prosequendum, this argument is also unavailing. See Thomas v. Brewer, 923 F.2d
1361, 1367 (9th Cir. 1991) (a defendant transferred pursuant to a writ of habeas
corpus ad prosequendum is “on loan” to federal authorities and remains a state
prisoner). The record reflects that the state of Nevada had primary jurisdiction
during the challenged period of time and credited the time towards his state
sentence. See id. at 1365 (“the first sovereign to arrest a defendant has priority of
jurisdiction”).1 Thus, the credits earned during this period cannot be credited
1
During its investigation into Lowe’s petition, the Bureau of Prisons (“BOP”)
found that Lowe had not received credit for 436 days he spent in state custody.
The BOP has now credited that time on his federal sentence. This is unrelated to
the claims Lowe raises here.
2 20-56057
towards his federal sentence. See 18 U.S.C. § 3585(b); United States v. Wilson,
503 U.S. 329, 337 (1992) (a defendant cannot “receive a double credit for his
detention time”).
Finally, Lowe’s argument that he is entitled to nunc pro tunc designation
fails because the judge in Lowe’s federal case ordered his sentence to run
consecutively to his state sentence. See Setser v. United States, 566 U.S. 231, 244-
45 (2012) (district court may order its sentence to run consecutively to an
anticipated state sentence); Taylor v. Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002)
(if the federal judge orders its sentence to run consecutively to the state sentence,
the BOP is obligated to decline a prisoner’s request for nunc pro tunc designation).
AFFIRMED.
3 20-56057