Brian Collins v. Warden

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2023
• Docket: 22-55157
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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

3 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.