14‐2302 Lugo v. Hudson
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________
August Term, 2014
(Submitted: April 20, 2015 Decided: May 13, 2015)
Docket No. 14‐2302 ______________
DANIEL LUGO,
Petitioner‐Appellant,
‐v.‐
D. HUDSON, Warden, Federal Correctional Institution Ray Brook,
Respondent‐Appellee. ______________
Before: KEARSE, PARKER, AND WESLEY, Circuit Judges.
Appeal from the United States District Court for the Northern District of New York (Glenn T. Suddaby, J.). Petitioner‐Appellant Daniel Lugo appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that a state’s late compliance with a writ of habeas corpus
ad prosequendum rendered the writ invalid. We AFFIRM the judgment entered by the district court.
DANIEL LUGO, pro se, Ray Brook, New York, for Petitioner‐ Appellant.
RAJIT S. DOSANJH, Assistant United States Attorney, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York, for Respondent‐ Appellee.
PER CURIAM:
Appeal from the United States District Court for the Northern District of
New York (Glenn T. Suddaby, J.). Petitioner‐Appellant Daniel Lugo, proceeding
pro se, appeals from the district court’s denial of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, in which he asserted that the Bureau of
Prisons (the “BOP”) incorrectly calculated his ten‐year sentence. While serving a
state sentence, Lugo was indicted on federal charges and a writ of habeas corpus
ad prosequendum was issued, calling for his transfer to federal authorities for
arraignment on a certain date. However, that date passed before Lugo was
transferred, and he contends that his transfer was therefore not pursuant to the
writ but rather was an outright transfer by the State to federal custody, causing
all of the ensuing time he spent in custody to be attributable to his eventual
federal sentence. For the reasons that follow, we hold that even if there was a
technical deficiency in connection with the execution of the writ of habeas corpus
ad prosequendum that was issued, that deficiency did not invalidate the
otherwise valid writ, and we affirm.
BACKGROUND
In 2000, Lugo was sentenced to six to twelve years’ imprisonment
following his New York State convictions for criminal possession of a controlled
substance, under N.Y. Penal Law § 220.16, and conspiracy, under N.Y. Penal Law
§ 105.15. He began serving his sentence in March 2000. While serving his state
sentence, Lugo was indicted on federal charges and temporarily transferred to
federal custody after the issuance of a writ of habeas corpus ad prosequendum.
The writ directed that he be produced on October 10, 2001 for arraignment on the
federal charges and that, thereafter, United States Marshals “maintain[ Lugo]
within the jurisdiction of [the Eastern District of New York] pending the
satisfaction of [the] writ.” Lugo v. Hudson, No. 9:13‐cv‐00753(GTS), slip op. at 3
(N.D.N.Y. June 16, 2014) (internal quotation marks omitted). The court’s relevant
docket entry did not indicate the issuance of the writ but merely stated that a
sealed document had been filed. For reasons not apparent on the record, Lugo
was not transferred to federal custody until October 18, 2001, and was arraigned
on October 19, 2001. Lugo remained in federal custody through his federal trial
and sentencing.
Lugo was convicted in federal court in October 2002 and sentenced to ten
years’ imprisonment, to run consecutively to his state court sentence. Lugo was
returned to a state correctional facility in November 2002. Pursuant to the writ,
the time that Lugo spent in custody for his federal prosecution was credited
towards his ongoing New York State sentence. That sentence ended in October
2008 when Lugo was released on parole, at which point he was transferred into
the custody of the U.S. Marshals and began serving his ten‐year federal sentence.
The BOP calculated Lugo’s federal release date to be September 3, 2017. In
June 2013, Lugo filed a petition pursuant to 28 U.S.C. § 2241 in district court,
asserting that the BOP had incorrectly calculated his sentence because no valid
writ had been issued. Lugo argued, inter alia, that the writ was invalid because it
required that he be produced in federal court for arraignment on October 10,
2001, and that when he was not so produced, there was no valid writ ad
prosequendum that required him to be produced for arraignment at a later date.
He contended that without a valid writ, his ten‐year federal sentence began to
run on the day it was imposed in 2002 (and had therefore expired by the time he
filed his § 2241 petition in 2013) and that any time spent in federal custody
during his prosecution should have been credited towards his federal sentence.
The district court denied the petition, ruling that the writ was valid, that
New York State retained primary custody over Lugo during his federal
prosecution, and that time credited towards his state sentence could not be
counted for both the state and federal sentences. Lugo v. Hudson, No. 9:13‐cv‐
00753(GTS), slip op. at 10–12 (N.D.N.Y. June 16, 2014). The district court
determined that the record contradicted Lugo’s arguments that the writ was
invalid: the indictment number on the writ matched that of the indictment for
which Lugo was convicted, and even though the writ was captioned
“Application for Writ of Habeas Corpus,” the body of the writ specified that it
was a writ ad prosequendum. See id.at 10–11. In determining that the writ was
valid, the court did not discuss the fact that Lugo’s arraignment date differed
from that listed on the writ.
DISCUSSION
We review a district court’s denial of a petition for a writ of habeas corpus
brought pursuant to § 2241 de novo and review any factual findings for clear
error. See, e.g., Sacirbey v. Guccione, 589 F.3d 52, 63 (2d Cir. 2009); Sash v. Zenk, 428
F.3d 132, 134 (2d Cir. 2005). On appeal, Lugo argues that the writ was invalid
because (1) it was not executed on the date specified in the writ for his
arraignment; and (2) it was originally sealed on the district court’s docket sheet.
Lugo argues that because the writ was invalid, his federal sentence began on the
day it was imposed and that the time spent in custody during his prosecution
should have counted towards his federal sentence. Additionally, Lugo argues
that his federal sentence began in 2002, that the U.S. Marshals improperly
transferred him back to state custody, and that he has now completed his ten‐
year federal sentence.
A writ ad prosequendum orders the production of a prisoner in court for
the purpose of standing trial. See 28 U.S.C. § 2241(c)(5); United States v. Mauro,
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14‐2302 Lugo v. Hudson
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________
August Term, 2014
(Submitted: April 20, 2015 Decided: May 13, 2015)
Docket No. 14‐2302 ______________
DANIEL LUGO,
Petitioner‐Appellant,
‐v.‐
D. HUDSON, Warden, Federal Correctional Institution Ray Brook,
Respondent‐Appellee. ______________
Before: KEARSE, PARKER, AND WESLEY, Circuit Judges.
Appeal from the United States District Court for the Northern District of New York (Glenn T. Suddaby, J.). Petitioner‐Appellant Daniel Lugo appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that a state’s late compliance with a writ of habeas corpus
ad prosequendum rendered the writ invalid. We AFFIRM the judgment entered by the district court.
DANIEL LUGO, pro se, Ray Brook, New York, for Petitioner‐ Appellant.
RAJIT S. DOSANJH, Assistant United States Attorney, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York, for Respondent‐ Appellee.
PER CURIAM:
Appeal from the United States District Court for the Northern District of
New York (Glenn T. Suddaby, J.). Petitioner‐Appellant Daniel Lugo, proceeding
pro se, appeals from the district court’s denial of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, in which he asserted that the Bureau of
Prisons (the “BOP”) incorrectly calculated his ten‐year sentence. While serving a
state sentence, Lugo was indicted on federal charges and a writ of habeas corpus
ad prosequendum was issued, calling for his transfer to federal authorities for
arraignment on a certain date. However, that date passed before Lugo was
transferred, and he contends that his transfer was therefore not pursuant to the
writ but rather was an outright transfer by the State to federal custody, causing
all of the ensuing time he spent in custody to be attributable to his eventual
federal sentence. For the reasons that follow, we hold that even if there was a
technical deficiency in connection with the execution of the writ of habeas corpus
ad prosequendum that was issued, that deficiency did not invalidate the
otherwise valid writ, and we affirm.
BACKGROUND
In 2000, Lugo was sentenced to six to twelve years’ imprisonment
following his New York State convictions for criminal possession of a controlled
substance, under N.Y. Penal Law § 220.16, and conspiracy, under N.Y. Penal Law
§ 105.15. He began serving his sentence in March 2000. While serving his state
sentence, Lugo was indicted on federal charges and temporarily transferred to
federal custody after the issuance of a writ of habeas corpus ad prosequendum.
The writ directed that he be produced on October 10, 2001 for arraignment on the
federal charges and that, thereafter, United States Marshals “maintain[ Lugo]
within the jurisdiction of [the Eastern District of New York] pending the
satisfaction of [the] writ.” Lugo v. Hudson, No. 9:13‐cv‐00753(GTS), slip op. at 3
(N.D.N.Y. June 16, 2014) (internal quotation marks omitted). The court’s relevant
docket entry did not indicate the issuance of the writ but merely stated that a
sealed document had been filed. For reasons not apparent on the record, Lugo
was not transferred to federal custody until October 18, 2001, and was arraigned
on October 19, 2001. Lugo remained in federal custody through his federal trial
and sentencing.
Lugo was convicted in federal court in October 2002 and sentenced to ten
years’ imprisonment, to run consecutively to his state court sentence. Lugo was
returned to a state correctional facility in November 2002. Pursuant to the writ,
the time that Lugo spent in custody for his federal prosecution was credited
towards his ongoing New York State sentence. That sentence ended in October
2008 when Lugo was released on parole, at which point he was transferred into
the custody of the U.S. Marshals and began serving his ten‐year federal sentence.
The BOP calculated Lugo’s federal release date to be September 3, 2017. In
June 2013, Lugo filed a petition pursuant to 28 U.S.C. § 2241 in district court,
asserting that the BOP had incorrectly calculated his sentence because no valid
writ had been issued. Lugo argued, inter alia, that the writ was invalid because it
required that he be produced in federal court for arraignment on October 10,
2001, and that when he was not so produced, there was no valid writ ad
prosequendum that required him to be produced for arraignment at a later date.
He contended that without a valid writ, his ten‐year federal sentence began to
run on the day it was imposed in 2002 (and had therefore expired by the time he
filed his § 2241 petition in 2013) and that any time spent in federal custody
during his prosecution should have been credited towards his federal sentence.
The district court denied the petition, ruling that the writ was valid, that
New York State retained primary custody over Lugo during his federal
prosecution, and that time credited towards his state sentence could not be
counted for both the state and federal sentences. Lugo v. Hudson, No. 9:13‐cv‐
00753(GTS), slip op. at 10–12 (N.D.N.Y. June 16, 2014). The district court
determined that the record contradicted Lugo’s arguments that the writ was
invalid: the indictment number on the writ matched that of the indictment for
which Lugo was convicted, and even though the writ was captioned
“Application for Writ of Habeas Corpus,” the body of the writ specified that it
was a writ ad prosequendum. See id.at 10–11. In determining that the writ was
valid, the court did not discuss the fact that Lugo’s arraignment date differed
from that listed on the writ.
DISCUSSION
We review a district court’s denial of a petition for a writ of habeas corpus
brought pursuant to § 2241 de novo and review any factual findings for clear
error. See, e.g., Sacirbey v. Guccione, 589 F.3d 52, 63 (2d Cir. 2009); Sash v. Zenk, 428
F.3d 132, 134 (2d Cir. 2005). On appeal, Lugo argues that the writ was invalid
because (1) it was not executed on the date specified in the writ for his
arraignment; and (2) it was originally sealed on the district court’s docket sheet.
Lugo argues that because the writ was invalid, his federal sentence began on the
day it was imposed and that the time spent in custody during his prosecution
should have counted towards his federal sentence. Additionally, Lugo argues
that his federal sentence began in 2002, that the U.S. Marshals improperly
transferred him back to state custody, and that he has now completed his ten‐
year federal sentence.
A writ ad prosequendum orders the production of a prisoner in court for
the purpose of standing trial. See 28 U.S.C. § 2241(c)(5); United States v. Mauro,
436 U.S. 340, 357–58 (1978). If a prisoner is serving a state sentence when he is
produced for a federal prosecution, the writ temporarily transfers him to federal
custody for prosecution but the state retains primary custody for the purpose of
calculating his state sentence. See United States v. Fermin, 252 F.3d 102, 108 n.10
(2d Cir. 2001).
This Court has not yet determined whether technical errors invalidate a
writ ad prosequendum. The Seventh Circuit, however, has concluded that errors
of form or technicality are not fatal so long as the writ “expressly indicates that it
was issued for a proper purpose.” United States v. Larkin, 978 F.2d 964, 968 (7th
Cir. 1992). Larkin involved a writ of habeas corpus ad testificandum that was
mislabeled a writ of habeas corpus ad prosequendum.1 However, the court held
that the error was harmless because the writ made clear that it was issued to
compel the defendant’s presence to testify before a grand jury. See id. The Tenth
Circuit has similarly held that an improperly labeled writ is not invalid so long
as the writ accurately describes the purpose for which it was issued. See Gilmore
v. United States, 129 F.2d 199, 202 (10th Cir. 1942). We now adopt a similar rule.
Here, the writ correctly announced that its purpose was to produce Lugo
for arraignment in federal court and “thereafter to maintain[ him] within the
jurisdiction of the [Eastern District of New York] pending the satisfaction of [the]
writ or the [further] orders of the Court.” Lugo v. Hudson, No. 9:13‐cv‐
00753(GTS), slip op. at 3 (N.D.N.Y. June 16, 2014). The fact that the State’s
transfer of Lugo to federal custody missed the October 10 date specified for his
1 A writ ad testificandum brings a prisoner to court to testify. See, e.g., Barber v. Page, 390 U.S. 719, 724 (1968). 7
arraignment did not mean that the transfer was not pursuant to the writ. He was
transferred shortly after that date for the purpose of arraignment, and he was
arraigned on the day after his transfer. The government’s failure to meet the
arraignment date specified in the writ did not invalidate the writ itself.
Additionally, Lugo argues that the writ was sealed “because of its
invalidity” and that, as a result, no proper writ appears on the docket sheet.
Appellant Br. 20. Because this issue is raised for the first time on appeal, we need
not consider it. See Singleton v. Wulff, 428 U.S. 106, 120 (1976); see also Virgilio v.
City of New York, 407 F.3d 105, 116 (2d Cir. 2005). In any event, the argument is
without merit because Lugo provides no support for his allegation that the
sealed writ was invalid or that its sealing was somehow connected to its validity.
Lugo was transferred to federal custody pursuant to a valid writ ad
prosequendum, which operates to allow a governmental entity to “borrow” a
prisoner from his primary custodian. See, e.g., Thomas v. Whalen, 962 F.2d 358,
360–61 & n.3 (4th Cir. 1992). For the purpose of calculating his state
incarceration, the State treated Lugo as remaining within state custody during
his federal prosecution; thus, that detention period was properly credited
towards his state sentence. See 18 U.S.C. § 3585(a) (a federal prisoner’s sentence
“commences on the date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence service of sentence at, the
official detention facility at which the sentence is to be served”); Fermin, 252 F.3d
at 108 n.10 (“a defendant held at a federal detention facility is not ‘in custody’ for
the purposes of § 3585(a) when he is produced through a writ of habeas corpus
ad prosequendum”). When Lugo was released from state custody in 2008 and
delivered to federal officials, he then began serving his federal sentence. Thus,
the BOP did not incorrectly calculate his sentence. See United States v. Labeille‐
Soto, 163 F.3d 93, 99 (2d Cir. 1998) (a “defendant has no right to credit on his
federal sentence for time that has been credited against his prior state sentence”).
CONCLUSION
We have considered all of Lugo’s arguments on this appeal and find them
to be without merit. Accordingly, we AFFIRM the judgment of the district court.