NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30144
Plaintiff-Appellee, D.C. No. 2:09-cr-00269-RSL-1 v.
MUHAMMED ZBEIDA TILLISY, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 22-30151
Plaintiff-Appellee, D.C. Nos. 2:13-cr-00310-RSL-1 v. 2:13-cr-00310-RSL
MUHAMMED ZBEIDA TILLISY,
Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding
Argued and Submitted April 5, 2024 Portland, Oregon
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.
Muhammed Tillisy filed a pro se petition for nunc pro tunc designation after
he was convicted of fraud in state court, and fraud and supervision violations in
federal court. He was sentenced to 163 months of imprisonment in state court and
a consecutive 96 months and one day of imprisonment in federal court. As the
parties are familiar with the facts, we do not recount them here.
We construe Tillisy’s filing as a 28 U.S.C. § 2241 petition “to create a better
correspondence between the substance of . . . [his] motion’s claim and its
underlying legal basis.” Castro v. United States, 540 U.S. 375, 381-82 (2003).
The government’s objection that Tillisy failed to exhaust administrative remedies
is forfeited. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on
other grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995); In re Mercury
Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“[A]n issue will
generally be deemed waived on appeal if the argument was not ‘raised sufficiently
[in] the trial court.’” (quoting Whittaker Corp. v. Execuair Corp., 953 F.2d 510,
515 (9th Cir. 1992)). We review the denial of a § 2241 petition de novo. Tablada
v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008). We affirm.
1. Primary jurisdiction “refers to the determination of priority of custody
** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation.
2 and service of sentence between state and federal sovereigns.” Taylor v. Reno, 164
F.3d 440, 444 n.1 (9th Cir. 1998). “[I]f a sovereign takes a defendant into its
custody before another sovereign has done so, then the arresting sovereign
establishes its primary jurisdiction and may give effect to its sentence before other
sovereigns may do so.” Johnson v. Gill, 883 F.3d 756, 764-65 (9th Cir. 2018). “A
sovereign’s priority terminates when the sentence expires, charges are dismissed,
or the prisoner is allowed to go free.” Id. at 765. Whether transferring a prisoner
constitutes relinquishment “turns on whether the [sovereign] with primary
jurisdiction intended to surrender its priority.” Id.
When Tillisy posted bail and was released from state custody in September
2012, the state relinquished its primary jurisdiction. Taylor, 164 F.3d at 444
(holding that release on bail constitutes relinquishment of primary jurisdiction).
His fraud on federal authorities had no bearing on the state’s intent in relinquishing
its jurisdiction. See Johnson, 883 F.3d at 765. The federal government then
gained primary jurisdiction over Tillisy when it re-arrested him two days later.
The federal government did not relinquish primary jurisdiction to the state when,
after Tillisy’s re-arrest, the U.S. Marshal transferred Tillisy to state custody on a
writ of habeas corpus ad prosequendum. See id. at 766 (“[T]wo sovereigns are not
bound ‘by the actions of mere subordinate administrative officials such as the state
sheriff and federal marshal.’” (quoting Smith v. Swope, 91 F.2d 260, 262 (9th Cir.
3 1937))); Taylor, 164 F.3d 445. Accordingly, the federal government had primary
jurisdiction over Tillisy from his September 2012 re-arrest by federal authorities
until the end of his federal sentencing in 2016.
However, the federal government relinquished its primary jurisdiction, and
the state regained its primary jurisdiction when, after federal sentencing, the
federal government returned Tillisy to state custody to serve his state sentences
before his consecutive federal sentences. The federal government transferred
physical custody to the state without any agreement suggesting that this transfer
was only temporary, “which g[ives] rise to a presumption that both the federal
government and the state government had ‘agreed to a permanent change of
custody.’” Johnson, 883 F.3d at 766 (quoting Weekes v. Fleming, 301 F.3d 1175,
1181 (10th Cir. 2002)). None of the federal government’s other actions dispelled
that presumption: the sentencing court explicitly ordered the state and federal
sentences to run consecutively, and no representative of the Attorney General, or
anyone else in the federal government, ever objected to the state’s holding Tillisy
while he was serving his state sentence. Id. This constitutes the requisite consent
to the state government’s taking and exercising primary jurisdiction to incarcerate
Tillisy first. See Strand v. Schmittroth, 251 F.2d 590, 595 (9th Cir. 1957) (en banc)
(recognizing that a sovereign can directly or impliedly consent to yielding primary
jurisdiction).
4 2. Tillisy contends that because the federal government had primary
jurisdiction when he was sentenced, his federal sentence must have commenced at
his arrest in 2012. “A sentence to a term of imprisonment 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.” 18 U.S.C. § 3585(a). A defendant is credited
for “time he has spent in official detention prior to the date the sentence
commences . . . that has not been credited against another sentence.” Id. § 3585(b).
The U.S. Attorney General determines when a federal sentence commences. See
Ponzi v. Fessenden, 258 U.S. 254, 262 (1922) (“The prisons of the United States
and the custody of prisoners under sentence are generally under the supervision
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30144
Plaintiff-Appellee, D.C. No. 2:09-cr-00269-RSL-1 v.
MUHAMMED ZBEIDA TILLISY, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 22-30151
Plaintiff-Appellee, D.C. Nos. 2:13-cr-00310-RSL-1 v. 2:13-cr-00310-RSL
MUHAMMED ZBEIDA TILLISY,
Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding
Argued and Submitted April 5, 2024 Portland, Oregon
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.
Muhammed Tillisy filed a pro se petition for nunc pro tunc designation after
he was convicted of fraud in state court, and fraud and supervision violations in
federal court. He was sentenced to 163 months of imprisonment in state court and
a consecutive 96 months and one day of imprisonment in federal court. As the
parties are familiar with the facts, we do not recount them here.
We construe Tillisy’s filing as a 28 U.S.C. § 2241 petition “to create a better
correspondence between the substance of . . . [his] motion’s claim and its
underlying legal basis.” Castro v. United States, 540 U.S. 375, 381-82 (2003).
The government’s objection that Tillisy failed to exhaust administrative remedies
is forfeited. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on
other grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995); In re Mercury
Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“[A]n issue will
generally be deemed waived on appeal if the argument was not ‘raised sufficiently
[in] the trial court.’” (quoting Whittaker Corp. v. Execuair Corp., 953 F.2d 510,
515 (9th Cir. 1992)). We review the denial of a § 2241 petition de novo. Tablada
v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008). We affirm.
1. Primary jurisdiction “refers to the determination of priority of custody
** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation.
2 and service of sentence between state and federal sovereigns.” Taylor v. Reno, 164
F.3d 440, 444 n.1 (9th Cir. 1998). “[I]f a sovereign takes a defendant into its
custody before another sovereign has done so, then the arresting sovereign
establishes its primary jurisdiction and may give effect to its sentence before other
sovereigns may do so.” Johnson v. Gill, 883 F.3d 756, 764-65 (9th Cir. 2018). “A
sovereign’s priority terminates when the sentence expires, charges are dismissed,
or the prisoner is allowed to go free.” Id. at 765. Whether transferring a prisoner
constitutes relinquishment “turns on whether the [sovereign] with primary
jurisdiction intended to surrender its priority.” Id.
When Tillisy posted bail and was released from state custody in September
2012, the state relinquished its primary jurisdiction. Taylor, 164 F.3d at 444
(holding that release on bail constitutes relinquishment of primary jurisdiction).
His fraud on federal authorities had no bearing on the state’s intent in relinquishing
its jurisdiction. See Johnson, 883 F.3d at 765. The federal government then
gained primary jurisdiction over Tillisy when it re-arrested him two days later.
The federal government did not relinquish primary jurisdiction to the state when,
after Tillisy’s re-arrest, the U.S. Marshal transferred Tillisy to state custody on a
writ of habeas corpus ad prosequendum. See id. at 766 (“[T]wo sovereigns are not
bound ‘by the actions of mere subordinate administrative officials such as the state
sheriff and federal marshal.’” (quoting Smith v. Swope, 91 F.2d 260, 262 (9th Cir.
3 1937))); Taylor, 164 F.3d 445. Accordingly, the federal government had primary
jurisdiction over Tillisy from his September 2012 re-arrest by federal authorities
until the end of his federal sentencing in 2016.
However, the federal government relinquished its primary jurisdiction, and
the state regained its primary jurisdiction when, after federal sentencing, the
federal government returned Tillisy to state custody to serve his state sentences
before his consecutive federal sentences. The federal government transferred
physical custody to the state without any agreement suggesting that this transfer
was only temporary, “which g[ives] rise to a presumption that both the federal
government and the state government had ‘agreed to a permanent change of
custody.’” Johnson, 883 F.3d at 766 (quoting Weekes v. Fleming, 301 F.3d 1175,
1181 (10th Cir. 2002)). None of the federal government’s other actions dispelled
that presumption: the sentencing court explicitly ordered the state and federal
sentences to run consecutively, and no representative of the Attorney General, or
anyone else in the federal government, ever objected to the state’s holding Tillisy
while he was serving his state sentence. Id. This constitutes the requisite consent
to the state government’s taking and exercising primary jurisdiction to incarcerate
Tillisy first. See Strand v. Schmittroth, 251 F.2d 590, 595 (9th Cir. 1957) (en banc)
(recognizing that a sovereign can directly or impliedly consent to yielding primary
jurisdiction).
4 2. Tillisy contends that because the federal government had primary
jurisdiction when he was sentenced, his federal sentence must have commenced at
his arrest in 2012. “A sentence to a term of imprisonment 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.” 18 U.S.C. § 3585(a). A defendant is credited
for “time he has spent in official detention prior to the date the sentence
commences . . . that has not been credited against another sentence.” Id. § 3585(b).
The U.S. Attorney General determines when a federal sentence commences. See
Ponzi v. Fessenden, 258 U.S. 254, 262 (1922) (“The prisons of the United States
and the custody of prisoners under sentence are generally under the supervision
and regulation of the Attorney General.”).
Tillisy was not “received in custody awaiting transportation to . . . the
official detention facility at which the sentence is to be served” under § 3585(a)
because the Attorney General, through the BOP, had not designated an official
detention facility. See Hayden v. Warden, 124 F.2d 514, 515 (9th Cir. 1941)
(holding, in a case with consecutive federal and state sentences where the state
sentence was to be served first, that the federal sentence did not begin to run when
pronounced because appellant was not “received at the penitentiary or at a place of
detention to await transportation thereto”).
5 As Tillisy conceded at oral argument, he received credit toward his state
sentence for the time he spent in federal custody before federal sentencing, so he is
not entitled to any additional pre-sentence credits.
The cases Tillisy relies on are inapposite. In Clark v. Floyd, 80 F.3d 371
(9th Cir. 1996), the defendant—who had consecutive state and federal sentences—
was erroneously released from state custody instead of transferred to federal
custody. Id at 374. The court credited the defendant with time served from when
he was released from state custody because he was “entitled to credit from the time
the court ordered him to begin serving his sentence.” Id. Here, the court ordered
Tillisy’s federal sentences to run consecutively, so the “time the court ordered him
to begin serving his sentence” was at the conclusion of his state sentence, not the
conclusion of sentencing. Id.
The holding of Johnson also only goes so far. In that case, the court held
that “the district court did not have authority to order [the defendant] into federal
custody to commence his federal sentence” because it did not have physical
custody of the defendant and primary jurisdiction. 883 F.3d at 763 (alteration in
original) (quoting Taylor, 164 F.3d at 444). Tillisy reads this statement to mean
that if the federal government had physical custody and primary jurisdiction, his
sentence automatically would have begun. But Johnson held only that these two
elements would give the district court the authority to enter him into custody
6 immediately. See id. at 763-64. Even if the district court had that authority here, it
did not exercise it. District court judges have the discretion to order sentences
consecutive to sentences already imposed. See Setser v. United States, 566 U.S.
231, 236 (2012).
3. Tillisy next argues that “the state court judge in [his] first state-court
judgment intended that he would receive credit towards his 120-month state
sentence for time spent in federal custody” and so his state sentence was meant to
run concurrent to his federal sentence. But Tillisy is referring to the “Credit for
Time Served” portion of the state court judgment, which plainly states that the time
spent in custody Tillisy was to get credit for was “time served prior to sentencing.”
In any event, even if Tillisy’s state judges ordered that his state sentences run
concurrent to his federal sentences, it still would not override the federal court’s
order that his federal sentence be consecutive. See Taylor v. Sawyer, 284 F.3d
1143, 1149 (9th Cir. 2002), abrogated on other grounds by Setser, 566 U.S. at 244.
AFFIRMED.