Johnson v. USA

Filing 4

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioners request for habeas corpus relief brought pursuant to 28 U.S.C. § 2241 is DENIED AND DISMISSED.IT IS FURTHER ORDERED that no certificate of appealability shall issue.A separate Order of Dismissal shall accompany this Memorandum and Order.. Signed by District Judge Henry Edward Autrey on 11/20/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIMOTHY D. JOHNSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:17CV1911 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on petitioner=s application for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2241. Rule 4 of the Rules Governing Habeas Corpus Cases in
the United States District Courts provides that a district court shall summarily dismiss a habeas
corpus petition if it plainly appears that the petitioner is not entitled to relief. As set forth in
detail below, petitioner’s claims will be denied, and no certificate of appealability shall issue.
Background
On February 17, 2016, while on supervised release under docket number United States v.
Johnson, No. 4:12-CR-0335 HEA (E.D.Mo.), petitioner was arrested for a parole violation and
returned to the custody of the Missouri Department of Corrections (“MDOC”) under State v.
Johnson, Case No. 1222-CR04103-01 (22nd Judicial Circuit, St. Louis City).1 At this point, the
State of Missouri had primary jurisdiction over petitioner. See, e.g., United States v. Cole, 416
F.3d 894, 897 (8th Cir. 2005) (“As between the state and federal sovereigns, primary jurisdiction

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A warrant had been issued for petitioner on February 7, 2016, after petitioner left his residence
without permission, and he was allegedly charged for aggravated stalking in the first degree and
violation of an ex parte or full order of protection. See State v. Johnson, Case No. 1522-PN02470
(22nd Judicial Circuit, St. Louis City).

over a person is generally determined by which one first obtains custody of, or arrests, the
person.”).
On May 4, 2016, petitioner was transferred on a writ ad prosequendum from the custody
of the MDOC to the custody of the United States Marshals Service to appear for a revocation
hearing in United States v. Johnson, No. 4:12-CR-0335 HEA (E.D. Mo).
On June 28, 2016, petitioner received a ten (10) month sentence of imprisonment for his
revocation in United States v. Johnson, No. 4:12-CR-0335 HEA (E.D. Mo). At that time, the
Court ordered the sentence to run consecutive to petitioner’s sentence in his state case in State v.
Johnson, Case No. 1222-CR04103-01 (22nd Judicial Circuit, St. Louis City).
Legal Standards
Section 2254 supplies federal jurisdiction over habeas petitions filed by the inmates
challenging their state convictions or sentences, or the execution of those state sentences,
including the issues of parole, term calculation, etc. See 28 U.S.C. § 2254. In contrast, 28 U.S.C.
§§ 2241 and 2255 confer jurisdiction over the petitions filed by federal inmates.
Since “[t]he exact interplay between § 2241 and § 2255 is complicated, [and] an
explication of that relationship is unnecessary for resolution of this [case],” Cardona v. Bledsoe,
681 F.3d 533, 535 (3d Cir.2012) (citing In re Dorsainvil, 119 F.3d 245, 249 (3d Cir.1997)), it is
enough to state that “[m]otions pursuant to 28 U.S.C. § 2255 are the presumptive means by
which federal prisoners can challenge their convictions or sentences that are allegedly in
violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002).
As example, claims attacking plea agreements are raised in § 2255 motions. See, e.g.,
Hodge v. United States, 554 F.3d 372, 374 (3d Cir.2009); United States v. Williams, 158 F.3d
736, 737–40 (3d Cir.1998). On the other hand, § 2241 “confers habeas jurisdiction to hear the

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petition of a federal prisoner who is challenging not the validity but the execution of his
sentence,” for instance, by raising claims attacking the Bureau of Prisons (“BOP”) calculation of
his prison term or designation of his place of confinement if it yields a “quantum of change” in
the level of his custody. Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir.2005)
(quoting Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001)); compare Ganim v. Fed. Bureau of
Prisons, 235 Fed.Appx. 882 (3d Cir.2007) (a change in the geographical locale of imprisonment
cannot yield the requisite quantum of change).
Discussion
Petitioner is challenging the execution of his federal and state sentences. Specifically,
petitioner is asserting that he believes his federal revocation sentence of 10 months should have
started immediately after his June 28, 2016 sentencing date in this Court. However, according to
petitioner, he has still not been released into the Bureau of Prisons custody in order to start his
federal sentence. Rather, petitioner is currently serving his state prison time in the Eastern
Reception, Diagnostic and Correctional Center (“ERDCC”).
A. Petitioner’s Claims Relating to the Primary Jurisdiction Doctrine
Pursuant to the doctrine of primary jurisdiction, service of a federal sentence generally
commences when the United States government takes primary jurisdiction and a prisoner is
presented to serve his federal sentence, not when the United States takes physical custody of a
prisoner who is subject to another sovereign’s primary jurisdiction. See United States v. Hayes,
535 F.3d 907, 909-10 (8th Cir. 2008); see also, 18 U.S.C. § 3585(a) (“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.”); Binford v. United States, 436 F.3d 1252, 1256

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(10th Cir. 2006) (sentence begins when received into custody for purpose of serving sentence, not
when received into custody at an earlier time on a writ for the purpose of adjudicating federal
claims).
The first sovereign to take physical custody of a defendant retains “primary jurisdiction”
until releasing that jurisdiction. See United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005)
“Generally, a sovereign can only relinquish primary jurisdiction in one of four ways: 1) release
on bail, 2) dismissal of charges, 3) parole, or 4) expiration of sentence.” Id.
In this case, as noted above, the State of Missouri was the first to take physical custody of
petitioner when they arrested him. At that time, he remained in the state’s custody until he was
taken by writ into the custody of the federal government to be prosecuted for several violations
of his supervised release, pursuant to the writ of habeas corpus ad prosequendum.
Yet, even the transfer of physical control over petitioner’s custody did not terminate
Missouri’s primary jurisdiction over petitioner. See Hayes, 535, F.3d at 910 (federal sentence
did not commence during or after the period of writ of habeas corpus prosequendum but rather
after service of state sentence). Rather, petitioner remained subject to Missouri’s primary
jurisdiction and was temporarily on loan to the United States.
Moreover, a state court is generally not empowered to release a state’s primary
jurisdiction. See United States v. Dowdle, 217 F.3d 610, 611 (8th Cir. 2000) (“Because the state’s
jurisdiction was relinquished by a state judge, rather than the prosecutor or a representative of the
state executive branch, the relinquishment was ineffective and Dowdle’s status was a state
prisoner was unchanged.”).2

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To the extent a state court Judge or other official has informed plaintiff that his revocation
sentence should be served concurrently with any additional state court sentence, such statements
are not binding on the federal Courts or the Bureau of Prisons. See Fegans v. United States, 506

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In conclusion, to the extent petitioner’s arguments amount to an attack on the primary
jurisdiction doctrine, or a challenge to the BOP’s failure to honor the state court’s intentions, the
Court must reject such arguments, as Missouri obtained primary jurisdiction in his case when
they arrested him on February 17, 2016.
In fact, it appears that the State of Missouri has still not released primary jurisdiction over
petitioner, which is why he still remains in state custody. Thus, the Court has no other recourse
than to deny and dismiss petitioner’s application for writ of habeas corpus.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s request for habeas corpus relief brought
pursuant to 28 U.S.C. § 2241 is DENIED AND DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 20th day of November, 2017.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

F.3d 1101, 1104 (8th Cir. 2007). The non-binding nature of the state court’s intentions are,
understandably, frustrating to criminal defendants because the “state court’s action raises the
defendant’s expectations but does not resolve the issue.” Id.

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