For instance, pursuant to a writ of habeas corpus ad prosequendum or, as here, a writ of habeas corpus ad testificandum it is clear that the first sovereignty can, without in any way affecting the integrity of the final judgment of conviction entered there against the prisoner, "lend" its prisoner to the second sovereignty for trial on charges pending against him there or in order to have him testify in the courts of the second sovereignty. . . . But any "loan" to the second sovereignty in compliance with such a writ or any other temporary transfer of custody from the sovereignty having the prior jurisdiction cannot affect in any way whatever any final judgment of conviction already entered against the prisoner there or affect the running of the sentence imposed pursuant to that judgment.. . . Such a loan or temporary transfer cannot empower the courts of the second sovereignty to tamper with the terms of the first jurisdiction's valid prior judgment of conviction.
Id. at 89 (emphasis added) (citations and footnotes omitted); see also Carmona v. Warden of Ossining Correctional Facility, 549 F. Supp. 621, 622 (S.D.N.Y. 1982) ("Petitioner's transfer to federal custody has had no effect on his ongoing state sentence."). As this language makes clear, this court is not empowered to interrupt Smith's state sentence to require him to serve his consecutive federal sentence first.
Defendant proffers two arguments to support his contention that this court has authority to interrupt Smith's state sentence: first, he distinguishes the cases upon which the Bureau relies, many of which are cited above, by stating that all those cases involved habeas corpus petitions by which a prisoner attempted to have the court apply time served in state custody to a subsequent federal sentence; second, he analogizes his case to United States v. Croft, 450 F.2d 1094 (6th Cir. 1971), where the Sixth Circuit approved a district court's directive that a prisoner serve his federal sentence first. Both arguments are flawed, however. Regarding the first, at the very least the facts of Liberatore belie defendant's attempted distinction. With respect to the second, as the explanation below makes clear, defendant's reliance on Croft is disingenuous at best.
The prisoner in Croft, as in this case, was produced for sentencing in federal court under a writ of habeas corpus ad prosequendum; the court had to employ this mechanism as the defendant, while released on bond for his federal offense, was arrested and imprisoned on unrelated state charges. Id. at 1095. After sentencing, the federal court ordered Croft delivered to federal prison. Instead, however, the prisoner was returned to state custody; after serving approximately ten months of his two-year sentence, he was granted parole and delivered to the federal authorities. Id. at 1096. While acknowledging that both state and federal authorities contemplated that his terms would run concurrently, the district court nevertheless denied defendant's request that he receive credit against his federal sentence for time served in state court.
Id. The Sixth Circuit reversed, holding that where a federal court orders a prisoner's immediate commitment to federal prison, the prisoner's federal sentence commences for purposes of 18 U.S.C. § 3568 upon issuance of that order; erroneous delivery to a state institution does not affect this commencement. Id. at 1098-99.
There are at least three reasons why defendant's reliance on this case is misplaced. First, as the Fourth Circuit noted in Thomas v. Whalen -- a case similar to this one -- "the Sixth Circuit subsequently limited Croft to the situation where a state court orders its sentence to run concurrently with a federal sentence." Whalen, 962 F.2d at 362 (citing Vaughn v. United States, 548 F.2d 631, 633 (6th Cir. 1977). Clearly, Smith's federal and state sentences are not concurrent.
Second, this court's "recommendation" that Smith serve his federal sentence first differs from the Croft order requiring "immediate" commitment to a federal institution. See Whalen, 962 F.2d at 362 (elaborating fully on this argument to distinguish its situation from Croft). Nevertheless, this difference does not establish whether this court has the power to issue such an order. Third, as cases cited throughout this opinion make clear, defendant's assertion that Croft is binding authority because it, like this case and unlike Whalen, required application of repealed Section 3568 is without substance. See Whalen, 962 F.2d at 363 ("If the opinion is viewed as an application of section 3568, then the court erroneously permitted 'constructive' receipt at the federal penitentiary to satisfy the statute's plain requirement of actual receipt."). Rather, what the cases discussing this topic -- especially Liberatore -- make overwhelmingly clear is that principles of comity require one sovereign to defer to another who has primary jurisdiction. New York State had and did not relinquish primary jurisdiction over Frank Smith. As stated above, an intrusion on this jurisdiction in reliance on Croft would ignore and violate principles of comity.
II. Modification of Defendant's Sentence Defendant invokes former Rule 35 of the Federal Rules of Criminal Procedure -- effective for offenses committed before November 1, 1987 -- and urges this court to modify his federal sentence so that it runs concurrently with his state sentence. As; an initial matter, there is no question that this court had the discretion to order Smith's federal sentence to run consecutively to his state sentence:
"Sentences imposed by a federal court are administered by the Attorney General and, while that court may recommend that a federal sentence be served in a state facility concurrently with a state sentence, the Attorney General has discretion as to whether or not he will follow the recommendation." However, this statement does not apply to a federal sentence that is not to commence until the state sentence has been completed. The right of federal judges to impose such sentences has been recognized for many years.
Salley, 786 F.2d at 547 (quoting United States v. Sackinger, 704 F.2d 29, 30 (2d Cir. 1983)). As this quotation also indicates, however, even if Rule 35 authorized this court to modify Smith's sentence and even if this court agreed that such a modification were appropriate, it could only recommend and not order -- that the sentences be served concurrently. See also Barden, 921 F.2d at 483 ("Only the Attorney General or the Bureau, as his delegate, has [the] power" to order concurrence).
As to this court's power to recommend modification of its sentence, former Rule 35 provides in relevant part:
(a) Correction of Sentence. The court may correct an illegal sentence at any time. . . .
(b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed . . . .
Defendant argues that the government's promise not to "oppose a request by FRANK SMITH to serve any period of Federal incarceration prior to the completion of his unexpired New York State prison term" makes his sentence "illegal." However, a sentence inconsistent with a plea agreement cannot be characterized as "illegal" as that term has been applied under Rule 35. Warren, 610 F.2d at 684 (citing Hill v. United States, 368 U.S. 424, 430 (1962)). Accordingly, this motion falls under the time constraints of Rule 35(b). Since defendant did not file his brief requesting this alternative form of relief until November 27, 1992, more than 120 days after the sentencing date of July 17, 1992, he falls outside the requisite 120-day period.
III. Credit for Time Served Under Federal Writ
Defendant also requests that this court credit his federal sentence for the two years he has spent in federal custody under the writ of habeas corpus ad prosequendum. As the Bureau's memorandum points out, however, defendant's request evidences a misconstruction of his current status. Despite the execution of the federal writ, defendant remains under the primary jurisdiction of New York State; as such, defendant's state sentence has continued to run, and he has received credit on that sentence for any time he has served under the writ. At least for cases involving offenses after November 1, 1987, to which 18 U.S.C. § 3585(b) applies, the Supreme Court has explained that "Congress made clear that a defendant could not receive double credit for his detention time." Wilson, 112 S. Ct. at 1356.
Defendant nevertheless attempts to argue that because he committed his offense prior to November 1, 1987, repealed 18 U.S.C. § 3568 applies to his sentence and allows him the credit he seeks. Although his assertion that the repealed statute governs his sentence is correct, his conclusion is wrong. Section 3568 provides:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. . . .
. . .
No sentence shall prescribe any other method of computing the term.
In Crawford v. Jackson, 589 F.2d at 694, the District of Columbia Circuit, also discussing the sentences of a prisoner produced under a writ of habeas corpus ad prosequendum, held that
failure to return a prisoner to a sending state upon conclusion of the proceedings in the receiving state, [when] administrative entries reflect that the prisoner has started to serve the receiving state's sentence, [does not] constitute receipt of an individual at the "penitentiary, reformatory or jail" within the meaning of Title 18 U.S.C. 3568.
Other courts have agreed, stating that a federal prisoner is not entitled to prior custody time credit towards a federal sentence for a period spent in state custody, especially when the state has provided credit for the same period. United States v. Grimes, 641 F.2d 96, 99-100 (3d Cir. 1981); Siegel v. United States, 436 F.2d 92, 95 (2d Cir. 1970); see also Pinaud, 851 F.2d at 30 ("Courts have uniformly interpreted the language of § 3568 and its predecessors as precluding the calculation of the time served on a federal sentence from any date other than that on which the defendant was delivered to federal prison officials. Thus, even state prisoners whose state sentences have been vacated have been held not entitled to credit on unrelated federal sentences.") . Moreover, under the clear language of Section 3568, the decision of whether to allow prior custody credit lies within the discretion of the Attorney General and the Bureau of Prisons. United States v. Edwards, 960 F.2d 278, 281 (2d Cir. 1992).
For all these reasons, defendant's request that this court credit his time spent in a federal institution under the writ of habeas corpus ad prosequendum is denied.
Insofar as this court's order of Judgment and Commitment recommended that defendant serve his federal sentence first, this opinion is intended to clarify -- and amend -- that order. The United States Marshal is hereby directed to return defendant Smith to the proper New York State authorities so that he may complete his state sentence, as the purposes of the writ of habeas corpus ad prosequendum have been satisfied. Upon completion of his state sentence, defendant will be delivered to federal authorities for service of his consecutive federal sentence. Defendant will not receive credit toward that sentence for time spent in federal custody, for that time was part of his state sentence. Finally, defendant's Rule 35 motion is hereby denied.
Dated: Brooklyn, New York
January 29, 1993
I. LEO GLASSER, U.S.D.J.