Court on April 11, 1994. On April 12, 1994, petitioner was produced in the Schenectady County court where he pled guilty to the state charges and was thereafter returned to the custody of the United States Marshal. On August 10, 1994, petitioner was sentenced by this Court to 204 months incarceration and remanded to the United States Marshal for delivery to a federal facility. Thereafter, on August 22, 1994, petitioner was sentenced in Schenectady County state court to an indeterminate term with a minimum of fifteen years and a maximum of life. As is discussed in greater detail below, both the federal and state pleas were negotiated in coordination with each other and both the federal and state courts sentenced petitioner mindful of the sentences imposed or to be imposed by the other sovereign. To this date, however, the terms of the plea agreements, which both courts and all the concerned parties agreed to and which both sentencing courts relied on and incorporated into their respective sentencing schemes, have yet to be implemented.
Before the petitioner pled in either court, the United States Attorney, the Schenectady County District Attorney and defendant's attorney entered into intensive plea bargain negotiations. Those negotiations yielded agreement in principle as to the sentences that were later approved by both Courts and imposed as described infra. It was also agreed by all the concerned parties that if petitioner entered pleas of guilty to felonies in both Schenectady County Court and in the United States District Court for the Northern District of New York, that the state and federal sentences imposed should, with the permission of both courts, run concurrently. Finally, the place these lengthy sentences were to be served was apparently an important factor in petitioner's decision to accept the plea offers from the state and the federal prosecutors. Place of incarceration was one of the terms discussed during plea negotiations and the parties agreed that petitioner should first serve his federal sentence, in a federal facility, and upon satisfaction of the federal sentence petitioner would then be transferred to a New York State facility to serve the remainder, if any, of his concurrent New York State sentence.
The United States Attorney and the Schenectady County District Attorney, as the executive representatives negotiating on behalf of their respective sovereigns, fully appreciated that difficulties could arise later as to their agreement in principle that petitioner should first serve his federal sentence in a federal facility. These difficulties were anticipated because New York State, as the sovereign which first arrested petitioner, had therefore asserted primary jurisdiction over him. See Ponzi v. Fessenden, 258 U.S. 254, 260-61, 66 L. Ed. 607, 42 S. Ct. 309 (1922); In Re Liberatore, 574 F.2d 78 (2d Cir. 1978). The general rule as to place of incarceration is that regardless of the order in which sentences are imposed, the sentence of the sovereign which has primary jurisdiction over the defendant is served first. Liberatore, 574 F.2d at 89-90. From that general principle the Federal BOP has promulgated its perfectly reasonable general policy that the sovereign with primary jurisdiction is responsible for custody of a defendant serving concurrent federal and state sentences, until primary jurisdiction is relinquished. (Govt. Response, BOP Attachment at 4).
On July 5th, 1994, the United States Attorney, the Schenectady County District Attorney and defendant's attorney met specifically to resolve the primary jurisdiction issue. As a result of that meeting Robert M. Carney, the Schenectady County District Attorney, executed a written Waiver of Primary Jurisdiction to Assistant United States Attorney Bernard J. Malone, which reads in pertinent part as follows:
After intensive negotiating involving all parties in the above-captioned case which is currently pending in the federal system and in Schenectady County Court, please be advised that it is our determination that we will relinquish any priority of jurisdiction in the person of David L. Shumate to federal authorities.