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SHUMATE v. UNITED STATES

July 3, 1995

DAVID L. SHUMATE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: THOMAS J. MCAVOY

 Comes now petitioner Shumate seeking an order from this Court clarifying his sentence and ordering the United States Bureau of Prisons to comply with the terms of the plea agreements under which he was sentenced. In particular, petitioner Shumate seeks an order from this Court directing that the United States Bureau of Prisons remove him from the New York State corrections facility where he is presently incarcerated and maintain him in federal custody, in a federal facility, for the duration of his federal sentence. In this regard the Court also notes that the New York State Supreme Court, Schenectady County, by its initial sentencing, has already expressed its view that petitioner should serve his sentence in a federal institution, and that the New York State Department of Corrections (hereinafter DOCS) has been and remains willing to cooperate in providing petitioner the relief he seeks.

 In short then, it is only the United States Bureau of Prisons (hereinafter BOP) which has determined that it is unable to comply with the sentencing scheme agreed to by all the parties and mutually relied upon by the Court's of both sovereigns. The Court has determined that petitioner's Motion is best treated as an application for relief under 28 U.S.C. § 2241 et seq., docketed herein as 95-CV-884. The Court also finds that in light of BOP's administrative determination that it may not take custody of petitioner in spite of the judgments from two courts directing that they do so, circumstances exist such as to dispense with any further requirement of exhaustion of remedies by petitioner. If the relief petitioner seeks is available to him, it may appropriately issue from this the federal sentencing Court.

 I. BACKGROUND

 Petitioner was indicted on New York State charges on August 13, 1993, in Schenectady County, New York. On that same date he was arrested by the multi-jurisdictional Drug Enforcement Task Force on a warrant which issued under the state indictment. On August 20, 1993, petitioner was indicted by a federal grand jury on charges related to those underlying the state indictment. On August 28, 1993 he was produced in federal court on a writ of habeas corpus ad prosequendum for arraignment on the federal indictment.

 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.
 
It is our understanding that Mr. Shumate will be sentenced federally upon his conviction on your indictment 93-CR-293. After he is sentenced on that conviction, he will be sentenced as a persistent felon in the Schenectady County Court upon his conviction for a Criminal Sale of a Controlled Substance in the Third Degree to a concurrent term of 15 years to life.
 
The purpose of this letter is also to confirm our understanding that based upon our relinquishment of priority of jurisdiction, Mr. Shumate will serve his sentence federally. If there is any time to be served on the state sentence, it would be served after the conclusion of the federal sentence.

 (Carney Waiver, Pet. Notice of Motion, Ex. C).

 By its plain terms the waiver fully and unconditionally yields New York State's primacy of jurisdiction to the United States. Secure in the belief that a waiver of primary jurisdiction had been effected, petitioner proceeded to enter the coordinated guilty pleas. On August 10, 1994, petitioner was sentenced by this Court to 204 months incarceration, which this Court intended ...


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