sentence for the instant offense is to be served.").
Nor did the marshal violate the sentencing order by returning
petitioner to state custody after his sentence in federal court.
Yes, the sentence provided that the "defendant is hereby
committed to the custody of the United States Bureau of Prisons
to be imprisoned for a term of 21 months." But that language was
not meant to override the requirement that the marshal return
petitioner to the state upon disposition of the federal case and
satisfaction of the writ of habeas corpus ad prosequendum. See
Thomas v. Whalen, 962 F.2d at 361 n. 3 ("A prisoner is not even
in custody for purposes of Section 3568 when he appears in
federal court pursuant to a writ ad prosequendum; he is merely
`on loan' to federal authorities."); Smith, 812 F. Supp. at
370-71. Which is to say, the marshal acted properly in October of
1993, unlike his counterparts in two of the three decisions
relied upon by petitioner, viz., Kiendra v. Hadden, 763 F.2d 69
(2d Cir. 1985) and Smith v. Swope, 91 F.2d 260 (9th Cir. 1937).
In Kiendra, "[t]he federal judgment and commitment order
directed that Kiendra's sentence was to commence upon his release
from the sentence then being served on the first state charge"
and yet the marshals "refused to take him into custody upon his
release from the first state sentence or even after the state
court had asked them to do so." Kiendra, 763 F.2d at 72. Under
such circumstances, his "sentence began to run on the date the
federal court directed: on September 16, 1981, when we he was
released from the state sentence he had been serving." Id. at
Swope similarly involved an errant marshal whose actions
clearly violated the commitment order.
The third decision cited for the proposition that the federal
sentence should have started to run in October 1993 is United
States v. Croft, 450 F.2d 1094 (6th Cir. 1971). The procedural
history in Croft, in most respects, parallels that experienced
by petitioner. And although Croft has been subject to criticism
by at least one Circuit, see Thomas, 962 F.2d at 361-364, it
was cited with approval by the Second Circuit in Kiendra, 763
F.2d at 73. Significantly, however, this Court — unlike the
district court in Croft — did not harbor the view that
petitioner's terms of incarceration would run together. See
Croft, 450 F.2d at 1096 ("If appellant had been delivered by the
Marshal to the federal prison, his [concurrent] state sentence
[of two years] would have been served before the conclusion of
his federal sentence of three years. Since he was first delivered
to the state prison by the Sheriff, his federal sentence of three
years would commence after his state sentence of two years. . . .
No one, neither state nor federal judge, considered that
appellant should serve more than three years, at the most.")
Indeed, possible concurrency was neither broached by any of the
parties here, nor considered by the Court in October of 1993,
for, at that time, petitioner stood simply as an accused in the
state, having pled not guilty to the two indictments. Moreover,
had petitioner been sentenced first in the state, his counsel
would have been hard pressed to identify which purpose of
sentencing (18 U.S.C. § 3553(a)(2)) would be advanced by running
his federal sentence concurrently with the 4½ to 9 years he
received for his state robbery and attempted manslaughter
conviction as a second felony offender under New York State Penal
Law § 70.06. Under the circumstances, additional incarceration
for the federal offense certainly would seem to have been
warranted. U.S.S.G. § 5G1.3(c).
For the reasons indicated, Croft, and the other cases cited
by petitioner, are of little aid for present purposes. And,
contrary to the position urged by petitioner, the Court
understood that he would be returned to the state following his
federal sentence as required under the writ of
habeas corpus ad prosequendum, and that his federal sentence
would not commence until he was taken into custody by a marshal
for transportation to a federal correctional facility. Also
unconvincing is petitioner's claim that the marshal violated a
provision of the commitment order.
Petitioner has asked this Court to conclude that his "federal
sentence of 21 . . . months ran concurrent with his state
sentence of 4½ . . . to 9 . . . years, and that at the conclusion
of his state sentence [which has now occurred, he be] released
from custody." (Pet'r's Mem. in Support at [unnumbered page] 4.)
The articulated basis for the relief sought is that he is being
illegally detained under an illegal federal sentence, either as
imposed by the Court and/or as implemented by the marshal.
Neither ground has been established.
In addition, petitioner's request for credit against his
federal sentence must first be presented to the Bureau of Prisons
before it is ripe for adjudication here.
Yet, one aspect of the present scenario is troubling. The state
judge's order of concurrency has been ignored. How does this
square, if at all, with principles of comity? Seemingly, it does
not. But this question has not been included in the present
application and it would be inappropriate for the Court to
endeavor to resolve the issue sua sponte. However, it may, and,
indeed, should be presented to the Bureau of Prisons. See Barden
v. Keohane, 921 F.2d 476 (3rd Cir. 1990)*fn3 (holding Bureau
had discretion to order that prisoner receive credit against
federal sentence for time spent serving state sentence where
federal sentence imposed first and state judge clearly intended
sentences to be served concurrently). If that application should
be rejected, then petitioner may seek judicial review of the
In sum, petitioner's request for a writ of habeas corpus is
denied in toto.