Filed: Feb. 14, 2019
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT February 14, 2019 _ Elisabeth A. Shumaker Clerk of Court TERRY K. ARTHUR, Plaintiff - Appellant, v. No. 18-1346 (D.C. No. 1:17-CV-00734-KMT) J. MOOREHEAD, Warden, (D. Colo.) Defendant - Appellee. _ ORDER AND JUDGMENT* _ Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges. _ Terry K. Arthur, a federal inmate proceeding pro se1, appeals the district court’s denial of his 28 U.S.C. § 2241 applica
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT February 14, 2019 _ Elisabeth A. Shumaker Clerk of Court TERRY K. ARTHUR, Plaintiff - Appellant, v. No. 18-1346 (D.C. No. 1:17-CV-00734-KMT) J. MOOREHEAD, Warden, (D. Colo.) Defendant - Appellee. _ ORDER AND JUDGMENT* _ Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges. _ Terry K. Arthur, a federal inmate proceeding pro se1, appeals the district court’s denial of his 28 U.S.C. § 2241 applicat..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 14, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TERRY K. ARTHUR,
Plaintiff - Appellant,
v. No. 18-1346
(D.C. No. 1:17-CV-00734-KMT)
J. MOOREHEAD, Warden, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
_________________________________
Terry K. Arthur, a federal inmate proceeding pro se1, appeals the district
court’s denial of his 28 U.S.C. § 2241 application for a writ of habeas corpus.2 His
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We construe Mr. Arthur’s pleading liberally because he is proceeding pro se.
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
2
Mr. Arthur challenges the execution of his federal sentence under 28 U.S.C.
§ 2241. Accordingly, we do not require a certificate of appealability. Montez v.
McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (citing McIntosh v. U.S. Parole Com’n,
115 F.3d 809 (10th Cir. 1997)).
application challenges the U.S. Marshals’ authority to take him into custody. He also
challenges the decision of the Federal Bureau of Prisons (BOP) to deny his nunc pro
tunc request. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Terry K. Arthur escaped from a Florida state penitentiary while serving a 20-
year sentence for robbery with a firearm. While on the lam, Mr. Arthur robbed
several banks in Tennessee and North Carolina. He was arrested in Michigan.
Michigan charged Mr. Arthur with several crimes, including being a fugitive.
As Mr. Arthur sat in a Michigan county jail, Florida and federal law-
enforcement authorities issued warrants for his arrest. First, the Florida Department
of Corrections issued a warrant requesting that Michigan hold Mr. Arthur “as a
fugitive from justice until such time” that he may be returned “to the State of Florida
in order that he may be required to serve the remainder of his . . . sentence.” R. at 61.
Soon thereafter, the United States District Court for the District of North Carolina
issued a warrant for Mr. Arthur’s arrest. In turn, the U.S. Marshals Service filed a
detainer in Michigan requesting that Michigan notify the Marshals when Mr. Arthur
was released. Eventually, Michigan dismissed all charges against Mr. Arthur, and the
Marshals immediately arrested him.
Mr. Arthur began his trek through the federal system. He was charged,
convicted, and sentenced in four separate federal cases in U.S. district courts in
Tennessee and North Carolina. In total, Mr. Arthur received a federal sentence of 505
months of imprisonment. The BOP projects that Mr. Arthur will complete his federal
2
sentence on November 10, 2025. Federal Bureau of Prisons, Find an Inmate,
https://www.bop.gov/inmateloc/ (last visited Feb. 7, 2019).
As Mr. Arthur proceeded through the federal system, the Florida Department
of Corrections filed a detainer with federal authorities. The letter accompanying the
detainer requested that, when appropriate, Mr. Arthur be released to Florida so that
he could be returned to the “Department of Corrections to continue serving the
uncompleted portion of his sentence.” R. at 97. The letter noted that it was not
intended “to interfere in any way with local charges.” Id. Thus, it is anticipated that
Mr. Arthur will be returned to Florida once he completes his federal sentence.
In 2016, Mr. Arthur filed a request for an administrative remedy with the BOP.
Mr. Arthur argued that the State of Florida had exclusive primary jurisdiction over
him “once the State of Michigan dismissed their [c]harges.” Id. at 107. According to
Mr. Arthur, his “release to Federal Custody without a [w]rit or [w]ritten [a]greement
was erroneous.”
Id. To remedy this error, Mr. Arthur requested a nunc pro tunc order
designating the Florida Department of Corrections as his place of confinement. The
BOP denied Mr. Arthur’s request. Mr. Arthur appealed this denial to the BOP’s
Regional Office and the BOP’s Central Office. Both offices denied his appeal.
On March 23, 2017, Mr. Arthur filed a § 2241 application for a writ of habeas
corpus in the U.S. District Court for the District of Colorado. As pertains here, Mr.
Arthur argued that federal authorities violated his due process rights when they
arrested him. Mr. Arthur claimed that Florida had primary jurisdiction over him and,
when Michigan released him, federal authorities were required to obtain “a written
3
request for temporary custody or a writ of habeas corpus ad prosequendum” before
taking him into custody. R. at 7. Mr. Arthur also argued that the BOP erroneously
denied his nunc pro tunc request.
The district court denied Mr. Arthur’s application. The court held that once
Mr. Arthur escaped, the State of Florida lost primary jurisdiction over him. Thus,
federal authorities properly arrested him even though they did not file a writ of
habeas corpus ad prosequendum. The court also held that the BOP did not abuse its
discretion when it denied Mr. Arthur’s request for a nunc pro tunc designation. Mr.
Arthur timely appealed. Id. at 158-162, Fed. R. App. P. 4(a)(1)(B).
DISCUSSION
We review de novo the district court’s dismissal of Mr. Arthur’s § 2241
application. Abernathy v. Wandes, 713 F.3d 538, 544 (10th Cir. 2013). Mr. Arthur
makes two arguments on appeal: (1) that federal authorities violated his due process
rights when they took him into custody without getting permission from Florida, and
(2) that the BOP erroneously denied his request for nunc pro tunc designation. We
will separately consider each of these arguments.
I. Mr. Arthur does not have a right to select which sovereign first takes him
into custody.
Mr. Arthur argues federal authorities violated his due process rights by taking
him into custody without getting permission from Florida. To that end, he claims that
“[o]nce Michigan dismissed all charges,” Florida regained primary jurisdiction over
him, and the Marshals were required to request permission from Florida—through a
4
writ of habeas corpus ad prosequendum—before taking him into custody. Appellant’s
Opening Br. at 3.
The problem with Mr. Arthur’s argument is that he does not have the right that
he claims was violated. “If [a defendant] has violated the laws of both sovereigns, he
is subject to prosecution by both, and he may not complain of or choose the manner
or order in which each sovereign proceeds against him so long as his constitutional
rights in each trial are not violated.” Rawls v. United States, 166 F.2d 532, 534 (10th
Cir. 1948). In other words, “question[s] of conflicting jurisdiction between a State
and a Federal Court . . . confer[] no rights whatever upon a defendant who had
violated the laws of both sovereigns.” Craig v. Hunter,
167 F.2d 721, 722 (10th Cir.
1948). Mr. Arthur violated the laws of at least two sovereigns: Florida and the United
States. Mr. Arthur has no right to select which one arrests him first.
Even if we assumed that Florida had primary jurisdiction over Mr. Arthur—
which it did not3—it would not change our analysis. In such a case, it would be
Florida’s right to contest Mr. Arthur’s arrest by federal authorities. Mr. Arthur cannot
3
Mr. Arthur relies on White v. Pearlman, 42 F.2d 788 (10th Cir. 1930) to advance
his claim that Florida retained primary jurisdiction over him. We acknowledge that
Pearlman held that a prisoner’s sentence continues to run even when he is discharged
from a penal institution.
Id. at 789. But this rule only applies when a prisoner is
released from a penal institution “without any contributing fault on his part.”
Id. The
rule does not apply when a prisoner escapes.
Id. Thus, Pearlman does not apply to
Mr. Arthur’s case and Florida lost primary jurisdiction over Mr. Arthur when he
escaped. See Soukas v. Thomas, No. 08-867-TC,
2009 WL 1346252 at *2 (D. Ore.
May 13, 2009).
5
pick that fight. Accordingly, the district court correctly rejected Mr. Arthur’s
argument that he was illegally arrested by federal authorities.
II. The BOP properly denied Mr. Arthur’s request for a “nunc pro tunc”
designation.
Mr. Arthur’s second argument is that the BOP erroneously denied his nunc pro
tunc request. Mr. Arthur wants the BOP to issue a nunc pro tunc order designating his
place of confinement as Florida. He believes that such an order will make his federal
and state sentences run concurrently. Mr. Arthur is not entitled to such an order.
While we review de novo the district court’s dismissal of Mr. Arthur’s § 2241
application, we review for abuse of discretion the BOP’s decision to deny a nunc pro
tunc request. Heddings v. Garcia, 491 F. App’x 896, 898-99 (10th Cir. 2012). That
means that we will affirm unless we have a “definite and firm conviction” that the
BOP “exceeded the bounds of permissible choice in the circumstances.” United
States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir. 1986).
BOP Program Statement 5160.05 provides that the BOP may designate “a state
institution for concurrent service of a federal sentence.” BOP Program Statement
5160.05 § 1. The statement also provides that an inmate “may request a nunc pro tunc
(i.e., occurring now as though it had occurred in the past) designation” listing a state
institution as his place of confinement. Id. § 9(b)(4). But the BOP is not obligated to
grant such a request and should certainly not do so when an inmate is ineligible for
such a designation. See
id. § 9(b)(4)(a) (“However, there is no obligation . . . for the
6
Bureau to grant [a nunc pro tunc] request by designating a state institution
retroactively as the place to serve the federal sentence.”).
Mr. Arthur relies heavily on § 9(b)(3) when he argues that he is eligible for a
nunc pro tunc designation. That subsection reads:
The court may, from time to time, order concurrent service of the federal
sentence at some time after its imposition. This may occur when primary
jurisdiction resided with the state and the court believed mistakenly that
the inmate was in federal custody for service of the federal sentence on
the date of imposition.
Id. § 9(b)(3). But Mr. Arthur misunderstands the factual scenario that the
subsection contemplates.
To explain, when a state has primary custody over an inmate, federal
authorities can only temporarily “borrow” the inmate for prosecution or sentencing.
Beers v. Maye, 611 F. App’x 933, 935 (10th Cir. 2015). Custody will not change
between the two sovereigns, and federal authorities must return the inmate to state
custody once prosecution or sentencing is complete. Id. If the federal sentencing
record is silent on the matter, the BOP will designate a federal facility as the inmate’s
place of confinement. BOP Program Statement 5160.05 § 7(b). Thus, the inmate’s
federal sentence will not begin until the state sentence is finished, and the inmate
returns to federal custody.
Program Statement 5160.05 § 9(b)(3) comes into play when the federal
sentencing court desires the state and federal sentence to run concurrently but fails to
recognize that the inmate will be returned to state custody immediately after the
federal sentencing hearing. In that case, § 9(b)(3) permits a nunc pro tunc order
7
designating the state facility as the place of confinement. The retroactive order will
ensure that the inmate receives credit toward his federal sentence for the time spent
in state confinement. But that is not the case here.
Program Statement § 9(b)(3) cannot help Mr. Arthur because he has not served
a single day in state custody after receiving his federal sentence. He has been solely
in federal custody. Accordingly, a nunc pro tunc designation would only do him
harm. If his place of confinement was designated as the Florida Department of
Corrections, Mr. Arthur’s federal sentence would not start until Florida had taken
him into custody. As a result, the decades spent in federal custody would be erased
and he would have to start serving his federal sentence anew. This, undoubtedly, is
not Mr. Arthur’s desire. Thus, as the BOP correctly determined, Mr. Arthur is not
eligible for a nunc pro tunc designation as outlined in Program Statement 5160.05.
CONCLUSION
For the reasons stated above, we affirm the district court’s denial of Mr.
Arthur’s § 2241 application for a writ of habeas corpus.
Entered for the Court
Gregory A. Phillips
Circuit Judge
8
