of this case involves an egregious series of iranians transfers from federal to state custody forty four errors all together during this series of transfers the state of texas twice relinquished its primary jurisdiction over mr johnson when it transferred him into the custody of the united states marshals on federal detainers you help me with this part i have lots of questions about this case but there doesn't seem to be any disagreement that it was and a straight of error or error in relinquishing him how does that affect the analysis of primary jurisdiction so can  relinquish primary jurisdiction due to an administrative error is there any case that helps us on the at there are a couple of them although i there's not really a good answer to that question because there isn't really law on that point my argument is that and the district court discuss this a little bit is that there are two different viewpoints one is to correct an administrative error which is the government's argument and then the other is to give full effect to the intent of the sovereign at the time of the transfer and so is the intent of the software and do we do we look at the presumably low level staff people or administrative officials who made a mistake and and is the intent of the sovereign deemed to be mistaken decision of the ministry officials well it is a factual determination the problem here is that unlike all of the cases that were cited by both parties it was a situation of multiple transfers and multiple errors that twice and well it seemed in your briefing you were only looking at the two that the state made the earlier the earlier one i was not i can see to there's just not an argument there because he was on loan it was on that writ whereas later these were on federal detainers he was accepted into federal custody he was designated the stand that's my second question but let me just go back to  second for the first question which is the intent of the sovereign we know that the sovereign didn't intend to relinquish them because they later this was a mistake given back so so we it seems like it's not a factual matter because we  know that was not the actual intent it seems like a legal question as to whether as a matter of law i think that one court that found that it was you know binding on the sovereign it's a legal question as to whether as a matter of law an error by state officers relinquish is the state's primary jurisdiction i'm not even sure how we analyze that question and i was hoping you had some suggestions well i have two things i want to say first i'd like to go back to the facts if you don't mind i don't agree that it was necessarily just a simple administrative error which in many of the cases that were cited that is what happened but that's not what happened in this case because twice he was transferred and both times it was the state saying his sentence is done you take him the federal government told him they designated him the state the second time in december of two thousand and nine the state is even saying we're going to send him out on the streets and it wasn't the state who said oh we made a mistake we want to take him back it was the bureau of prisons who after he had already been designated and was processed through discovered the or it was not the state realizing their own mistake of primary jurisdiction or whatever it's call you know in regard to sovereign and sovereign iraq with that statute which on his face seems to be fairly clear facility at which the sentence is to be served so it's that on the face of it looks fairly straightforward fairly clear with a house of a doctrine impact this well and that's exactly the problem in this case is that when it's a straightforward situation of one error which is what happened in most of the other cases then this works because you've got some division a exactly like you are saying that says when he's accepted into custody that's when the federal custody begins then subdivision to says he can get credit for any prior time that he had done that was not credited against another sentence and again that works fairly well in a situation of one  he got credit for all the time here you know he got state credit right because he was initially serving a six year right and he was initially arrested by the state and prosecuted by the state it was a later f would trigger the statute and as soon as he were placed in the custody and in this case at the federal institution then under your view of thirty five eighty five  the statute would immediately apply and the doctor in a primary jurisdiction would go along i am saying that but not as quite such a bright line situation the problem you have is the case law that talks about intent because as judge or khuda points out when the state sovereign finally realized what had happened at least on a couple of occasions they asked for him back and the bureau of prisons transferred him back to t sentence so that doesn't sound to me like they voluntarily relinquished custody well the fact that they did it legal since if there is no right to the fact that they did it twice in this relatively short span between august and december of two thousand and nine and the second time they were pretty insistent upon it there's an e mail in the record saying if you don't take him we're putting him out on the streets that shows a pretty strong intense and he got federal credit for this street awaiting transportation to mean anything i mean i guess how do we know when somebody is awaiting transportation so the plain language just says the federal sentence commences on the day the defendant is received in custody awaiting transportation to the official detention facility so how do we know that was the case here i mean was because the e mail chain and the like said well we haven't designated him and the word designated doesn't appear in that statute help me just give me your explanation of what those words mean and what the evidence on the record is here ok based on my understanding of procedures which is not extensive i would say that he's on that federal detainer which is in the federal government right we've got a hold on him we get him next and so when the state is putting that in motion which the state did he initiate twice in two thousand and nine when the state is putting that transfer in motion pursuant to that federal detainer as opposed to the writ from when he was on trial when he was on loan that that to me would fall into the category of the charges that are that are pending against him and that's why they kept moving them around because he had to go to court to answer all these pending charges so you want to characterize it has agreed just and i'm saying contributory negligence here at the least he certainly had a hand in the reason that he was being moved around what your honor without excusing his offenses offense conduct in any way when he's in custody the state has a responsibility to him to put him in the right place and he has no control over where he's going and who's taking him where and whose jurisdiction he's under so it's not his fault he was being transferred around and yes he did commit offenses in different jurisdictions and that's part of why i think your answer you over your time because i swung yeah oh absolutely this is the last case on the counter so we're not some say so so just kind of to show our questions one there are cases that whole even when the state is negligent is still can be held to a given up its primary jurisdiction whatever the doctors call and to but isn't part of this whole notion of determining who is primary who's not so that we can function a federal system and so the part of that's a bureau policy to say look where do you start you know who gets to go far as who gets to go second doesn't always work out smoothly i know that in fact in terms of cases that we thought if it would go first by turns out the state's going first so i didn't know whether it's a concurrent jurisdiction and not those old cases so it's doesn't work smoothly all the time but i doctrine that we've been talking about it's not an absolute doctrine as to when you get credit and when you don't is it no there's no consensus on it even within circuits there's the one case i cited to you luther versus van year where they referred to not let see its courts have consistently held executives to a negligent standards and under that they said that the defendant his federal sentence ran and as soon as he was in federal custody that is hell if it's a district court case and that's it there's just no there's no plans and there's not that much on it so there's very little to go on what we hear from good morning presiding judge tallman members of the panel my name is mike tierney i mean assistant u s attorney for the eastern district of california johnson here six double credits and he's not entitled to that credit he already received the remedy that he was entitle to which was day for day state credit for the errors that are relevant to what is in this is state's problem in the first place if in terms of the credit because the state is i would understand it could have not to give him double credit the state chose to give him credit for federal since there's nothing that will required him to do that at all so they have the side of his sentence would be something less than what he was originally to have have hat in the first instance and so why should that cause him not to get credit for the entire federal senates the state didn't have to do it they did they did the the they gave him the credit actually judge all over the effect of the state's credit was to make sure that he served his full state sentence and then was turned over to the federal government so the state credit didn't reduce his state sends it actually made sure that he served a full state sentence now we turn over to the federal side and the and the question for the federal government the federal b o p s should he serve his entire federal sentence that the federal judge gave him or should he received last time because of  the state was saying by giving him credit was that well we are only easily transferred you over to a federal facility and the feds held you for a while but we consider that you were in state custody state primary jurisdiction that whole time so no matter where you were physically serving it our intent was that you were in state custody you would serve out your whole state sentence and then we'd turn you over to the feds so it's a good way for for b o p and for this court to know that the that what they were statement where it says if if there was a mistake we interpret i guess thirty five eighty five as if there's a mistake it doesn't really count but by its terms is limited to the  is this even applicable or has the b o p interpreted this as applying to other sorts of mistakes i think it is applicable your honor because you're right there is some language later on in that in that in the doing was quoting that policy statement well they were both quoting that policy statement and they were enforcing the general idea of primary jurisdiction so while the policy statement is specific to u one set of factual circumstances the idea that b o p has that policy statement as an expression of how to enforce primary jurisdiction and when it transpires that has application in a wider se and is there any anything in the record showing that they regularly apply it to other sorts of mistakes there's nothing in the record about other parts other types of mistakes your honor but i would say that even though there is a reference to writs of habeas corpus at prosequi in that policy that reference doesn't limit it to only those factual circumstances because really what it says it's a rule for when to interpret the transfer of primary jurisdiction when it's been a german that an inmate was committed improperly to federal custody and primary jurisdiction resides with the state's auburn we return them and we see whether there's credit so let me get back to his question which i have a question about also there's nothing in three five eight five that refers to primary jurisdiction r s as this and a three five eight five eight doesn't apply if the state still has primary jurisdiction so why would we read that into the statute well your honor this course that already done it on a couple of occasions and i can't speak for what this court was thinking when they did that but the fact is that thirty five eighty five a doesn't have anything doesn't answer a range of questions about what happens in various interactions between the state and the federal government so back in one thousand nine hundred one there's brewer vs thomas v brewer which is a case that we cited in our brief and what happens there is that the defendant is sentenced by the federal court and the federal court designates him to the attorney general for what they did back then a study this was back in the one nine hundred sixty s and then then he's further just as in the health i think that's right and after that he is so he sentenced by the federal court and committed to the custody of the attorney general and then he's moved into a federal ring wing of a facility and so what the what the prisoner argued in that case was now lying and under the terms of it was back then it wasn't thirty five eighty five it was thirty five sixty eight a predecessor statute that was similarly worded he said well hey i'm received the issue here so the court said no that you're not actually you haven't actually started your time because you were on an earlier read and so you haven't been transferred into federal custody really so even back then what the court is saying is in order to resolve questions under thirty five eighty five when there are two different sovereigns involved we've got to take a look at this notion of primary jurisdiction it also came up in del goosy versus united states ninety eight which was also cited in the briefs and  and there the petitioner while the prisoner was making kind of a stretch she was saying whenever i get concurrent time from the state and then i'm got to then i got to go serve my federal time or serve whatever's left over later while the state facility is really i'm  awaiting transportation to the federal facility is innocent in several years i'm just being held here and then i'm going to be transported to the federal facility and again this court said no as an issue of primary jurisdiction you have to you're in the hands of the sta come over to the federal government's custody as long as you're in the hands of the state thirty five eighty five isn't triggered just by the plain language is that what you're saying yes and let me just follow up we talked about the policy statement there are all kinds of factual situations that you encounter as you know relative to when a person has been sentenced and sometimes the states will relinquish and allow person to do federal time for sometimes is a mistake like in this case and you know the question is what should happen there but we always having those kinds of pushes and tugs and the one clear area that you can address easily is when there's a writ when one state has a cut the state has custody and so forth and that's the one i think the bureau i was trying to address explicitly but i don't read into that or any of the cases that this whole notion of primary jurisdiction means that once you start serving as citizens state for example that there's nothing nothing that will cut that off no matter how many times you go into federal custody i don't see the case is gone that far i think the primary jurisdiction doctrine really just lays out that the one that has authority for arson gets to go ahead and have the person sort of the sentence for us but when it intersects with other requirements like this thirty five this statue we maybe a little bit more robust than you're suggesting because what it requires is a clear intent by both sovereigns it requires intent by the by the first sovereign to give it up and it requires intent by the second sovereign to pick it up so for example in poland v stewart what this court said in one thousand nine hundred seven is it's the attorney general's job to exercise that authority if she chooses to leave the prisoner in the custody of the state of arizona neither poland nor this court is in a position to say that she serve all your state time first then transfer over to the federal government and serve your federal time afterwards like if they were under any big time pressure here the a tricky little case so going back to three five eight five and hey can you walk me through what does it mean to be received in custody and awaiting transportation to the official detention facility and was there evidence that are in federal custody when you either when you show up at the marshal's office or at a bureau present at a bare bureau of prisons facility that the bureau of prisons has said that you have to show up or if you're on a federal detainer so you're sitting someplace else but you have you've finished up whatever sentence or whatever has required you to be in custody in the first place and and there is a federal detainer now again here is where we come in approach to primary jurisdiction because it doesn't say anything about primary jurisdiction he but the case law has said that that only really operates when when you are awaiting transportation served it's it's very nadi to relate the procedure to the facts here but he was in the to use less loaded terms he was in the for the proceedings and his better that did not activate thirty five eighty five eight zero because even though he was received in the custody of the u s marshals service the state hadn't given up primary jurisdiction over him and so despite the fact that he's being held by the feds on official legal process thirty five eighty five a doesn't kick in and that's of course what the petitioner just talked about that the first error that really has no meaning here because the state didn't intend to give until a wedding where i would say that that's pretty clear that when he when he gets brought over on a writ that he has not been designated that he's not you  know received awaiting transportation to normally that would not be that the case he's been held for different purpose so here was he awaiting transportation to know he wasn't actually the ironic part of this case is that there was never a circumstance in which he was waiting at a state facility for the federal government to pick him up to serve his sentence he was released to the street by the state authorities well actually he was at the dallas county jail was  kept saying please come and pick him up and no marshal ever appeared and so they said again please come and pick him up and no marshal occurred appeared and so they opened the door and said have a nice day well that's certainly that's certainly the key issue here so that that factually that's correct that is what they are and that's what dallas county said one thing i'm not sure that you addressed in judge acuteness question and it's hard to understand normally is it not the case that one a defendant is sentenced in federal court and the judgment and commitment order is delivered to the marshal the first thing the marshal does is a take custody of the defendant if he's not already in custody unless the court has allowed him to self report to the institution the marshal then takes that judgment and commitment order and gives it to a community office of the bureau of prisons which actually designates the federal prison and that he is to serve his federal sentence and the marshal hangs on to the body of the defendant in the local lock up until such time as it gets word from the bureau prisons he's going to institution x at which point the marshal makes arrangements to transport him to that federal facility where he is to serve his sentence you know he gets credit from the  but again that was erroneous it was based on the mistake and the mistaken belief that he had served all of his state i'm and could now come into federal custody and be m the u s marshal service b o p asks the marshal service hey is he completely done with the state time we don't want to designate and we don't want to take him unless he's done with his state time and erroneous answer came back thank you i can have just a couple minutes i want to clarify the timeline of the errors because i think there's been a little overlap on that the first error was in april of two thousand and eight when he was in federal custody on a writ i think we all agree that thirty five eighty five applies he shouldn't get credit for that time in federal custody the second error therefore errors total second error was in august of two thousand and nine when the state said ok he's finished his time taken on this federal detainer there's less detail about when he was waiting to be transferred transferred and transported in all of that that would fall under thirty five eighty five for the august one administrative people within the marshals i don't know that that level of detail to be honest and and then the third air december of two thousand and nine there's a little bit more detail in the record that the state had informed the marshals that again this is just what four months later inform the marshals that service he'd served a sentence and come get him there was even an e mail saying that they would release him to the street if he wasn't picked up so then here we've got on the record december ninth two thousand and nine is that second time or number three in two thousand  when the state asked the federal government to get him on detain or he was actually transferred and taken custody by the marshals on december fourteenth two thousand and nine so there's that five days where he was waiting awaiting transportation under subdivision a we have a exploration from henry davis and he was not actually does it needed at that time i have in the record that the marshals requested designation and part of the problem with this case is i did comb through those records that mr davis relied on and they're not quite as clear as the declaration would suggest and so there was a request for designation it says somewhere in those records i've got the citation in my brief it's my excerpts of record it's on page forty six and in the initial excerpts of record from the initial briefing it's on page sixty four that it does say he was designated to  boma it's not entirely more than once yes this is again to more than one right exactly he was and then he spent he and he wasn't just in a detention center either he was in actual  right and i was in that he was housed in more than just a detention facility which would be like you know the equivalent of county jail or something he was actually in a correctional institution he was at yeah  hub for the not designated to both and never went so that's my understanding right and that's exactly my point the government didn't even know what to do with him and that's why he should get the credit because he was subjected to all those transfers if you credit that the problem i'm having with  what is federal sentence i mean if he is serving federal custody should he get credit for federal time that's the issue separate apart from whether state gave him quite but it was yes so so i mean so he was if his his sentence is federal sentence started in august or december then he would be getting credit both for his state sins and his federal sentence and that would not be fit anywhere and there's no case law on it and again we have a situation over and over and all applies to the ritz but not when there's detainer and that's the difference in this case two differences one there's a detainer and twice texas was very insistent that goes back to  question about should speak through a clerical error because it must happen all the time i mean we've got tens of thousands of people and there's going to be mistakes all the time i mean that there's no doubt about that and the cases show there are mistakes all the time but again this is different it's more egregious because back and forth as you said yourself the the federal government didn't know what to do with him they were transferring him all over the place the state in cit was insistent twice within four months that take him we're going to put him on the street and i'm sorry just to clarify you had mentioned when he actually was put on streets these two incidents errors two and three happened in august and december two thousand and nine when he was actually released