1

 The filings in this case and Petitioner’s federal criminal case, United States v. Floyd, No. 5:02-CR-40100-001 (D. Kan.

2002), provide the factual and procedural history for this case. Courts may take judicial notice of their “own files and

records, as well as facts which are a matter of public record.” Binford v. United States, 436 F.3d 1252, 1256 n.7 (10th Cir.

2006).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HAROLD G. FLOYD, ID # 14417-031, )

Petitioner, )

vs. ) No. 3:05-CV-2489-M (BH)

) ECF

DAVID BERKEBILE, Warden, ) Referred to U.S. Magistrate Judge

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case

Petitioner, a prisoner incarcerated in a federal prison in Seagoville, Texas, (FCI Seagoville),

filed the instant action pursuant to 28 U.S.C. § 2241 to challenge the manner in which he is serving

his federal sentence and the calculation of credit to his federal sentence by the Bureau of Prisons

(BOP). David Berkebile is the proper respondent for this action.

B. Factual and Procedural History1

On May 2, 2002, state law enforcement personnel arrested Petitioner for drug related

offenses in Kansas. The state proceedings were pending when he was arrested on a federal charge

of being a felon in possession of a firearm in the District of Kansas on September 17, 2002. The
2

 Based on this credit, the state court calculated Petitioner’s state sentence as commencing on September 1, 2002. As

Respondent points out, this calculated date, in conjunction with a notification from the Kansas Department of

Corrections that Petitioner’s state sentences fully expired on September 1, 2005, shows that Petitioner was given credit

to his state sentences for time served in federal custody after the state sentences were imposed. 

2

federal court sentenced him to sixty months imprisonment on January 10, 2003, and issued a written

judgment reflecting that sentence and remanding him to the custody of the United States Marshal

on January 15, 2003. On January 17, 2003, the Marshal returned Petitioner to state custody subject

to a federal detainer.

On March 10, 2003, the state District Court in Elk County, Kansas, sentenced Petitioner on

the state charges to concurrent terms of imprisonment (a twelve month and a twenty-four month

term of imprisonment both to be followed by twelve months of post-release supervision), which were

to also run concurrently with the federal sentence that had already been imposed. The state court

granted Petitioner credit toward his state sentences for the time spent in state custody (1) between

the date of his arrest on May 2, 2002, and the date he was arrested by federal authorities on September 17, 2002, and (2) between the date he was returned to state custody on January 17, 2003, and

the date the state court sentenced him on March 10, 2003.2

 On the day of sentencing, Petitioner

was placed in the custody of the United States Marshal for transfer to FCI Seagoville. He arrived

at FCI Seagoville in April 2003, and remained there until the BOP returned him to state custody

on September 23, 2003. After completion of his state sentence, he was returned to federal custody

on May 27, 2004.

C. Substantive Issues

In December 2005, Petitioner filed the instant action wherein he contends that his federal

sentence commenced when it was imposed on January 10, 2003, and that it should run continuously
3

 Petitioner also argues in his reply brief that the Respondent overlooks critical facts that (1) his state crimes were

categorized as “presumptive probation” and thus did not carry a penalty of incarceration and (2) had he not requested

a concurrent state sentence, he would have received probation on his state offenses and would have already served his

federal sentence. However, as shown by attachments to Petitioner’s original petition, only one of this two state offenses

was designated as presumptive probation, and they both resulted in a term of imprisonment. 

3

until discharged.3 He urges the Court to find that he was within the primary jurisdiction of federal

rather than state authorities.

Respondent contends that Petitioner was mistakenly placed in federal custody between

March 10 and September 23, 2003, and that Kansas had primary jurisdiction over Petitioner but had

merely loaned him to federal authorities temporarily. Because “a condition precedent to legitimately

performing the mathematical calculation prescribed by § 3585(a) is that the federal government

appropriately exercise primary jurisdiction of the prisoner for purposes of executing the federal terms

of imprisonment,” (Brief at 7), Respondent claims that Petitioner’s sentence did not commence until

he completed his state sentence and was relinquished to federal custody on May 27, 2004, under 18

U.S.C. § 3585(a). Respondent further submits that 18 U.S.C. § 3585(b) only provides for credit

toward Petitioner’s federal sentence from September 18, 2002, through January 16, 2003, because

such time was not credited toward his state sentence, and that he has received such credit to his

federal sentence. To the extent Petitioner claims to have been wrongfully required to serve his

federal sentence in installments, Respondent urges the Court to apply Free v. Miles, 333 F.3d 550

(5th Cir. 2003) (per curium) to foreclose the claim. 

II. PRIMARY JURISDICTION

Petitioner argues that he was originally within the primary jurisdiction of the United States

as shown by the fact that he was first convicted and sentenced in federal court, but to the extent

Kansas had primary jurisdiction over him, it relinquished such jurisdiction when it released him to
4

the United States Marshal in March 2003. Respondent contends that Kansas maintained primary

jurisdiction over Petitioner at all relevant times, and relies upon such primary jurisdiction to

determine the commencement date of Petitioner’s federal sentence. Accordingly, the Court first

examines the issue of primary jurisdiction. 

“When a person has committed crimes against two sovereigns, the issue of who has jurisdiction over him is a matter of comity between the two sovereigns.” Yusufu v. Ashcroft, 250 F.3d

741, No. 00-10918, 2001 WL 274491, at *1 (5th Cir. Feb. 15, 2001) (per curiam). The first sovereign to take the individual into its control assumes priority of jurisdiction (also referred to as primary jurisdiction) over such individual. Ponzi v. Fessenden, 258 U.S. 254, 260 (1922); Zerbst v.

McPike, 97 F.2d 253, 254 (5th Cir. 1938). Of course, the sovereign with priority may elect to

relinquish its priority to another sovereign. United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005);

United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980). 

Relinquishment of priority generally occurs in one of four ways: (1) release of the person on

bail; (2) dismissal of the charges; (3) release of the person on parole; or (4) expiration of the person’s

sentence. Cole, 416 F.3d at 897. Releasing a defendant on a recognizance bond likewise relinquishes

primary jurisdiction over the defendant. Id. A sovereign may also relinquish primary jurisdiction

when it surrenders a prisoner to another sovereign for trial, sentencing, and execution of the sentence, but such relinquishment does not extinguish the surrendering sovereign’s right to the prisoner’s

return to its custody for trial. DeLong v. United States, 474 F.2d 719, 720 (5th Cir. 1973) (per curiam). Additionally, a state sovereign may relinquish or waive primary jurisdiction by delivering the

prisoner “into federal custody for the purpose of beginning his federal sentence.” See Trowell v.
5

Beeler, 135 Fed. App’x 590, 594 (4th Cir. 2005) (per curiam). Release from actual physical custody

is the primary component of every relinquishment of priority of jurisdiction. 

When a sovereign releases an individual, even temporarily, a different sovereign may arrest

the individual and take priority over him or her. United States v. Vann, 207 F. Supp. 108, 111

(D.C.N.Y. 1962). When a subsequent sovereign seizes the body of the person and takes priority, it

postpones all claims of the releasing sovereign until the releasing sovereign resumes possession over

the body in some way. Id. Unless relinquished, “[t]he prior right acquired by first arrest continues

unchanged until the arresting government has completed the exercise of its powers, and a waiver

extends no further than it is intended to extend.” Zerbst, 97 F.2d at 254. Consequently, without

relinquishing its priority, a sovereign may loan a defendant in its custody to another sovereign for

criminal proceedings in the receiving jurisdiction by way of a writ of habeas corpus ad prosequendum.

Causey v. Civiletti, 621 F.2d 691, 693 (5th Cir. 1980). Such loan results in only a temporary loss of

jurisdiction. Id. 

 Here, Petitioner’s May 2002 arrest by state authorities originally placed him in the primary

jurisdiction of the State of Kansas. However, federal authorities seized the body of Petitioner when

he was arrested at the Elk County Jail on September 17, 2002, pursuant to a federally issued arrest

warrant. At that point, Kansas effectively surrendered him to such authorities for trial, sentencing,

and execution of his federal sentence. See Richardson v. Outlaw, No. 1:05-CV-598, 2007 WL

162898, at *3 (E.D. Tex. Jan. 23, 2007) (holding in a case involving an escaped prisoner that “[t]he

federal government secured primary jurisdiction over petitioner on April 6, 1976, when he was

arrested by federal authorities”). While the Respondent asserts that “petitioner was temporarily

turned over to federal authorities”, was merely “on loan” to federal authorities, and the State of
4

 Despite the mention of a writ of habeas corpus ad prosequendum in various responses given to Petitioner as he exhausted his administrative remedies at FCI Seagoville, (see Attachment 1 to Pet.), this is not a case where the United

States secured temporary jurisdiction over Petitioner via such writ. 

6

Kansas retained primary jurisdiction over him, (see Brief at 3, 5, 7), the record does not support this

assertion. The federal arrest exhibits a specific relinquishment of primary jurisdiction over Petitioner

to the federal government, not a temporary loan to a different sovereign.4

 The absence of state

credit for time spent in federal custody between his federal arrest on September 18, 2002, and his

release back to state custody on January 16, 2003, further suggests that Kansas did not relinquish

Petitioner to federal authorities only temporarily. See Aldridge v. Wendt, No. 3:03-CV-1052-R, 2004

WL 1217934, at *2 (N.D. Tex. June 3, 2004) (recommendation recognizing generally that “time

spent in federal custody pursuant to a writ ad prosequendum is credited toward [the prisoner’s] state

sentence, not his federal sentence”), accepted by 2004 WL 1368275 (N.D. Tex. June 16, 2004) and

aff'd, 149 Fed. App’x 253 (5th Cir. Aug.26, 2005). The totality of the circumstances in this case

indicates that the United States took primary jurisdiction over Petitioner when it arrested him in

September 2002. 

After Petitioner answered the federal charges and received his federal sentence, he was

returned to state custody in January 2003 subject to a federal detainer. By returning Petitioner to

state custody for sentencing on his state charges in this manner, it appears that the United States

relinquished its priority over him. See Vann, 207 F. Supp. at 111 (recognizing that when one

sovereign arrests an individual and thus takes primary jurisdiction from another sovereign who had

previously arrested the individual, primary jurisdiction returns to the original arresting sovereign

when that sovereign resumes possession of the body of the individual in some way). Because

Petitioner was not returned to state custody due to a state-issued writ of habeas corpus ad
7

prosequendum, primary jurisdiction over him reverted back to Kansas when he was returned to state

custody after federal sentencing. 

Petitioner argues that Kansas relinquished its primary jurisdiction by releasing him to the

custody of United States Marshals after sentencing him on the state charges in March 2003. As

conceded by Respondent, Kansas released Petitioner on March 10, 2003, for service of his federal

sentence. (See Brief at 5.) Such release again relinquished priority over Petitioner to the United

States. See Trowell v. Beeler, 135 Fed. App’x 590, 594 (4th Cir. 2005) (per curiam) (recognizing that

a sovereign may relinquish primary jurisdiction by delivering an individual to federal authorities so

that the individual can commence his or her federal sentence). By accepting custody of Petitioner,

the United States had priority over him and could insist that he fully serve his federal sentence. The

United States maintained primary jurisdiction over Petitioner until it again relinquished priority to

Kansas by returning him to state custody in September 2003. Priority returned to the United States

once Petitioner completed his state sentence in 2004. 

In summary, the sovereign with custody of Petitioner had primary jurisdiction during the

period of custody. Because Petitioner was not loaned to any sovereign via a writ of habeas corpus

ad prosequendum, primary jurisdiction alternated between the two sovereigns, with each sovereign

relinquishing priority to the other when custody over Petitioner passed between them. The Court

thus turns to the issue of when Petitioner’s federal sentence commenced.

III. COMMENCEMENT OF FEDERAL SENTENCE

“Title 18 U.S.C. § 3585 determines when a federal sentence of imprisonment commences

and whether credit against that sentence must be granted for time spent in ‘official detention’ before

the sentence began.” Reno v. Koray, 515 U.S. 50, 55 (1995). With respect to commencement of a
8

federal sentence § 3585(a) provides: “A sentence to a term of imprisonment commences on the date

the defendant is received in custody awaiting transportation to, or arrives voluntarily at, the official

detention facility at which the sentence is to be served.”

Here, Petitioner was sentenced to sixty months imprisonment in federal court on January 10,

2003, and was returned to state custody on January 17, 2003, instead of being committed to the

custody of the BOP to commence service of his federal sentence. The state court thereafter sentenced him on two state offenses, ordered the state sentences to run concurrently with each other

and the previously imposed federal sentence, and returned him to the custody of United States

Marshal on March 10, 2003. According to the plain language of § 3585(a), Petitioner’s federal

sentence commenced on March 10, 2003, when he was delivered to the United States Marshal for

delivery to FCI Seagoville to begin serving his federal sentence.

The Respondent argues that because Kansas had primary jurisdiction over Petitioner at all

relevant times, and Petitioner was merely on loan to federal authorities prior to the completion of

his state sentence and his transfer to federal custody to begin his federal sentence on May 27, 2004,

Petitioner’s federal sentence commenced on that date. 

Notwithstanding the determination that Kansas did not retain primary jurisdiction over

Petitioner at all relevant times, this Court recently rejected the argument that a federal sentence

could not commence during the time that a prisoner was on loan from the state. See Daniel v.

Berkebile, No. 3:04-CV-2047-P, 2007 WL 2890373, at *3-4 (N.D. Tex. Sept. 28, 2007) (accepting

recommendation of magistrate judge). In that case, the Court noted that the Fifth Circuit expressly

stated in Causey v. Civiletti, 621 F.2d 691 (5th Cir. 1980), “that a federal sentence could be served

during the time that a prisoner was ‘on loan’ from the state.” Id. at *4. Although atypical, a federal
9

sentence may commence even when the prisoner is on loan from state authorities on a writ of habeas

corpus ad prosequendum. See id. at *3-4. Thus, a prisoner who is on loan from another sovereign

and remains in the primary jurisdiction of the loaning sovereign may commence his federal sentence.

As discussed more fully above, the United States had primary jurisdiction over Petitioner at

various times, including when he was returned to federal custody in March 2003. Petitioner was not

on loan to the federal sovereign through a writ of habeas corpus ad prosequendum. Even assuming

for purposes of this motion that he was on loan, however, the applicability of the plain language of

§ 3585(a) was not defeated even if Kansas did have primary jurisdiction over the prisoner.

Petitioner’s federal sentence therefore commenced on March 10, 2003, when he was transferred to

federal custody for delivery to the facility where he would serve his sentence. 

IV. SENTENCE CALCULATION

Petitioner argues that he should receive credit toward his federal sentence for all time served

after it commenced regardless of whether he served such time in state or federal custody.

A. Credit for Time in Federal Custody

When a federal prisoner is mistakenly placed into federal custody to commence his federal

sentence, he is entitled to credit against his federal sentence for time served in federal custody. See

Free v. Miles, 333 F.3d 550, 552, 555 (5th Cir. 2003); Daniel v. Berkebile, No. 3:04-CV-2047-P, 2007

WL 2890373, at *4-6 (N.D. Tex. Sept. 28, 2007) (accepting recommendation of magistrate judge).

In this case, the Court has found that Petitioner was rightfully placed into federal custody

after he was sentenced by the state court because Kansas relinquished priority to the United States

so that Petitioner could serve his previously imposed federal sentence. Petitioner is therefore
5

 That Kansas may have credited Petitioner’s state sentence with such time does not alter such entitlement. See Daniel,

2047-P, 2007 WL 2890373, at *5-6 (specifically rejecting the position that a petitioner may not obtain post-sentence

credit to a federal sentence for time actually served in federal custody when the state has credited a state sentence for

such time based on policy considerations and the reasoning in Free, Causey, and Boston v. Attorney General, 210 Fed.

App’x 190, 194 (3d Cir. 2006) (per curium)). 

6

 Respondent also relies on 18 U.S.C. § 3585(b) for denying Petitioner credit to his federal sentence for time spent in

state custody after his transfer in September 2003 because Kansas has already credited Petitioner’s state sentence with

that time. (Brief at 10-11.) Section 3585(b) provides that “[a] defendant shall be given credit toward the service of a

term of imprisonment for any time he has spent in official detention prior to the date the sentence commences . . . that

has not been credited against another sentence.” The subsection clearly reflects “that credit is awarded only for presentence restraints on liberty.” Reno v. Koray, 515 U.S. 50, 56 (1995). Because the Court has determined that Petitioner’s

federal sentence commenced in March 2003, § 3585(b) is inapplicable with respect to claimed credit after that date.

10

entitled to credit against his federal sentence for time he spent in federal custody between March

10, 2003, and September 23, 2003.5

B. Credit for Time in State Custody

Petitioner also seeks credit to his federal sentence for the time he spent in state custody after

his transfer in September 2003, because once his federal sentence commenced, it should have

proceeded without interruption. Respondent argues that Free v. Miles, 333 F.3d 550 (5th Cir. 2003)

precludes such credit.6

In Free, the Fifth Circuit Court of Appeals recognized a common law rule that once a federal

sentence commences, it must run continuously without interruption unless an interruption is caused

by some fault of the prisoner. See 333 F.3d at 553-54. However, the Fifth Circuit declined to apply

such rule in the case of an inmate who was serving consecutive state and federal sentences, was

mistakenly placed in federal custody while on loan from state authorities, returned to state custody

to serve the remainder of his state sentence, and then returned to federal custody for service of his

federal sentence. See id. at 554-55. It held that 

[t]he rule against piecemeal incarceration precludes the government from artificially

extending the expiration date of a prison sentence; the rule does not, however, justify
11

or mandate that a prisoner receive a “get out of jail early” card any time that such a

minuet occurs, even when the prisoner is not at fault.

Id. at 555. The court recognized the clear limited function of such rule: “Its sole purpose is to

prevent the government from abusing its coercive power to imprison a person by artificially extending the duration of his sentence through releases and re-incarcerations.” Id. at 554. When a

prisoner serves the correct total time of consecutive state and federal sentences, it does not matter

that he may have served his federal sentence in two shifts. Id. at 555. Under Free, then, federal

prisoners are properly denied credit toward their federal sentence for time spent in state custody

following the erroneous commencement of their federal sentence. 

Although there was no erroneous placement in federal custody and no use of any writ of

habeas corpus ad prosequendum in this case, the rationale set forth in Free precludes Petitioner’s

claim for sentence credit for the time he spent in state custody even though the interruption of his

federal sentence was due to no fault of his own. Free’s rationale for denying credit is not contingent

on an initial erroneous placement in federal custody or whether the placed inmate was on loan to

federal authorities through a writ of habeas corpus ad prosequendum. Free instead focuses on the

artificial extension of a sentence. 

In this instance, Kansas relinquished its priority to the United States so that Petitioner could

serve his federal sentence. The United States later relinquished its priority so that Petitioner could

serve his state sentences. By statute, Petitioner’s federal sentence under 18 U.S.C. § 924(c) is

consecutive to any other sentence. See 18 U.S.C. § 924(c)(1)(D)(ii). Consequently, the

interruption of Petitioner’s federal sentence has not artificially extended his federal sentence. While

the relinquishment of priority back to Kansas effectively overrides the state court’s order of
12

concurrent state and federal sentences, Kansas could have given effect to that order by refusing to

accept the relinquishment of priority. 

Petitioner, furthermore, has no basis to complain about how the two sovereigns agreed to

handle his custody. As aptly stated by the Fifth Circuit:

[T]he federal government and a state are perfectly free to make any agreement

between themselves concerning which of their sentences will be served first, as long

as the prisoner is not compelled unnecessarily to serve his sentences in a piecemeal

fashion. “A person who has violated the criminal statutes of both the Federal and

State Governments may not complain of the order in which he is tried or punished

for such offenses.”

Causey v. Civiletti, 621 F.2d 691, 694 (5th Cir. 1980). Although Petitioner has served his federal

sentence in two installments, the apparent agreements between Kansas and the United States have

not unnecessarily compelled Petitioner to serve his sentences in piecemeal fashion. As recognized

in Free, the purpose of the rule against piecemeal service of sentence is to prevent governmental

abuse to artificially extend the duration of a sentence through releases and re-incarcerations. See

Free, 333 F.3d at 554. As already discussed, no such abuse occurred in this case. In the absence of

such abuse, the Court does not find that Petitioner was unnecessarily compelled to serve his

sentences in piecemeal fashion. 

 Because Petitioner’s federal sentence commenced in March 2003 and because his federal

sentence has not been extended by its interruption in September 2003, Petitioner is entitled to no

credit to his federal sentence for time spent in state custody between September 2003 and May 2004.

V. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court GRANT the instant petition filed pursuant to 28 U.S.C. § 2241 to the extent Petitioner seeks
13

federal sentence credit for the time he spent in federal custody between March 10 and September

23, 2003. It is further RECOMMENDED that the Court otherwise DENY the instant petition.

SIGNED this 30th day of November, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE