*At the parties’ request, the case is unanimously ordered submitted without oral

argument pursuant to the applicable rules. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and collateral

estoppel. The court generally disfavors the citation of orders and judgments;

nevertheless, an order and judgment may be cited under the terms and conditions of 10th

Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 6/21/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LARRY JAMES MIRELES,

Defendant - Appellant.

No. 95-2219

(D.C. No. CIV 95-561)

(District of New Mexico)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

Appellant Larry James Mireles moved the district court to vacate and set aside his

conviction and sentence pursuant to 28 U.S.C. § 2255. Mireles claimed that the United

States surrendered its custody and jurisdiction over him by turning him over to New

Mexico state officials, and therefore deprived him of due process by subsequently
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incarcerating him in federal prison. The district court dismissed Mireles’ petition with

prejudice, and we affirm.

On December 10, 1987, while Appellant was incarcerated for New Mexico state

crimes in the Bernalillo County Detention Center (“BCDC”), a federal grand jury indicted

him on bank robbery charges. The United States District Court for the District of New

Mexico issued a writ of habeas corpus ad prosequendum, ordering the BCDC to surrender

Mireles to United States Marshals for his arraignment. A federal magistrate arraigned

him on March 24, 1988. Mireles pled not guilty at his arraignment.

On May 3, 1988, Mireles pled guilty in federal court to one count of armed

robbery, and on May 6 the New Mexico District Attorney filed a nolle prosequi dropping

all state charges against him. On July 1, 1988, he was sentenced to a term of eighteen

years in federal prison. On both dates, he appeared in federal district court under writs of

habeas corpus ad prosequendum issued by the district court, and on both occasions he was

returned to BCDC following the federal proceedings. During Mireles’ dentention in the

New Mexico facility, the United States Marshal lodged a federal detainer with New

Mexico. However, BCDC did not return Mireles to federal custody until June 20 or 23,

1989. 

Appellant claims that when he was arraigned in federal court, he came into the

dual custody of the United States and New Mexico; when the New Mexico prosecutor

filed a nolle prosequi dropping all state charges against him, New Mexico relinquished
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jurisdiction and custody and the United States had sole jurisdiction and custody; and by

thereafter returning him to BCDC the United States also relinquished jurisdiction and

custody. He claims that the United States’ filing of a detainer with New Mexico when the

district court imposed its sentence somehow confirms this relinquishment. Because both

governments have relinquished jurisdiction and custody, Appellant claims, his continued

incarceration violates the Fifth Amendment’s Due Process Clause.

The government responds that, while detained in BCDC, Appellant merely

appeared in federal court pursuant to federal writs, and therefore the state facility never

gave up its custody. Furthermore, the filing of a detainer merely constitutes a request that

New Mexico notify federal authorities when a prisoner is released, and does not signify

an acknowledgment that the United States had relinquished jurisdiction. The government

asserts that the United States rightfully assumed custody and jurisdiction over Mireles

when BCDC released him in June of 1989.

We reject Appellant’s creative argument. New Mexico retained custody of

Mireles until the final disposition of his state court proceedings. Williams v. Taylor, 327

F.2d 322, 323 (10th Cir.), cert. denied, 377 U.S. 1002 (1964). It did not relinquish

custody by complying with the district court’s writs. Id. It follows that the prisoner’s

return to state custody following his federal proceedings was not a relinquishment of

federal custody, either. The United States could not relinquish what it did not have. In

addition, the detainer lodged by the United States was nothing more than a request that
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state prison officials notify the United States Marshall of the prisoner’s release date so

that federal authorities could at that point take custody of him. United States v. Dovalina,

711 F.2d 737, 740 (5th Cir. 1983). We decline to interpret the lodging of a federal

detainer with a state as a sign that the United States had, and relinquished, custody or

jurisdiction of the Appellant. We also note that to adopt Appellant’s approach with

respect to any of these issues would be to impede the efficient simultaneous adjudication

of state and federal proceedings involving the same defendant. Appellant’s ultimate

transfer to a federal facility to serve his sentence did not violate his due process rights.

AFFIRMED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge