FILED

United States Court of Appeals

Tenth Circuit

May 27, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHAD ALLEN BEERS,

Petitioner - Appellant,

v.

C. MAYE, Warden,

Respondent - Appellee.

No. 14-3242

(D.C. No. 5:12-CV-03261-RDR)

(D. Kan.)

ORDER AND JUDGMENT*

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.

Calculating a federal prison sentence is usually a pretty straightforward

exercise. But nothing’s straightforward about this case. Though Chad Beers’s

federal prison term began more than twenty years ago, the clock on that sentence

didn’t tick for long. Just a week after starting a 168-month federal prison term in

Arkansas in 1994 for kidnapping and transporting stolen vehicles, Mr. Beers

*

 After examining the brief and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2) and 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not binding precedent except under the doctrines of law of the case, res judicata,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.

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escaped. Within a week the law caught up to him in Nebraska, but not before he

could commit a raft of new crimes, including theft and attempted robbery.

By this point, at least three sets of authorities had an interest in Mr. Beers. 

The United States, of course, had already won several convictions against him. 

Now Nebraska wanted to charge him for the crimes he committed while on the

lam. And even Arkansas had an interest: soon after his first federal conviction,

Mr. Beers pleaded guilty in state court there to still other offenses. What to do? 

Though the United States perhaps had a claim to custody as the first arresting

sovereign, see Weekes v. Fleming, 301 F.3d 1175, 1180 (10th Cir. 2002), comity

leaves room for compromise. The federal government was free to relinquish any

right it had to allow another sovereign to exhaust its remedies first — and that’s

just what the United States did. Instead of demanding his immediate return to

federal custody, the federal government allowed Nebraska to prosecute and

incarcerate Mr. Beers for his state law crimes. See, e.g., Hall v. Looney, 256 F.2d

59, 60 (10th Cir. 1958). 

Of course, federal authorities still wanted to prosecute Mr. Beers for his

escape, so once Nebraska convicted and sentenced him for the state law crimes he

committed there the federal government issued a writ of habeas corpus ad

prosequendum — an ancient writ used “when it is necessary to remove a prisoner,

in order . . . [for him] to be tried in the proper jurisdiction.” 3 William

Blackstone, Commentaries *129; see also Carbo v. United States, 364 U.S. 611,

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615-18 (1961). As this court’s explained, the writ doesn’t always operate to

change custody between sovereigns; it may be used simply to “lend” a state

prisoner to federal authorities for purposes of prosecution or sentencing. United

States v. Welch, 928 F.2d 915, 915 n.2 (10th Cir. 1991). And that’s what the

United States sought in this case, the chance to “borrow” Mr. Beers from

Nebraska so it could pursue a conviction against him for his escape.

But the loan didn’t go as planned. Soon after his transfer to federal

authorities in Arkansas in 1995, Mr. Beers proved himself nothing if not

consistent and, yes, he escaped again. Apprehended this time in Oklahoma, Mr.

Beers was shipped back to Arkansas where he was prosecuted and convicted by

the federal government for both his 1994 and 1995 escapes. Once those federal

proceedings finished, authorities returned Mr. Beers — still “on loan” under the

writ — to Nebraska, where he then spent nearly a decade behind bars finishing his

state sentence. Shortly after Mr. Beers won parole from the state in 2004, federal

authorities finally regained custody and resumed his long-recessed federal prison

term — a term that, thanks to his intervening escape convictions, had ballooned

from 168 months to 288.

With these strange facts in hand we can at last confront Mr. Beers’s current

complaint about the calculation of his federal sentence under 28 U.S.C. § 2241. 

Everyone accepts the United States relinquished primary custody to Nebraska in

late 1994, but Mr. Beers takes the view that the federal government regained that

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claim in 1995 when, after his second escape and recapture, federal authorities

confined him in Arkansas. So, he says, the Bureau of Prisons should credit

against his federal sentence all the time he spent in Nebraska state prisons over

the last decade — and in this way transform his time served there from a

consecutive to concurrent term of imprisonment.

We cannot agree. As the district court explained, federal sentences

presumptively run consecutively to (not concurrently with) state prison terms. 

See 18 U.S.C. § 3584(a); Newman v. Cozza-Rhodes, 526 F. App’x 818, 822 (10th

Cir. 2013). The United States held Mr. Beers after his second escape only on a

writ or “loan” — not a federal sentence — and the federal government returned

him to Nebraska immediately after sentencing on his federal escape charges. 

Underscoring the point that he remained in Nebraska custody, the State took pains

to credit against Mr. Beers’s state sentence the time the United States held him on

loan before and after his second escape. The district court’s thorough order treats

all this in great detail. But the short of it is we see no basis for thinking Nebraska

held Mr. Beers in federal custody unwittingly for a decade and neither do we see

any ground for concern that Mr. Beers served a single day behind bars without

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earning time towards at least one of his many sentences. The judgment is

affirmed and Mr. Beers’s renewed motion for appointment of counsel is denied.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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