James Ray Thomas v. R.D. Brewer, Warden

James Ray Thomas is a federal prisoner who appeals the district court’s denial of his petition for writ of habeas corpus. He claims the right to immediate release on the ground that his federal sentence has been fully served.

At the time of his sentencing on federal charges August 4, 1964, Thomas was a state prisoner. He was transferred to federal authorities pursuant to a writ of habe-as corpus ad prosequendum, which directed the defendant’s return. After sentence was imposed committing Thomas for a diagnostic study under 18 U.S.C. § 4208 (c), he was returned to state authorities. Having served state sentences, he was released to federal authorities for commitment November 23, 1966. The study was then conducted and a judgment after study was ultimately entered for a maximum term of twenty-five years.

Thomas contends that the district court erred in three respects: first, in determining that he was a state prisoner at the time of his federal sentencing; second, in concluding that his federal sentence did not commence under 18 U.S.C. § 3568 and that he was not entitled to credit toward his federal sentence from the time of his detention in the federal wing of the Los Angeles…

concurring in part and dissenting in part.

Although I do not agree with the majority opinion’s reasoning, I concur in its judgment to the extent that it concludes that Thomas is not entitled to credit for the entire two year-3 month period he served in state prison following the imposition of the initial federal sentence. I dissent in part because the majority opinion fails to give Thomas credit for the three month period he should have been in federal custody in 1964 for the purpose of having a diagnostic study conducted.

When a federal court issues an order directing an officer to commit a federal prisoner to the custody of the Attorney General for a diagnostic study, or otherwise, the officer’s failure to act in accordance with that order cannot be “charged up against the prisoner.” See Smith v. Swope, 91 F.2d 260, 262 (9th Cir.1937). We held in Smith that

Id. The Smith court credited the defendant’s federal sentence with the entire time served in state prison because the marshal, in contravention of the federal commitment order, prematurely turned him over to the state authorities.

Here, the district court’s sentencing order stated that

While the district court’s order…

923 F.2d 1361 James Ray THOMAS, Petitioner-Appellant, v. R.D. BREWER, Warden, et al., Respondents-Appellees. No. 89-55498. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 8, 1990. Decided Jan. 17, 1991. Diane Desfor, Law Student, U.S.C. Law Center, Charles D. Weisselberg, U.S.C. Law Center, Los Angeles, Cal., for petitioner-appellant. John Libby, Asst. U.S. Atty., and Jimmye S. Warren, Asst. U.S. Atty., Los Angeles, Cal., for respondents-appellees. Appeal from the United States District Court for the Central District of California. Before REINHARDT, LEAVY, and RYMER, Circuit Judges. RYMER, Circuit Judge: 1 James Ray Thomas is a federal prisoner who appeals the district court's denial of his petition for writ of habeas corpus. He claims the right to immediate release on the ground that his federal sentence has been fully served. 2 At the time of his sentencing on federal charges August 4, 1964, Thomas was a state prisoner. He was transferred to federal authorities pursuant to a writ of habeas corpus ad prosequendum, which directed the defendant's return. After sentence was imposed committing Thomas for a diagnostic study under 18 U.S.C. Sec. 4208 (c), he was…