Lonnie Ray Wiseman v. Patti Wachendorf, Warden; Federal Bureau of Prisons

United States Court of Appeals
For the Eighth Circuit
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No. 19-2393
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Lonnie Ray Wiseman,
lllllllllllllllllllllPetitioner - Appellant,
v.
Patti Wachendorf, Warden; Federal Bureau of Prisons,
lllllllllllllllllllllRespondents - Appellees.
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: September 24, 2020
Filed: January 5, 2021
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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COLLOTON, Circuit Judge.
This appeal concerns a dispute over how to credit time served by a prisoner.
Lonnie Wiseman is an inmate at the Iowa State Penitentiary. Under a prisoner
transfer arrangement, he is serving a thirty-year sentence imposed in Arkansas state
court in 1996. After Wiseman was sentenced in Arkansas, the federal government

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prosecuted him for offenses committed before his incarceration, and a federal court
in New Mexico sentenced him in September 1997 to a term of 595 months’
imprisonment. The federal government briefly assigned Wiseman to a federal prison,
but then concluded that he should have been returned to Arkansas and transferred him
back there in October 1997.
Wiseman maintains that his federal sentence began to run once he was
sentenced to 595 months in the federal case and transferred to the federal prison. On
that theory, he brought a petition for writ of habeas corpus alleging that time served
since September 1997 on his Arkansas sentence should also be credited against his
federal sentence. The government contends that the 595-month federal term of
imprisonment has not yet commenced, and that it will not begin to run until Wiseman
finishes serving his Arkansas state sentence. The district court1 ruled that Arkansas
retained “primary jurisdiction” over Wiseman during the entire period, and granted
judgment for the government. Wiseman appeals, and we affirm.
I.
The saga begins in 1995, when Wiseman was serving an Idaho state sentence
and escaped from a detention facility with another man who was a federal detainee.
After his escape, Wiseman committed several armed robberies in New Mexico and
Arkansas. In November 1995, a state trooper in Arkansas arrested Wiseman on a
state charge of aggravated robbery. Wiseman pleaded guilty, and the Arkansas state
court sentenced him to 360 months’ imprisonment. Wiseman began to serve that term
on April 9, 1996.
1The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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On April 18, 1996, federal authorities took custody of Wiseman for the purpose
of prosecuting him in Idaho on federal charges of aiding and abetting a federal
prisoner to escape. The district court found that the government obtained custody
pursuant to a writ of habeas corpus ad prosequendum—that is, a federal court order
that demanded Wiseman’s presence in federal court on a particular date. On the same
day that the United States Marshal in Arkansas took custody of Wiseman, he
appeared before a federal magistrate judge in the Western District of Arkansas. The
court, citing Federal Rule of Criminal Procedure 40 concerning commitment of an
arrestee to another district, ordered the Marshal to transfer Wiseman to the custody
of the United States Marshal for the District of Idaho. Once in Idaho, Wiseman
pleaded guilty to the escape charge, and the district court sentenced Wiseman to 12
months’ imprisonment to run concurrently with his state sentence.
After the sentencing in Idaho, the Marshals Service transferred Wiseman to the
District of New Mexico for prosecution on federal charges of robbery affecting
interstate commerce and use of a firearm during a crime of violence. A jury found
Wiseman guilty, and the district court sentenced him to 595 months’ imprisonment
on September 9, 1997.
The Marshals Service then transported Wiseman to a federal prison in
Beaumont, Texas. By October 1, 1997, however, a staff member at the Bureau of
Prisons determined that Wiseman’s incarceration at Beaumont was a mistake, and
acted to ensure that Wiseman was returned to state custody. The staff member wrote
to the Marshals Service that Wiseman was inadvertently designated to the facility in
Beaumont, and that “primary jurisdiction of Mr. Wiseman lies with the state of
Arkansas.” As a result, the Marshals Service removed Wiseman from the federal
facility on October 7, and he arrived back in Arkansas on October 22, 1997.
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II.
Under the “doctrine of primary jurisdiction,” a prisoner serving a term in state
custody generally begins to serve a federal sentence when the United States assumes
primary jurisdiction over the prisoner and the prisoner is presented to serve his
federal sentence. Elwell v. Fisher, 716 F.3d 477, 481 (8th Cir. 2013); see also 18
U.S.C. § 3585(a). A federal sentence does not commence, however, “when the
United States merely takes physical custody of a prisoner who is subject to another
sovereign’s primary jurisdiction.” Elwell, 716 F.3d at 481. The first sovereign to
establish physical custody over a criminal defendant retains primary jurisdiction until
it releases jurisdiction. Id.
Not every change in custody constitutes a release of primary jurisdiction.
When a State with primary jurisdiction transfers a prisoner to the United States
pursuant to a writ of habeas corpus ad prosequendum, for example, the prisoner is
considered merely “on loan” from the State. Id. at 481-82; see also Binford v. United
States, 436 F.3d 1252, 1255-56 (10th Cir. 2006). The key question is whether the
first sovereign intended to relinquish its primary jurisdiction. See Johnson v. Gill,
883 F.3d 756, 765 (9th Cir. 2018).
Wiseman acknowledges that Arkansas obtained primary jurisdiction over him
when state authorities arrested him on charges of aggravated robbery in 1995. He
contends, however, that the State relinquished primary jurisdiction when it transferred
him into the custody of the United States Marshal in April 1996 for prosecution on
the federal escape charge in Idaho. For the first time on appeal, Wiseman asserts that
the State did not transfer him to the United States based on a writ, but rather “waived”
primary jurisdiction when it voluntarily released him into the custody of federal
authorities.
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The district court found that the State transferred custody pursuant to a writ of
habeas corpus ad prosequendum, and this finding is not clearly erroneous. See Fed.
R. Civ. P. 52(a)(6); Aponte-Dávila v. Mun. of Caguas, 828 F.3d 40, 46 (1st Cir.
2016). Wiseman’s pro se complaint pleaded, under penalty of perjury, that on April
18, 1996, a hearing was held in federal court “on a Writ of Habeas Corpus Ad
Prosequendum.” R. Doc. 1, at 7. Wiseman acknowledged that the State was
“presented with the Writ of Habeas Corpus Ad Prosequendum requesting custody for
charges pending in the District of Idaho,” id. at 13, and admitted that “the federal
government gained temporary custody pursuant to a writ of habeas corpus ad
prosequendum for the purpose of his prosecution in the District of Idaho.” Id. at 17.
The government presented a declaration from a management analyst at the Bureau of
Prisons, who averred that Wiseman was taken into federal custody “pursuant to a Writ
of Habeas Corpus Ad prosequendum.” R. Doc. 9-16, at 3. Wiseman also attached
to his complaint a custody report from the United States Marshals Service with a
remark reflecting that he was released to Washington County, Arkansas, on October
22, 1997, in accordance with such a writ. R. Doc. 1-1, at 8.2
Wiseman suggests two reasons why the district court erred in finding that
custody was transferred under a writ. Even assuming that Wiseman did not waive
these arguments by pleading to the contrary, the cited reasons do not establish clear
error. First, Wiseman suggests that the fact of a hearing under Federal Rule of
Criminal Procedure 40, which then applied to arrests under a warrant issued in
another federal district, is inconsistent with the federal government assuming custody
based on a writ of habeas corpus ad prosequendum. Although the procedure under
2The Marshals Service report lists Wiseman’s “custody status” as “RL-
WHCAP” on October 22, 1997, with a remark stating “RL TO WASHINGTON CO.”
R. Doc. 1-1, at 8. WHCAP stands for writ of habeas corpus ad prosequendum, Cain
v. Menifee, 269 F. App’x 420, 424 n.4 (5th Cir. 2008), and it is undisputed that
Wiseman was released to Washington County, Arkansas, on the date specified.
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Rule 40 need not be followed when a State turns over a prisoner to the United States
based on a writ, prisoners sometimes assert that they are entitled to a hearing
nonetheless. E.g., United States v. Sawyers, 963 F.2d 157, 162 (8th Cir. 1992);
Bandy v. United States, 408 F.2d 518, 521 (8th Cir. 1969); Terlikowski v. United
States, 379 F.2d 501, 506-07 (8th Cir. 1967). That the government and the district
court in Arkansas may have convened an unnecessary hearing regarding Wiseman’s
transfer from one federal district to another does not undermine the district court’s
finding that Arkansas surrendered custody to the federal government based on a writ.
Second, Wiseman cites a 1997 letter from the Bureau of Prisons that says Arkansas
authorities “released Mr. Wiseman to federal authorities” in April 1996. But the letter
does not address one way or the other whether the State “released” Wiseman pursuant
to a writ, and the district court did not clearly err in finding based on Wiseman’s
admissions and other evidence that a writ existed.
Because the writ itself does not appear in the record, Wiseman urges based on
Weekes v. Fleming, 301 F.3d 1175 (10th Cir. 2002), that we should order the
government to produce the document. In Weekes, however, the prisoner “vigorously
contended” in the district court that no writ of habeas corpus ad prosequendum was
issued, and the district court failed to address the question. Id. at 1178-79. Under
those circumstances, the court of appeals asked the United States to produce a writ,
and the government was unable to do so. Id. at 1179. Here, by contrast, Wiseman did
not dispute the existence of a writ, and alleged that his custody was transferred
pursuant to a writ of habeas corpus ad prosequendum. This court is not the proper
forum for evidentiary proceedings, and the district court was not required to order
production of the writ when Wiseman and the Bureau of Prisons agreed that a writ
had been issued.
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Wiseman next argues that even with transfer of custody under a writ of habeas
corpus ad prosequendum, Arkansas relinquished primary jurisdiction. He contends
that the federal government’s act of transferring him between federal districts in
Idaho and New Mexico, and the lengthy period of eighteen months that he spent in
federal custody, show that the United States assumed primary jurisdiction.
Wiseman was in federal custody while he was prosecuted under separate
indictments in two different judicial districts. When a prisoner is subject to multiple
prosecutions, the federal government’s movement of the prisoner within its
jurisdiction, while he is “on loan” from a State, does not show an assumption of
primary jurisdiction by the United States. In this case, after the federal prosecutions
were concluded, the Marshals Service mistakenly transferred Wiseman to a federal
penitentiary. But the government identified the error within three weeks and
promptly returned Wiseman to Arkansas. The federal government’s mistaken
retention of custody does not constitute an assumption of primary jurisdiction where
the State never intended to relinquish jurisdiction and the error was quickly rectified.
See Binford, 436 F.3d at 1256. Nor does the fact that Wiseman was “on loan” for
eighteen months in order to resolve two federal prosecutions in different districts
justify concluding that Arkansas gave up primary jurisdiction. See Rios v. Wiley, 201
F.3d 257, 274 (3d Cir. 2000).
Wiseman last asserts that because other jurisdictions filed detainers with the
United States, the federal government must have assumed primary jurisdiction over
him. A detainer, however, does not alter the custody status of a prisoner, Thomas v.
Whalen, 962 F.2d 358, 360-61 (4th Cir. 1992); it “merely puts the officials of the
institution in which the prisoner is incarcerated on notice that the prisoner is wanted
in another jurisdiction for trial upon his release from prison.” United States v. Mauro,
436 U.S. 340, 358 (1978). That certain jurisdictions with charges pending against
Wiseman notified the United States that Wiseman was wanted in those jurisdictions
does not bear on whether Arkansas intended to relinquish primary jurisdiction over
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Wiseman. Wiseman argues that Arkansas also filed a detainer with the federal
government, but the record shows that the United States lodged a detainer with
Arkansas after Wiseman was returned to state custody. R. Doc. 1-1, at 6; R. Doc. 9-8,
at 1; R. Doc. 9-16, at 5. That action is consistent with Arkansas’s maintenance of
primary jurisdiction over the prisoner.
For these reasons, we conclude that Wiseman is not entitled to credit against
his federal sentence.
III.
Wiseman also argues that the district court erred by denying his motion for
appointment of counsel. A district court may appoint counsel for a habeas petitioner
if it “determines that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B).
In exercising its discretion, the court “should consider the legal complexity of the
case, the factual complexity of the case, and the petitioner’s ability to investigate and
present his claims, along with any other relevant factors.” Hoggard v. Purkett, 29
F.3d 469, 471 (8th Cir. 1994). We review the court’s decision for abuse of discretion.
Martin v. Fayram, 849 F.3d 691, 699 (8th Cir. 2017).
The district court denied Wiseman’s request for counsel, explaining that
Wiseman had “thoroughly presented his claim to [the] Court, and no additional
factual discovery [was] necessary to resolve the issue.” The court also observed that
Wiseman enjoyed access to a law library with a database that was updated every
ninety days.
Wiseman now contends that the legal and factual issues were complex, and
maintains that appointed counsel “could have investigated” and “cleared up any
confusion” about whether a writ of habeas corpus ad prosequendum was issued in
1996. As the case was presented to the district court, however, the parties agreed that
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a writ was issued, and there was no reason for the district court to believe that
complex factual investigation was required. Nor were the legal issues so complex as
to require appointment of counsel. The district court identified and analyzed the
relevant doctrine and leading authorities before rendering a decision, and legal issues
are subject to de novo review on appeal.
* * *
The judgment of the district court is affirmed.
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