Full opinion text
OPINION STEWART, United States Magistrate Judge. Petitioner Donald E. Cozine (“Cozine”) brings this habeas corpus petition under 28 USC § 2241 against respondent, Joseph Crabtree, the warden of the federal institution in which Cozine is presently imprisoned. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). For the reasons set forth below, the petition is granted. The court concludes that Cozine was entitled to be released from prison on November 25, 1996, and has been wrongly confined ever since. Respondent must release Cozine no later than July 13, 1998, unless the United States Court of Appeals for the Ninth Circuit grants a stay. BACKGROUND On April 9, 1992, Cozine was arrested in California by the Santa Clara Police Department on state narcotics charges. Santa Clara Municipal Court Case No. D9279977. On April 10, 1992, he was released on bond. On December 4,1992, Cozine was arrested in Alabama by the Huntsville Police Department on Alabama charges of conspiracy to traffic cocaine. Madison County District Court Case No. DC92-7642. At some point, a bench warrant was issued by California authorities after Cozine failed to appear on the state drug charges. According to respondent, “[o]n December 8, 1992, while in Alabama state custody, California authorities served a fugitive from justice warrant on [Cozine] for failing to appear on the April 9, 1992 charges. On December 9, 1992, [Coz-ine] waived extradition to California [but] remained in the primary custody of Alabama authorities.” Respondent’s Supplemental Answer, p. 6. At oral argument, the parties were unable to provide further details in response to this court’s questions concerning the California warrant, e.g., whether it was actually executed or simply lodged as a de-tainer. However, it is undisputed that Coz-ine remained in an Alabama jail, where he was being held to face Alabama charges. In March 1993, a federal grand jury in Aabama indicted Cozine on federal drug charges arising out of the same conduct for which he had been arrested by the Huntsville Police Department. On April 13, 1993, federal authorities obtained physical custody of Cozine via a writ of habeas corpus ad prose-quendum. Although Cozine was in federal custody, he was lodged in the Jefferson County Jail. On May 14, 1993, an Alabama grand jury “no billed” the state charges against Cozine, which were then dismissed. On May 18, 1993, Cozine appeared in federal court in Alabama and pled guilty to federal narcotics charges. United States v. Cozine, No. CF-93-H-065-NE-001. On or about June 10, 1993, Cozine appeared before the United States District Court for the Northern District of Alabama, and was sentenced to 37 months of imprisonment, to be followed by a 36 month term of supervised release. The judgment provides that: The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of THIRTY-SEVEN (37) MONTHS. The court makes the following recommendations to the Bureau of Prisons: the court expressly directs that the defendant is to receive credit on his sentence for each day he has served in custody since his arrest on December 4,1992. Judgment of Conviction in No. CF-93-H-065-NE-001, p. 2 (Respondent’s Answer, Ex. A, p. 30). What happened next remains somewhat murky, despite this court’s attempt to obtain clarification. According to respondent, on June 29, 1993, federal authorities purported to “return” Cozine to Alabama authorities, notwithstanding that Alabama had dismissed all charges against Cozine. Respondent’s Supplemental Answer, pp. 6-7. Since federal authorities already were lodging Cozine in the Jefferson County Jail, even while he was in federal custody, it is unclear whether the June 29, 1993 “transfer” was a physical transfer of Cozine to another location or whether the transfer occurred only on paper. On July 14,1993, Cozine was extradited to California to face state charges unrelated to the federal and Alabama charges. On April 18, 1994, Cozine was sentenced to ten years in prison on the California charges. The judgment of conviction in that ease expressly provides that: THIS SENTENCE CONCURRENT W/US DISTRICT COURT NORTHERN DISTRICT OF ALABAMA # 93-H-065-NE. COURT RECOMMENDS DEFENDANT SERVE FEDERAL SENTENCE IN CALIFORNIA Judgement of Conviction, Santa Clara County Superior Court Cases No. 169442, 169443, 169444 (Petition, Ex. A). On May 2, 1994, the California state court ordered that Cozine be given 383 days credit toward his state sentence for time already served. On April 4, 1995, the California sentence was modified to an 80-month term, apparently to correct an error in sentence computation, but otherwise was unchanged. Answer, Ex. A, p. 40. With respect to concurrent sentences imposed by California and another jurisdiction, California law provides: In any case in which ... a prisoner of another jurisdiction is, before completion of actual confinement in a penal or correctional institution of a jurisdiction other than the State of California, sentenced by a California court to a term of imprisonment for a violation of California law, and the judge of the California court orders that the California sentence shall run concurrently with the sentence which such person is already serving, the Director of Corrections shall designate the institution of the other jurisdiction as the place for reception of such person within the meaning of the preceding provision of this section. He may also designate the place in California for reception of such person in the event that actual confinement under the prior sentence ends before the period of actual confinement required under the California sentence. Calif. Penal Code § 2900(b)(2). Consistent with that statutory mandate, a long line of California eases holds that when a criminal defendant receives a California sentence which is to run concurrently with a preexisting foreign sentence (¿e., one imposed by another jurisdiction), the defendant is entitled to be transferred to the foreign authorities, and to have the foreign prison designated as the place for service of the California sentence. See, e.g., In re Stoliker, 49 Cal.2d 75, 76, 315 P.2d 12, 13 (1957); In re Altstatt, 227 Cal.App.2d 305, 306, 38 Cal.Rptr. 616, 617 (1964). This ensures that the concurrent aspect of the sentence is made effectual and not nullified. Id. Alternatively, if the California sentence is longer than the sentence from the other jurisdiction, § 2900(b)(2) also allows the California prison to be designated as the site for concurrent service of both sentences. The California sentencing judge clearly anticipated that the latter scenario would apply here, and expressly recommended that the California prison be designated as the site for service of the federal sentence. While the details are a little hazy, the parties agree that California authorities formally notified their federal counterparts that Cozine was serving a California sentence that had been ordered to run concurrent with a pre-existing federal sentence. Unfortunately, respondent has been unable to provide this court with copies of that correspondence, or of prior communications (if any) on the same topic. Respondent has provided this court with a copy of the following letter dated June 3, 1996, which was signed by Charles A. Dickerson, Regional Designator of the Bureau of Prisons (“BOP”) and addressed to “M. Wilson, CCRM, CMC East Records, California Department of Corrections, California Men’s Colony East” in San Luis Obispo, California: We are in receipt of your correspondence requesting that Mr. Donald Edward Coz-ine serve his State and Federal terms concurrently in a Federal facility. A review of the enclosed documentation reflects that Mr. Cozine is currently serving a six year, eight month California State sentence. Additionally, Mr. Cozine has a detainer filed by the United States Marshals Service for Narcotic Violations for which he received a 37 month term to be served consecutive to his State term. His tentative parole date is scheduled for November 26, 1996. At that time he will be released to the custody of the United States Marshals Service who will execute the detainer for service of his Federal term. We trust the above information adequately responds to your In re Stoliker request. Ex. 1, May 28,1998 hearing. On November 25, 1996, Cozine was paroled from his California sentence and inl-mediately taken into custody by federal authorities, who insisted that he had not yet served the 37-month term imposed by the federal court in Alabama. Respondent has refused to credit Cozine with any of the time that he spent in a California prison serving a sentence that was expressly ordered to run concurrently with his pre-existing federal sentence. Cozine also complains that, notwithstanding the express directive in the federal judgment that Cozine receive credit “on his sentence for each day he has served in custody since his arrest on December 4, 1992,” respondent has credited him for only 115 days, from December 4, 1992, through March 28,1993. Respondent has calculated Cozine’s release date as April 8, 1999, contingent upon qualifying for good time credits. Otherwise, his release date could be as late as August 31, 1999. Following his release, Cozine is subject to a three-year term of supervised release. Cozine also will be on parole from California, assuming that state’s term of parole has been tolled while he is in federal prison. The parties also agree that if Cozine is entitled to credit against his federal sentence for time served in prison (1) since his arrest on December 4, 1992, or (2) since entry of the judgment of conviction in the federal case on June 10, 1993, or (3) since he was incarcerated in California, then his federal sentence expired prior to his parole from California on November 25, 1996. Even if Cozine is entitled to credit against the federal sentence only from the time that he commenced serving his state concurrent sentence on April 18, 1994, his federal sentence still would have expired by now, and respondent would have no legal right to detain him further. After exhausting all administrative remedies, Cozine filed this § 2241 petition on October 20, 1997. On May 5, 1998, the court requested supplemental briefing and argument. On May 28, 1998, this court heard oral argument and received exhibits. The court also gave respondent until June 5, 1998, to supplement the record with additional documents relating to the June 3, 1996, letter from the BOP to California corrections officials. DISCUSSION The federal court sentenced Cozine to 37 months in prison. Cozine has now been incarcerated for almost 67 months, yet respondent refuses to release him, insisting that Cozine still, owes another 14 months on his federal sentence. At the heart of this case is respondent’s refusal to honor the concurrent sentence that California imposed on Cozine. Without a court order, respondent unilaterally transformed Cozine’s concurrent state sentence into a consecutive sentence, and thereby extended the duration of his incarceration by three years. Respondent has justified his actions on five grounds. First, he contends that under 18 USC § 3584(a), the federal sentence automatically runs consecutively to the California sentence unless the federal judge expressly ordered that it run concurrently. Second, respondent asserts that Assistant United States Attorney (“AUSA”) Chambers, who prosecuted Cozine on the federal charges in Alabama, advised a BOP employee, Julia Clemens, that he thought the federal judge would have wanted the sentences to run consecutively had he been asked. Third, respondent relies upon 18 USC § 3585(a), which provides that a sentence of imprisonment “commences on the date the defendant is received in custody awaiting transportation to ... the official detention facility at which the sentence is to be served.” Fourth, respondent contends that Cozine’s federal sentence could not have commenced to run prior to November 25, 1996, because “the U.S. Marshal did not have exclusive custody of Petitioner.” Respondent’s Answer to Petition, p. 3. Finally, citing 18 USC § 3585(b), respondent says that he denied Cozine credit for time served after March 28, 1993, notwithstanding the federal sentencing judge’s express order to the contrary, because California gave Cozine credit against his concurrent California sentence for that period of time. Several different paths may be followed to analyze this petition, but each ultimately leads to the same result, namely that respondent is unlawfully detaining Cozine and must immediately release him from prison. 1. Concurrent v. Consecutive Sentences A. Laws Governing Service of Concurrent Sentences 1. 18 USC § 3585(a) A federal prison sentence commences to run “on the date the defendant is received in custody awaiting transportation to ... the official detention facility at which the sentence is to be served,” 18 USC § 3585(a) (formerly 18 USC § 8568). This rule can be problematic when the defendant receives a state sentence that is to be served concurrently with the federal sentence. Trouble typically arises when the inmate serves part or all of his concurrent sentences in a state prison but, upon his release, federal authorities refuse to credit any of his time in state prison toward service of the federal sentence, citing § 3585(a) (or its predecessor, § 3568). In the past, this scenario sometimes resulted in an inmate being compelled, in essence, to serve his sentence a second time. For example, in Del Guzzi v. United States, 980 F.2d 1269 (9th Cir.1992), an inmate was forced to serve a seven year state term followed by a five year federal term, even though the state sentence was expressly ordered to run concurrently with the federal term. The state prosecutor had even argued for and obtained a longer state sentence precisely because the two sentences were intended to run concurrently. Some judges also have expressed concern that by manipulating the order or the location in which the sentences are served, ie., whether the inmate initially commences service of his concurrent sentences in a state or federal prison, low-level prison officials can effectively override the decisions of the state and federal sentencing courts (or, prior to 1984, the federal sentencing judge’s recommendation) and decide for themselves how long the inmate remains in prison. See, e.g., Smith v. Swope, 91 F.2d 260, 262 (9th Cir.1937); Kiendra v. Hadden, 763 F.2d 69, 72-73 (2d Cir.1985); United States v. Croft, 450 F.2d 1094, 1096-99 (6th Cir.1971); Gillman v. Saxby, 392 F.Supp. 1070 (D.Haw.1975); Millard v. Roach, 631 A.2d 1217, 1224 (D.C.App.1993); Thomas v. Whalen, 962 F.2d 358, 364 (4th Cir.1992) (concurring opinion of Judge Hall); Thomas v. Brewer, 923 F.2d 1361, 1369-70 (9th Cir.1991) (separate opinion of Judge Reinhardt). See also Del Guzzi, 980 F.2d at 1272 (concurring opinion by Judge Norris, noting that federal officials had allowed Del Guzzi’s co-defendant to transfer to federal prison and serve his sentences concurrently, but not Del Guzzi, as a result of which the co-defendant had already been released while Del Guzzi remained in prison). Alternatively, the order or the location in which the sentences are served — and thus the duration of incarceration — may be left to little more than random chance, which also can lead to arbitrary results. 2. California Penal Code § 2900(b)(2) To prevent this problem from arising and to ensure that defendants actually receive the benefit of their concurrent sentences, California law mandates that when a defendant receives a California prison sentence that is to be served concurrently with a federal sentence, California authorities must offer to transfer the prisoner to federal authorities and then designate the federal prison as the place for service of the concurrent state sentence. Calif Penal Code § 2900(b)(2); In re Stoliker, 49 Cal.2d at 76, 315 P.2d at 13. That way, the inmate is physically in federal custody and, pursuant to § 3585(a), the federal sentence may commence to run, while also allowing the concurrent state sentence to run in accordance with state law. Alternatively, federal authorities may designate the state prison as the place where the federal sentence is to be served, which achieves the same result. The latter method usually is employed when the federal sentence would expire before the concurrent state sentence. Calif.Penal Code § 2900(b)(2). In such circumstances, California’s duty to make the defendant available to the foreign authorities is absolute. It is not “a matter of judicial or administrative discretion” nor is any formal court order (apart from a concurrent state sentence) needed to trigger that duty or to effect the transfer. In re Riddle, 240 Cal.App.2d 707, 49 Cal.Rptr. 919 (1966); In re Tomlin, 241 Cal.App.2d 668, 671, 50 Cal.Rptr. 805, 807 (1966). Of course, state officials cannot compel their foreign counterparts to accept the transfer. Tomlin, 241 Cal.App.2d at 669, 50 Cal.Rptr. at 806 (“The law of this state requires only that Tomlin be made available, it does not and cannot compel the Commonwealth of Virginia to take him.”) Nevertheless, the proper California officials must make a formal offer and receive a formal refusal by the proper officials of the foreign government. In re Cain, 243 Cal.App.2d 768, 52 Cal.Rptr. 860 (1966) (responsive letter from Washington Parole Board to defense counsel was insufficient to satisfy the requirement that California offer defendant to Washington so he may serve concurrent sentence there). 3. BOPPS 5160.03 The BOP has enacted a policy defining how the agency will address requests, such as that mandated by California law, to facilitate service of concurrent sentences. BOP Program Statement 5160.03 (“BOPPS 5160.03”). At oral argument, respondent emphasized a single sentence from this Program Statement which states that the BOP will not, “under ordinary circumstances (such as overcrowding in a state institution), accept transfer of the inmate into Federal custody for concurrent service.” BOPPS 5160.03, p. 4. However, respondent overlooked the preceding sentence, which explains that the BOP’s preference is to “designate the state institution in which the inmate is presently located for service of the Federal sentence.” Id. Thus, BOPPS 5160.03 does not articulate any fixed rule forbidding concurrent service of state and federal sentences, but merely expresses a preference to designate the state institution as the place for serving the federal sentence, presumably to prevent states with overcrowded prisons from dumping their prisoners into the federal system. BOPPS 5160.03 expressly authorizes the BOP to retroactively designate the state prison as the place for service of all or part of the federal sentence. BOPPS 5160.03, ¶ 8(b); Barden v. Keohane, 921 F.2d 476 (3d Cir.1990); United States v. Pineyro, 112 F.3d 43 (2d Cir.1997). To ensure that the time spent processing the request “is not passed on to the inmate,” the designation is automatically made retroactive to “the original date of sentencing” unless the order granting the request provides otherwise. BOPPS 5160.03, ¶ 8(b). Therefore, once the inmate qualifies, retroactive designation is not the exception but the default rule. B. California’s Offer to Transfer Cozine and the BOP’s Response Sometime prior to June 3,1996, California notified federal officials that Cozine was in state prison serving a sentence that had been ordered to run concurrently with a federal sentence. Although the parties have been unable to furnish the court with a copy of that communication, its contents can be inferred from the reference in the June 3 letter to “your In re Stoliker request,” which refers to the California case that recognized a California inmate’s right to be made available to federal authorities in order to facilitate service of a concurrent sentence. The June 3 letter from the BOP also refers to California’s request that Cozine “serve his State and Federal terms concurrently in a federal facility.” The BOP’s letter of June 3, 1996, flatly rejected California’s offer to turn Cozine over to federal officials so that he could serve his concurrent sentences in a federal prison. The BOP never asked California whether it wanted the state prison designated as the place for service of the federal sentence, as the California sentencing judge had recommended and BOPPS 5160.03 authorizes. Rather, the BOP assumed that Cozine’s federal sentence was “to be served consecutive to his State term.” Ex. 1. Consequently, in the BOP’s view, Cozine did not qualify for concurrent service of his state and federal terms under BOPPS 5160.03. At oral argument, respondent confirmed that interpretation. C. The BOP’s Erroneous Decision Cozine’s federal sentence does not state whether it is to run concurrently with, or consecutively to, the California sentence. The BOP therefore concluded that, as a matter of law, the federal sentence runs consecutively to the California sentence. In reaching that conclusion, the BOP relied upon 18 USC § 3584(a) which provides that a term of imprisonment runs “consecutively unless the court orders that the terms are to be run concurrently.” Ergo, since the federal sentence was silent, it was to run consecutively to the California sentence. The fatal flaw in the BOP’s reasoning is that, at the time, the federal judge imposed sentence, as yet there was no other sentence that the federal sentence could be made concurrent with or consecutive to. Hence, § 3584(a) is inapposite. That is readily apparent from the language of the statute: If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively. ... Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently. Id. (emphasis added). The language upon which the BOP relied comes into play only when multiple terms are imposed “at the same time” or if the defendant “is already subject to an undischarged term of imprisonment.” Id. Otherwise, there is nothing for the federal sentence to be consecutive to or concurrent with. “Congress did not vest federal courts with the authority to impose a federal sentence to run consecutive to a state sentence that has not yet been imposed.” United States v. Clayton, 927 F.2d 491, 492-93 (9th Cir.1991). See also United States v. Eastman, 758 F.2d 1315, 1318 (9th Cir.1984). Similarly, “a federal court does not acquire discretion to impose a concurrent sentence until the defendant has [already] been sentenced by another court.” United States v. Neely, 38 F.3d 458, 461 (9th Cir.1994). Cozine’s federal sentence does not specify whether it is to run concurrently with, or consecutively to, the California sentence because the latter was not imposed until the following year. The federal judge had no reason even to consider this question, since he could not prospectively order that a sentence run concurrently with, or consecutively to, a sentence of unknown length that might (or might not) someday be imposed by another jurisdiction. Rather, that determination must be made by the second sentencing court. In this ease, the second sentencing court was California, which ordered that its sentence run concurrently with the federal sentence previously imposed. Therefore, the BOP erred when it concluded that, in the absence of express language to the contrary in the federal judgment, Cozine’s federal sentence automatically ran consecutively to his subsequent state sentence. This conclusion is consistent with McCarthy v. Doe, 146 F.3d 118 (2d Cir.1998), which recently rejected the BOP’s interpretation of § 3584(a). McCarthy, like Cozine, received a federal sentence followed by a concurrent state sentence, and was then incarcerated in a state prison. McCarthy asked the BOP to designate the state prison as the place for service of his federal sentence, in order to facilitate service of the concurrent sentences. The BOP refused, insisting (as it has here) that because McCarthy’s federal sentence was silent, § 3584(a) required the BOP to treat it as a consecutive sentence. The Second Circuit disagreed. “As defendant was neither subjected to multiple terms of imprisonment at the same time nor was he already subject to his state sentence when his federal sentence was imposed, the presumption that terms of imprisonment imposed at different times run consecutively does not apply to him.” Id. at 121. Consequently, the BOP erred by assuming that it had no authority to grant McCarthy’s request for a nunc pro tunc designation pursuant to BOPPS 5160.03. Id. at 122. At oral argument, respondent also represented that it had searched the transcript of the federal sentencing hearing, in vain, for some indication that the federal sentencing judge intended for Cozine’s federal sentence to run concurrently with the California sentence. While the court admires respondent’s apparent diligence in searching for the proverbial needle in a haystack, respondent was focusing its efforts on the wrong haystack. The federal sentencing judge had no occasion to consider whether the sentence should run consecutively or concurrently. See id.; Pi-neyro, 112 F.3d at 44 (“The order sentencing Pineyro on the federal charge did not state that his federal sentence would run concurrently with his state sentence, nor could it have, since Pineyro had not yet been convicted or sentenced for the unrelated state offenses”); Barden, 921 F.2d at 484 (one reason why the federal sentencing court “was unable to order concurrency with [the state sentence was] because [the federal court] sentenced Barden before the state did”). Indeed, without knowing the duration of the future California sentence, or the charges on which it would be based, or any of the other circumstances of that case, it would have been presumptuous for the federal judge to have made an anticipatory ruling on that question without knowledge of the relevant facts. See McCarthy, 146 F.3d at 122. Such an anticipatory ruling by the federal court also would have interfered with California’s right “to apply its own laws on sentencing for violation of state criminal laws.” Clayton, 927 F.2d at 493, quoting Eastman, 758 F.2d at 1318. Respondent should have looked to the judgment of the second sentencing court, which in this case was California. The California judgment of conviction expressly ordered the sentence to run concurrently with the federal sentence. Respondent also points to an alleged telephone conversation between a BOP employee, Julia Clemens, and AUSA Chambers, who prosecuted Cozine on the federal charges in Alabama. According to respondent, AUSA Chambers thought the federal judge would have wanted the sentences to run consecutively had the judge been asked. This court has grave doubts about the legal significance of a sentencing judge’s unexpressed intentions, years after-the-fact, on a question that was not even at issue during sentencing. The point is moot, however, because respondent did not pose the question directly to the federal sentencing judge. Rather, respondent reportedly asked the prosecutor what he thought the judge would have wanted. If respondent thought the way to resolve the issue was by taking a poll, then at a minimum defense counsel should have been canvassed as well. Respondent also may have misinterpreted AUSA Chambers’ remarks. According to the sworn declaration of BOP employee Gloria W. Grimes: Petitioner’s request was forwarded to me from the Bureau of Prisons’ Central Office. I reviewed all available information and determined that a nunc pro tunc designation was not appropriate in the Petitioner’s ease. The federal sentencing judge did not indicate on the J & C, nor at any time since sentencing that it was the Court’s intent that the Petitioner’s federal and state sentences be served concurrently. Additionally, contact with the Assistant U.S. Attorney who prosecuted the case revealed that the Federal sentencing judge was aware of pending California charges and wanted the federal sentence to run consecutive to any state sentence. Grimes Decl., ¶ 7. Grimes’ conclusion that the federal judge “wanted the federal sentence to run consecutive to any state sentence” appears to be based upon the following file notation: 07-15-97 JULIA CLEMENS, ISM, SPOKE WITH AUSA CHAMBERS FOR CLARIFICATION OF SENTENCE AND TO ENSURE THE SENTENCE WAS ORDERED TO BE SERVED CONSECUTIVE TO “ANY” STATE SENTENCE. MR. CHAMBERS “BELIEVES” SUBJECT .SHOULD RECEIVE CREDIT FROM DATE OF ARREST UP TO DATE TURNED OVER TO CALIFORNIA AUTHORITIES. “IT WAS ‘NOT’ THE COURT’S INTENT FOR THE INMATE TO RECEIVE DOUBLE CREDIT.” MR. CHAMBERS ALSO ADDED, THE COURT MADE A RECOMMENDATION AND HE ASKED ME IF THE BOP IS OBLIGATED TO FOLLOW THE RECOMMENDATION AND THAT THE COURT WAS AWARE OF THE PENDING CHARGES IN CALIFORNIA. Answer, Ex. A, p. 42 (original in capitals). This paragraph does not say that the federal judge “wanted the federal sentence to run consecutive to any state sentence,” as Grimes concludes. AUSA Chambers said only that-in his opinion-the sentencing judge did not intend that Cozine receive credit against both sentences for time served in custody prior to trial or sentencing, which is a very different issue. Thus, this entry does not support Grimes’ conclusion that the federal judge “wanted the federal sentence to run consecutive to any state sentence” or even that AUSA Chambers made any such representation. Perhaps times’ conclusion is based upon some other evidence but, if so, it does not appear in the record. To summarize, respondent’s determination that Cozine’s federal sentence was to run consecutively to his state sentence-and thus Cozine was not entitled either to serve his state sentence in federal prison or to have the state prison designated as the place for service of the federal sentence-was premised upon (1) respondent’s faulty interpretation of § 3584(a); which in turn (2) led respondent to ignore the language of the California judgment which expressly ordered that the state sentence run concurrently with the federal sentence; (3) a multiple-hearsay account of a conversation in which an AUSA supposedly speculated on what the federal judge might have wanted had he been asked; and (4) the federal judge’s failure to state whether a sentence should run concurrently or consecutively, when in reality the judge had no authority to make such a determination and properly refrained from doing so. This decision was manifestly erroneous and contrary to law, and could not be sustained even under the most deferential standard of review. II. Available Remedy While it is clear that respondent erred in its handling of this case, this court must still determine if Cozine is entitled to any remedy. A. Refusal to Accept Custody California attempted to deliver Coz-ine into federal custody so that he could serve his federal sentence in a federal institution. This would have eliminated any dispute as to whether his federal sentence had been served. The BOP erroneously concluded that Cozine’s federal sentence was intended or required to run consecutively to his state sentence and, for that reason, wrongly refused to accept him into federal custody. Although California cannot directly compel another jurisdiction — which is not bound by California law — to accept the transfer of a prisoner, the Ninth Circuit recently reserved the question of whether a wrongful refusal to accept a transfer would violate the laws of the receiving jurisdiction or violate the inmate’s constitutional rights. See Isreal v. Marshall, 125 F.3d 837, 839 n. 1 (9th Cir.1997) (declining to decide issue not properly raised). Under the specific circumstances presented here, this court holds that Cozine’s federal sentence commenced to run (assuming, for the moment, that it had not already done so earlier) when federal authorities should have accepted custody of him to begin serving his federal sentence, after California formally tendered Cozine to federal officials. See Kiendra, 763 F.2d at 72-73 (sentence began to run from date federal authorities wrongly refused to accept inmate into federal custody despite tender by state officials). Cf. Smith v. Swope, 91 F.2d at 262 (sentence commenced to run even though federal authorities wrongly relinquished custody over inmate). It is as if Cozine had duly reported to the prison where he was to serve his federal sentence, on the appointed day, only to be turned away over his protests and through no fault of his own. However, Cozine is even worse off because in that circumstance at least he would have remained free in the interim and, though the service of the sentence might have been delayed, its duration would not have been altered. By contrast, the error here resulted in Cozine being deprived of the benefit of his California concurrent sentence and being compelled to serve his time anew. This court has not found any published cases concerning inmates physically turned away from the prison gates, but § 3585(a) strongly hints at the correct answer. It provides that the sentence commences, inter alia, when the defendant "... arrives voluntarily to commence service of sentence ...” Actual admission to the prison is not a prerequisite to commencement of the sentence. Several courts have addressed a somewhat analogous circumstance in which an inmate either is improperly released from prison or federal officials have neglected to take custody of the inmate following his release from state prison. As a general rule, the inmate is entitled to full credit against his sentence so long as he was not responsible for the wrongful release. Cf. Clark v. Floyd, 80 F.3d 371, 374 (9th Cir.1995) (inmate entitled to full credit against federal sentence for time spent at liberty after federal officials neglected to take custody of him to begin service of consecutive federal sentence following his release from state prison); Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir.1984) (similar); Dunne v. Keohane, 14 F.3d 335, 336-37 (7th Cir.1994) (government may not delay expiration of federal sentence by postponing its commencement, and violation of that principle may be remedied in habeas corpus proceeding); White v. Pearlman, 42 F.2d 788, 789 (10th Cir.1930) (inmate who was, “in substance, ejected from the penitentiary” through no fault of his own, and despite having called the warden’s attention to the error, was entitled to credit against his federal sentence for time spent at liberty); Carson v. Florida, 489 So.2d 1236, 1238 (Fla.App.1986) (former inmate entitled to credit against sentence for time at liberty after he was erroneously released from prison); Ex parte Bates, 538 S.W.2d 790, 793 (Tex.Crim.App.1976) (same). The foregoing authorities are consistent with this court’s conclusion that Cozine is entitled to credit against his federal sentence for that period of time during which he would have been in federal custody but for the BOP’s wrongful refusal to accept California’s tender of Cozine. Spigner v. United States, 452 F.2d 1208 (9th Cir.1971), is readily distinguishable. In Spigner, the inmate was neither tendered to federal authorities nor did he request a transfer to a federal prison. Instead, Spigner waited until his concurrent state sentence had expired, and only then sought credit against his federal sentence on the theory that federal officials had an affirmative duty to sua sponte transfer him to a federal prison in order to facilitate the service of his concurrent sentences. The Ninth Circuit rejected that claim, not because Spig-ner had no right to be transferred to federal prison but because Spigner had never requested a transfer. “The condition of the state sentence was a privilege of which he knew and could have availed himself. He did not.” Id. 452 F.2d at 1208-09 (emphasis added). B. Comity The language of BOPPS 5160.03, and the arguments advanced by respondent during oral argument, suggest that the BOP views service of concurrent sentences as purely a matter of grace, which the BOP has no obligation to accommodate. This court does not agree with that view, at least under the circumstances presented by this case. As the Supreme Court has recognized: We live in the jurisdiction of two sover-eignties, each having its own system of courts to declare and enforce its laws in common territory.... The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. Ponzi v. Fessenden, 258 U.S. 254, 259, 42 S.Ct. 309, 66 L.Ed. 607 (1922). Under the “dual sovereignty” doctrine, a criminal defendant owes a debt to two (or more) separate sovereigns, each of which may exact payment independently of the other. See, e.g., Heath v. Alabama, 474 U.S. 82, 88-93, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); Jackson v. Brennan, 924 F.2d 725, 729 (7th Cir.1991). This doctrine has been invoked as authority to allow the state and federal governments to separately prosecute and punish an individual for essentially the same conduct without violating the Seventh Amendment’s prohibition against double jeopardy. Id. The dual sovereignty doctrine has often been cited as justification for the BOP’s refusal to give inmates credit against their federal sentences for time served in a state or foreign prison. In some situations, that analysis is correct, e.g., if the federal sentence runs consecutively to a pre-existing state sentence. In other circumstances, however, the dual sovereignty doctrine leads to the opposite result, requiring the BOP to give effect to a state sentence that is ordered to run concurrently with a pre-existing federal sentence. The dual sovereignty doctrine is not a one-sided rule that only operates adversely to a criminal defendant, but is neutral. Just as the dual sovereignty doctrine acknowledges and protects the rights of each sovereign to exact as much punishment for a crime as that sovereign desires, the doctrine also acknowledges and protects the rights of each sovereign to exact as little punishment for the crime as that sovereign desires. Cozine pled guilty to violating federal law. The first sovereign, the United States, fixed the punishment for this offense at 37 months in prison. Cozine later pled guilty to violations of California law. The second sovereign, California, imposed a sentence of 80 months, but expressly ordered that sentence to run concurrently with the sentence previously imposed in the federal case. In essence, California decided that, following the 37 months that Cozine would be imprisoned by the United States, Cozine should serve an additional 43 months in prison (though he could be paroled before that date). Alternatively, California decided that as punishment for his state law violations Cozine should remain in prison until a certain date, after taking into account that he also would be serving a federal sentence during part of this time. California had every right to impose such a sentence, and the United States — as the first sovereign — had no cause to complain. The federal government was entitled to imprison Cozine for 37 months, but it had no right to tell California how much, or how little, punishment it should exact from Cozine in accordance with its laws. Similarly, had the roles been reversed and the California sentence imposed first, then the United States would have been the second sovereign and California would have no ability to interfere with federal sentencing decisions. See, e.g., United States v. Sackinger, 704 F.2d 29, 32 (2d Cir.1983) (since state court imposed sentence first, it could not prospectively order that its sentence run concurrently with a future federal sentence, hence federal court was free to disregard the state concurrent sentence and impose a consecutive sentence). At oral argument, respondent invoked the Supremacy Clause of the United States Constitution as authority for the BOP to ignore the concurrent sentence imposed by California. While some courts have accepted that argument, see, e.g., Barden, 921 F.2d at 478, n. 4, this court respectfully disagrees. A federal sentence does not automatically trump a state sentence. In matters such as this, the state and federal governments interact with each other as equal sovereigns. See Strand v. Schmittroth, 251 F.2d 590, 605 (9th Cir.1957) (“there is no ‘federal supremacy1 in the corner of the field which is specifically under consideration”). See also 28 USC § 1738 (requiring federal courts to give full faith and credit to state laws, court proceedings, and judgments). The United States had a legitimate interest in requiring Cozine to serve his 37-month sentence in a location selected by federal authorities, as required by § 3585(a) and 18 USC § 3621(b). In part, that is a function of paying the debt owed to the sovereign, and the sovereign’s right to decide such matters as the terms of confinement. In addition, it avoids improper interference in execution of the federal government’s sentence. Otherwise, a criminal defendant facing a long federal prison sentence might obtain a state concurrent sentence of equal or greater length in home detention or at an honor camp in the mountains. California law solves this problem by requiring state authorities to tender the inmate to federal officials to permit the United States to incarcerate the inmate in a facility of its own choosing. So long as Cozine was in a federal prison, or one designated by federal officials, serving his federal sentence, federal officials had no cause to complain if state authorities gave Cozine credit against his concurrent state sentence for that same time. In the absence of a consecutive sentence, this was a matter solely between Coz-ine and state authorities. The United States may also have a legitimate concern that states faced with overcrowded prisons will use concurrent sentences as a vehicle for “dumping” inmates into the federal prison system, which would be obliged to accept the inmate into federal custody. Logistical problems also could arise if one of the concurrent sentences was comparatively short, which might result in the “shuttling” of inmates between state and federal prisons. California law addresses those concerns by allowing federal officials to designate a state prison as the location for service of the federal sentence. Since California law adequately addresses any legitimate federal concerns, comity demands that federal officials acknowledge, and give effect to, the concurrent sentence that California imposed upon Cozine. Even assuming, arguendo, that federal officials had no duty to act proactively, see Spigner, 452 F.2d 1208, once California tendered Cozine to the United States to commence service of his federal sentence, federal officials were obliged either to accept him into federal custody for service of his federal sentence or else to designate the state prison as the place for service of his federal sentence. They did neither. Since federal officials lacked an adequate basis for their refusal, the effect of their action (or inaction) was to unreasonably deny comity to the judgment of the California court and the laws of that state. In a federal system with 51 separate sovereigns — along with many territories and indi-an tribes — comity avoids conflicts between coordinate courts and governments. Various rules have been articulated to clearly delineate which court or sovereign has jurisdiction at a given time over a particular person or cause, and to minimize undue interference by other courts or sovereigns. See, e.g., Ponzi, 258 U.S. at 260, 42 S.Ct. 309 (first court to assume jurisdiction over subject matter of litigation has exclusive jurisdiction until it is surrendered). Allowing the second sentencing court to determine whether a sentence is to run concurrently with, or consecutively to, the prior sentence(s), is consistent with this goal of avoiding conflicts between coordinate courts and sovereigns. This rule permits courts, corrections officials, and defendants to easily compute the sentences owed by defendants and the effect of any new sentence that may be imposed. The alternative would allow one sovereign to interfere with the rights of other sovereigns by prospectively running a sentence consecutive to — or concurrent with— sentences that might someday be imposed by another sovereign, without even knowing the circumstances of those future sentences. The other sovereigns, in turn, might follow their own laws and order that their sentences run concurrently with, or consecutively to, any pre-existing sentences. The two sentences would then be in conflict, which “creates uncertainty and ambiguity” and may “result in problems in calculation of service of [the] sentence.” Eastman, 758 F.2d at 1318. The better rule, which has been adopted by the Ninth Circuit, is that concurrent or consecutive sentences operate only with respect to sentences imposed previously or at the same time, but cannot be imposed prospectively on future sentences, especially those from another jurisdiction. Id. at 1317-18; Clayton, 927 F.2d at 493. Respondent’s contention that it is not required to honor a state concurrent sentence is further undermined by the legislative history of § 3584(a), which reveals that Congress expressly intended to give federal judges the power to order a federal sentence to run concurrently with a pre-existing state sentence. See S.Rep. No. 225, 98th Cong., 2d Sess., p. 127, reprinted in 1984 U.S.Code Cong. & Admin. News 3182, 3310. Section 3584(a) was intended to “be construed contrary to the holding in United States v. Segal,” 549 F.2d 1293, 1301 (9th Cir.1977), which held that a federal sentence could not run concurrently with a pre-existing state sentence because the federal sentence had to be served in federal prison. Id. Similarly, the legislative history of § 3585(a) explains that: The Committee does not intend that this provision be read to bar concurrent Federal and State sentences for a defendant who is serving a State sentence at the time he receives a Federal sentence. It should be possible for the Bureau of Prisons to use its authority to contract with State facilities to make equitable arrangement for a defendant to continue to reside in the State facility while serving part of his Federal sentence. S.Rep. No. 225, p. 129, 1984 U.S.Code Cong. & Admin. News at 3312. Thus, Congress clearly contemplated that a federal sentence could run concurrently with a state sentence and that the BOP would facilitate service of those concurrent sentences, inter alia, by designating the state prison as the place for service of the federal sentence. It would be extraordinarily provincial for the United States to assert that federal judges may impose sentences that run concurrently with pre-existing state sentences but not the other way around. Comity is a two-way street. By refusing either to accept Cozine into federal custody for serving his concurrent sentences, or to designate the state prison as the situs for service of the federal sentence, the BOP wrongly denied comity to the judgment of the California court and the laws of that state. Admittedly, comity is not a personal constitutional right. United States v. Clawson, 842 F.Supp. 428, 433 (D.Or.1994), aff'd on other grounds, 52 F.3d 806 (9th Cir.1995) (denying relief premised on comity because injury to state had already taken place and could not be redressed by granting habeas relief to inmate). Unlike Clawson, however, the injury in this case is a continuing one, not just to Cozine but also to California. Every day that Cozine remains incarcerated, respondent is continuing his refusal to honor the California judgment and the laws of that state. California is powerless to remedy this state of affairs. State courts have no power to mandamus federal officials. State ex rel. Tran v. Christian, 108 Ohio App.3d 578, 671 N.E.2d 337 (1996), citing M’Clung v. Silliman, 19 U.S. (6 Wheat.) 598, 604-05, 5 L.Ed. 340 (1821). Nor, in a situation such as this, does California have standing to sue in its own right to vindicate the judgments of its courts and the criminal laws of that state. Granting relief to Cozine is the only available means for the judicial system to redress that injury. The court also observes that Cozine’s ease is not an isolated incident. Federal officials’ recalcitrance in honoring California concurrent sentences has been a continuing source of conflict for decades, despite efforts by California’s legislature and courts to remedy this problem through the enactment of Calif. Penal Code § 2900(b) and adoption of the In re Stoliker doctrine. C. Judicial Review of the BOP’s Decision As a general rule, courts have very limited authority to review decisions by agencies such as the BOP and the Parole Commission due, in part, to the kinds of decisions that those agencies are called upon to make. Typically, these decisions involve a great deal of discretion and professional judgment, such as whether a particular inmate should be paroled or where he should be housed. In making a decision, those agencies must balance many complicated and interrelated factors, including overcrowding or tensions between various prison gangs. Not all decisions by the BOP fall into that category, however. Sometimes the decision consists solely of mathematical calculations which admit of no discretion, or requires the application of a statute by which Congress has limited the agency’s discretion. Even when the decision requires the exercise of discretion, the agency must first properly interpret the relevant statutes to ascertain the scope of its discretion and the factors it must consider. Although judicial review is very limited, it nevertheless does exist. See, e.g., United States v. Wilson, 503 U.S. 329, 335, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (Attorney General is responsible for initially computing credit for time served, but that determination is subject to judicial review); United States v. Huss, 7 F.3d 1444, 1449 (9th Cir.1993) (same); Downey v. Crabtree, 100 F.3d 662, 666 (9th Cir.1996) (although BOP has broad discretion, that “does not immunize its decisions from judicial review”). Although a federal court may not directly review the merits of a decision granting or denying parole, even if the Parole Commission abused its discretion, federal courts do have jurisdiction over claims that the Parole Commission failed to consider mandatory factors, violated the inmate’s constitutional rights, made a decision “so arbitrary as to violate due process,” or exceeded the statutory limits. Wallace v. Christensen, 802 F.2d 1539, 1551-52 (9th Cir.1986) (en banc). See also Wajda v. United States, 64 F.3d 385, 388 (8th Cir.1995). A similar standard has been applied to decisions by the BOP. See, e.g., Taylor v. Bureau of Prisons, 1998 WL 159918 (D.Kan.1998) (although court may not review BOP’s substantive decision, it can decide whether agency’s interpretation of statute was erroneous); Paydon v. Hawk, 960 F.Supp. 867, 870 (D.N.J.1997) (reviewing decision that inmate was ineligible for sentence reduction under arbitrary and capricious standard); Sterling v. Edwards, 881 F.Supp. 488, 490 (D.Kan.1995) (BOP’s decision to house plaintiff in administrative segregation will be upheld “unless the action is arbitrary and capricious”). Although 18 USC § 3625 precludes review under the Administrative Procedure Act of the merits of certain discretionary decisions, this court still has jurisdiction to determine whether the BOP has erroneously interpreted the relevant statute or otherwise exceeded its statutory authority. See Fristoe v. Thompson, 144 F.3d 627, 631 (10th Cir.1998). Whether to follow the law is not a discretionary decision. In the instant case, the BOP’s decision was premised upon a fundamental misreading of both the applicable law and facts, which led it to believe that Cozine was serving a consecutive rather than a concurrent sentence. As a result, the BOP was unable even to recognize what issues were before it, what discretion it possessed, or what facts were relevant to the inquiry, let alone to properly apply the law and its discretion, if any, to the true facts. Cf. McCarthy, 146 F.3d 118 (BOP erroneously assumed it had no discretion and therefore failed to exercise it). Those errors were compounded by extensive reliance upon a questionable interpretation of a multiple-hearsay account of an ex parte conversation in which a prosecutor supposedly speculated what a judge might do in a particular situation that never arose. Under the circumstances, the BOP’s decision was as arbitrary and capricious as if the agency had erroneously based its decision upon another inmate’s file, or had simply flipped a coin. The record also does not show that the BOP advised California of the possibility that the state prison could be designated as the site for service of the federal sentence or informed California of what information would be required to make such a determination, as required by BOPPS 5160.03. Thus, the BOP did not even follow its own mandatory procedures. The court recognizes that, in the absence of a state or federal law to the contrary, a prisoner ordinarily has no liberty interest in being confined to a particular place, his right to liberty having been curtailed by the very fact of his incarceration. See Meachum v. Fano, 427 U.S. 215, 224-25, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (prisoner not entitled to hearing and fact finding before being transferred from one prison to another). However, that is not dispositive of the instant case. Cozine was not incarcerated in a federal prison serving a federal sentence when the challenged decision was made. He was demanding a transfer to a federal prison, to serve his concurrent sentences in accordance with his rights under California law. Cf. Isreal, 125 F.3d at 839 (assuming, without deciding, that this state-created right is a protected liberty interest). Accordingly, there is some question regarding the extent to which Cozine’s liberty interest was curtailed or extinguished solely by virtue of his imprisonment. In addition, the challenged decision did more than just determine where Cozine would serve his sentence, or the amenities of his confinement. It also purported to decide the duration of his incarceration and whether Cozine would serve the sentence that was imposed upon him or would be forced to serve, in essence, some other sentence. The scope of the decision at issue here extends far beyond the routine placement decisions at issue in Meachum. Although an inmate’s liberty interest may have been curtailed, he nevertheless retains a residual liberty interest that protects him against deprivations other than those authorized by his sentence. Cf. Meachum, 427 U.S. at 225, 96 S.Ct. 2532 (inmate had no due process right to confinement in a particular facility because confinement in any of the state’s prisons was “within the normal limits or range of custody which the conviction has authorized the State to impose ”) (emphasis added); Ohio Adult Parole Authority v. Woodard, — U.S. ——, -, 118 S.Ct. 1244, 1250, 140 L.Ed.2d 387 (1998) (inmate sentenced to death nevertheless retains a “residual” life interest, e.g., in not being summarily executed by a prison guard, since that is not authorized by his sentence). Moreover, the challenged decision was not a discretionary decision in which the BOP decided where to house an inmate, but was essentially a question of law. The BOP erroneously interpreted a statute, concluding that Cosine’s terms ran consecutively rather than concurrently, and fixed the duration of his imprisonment accordingly. See McCarthy, 146 F.3d 118 (allowing judicial review under similar circumstances). Finally, even assuming that Cozine was not entitled to procedural safeguards such as a hearing, he still was entitled to some due process. “The touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness, or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” County of Sacramento v. Lewis, — U.S. -, -, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043 (1998) (internal citations omitted). Substantive due process protects against government power arbitrarily and oppressively exercised. Id., citing Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). As the Ninth Circuit has observed, it would offend common notions of justice to have executive decisions with a profound effect on the life and freedom of individuals made on the basis of a dart throw, a coin toss or some other arbitrary or capricious process. United States v. Redondo-Lemos, 955 F.2d 1296, 1298-99 (9th Cir.1992). Even where the executive decision is essentially one of grace, such as a pardon or commutation, “[jjudieial intervention might ... be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” Ohio Adult Parole Authority, — U.S. at -, 118 S.Ct. at 1254 (O’Connor, J., for four justices, plus the separate opinion by Justice Stevens, and thus speaking for a majority of the Court). However, for the reasons previously stated, the decision at issue here appears to be more than simply a matter of “grace” on the part of federal officials. This court concludes that under the circumstances presented here — where the decision was so fundamentally flawed and contrary to law, and was premised upon an impermissible interpretation of the relevant statutes — this court has the power to review and to vacate respondent’s decision not to accept Cozine into federal custody or to designate the state prison as the site for concurrent service of his federal sentence. Even when a federal court determines that an agency decision violated the law, ordinarily the remedy is to order the agency to reconsider its decision applying the correct standard or following the proper procedures. See, e.g., Downey, 100 F.3d at 671; Rizzo v. Armstrong, 921 F.2d 855, 861 (9th Cir.1990). In McCarthy, the Second Circuit remanded the matter to the BOP to “promptly review” the request for nunc pro tunc designation and exercise its discretion accordingly. 146 F.3d at 123. However, that is not a satisfactory remedy under the unique facts of this case. First, if respondent erred by not allowing Cozine to serve his state and federal sentences concurrently, then he should have been released from prison on November 25, 1996. Every day that he remains incarcerated constitutes further injury. While continued wrongful imprisonment theoretically could give rise to a claim for damages, that is rarely, if ever, a satisfactory remedy when further wrongful imprisonment may still be avoided. By contrast, the petitioner in McCarthy was serving a 235 month federal sentence and a concurrent seven year state sentence, both of which were imposed in 1994. Id., 146 F.3d at 119. Even if the nunc pro tunc designation were granted, it would be many years before he was eligible for release. Consequently, there was not the same degree of urgency in McCarthy as is presen