Skip navigation
PYHS - Header
× You have 2 more free articles available this month. Subscribe today.

Montana Supreme Court: Defendant’s Due Process Rights Violated by Delayed Initial Appearance for Two Years While Jailed in New York on Out-of-State Warrant

by David M. Reutter

The Supreme Court of Montana held that a defendant’s due process rights were violated by the State’s failure to bring him before a judge for two years after arrest. The Court vacated the probation revocation sentence and dismissed the State’s petition to revoke with prejudice.

The Court’s opinion was issued in an appeal by Michael Lee Cameron. He was convicted in a New York state court on a conviction of Rape 3. He was sentenced to nine months in prison and ordered to register as a sex offender. He moved to Montana in 2010 and registered as a sex offender. He changed his address in 2013, but he was not found at that address in 2013. After several attempts to locate Cameron failed, he was charged with Failure to Register as a Sex Offender.

Cameron pleaded guilty to the offense on April 6, 2016, and was sentenced on October 18, 2016, to a suspended three-year sentence. The State moved to revoke his probation for the second time on April 14, 2017, for violating his probationary terms and for absconding from supervision. A bench warrant was issued three days later. After Cameron was pulled over on July 8, 2017, for a traffic stop in New York, he was arrested on the bench warrant. New York initiated fugitive from justice proceedings, and Cameron waived extradition on July 17, 2017.

Shortly before he was transported back to Montana, federal prosecutors obtained a Writ of Habeas Corpus Ad Prosequendum on July 25, 2017. The next day, the U.S. Marshals Service took Cameron in custody to appear in federal court on a charge of failing to register as a sex offender when he traveled from Montana to New York. It was clear to all parties that Cameron was in state custody, and neither party acted on the federal court’s offer to issue an order for him to be remanded to federal custody.

Cameron was returned to state custody following that hearing. Seeing the federal detainer against Cameron, the Montana prosecutor cancelled the extradition request and lodged a detainer to take custody of him after the federal proceedings were concluded. The federal court released Cameron on June 6, 2019, without being tried or convicted because he had “already been in custody for the range provided by federal sentencing guidelines for his federal charge.”

Montana then reinstituted its extradition request, and Cameron appeared by video on the petition to revoke the bench warrant on June 25, 2019. The federal charge was dismissed on July 3, 2019, and Cameron personally appeared before the Montana district court on July 29, 2019.

Acting pro se, Cameron argued the court did not have jurisdiction because it had waited too long to act on the matter. The court disagreed. It found Cameron violated his probation, and it imposed a sentence of 2 years and 322 days with credit for 197 days served. With the benefit of counsel, Cameron appealed, arguing that he suffered an “unnecessary delay” when Montana failed to transport him for his initial appearance almost two years after he was arrested in New York on the Montana warrant.

The Montana Supreme Court stated that the dispositive issue is: “Whether the State’s two-year delay in bringing Cameron to Montana to appear before a judge in his revocation proceeding violated Cameron’s right to due process.”

The Court noted that the State acknowledged that Cameron was held on the Montana warrant as far back as July 8, 2017. The Court determined that Montana never lost “primary custody” of Cameron. When he was transferred on the federal Habeas Writ, he was “on loan” to federal authorities. See Thomas v. Brewer, 923 F.2d 1361, 1367 (9th Cir. 1991). Montana officials should have done more to clarify Cameron’s status rather than let him “languish in New York county jails for nearly two years” on a Montana warrant, the Court chided.

Montana law provides that an offender with an outstanding petition for revocation must be brought before a judge “[w]ithout unnecessary delay and no more than 60 days after arrest.” Section 46-18-203(4), MCA. The Montana Supreme Court ruled that the 23-month delay in bring Cameron before a judge was an unnecessary delay.

Because a probation revocation proceeding is a civil proceeding, offenders are not entitled to the full range of constitutional protections afforded in criminal proceedings, including the right to a speedy trial, the Court explained. See State v. Koon, 405 P.3d 1254 (Mont. 2017).

Nevertheless, the Court further explained that both the Fourteenth Amendment and Article II, Section 17 of the Montana Constitution “protect the substantive and procedural rights of persons faced with deprivation of life, liberty or property by the government.”

Consequently, offenders are entitled to “the protections of due process, including written notice of the alleged violation, disclosure of the evidence against him or her, the opportunity to be heard and to present evidence, the right to confront witnesses, the right to a neutral arbiter, and the right to receive a written statement of the evidence relied upon and the reason for the revocation.” State v. Edmundson, 317 P.3d 169 (Mont. 2014). When ruling upon issues of due process, the Montana Supreme Court ultimately considers the “fundamental fairness of the proceeding” by taking into account the totality of the circumstances. Id.

The Court concluded that Cameron did not receive “a fundamentally fair proceeding which comported with his constitutional right to due process.” The Court stated that but for the Montana warrant, New York couldn’t have kept Cameron in jail for nearly two years, which was 22 months longer than the maximum provided for in § 46-18-203(4). Either because of deliberate inaction, indifference, or a lack of diligence, the actions of Montana officials resulted in an “unnecessary delay” in Cameron’s initial appearance on the bench warrant, according to the Court.

The Court stated that the remedy for when the fundamental fairness of a proceeding has been tainted by the violation of a defendant’s due process rights is to vacate the conviction and/or sentence and dismiss the charges. State v. Gatlin, 219 P.3d 874 (Mont. 2009). Based on the facts of the case, the Court concluded that the charges must be dismissed with prejudice. See State v. Strong, 236 P.3d 580 (Mont. 2010). Otherwise, dismissal without prejudice would allow the court to again begin the already delayed process, the Court stated. It instructed that the underlying sentence will remain, and the State is free to seek revocation if Cameron violates his probationary terms again.

Accordingly, the Court reversed and remanded to the district court to vacate the revocation sentence and dismiss the State’s petition with prejudice. See: State v. Cameron, 494 P.3d 314 (Mont. 2021). 

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal cases

State v. Cameron

State v. Koon

State v. Strong

Thomas v. Brewer



No. 89-55498.

United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 8, 1990.
Decided January 17, 1991.

Diane Desfor, Law Student, U.S.C. Law Center, Charles D. Weisselberg, U.S.C. Law Center, Los Angeles, Cal., for

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:

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 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. 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 County
Jail on the day of sentencing; and third, in failing to recognize that he should be credited from the date he was committed for
study under 18 U.S.C. 4208(c).

We hold on the facts in this case that the federal sentence began to run from November 21, 1966, the date on which Thomas
was released by state authorities to federal custody for commitment, and affirm.


On May 10, 1964, James Ray Thomas was arrested by the San Gabriel, California Police for the armed robbery of a local
supermarket. While in state custody on this charge, Thomas was charged in federal court with one count of armed bank
robbery in violation of 18 U.S.C. 2113(a), (b). On June 15, 1964, Thomas was brought before United States District Court
Judge Stephens on the bank robbery charge pursuant to a writ of habeas corpus ad prosequendum issued June 11, 1964.1 On
June 22, 1964, a second writ of habeas corpus ad prosequendum was issued requiring Thomas's appearance before Judge
Stephens on June 23, 1964.2

On August 4, 1964, Thomas again appeared before Judge Stephens for sentencing after pleading guilty to one count of bank
robbery. At this time, Thomas was being held in the federal wing of the Los Angeles County Jail. The record does not reflect
whether a writ was used to secure Thomas's presence in the district court on August 4, 1964. On this date, however, Judge
Stephens committed Thomas "to the custody of the Attorney General or his authorized representative for the maximum period
prescribed by law for a study as described in Title 18, U.S.Code, 4208(c), the results of such study to be furnished this court
within three months whereupon the sentence of imprisonment herein imposed shall be subject to modification in accordance
with Title 18 U.S.Code, 4208(b)."3

The federal marshal, subsequent to the sentencing, returned Thomas to the Los Angeles County Jail. On August 28, 1964,
Thomas appeared before California Superior Court Judge Kaufman for sentencing on his guilty plea to assault with a deadly
weapon. Judge Kaufman sentenced Thomas to two terms to run concurrent with each other. Judge Kaufman's judgment also
recommended that Thomas be "released to the custody of the Federal Government (custody of the United States Attorney
General)." On the judgment order form, following the standard printed language that "It is further Ordered that the defendant be
remanded into the custody of the Director of Corrections at the California State Prison at Chino," were typed the words "when

Thomas was then returned to the custody of the Los Angeles County Sheriff. On February 11, 1965, Thomas appeared before
Superior Court Judge Noble after pleading guilty to a charge of kidnapping for the purpose of robbery. Judge Noble sentenced
Thomas "for the term of his natural life, which sentence is ordered to run concurrently with any sentence being served." Thomas
was then taken to the California State Institution, Chino on February 23, 1965.

On November 23, 1966, Thomas was returned to U.S. marshals to enable concurrent service of Thomas's federal and state
terms. On an unknown date in December 1966, Thomas was delivered to the Federal Correctional Institute, Lompoc,
California, where the study ordered by Judge Stephens on August 4, 1964, was commenced. After completion of the
three-month study, Thomas was placed in an "Out-to-Court" status on April 7, 1967 for return to the district court for the
determination of his sentence. On September 21, 1967, Judge Stephens entered a "Judgment After Study," affirming the
sentence of imprisonment for the maximum term of twenty-five years originally imposed on August 4, 1964. Thomas was then
returned to the Federal Correctional Institution in Lompoc. On January 4, 1968, Thomas was received at the California State
Prison, Folsom, Represa as a return from concurrent service. On December 13, 1974, Thomas was paroled by the State of
California and turned over to the custody of the United States Marshals Service.

The United States Attorney General calculated Thomas's sentence as having commenced to run on November 23, 1966, the
date Thomas was originally released from state prison and turned over to the custody of U.S. marshals for concurrent service.
Based upon this determination, the Attorney General calculated Thomas's mandatory release date as April 19, 1991.

On April 4, 1988, Thomas filed a petition for a writ of habeas corpus in forma pauperis in the district court, pursuant to 28
U.S.C. 1915(a). Thomas sought credit toward his federal sentence for the time he spent in state prison from August 4, 1964 to
November 23, 1966. He also alleged that due to the miscalculation of his sentence, he was being held beyond the expiration of
his term.

The Magistrate's report and recommendation was filed on February 2, 1989. The district court adopted the Report and
Recommendation of the Magistrate and denied Thomas's petition on March 15, 1989. The Magistrate's Report determined that
since Thomas was not in the custody of the United States until November 23, 1966, Thomas's sentence was correctly
calculated. The Magistrate did not address Thomas's argument that his sentence commenced on August 4, 1964 based on the
language of 18 U.S.C. 3568 and former 18 U.S.C. 4208.

On April 28, 1989, Thomas timely filed an appeal to this court.


The district court's decision to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881
F.2d 811, 812 (9th Cir. 1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). To the extent it is necessary to review
findings of fact, the clearly erroneous standard applies. Norris, 878 F.2d at 1180.



Thomas argues that he was in federal custody at the time of his initial federal sentencing on August 4, 1964, and that his federal
sentence should therefore run from that date. He suggests that the manner in which he was brought into federal court, the
express terms of the federal sentence imposed, and the language and intentions of the federal and state sentencing judges
establish that he was in federal custody. In denying the petition for writ of habeas corpus, the district court concluded that "[i]t
appears from the entire record that petitioner was in fact a state prisoner in the custody of the Los Angeles County Sheriff at
the time he was brought out for the purpose of his appearances in federal court . . . [and] at the time he received his federal
sentence." Thomas contends that this conclusion is clearly erroneous.

Thomas was first arrested by state authorities on May 10, 1964. As a general rule, the first sovereign to arrest a defendant has
priority of jurisdiction for trial, sentencing, and incarceration. See United States v. Warren, 610 F.2d 680, 684-85 (9th Cir.
1980). While in state custody, however, Thomas was charged in federal court with bank robbery. He appeared in federal court
on June 15 and June 24, 1964, pursuant to specific writs of habeas corpus ad prosequendum. The record does not reveal a
similar writ for the date August 4, 1964, at which time Thomas received an initial, tentative sentence under 18 U.S.C. 4208.
Thomas was subsequently sentenced in state court on August 28, 1964 and on February 11, 1965. He was released to United
States Marshals on November 23, 1966, and taken to the federal penitentiary at Lompoc in December of that year. On
September 21, 1967, Thomas was returned to Judge Stephens' court, at which time his final sentence following the 4208 study
was imposed.

Thomas argues that because writs were obtained for his two prior appearances, the absence of a writ for his August 4
appearance demonstrates that a writ was unnecessary. The only reason that a writ would be unnecessary, he suggests, is
because state authorities had relinquished jurisdiction over him to federal authorities and he was already in federal custody.

We disagree. The second writ ad prosequendum, issued June 22, 1964, and commanding Thomas's appearance on June 23,
also authorized his appearance on August 4, 1964. This writ commanded that Thomas be produced "in order that said
defendant in the above-entitled case may then and there be arraigned and enter his plea at said time and place, and also at such
other times as may be ordered by the said court." [emphasis added]. It further provided that "[t]he delivery of the body of said
James Ray Thomas to the courtroom of said United States District Court . . . and the return by you of said defendant to your
custody shall be deemed sufficient compliance with the writ." [emphasis added]. Because the writ provided for Thomas's
appearance "at such other times as may be ordered by the court," and provided for his return to state custody, the most logical
inference is that Thomas was ordered at his June 23, 1964 appearance to return for sentencing on August 4, 1964, that
Thomas was simply retained in federal custody pursuant to the June 23, 1964 writ until August 4, and that after sentencing
Thomas was returned to state custody, as required by the writ.

Thomas responds that the language of Judge Stephens' initial sentencing order committed him to the custody of the United
States Attorney General, without acknowledging any qualifications on the Attorney General's ability to assert jurisdiction over
Thomas, as would be the case if Thomas were in state custody. Therefore, he suggests that he was already in federal custody at
that time.

The "Judgment After Study" issued by Judge Stephens on September 21, 1967, however, contains nothing to suggest that the
court found the return of the study and the defendant to his court for final sentencing three years after the initial August 4, 1964
sentencing appearance, to be unusual or improper. Nor did Judge Stephens order that Thomas be credited with the time served
in state custody. Presumably, had Thomas's transfer from his federal sentencing to state custody been inconsistent with the
court's August 4, 1964 order, Judge Stephens would have noted it at this time.

Thomas further contends that the language and intentions of the state sentencing judges also reveals that he was in federal
custody on August 4, 1964. First, he argues that Judge Kaufman's recommendation that "the defendant be released to the
custody of the Federal Government (custody of the United States Attorney General)," implicitly recognizes that Thomas was a
federal prisoner at the time of his state sentencing and shows an intent to impose a state sentence concurrent with the federal
sentence. Second, Thomas suggests that Judge Kaufman's order that Thomas be committed to the state prison "when available"
establishes that he was not immediately available to serve his state sentence at that time, and therefore must have been a federal
prisoner. Finally, that Judge Noble sentenced Thomas to time to be served "concurrently with any sentence being served"
reveals, according to Thomas, an awareness of the federal sentence and an intent not to impede its running.

These suggestions are unpersuasive. Judge Kaufman's order recommended "that defendant be released to the custody of the
Federal Government (custody of the United States Attorney General)." Had Thomas been in federal custody at that time, Judge
Kaufman would not have needed to recommend that he be released to the federal government. Furthermore, the reason that
Judge Kaufman ordered "that the defendant be in the custody of the Sheriff of the County of Los Angeles, to be by him
delivered into the custody of the Director of Corrections at the California State Prison at Chino, when available," was that
Thomas was next to be sentenced before Judge Noble, and not because Thomas was in federal custody at that time. The
words "when available" are not typed on Judge Noble's form, because that sentencing order resolved all pending charges.
Judge Noble therefore ordered Thomas remanded to the custody of the Sheriff of the County of Los Angeles, to be delivered
to the custody of the Director of Corrections at Chino.

This conclusion is reinforced by the Sentence Data Record of the Bureau of Prisons (dated December 9, 1966), which
indicates that Thomas's federal sentence was entered August 4, 1964, in the Central District, but does not begin until
November 23, 1966. That record notes that "Defendant in State Custody when sentenced. Turned over to the U.S. Marshal

Therefore, examining the record as a whole, we are unable to say that the district court's conclusion that Thomas was in state
custody at the time of his initial federal sentencing on August 4, 1964 was clearly erroneous.


Thomas argues that, even if his appearance for federal sentencing on August 4, 1964, were pursuant to a writ of habeas corpus
ad prosequendum, no legal rule required his return to state court immediately after sentencing. Instead, he suggests that if state
authorities surrender a prisoner to federal authorities, the state thereby grants the federal authorities jurisdiction to "try the
[defendant] and to render judgment of imprisonment against him and to execute that judgment." Stamphill v. Johnston, 136
F.2d 291, 292 (9th Cir.), cert. denied, 320 U.S. 766, 64 S.Ct. 70, 88 L.Ed. 457 (1943). Thus, the "physical presence of a
defendant before a District Court gives that court complete jurisdiction over him, regardless of how his presence was secured. .
. ." Id. at 292; see also United States v. Warren, 610 F.2d 680, 684 (9th Cir. 1980); United States v. Zammiello, 432 F.2d
72, 73 (9th Cir. 1970); Smith v. Swope, 91 F.2d 260 (9th Cir. 1937).

Although Thomas correctly states the general rule, it is not dispositive in this case where the question is not whether the federal
authorities properly exercised jurisdiction over a state prisoner in their physical possession, but whether state authorities
abandoned their jurisdiction by transferring one of their prisoners pursuant to



Federal Prison Handbook - Side
Advertise here
Disciplinary Self-Help Litigation Manual - Side