What is a Stoliker Request and How Does it Work?

It is not uncommon for an inmate to have an out-of-state sentence or federal sentence that is ordered to be run concurrently with the California term.

When an inmate receives a California prison sentence that is to be served concurrently with a federal or out-of-state sentence, the inmate can request a transfer to the out-of-state jurisdiction to start concurrent service of the sentences. This is known as a “Stoliker request” after the case that established that people in prison have a right to earn credits toward concurrent California sentences while they are serving time in another jurisdiction. In re Stoliker (1957) 49 Cal. 2d 75, 77-78; Penal Code § 2900; see also People v. Massey (1961) 196 Cal. App. 2d 230, 237 – 238, 16 Cal. Rptr. 402 (Stoliker rule applies where prior conviction is in another state); People v. Sewell (1978) 20 Cal. 3d 639, 643, 143 Cal. Rptr. 879 (applying Stoliker rule to person with indeterminate sentence); In re Altstatt (1964) 227 Cal. App. 2d 305, 307, 38 Cal. Rptr. 616 (Stoliker applies where the California judge does not say specifically whether the cases are to run consecutive or concurrent; the sentences are deemed by law to be concurrent); see DOM § 72040.6.5 and DOM § 72040.10.

Since the federal government and most other states will not automatically credit time served in California toward a sentence in their jurisdiction, an inmate should be sure to make a Stoliker request in order to serve the least amount of time possible on the combined terms. See, e.g., Spigner v. United States (9th Cir. 1971) 452 F. 2d 1208.

An inmate who has concurrent sentences and wants to be transferred to another jurisdiction should submit a written Stoliker request to the case records office at the prison where he or she is incarcerated. DOM § 72040.10.1.

In response, the prison staff is then required to formally notify the other jurisdiction stating that the inmate is available for transfer. In re Riddle (1966) 240 Cal. App. 2d 707, 709, 49 Cal. Rptr. 919.

If the California prison officials fail to act, the inmate can file an administrative appeal and, if necessary, a state court petition for writ of habeas corpus to force the prison officials to comply with the law. People v. Antonio (2017) 10 Cal. App. 5th 1064, 216 Cal. Rptr. 3d 523; see also In re Satterfield (1966) 64 Cal. 2d 419, 50 Cal. Rptr. 284 (reviewing Stoliker request issue).

California authorities must offer to transfer the person to federal or out-of-state authorities for service of the concurrent sentence. Penal Code § 2900(b)(2); Stoliker, supra, at 76.

If the other jurisdiction takes custody of the inmate, he or she will begin to earn credits simultaneously on both the California term and the out-of-state or federal term. If any part of the California sentence remains unserved at the end of the out-of-state or federal term, the inmate will then be returned to California to finish the California sentence. No formal extradition procedure will be required because California technically never gave up custody, but merely entered into a joint custody arrangement. In re Patterson (1966) 64 Cal. 2d 357, 362-363 49 Cal. Rptr. 801.

In some cases, the federal or out-of-state jurisdiction may respond to the Stoliker request by agreeing to allow the inmate to start earning concurrent credits on the federal or out-of-state case while remaining in a California prison. Penal Code § 2900(b)(2). This agreement is valuable.

Unfortunately, the other jurisdiction is not required to take custody of the inmate or grant credits for concurrent time even after receiving the Stoliker request. California cannot compel federal or other states’ authorities to take custody of an inmate. People v. Superior Court (Lopez) (1982) 130 Cal. App. 3d 776, 785, 182 Cal. Rptr. 132; In re Tomlin (1966) 241 Cal. App. 2d 668, 669, 50 Cal. Rptr. 805; see also Patterson, supra, at 364-365; and Israel v. Marshall (9th Cir. 1997) 125 F. 3d 837, 839.

If the out-of-state authorities refuse to take custody, then the inmate most likely will have to wait until the end of the California term, at which point those authorities can move to extradite the inmate to serve the out-of-state sentence. Lopez, supra, 784-785.

Trying to negotiate an unserved out-of-state sentence is usually useless because the prosecutors and courts often have little or no authority to modify or dismiss a sentence. There are, however, some possible options for obtaining a transfer or concurrent credits. One possibility is that the other state may have its own laws that would allow the inmate to challenge the refusal or to get credit by filing an action in the other state’s courts. See, e.g., Chalifoux v. Commissioner of Correction (Mass. 1978) 375 Mass. 424, 429, 377 N.E. 2d 923 (finding that MA unfairly refused to accept person or grant credit for time spent in California); but see Aycox v. Little (10th Cir. 1999) 196 F. 3d 1174, 1176-1180 (NM not obligated to honor Stoliker request; refusal to accept custody did not violate federal law).

Also, federal law gives inmates protection when a California sentence is imposed concurrent to a previously imposed federal term. Thus, some federal courts have granted habeas petitions and ordered that people inmates get credit for the time during which federal prison authorities have erroneously refused to accept custody so the inmate could serve his or her federal term concurrent to the state term. Cozine v. Crabtree (D.C. Or. 1998) 15 F. Supp. 2d 997,1010; see also McCarthy v. Doe (2d Cir. 1998) 146 F. 3d 118, 121-122; United States v. Drake (9th Cir. 1995) 49 F. 3d 1438; Kayfez v. Gasele (7th Cir. 1993) 993 F. 2d 1288; United States v. Benefield (1st Cir. 1991) 942 F. 2d 60; see also Jake v. Herschberger (7th Cir.1999) 173 F. 3d 1059, 1066 (under prior law, no right to benefit from state concurrent sentences when federal sentence imposed prior to Nov. 1, 1987).

Finally, if the person entered a plea bargain to the California term with the promise that it would run concurrent to the federal or out of state term, then a California court may be willing to order enforcement of the plea bargain in some way, such as by reducing the length of the California term. Ward v. Brown (E.D. Cal. 2012) 891 F. Supp. 2d 1149, 1159.

This article would not be possible without reference to The California Prison and Parole Law Handbook authored by the Prison Law Group. We thank them for this great publication.