Pierce v. Holder

Filing

Case: 08-50435

Document: 00511197840

Page: 1

Date Filed: 08/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 9, 2010 N o . 08-50435 Lyle W. Cayce Clerk

J A C K I E LEROY PIERCE P e t it io n e r - Appellant v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court fo r the Western District of Texas

B e fo r e JOLLY and GARZA, Circuit Judges, and STARRETT, District Judge.* P E R CURIAM: J a c k ie Leroy Pierce, federal prisoner # 49294-080, appeals the denial of his p e t it io n pursuant to 28 U.S.C. § 2241, seeking a nunc pro tunc designation of a s t a t e facility as the place in which he would serve his federal sentence. I P ie r c e was convicted in federal court of conspiracy to possess with intent t o distribute methamphetamine. While his state criminal proceeding for

p o s s e s s io n of amphetamine was still pending, he was sentenced in federal court o n March 17, 2004, to 130 months of imprisonment. Two days later, he was

District Judge of the United States District Court for the Southern District of Mississippi, sitting by designation.

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Case: 08-50435

Document: 00511197840

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Date Filed: 08/09/2010

No. 08-50435 c o n v ic t e d in state court of possession of amphetamine and sentenced to ten years o f imprisonment. The state court sentence was to run concurrently to his federal s e n te n c e , if so allowed by the federal authorities, but the judgment and c o n v ic t io n in the federal criminal proceeding is silent as to whether the federal s e n te n c e should be served concurrently or consecutively with any state sentence. P ie r c e , now a federal prisoner, filed a petition pursuant to 28 U.S.C. § 2241 in December 2007 when he was a Texas state prisoner. Pierce sought an order s t a t in g that his federal sentence was to be served concurrently with the state s e n te n c e he was then serving. The Bureau of Prisons (BOP) sent a letter to the s e n te n c in g court on February 1, 2008, explaining that Pierce had requested c r e d it towards his federal sentence for his time spent in state custody and s e e k in g the district court's position as to whether a nunc pro tunc designation m ig h t be appropriate in Pierce's case. I n response to the BOP's letter, the sentencing court, on March 7, 2008, s u a sponte amended the judgment and sentence in Pierce's criminal proceeding t o indicate that his federal sentence was to run consecutively to his state s e n te n c e . The district court referred to the amended judgment and denied P ie r c e 's § 2241 petition as lacking merit. Pierce filed a motion for a certificate o f appealability (COA) that served as a timely notice of appeal. II O n ly the Attorney General, through the BOP, may compute a prisoner's c r e d it s . United States v. Wilson, 503 U.S. 329, 334­35 (1992). Where a federal s e n te n c e was imposed before a state sentence, the BOP may indirectly award c r e d i t for time served in state prison by designating nunc pro tunc the state p r is o n as the place in which the prisoner serves a portion of his federal sentence. See Barden v. Keohane, 921 F.2d 476, 480 (3d Cir. 1990); Rodriguez v. Pitzer, 76 F . App'x 519, 520 (5th Cir. 2003) (unpublished) (citing Barden). When Pierce filed this habeas petition, the BOP had not yet made a 2

Case: 08-50435

Document: 00511197840

Page: 3

Date Filed: 08/09/2010

No. 08-50435 d e t e r m in a t io n of whether to make a nunc pro tunc designation that would give P ie r c e credit for his time served in state prison. The BOP retained discretion to d o so because Pierce's original federal sentence did not preclude that sentence fr o m running concurrently to a later-imposed state sentence. By modifying the j u d g m e n t in the criminal case in response to the BOP's inquiry, and denying P ie r c e 's § 2241petition on the merits, the district court prevented the BOP from m a k in g a determination that was left to the BOP's discretion.1 See Wilson, 503 U .S . at 333 (holding that the BOP and not the district court calculates credits). Other circuits have held that before the Attorney General has made a d e t e r m in a t io n of a prisoner's credits, there is no case or controversy ripe for r e v ie w when the prisoner challenges his credits. See, e.g., United States v. W e s tm o r e la n d , 974 F.2d 736, 737 (6th Cir. 1992); Reed v. United States, 262 F. A p p 'x 114, 116 (10th Cir. 2008) (unpublished); United States v. Jeter, 161 F.3d 4 , 1998 WL 482781, *2 (4th Cir. 1998) (unpublished table decision); see also M c C a r ty v. Dewalt, No. 5:08-CV-433-JMH, 2009 WL 235675, at *3 (E.D. Ky. Jan. 2 9 , 2009) ("McCarty's [§ 2241] request is not ripe for review by this Court until t h e Attorney General, through the BOP, has made a final decision with respect t o his request [for a nunc pro tunc designation].") (citations omitted). We agree w it h those courts, and hold that a habeas petition requesting a nunc pro tunc d e s ig n a t io n is not ripe until the BOP makes a final decision on the prisoner's

For this reason, the district court did not have jurisdiction to modify Pierce's sentence in order to preclude his request for time credit; nor does it appear that there was any other jurisdictional basis on which district court could modify the sentence. See 18 U.S.C § 3582; United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997). However, we cannot disturb that separate order here, on Pierce's appeal of the denial of his § 2241 petition, because such petitions may challenge only the BOP's administration of a sentence and not the sentence itself. Pack v. Yusuff, 218 F.3d 4 4 8 , 452 (5th Cir. 2000). Our dismissal of Pierce's appeal should not be read to prevent Pierce from bringing a challenge to his amended sentence under § 2255; because of the timing of the district court's sua sponte modification to the sentence, he has not yet had the opportunity to challenge it. 3

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Document: 00511197840

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Date Filed: 08/09/2010

No. 08-50435 n u n c pro tunc request. The district court did not have jurisdiction to rule on the m e r it s of Pierce's unripe habeas petition. III A c c o r d in g ly , the district court's denial of Pierce's petition is VACATED a n d REMANDED to the district court with instructions to dismiss the petition fo r lack of jurisdiction. V A C A T E D and REMANDED.

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