Kelly v. Director, Federal Bureau of Prisions, et al.

Filing 31

ORDER GRANTING Respondent's Motion to Dismiss or Deny the First Amended Petition for Writ of Habeas Corpus 27 , DENYING the First Amended Petition for Writ of Habeas Corpus 8 , and DIRECTING the Entry of Judgment for Respondent, signed by Magistrate Judge Sheila K. Oberto on 3/25/14. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 LEROY J. KELLY,,

Case No. 1:13-cv-00117-SKO-HC

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ORDER GRANTING RESPONDENT’S MOTION
TO DISMISS OR DENY THE FIRST
AMENDED PETITION FOR WRIT OF HABEAS
CORPUS (DOC. 27), DENYING THE FIRST
AMENDED PETITION FOR WRIT OF HABEAS
CORPUS (DOC. 8), AND DIRECTING THE
ENTRY OF JUDGMENT FOR RESPONDENT

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Petitioner,
v.

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DIRECTOR, FEDERAL BUREAU OF
15 PRISONS, et al.,
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Respondents.

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Petitioner is a federal prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.

Pursuant to 28 U.S.C. 636(c)(1), the parties have

consented to the jurisdiction of the United States Magistrate Judge
to conduct all further proceedings in the case, including the entry
of final judgment, by manifesting their consent in writings signed
by the parties or their representatives and filed by Petitioner on
February 11, 2013, and on behalf of Respondent on June 24, 2013.
Pending before the Court is the Respondent’s motion to dismiss
the first amended petition (FAP) which was served on Petitioner on
October 31, 2013.

The time for filing an opposition to the motion
1

1 has passed and no opposition has been filed.
2

In the FAP, Petitioner seeks an order directing the Federal

3 Bureau of Prisons (BOP) to respond to Petitioner’s request for a
4 “Nunc Pro Tunc Designation Transfer” (FAP, doc. 8, 5), whereby the
5 BOP would exercise its discretion pursuant to 18 U.S.C. § 3621 to
6 consider designating a state institution for Petitioner to serve his
7 federal sentence and allow him to serve this sentence concurrently
8 with a state sentence imposed after commencement of his federal
9 sentence.
10

Respondent contends the petition should be dismissed for

11 Petitioner’s failure to exhaust his administrative remedies within
12 the BOP; if not dismissed, the petition should be denied because the
13 relief Petitioner seeks is not possible.
14

I.

Proceeding by a Motion to Dismiss

15

Because the petition was filed after April 24, 1996, the

16 effective date of the Antiterrorism and Effective Death Penalty Act
17 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

18 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
19 1499 (9th Cir. 1997).
20

Title 28 U.S.C. § 2241 provides that writs of habeas corpus may

21 be granted by a district court within its jurisdiction only to a

22 prisoner whose custody is within enumerated categories, including
23 but not limited to custody under the authority of the United States
24 or custody in violation of the Constitution, laws, or treaties of
25 the United States.
26

28 U.S.C. § 2241(a), (c)(1) and (3).

A district court must award a writ of habeas corpus or issue an

27 order to show cause why it should not be granted unless it appears
28 from the application that the applicant is not entitled thereto.
2

28

1 U.S.C. § 2243.

Rule 4 of the Rules Governing Section 2254 Cases in

2 the United States District Courts (Habeas Rules) is applicable to
3 proceedings brought pursuant to § 2241.

Habeas Rule 1(b).

Habeas

4 Rule 4 permits the filing of “an answer, motion, or other response,”
5 and thus it authorizes the filing of a motion in lieu of an answer
6 in response to a petition.

Rule 4, Advisory Committee Notes, 1976

7 Adoption and 2004 Amendments.

Rule 4 confers upon the Court broad

8 discretion to take “other action the judge may order,” including
9 authorizing a respondent to make a motion to dismiss based upon
10 information furnished by respondent, which may show that a
11 petitioner’s claims suffer a procedural or jurisdictional infirmity,
12 such as res judicata, failure to exhaust state remedies, or absence
13 of custody.
14

Id.

In light of the broad language of Rule 4, motions to dismiss

15 are appropriate in cases brought pursuant to 28 U.S.C. ' 2254 that
16 present issues of failure to state a colorable claim under federal
17 law, O=Bremski v. Maas, 915 F.2d 418, 420-21 (9th Cir. 1990);
18 procedural default in state court, White v. Lewis, 874 F.2d 599,
19 602-03 (9th Cir. 1989); and failure to exhaust state court remedies,
20 Hillery v. Pulley, 533 F.Supp. 1189, 1194 n.12 (E.D.Cal. 1982).
21 Here, a motion to dismiss the petition for failure to exhaust

22 administrative remedies is appropriate because the facts appear in
23 the administrative record before the Court, and the motion addresses
24 an issue of procedural exhaustion.

Accordingly, the Court will

25 consider the motion pursuant to its authority under Habeas Rule 4.
26

II.

Exhaustion of Administrative Remedies

27

In the FAP, Petitioner seeks to have the BOP consider

28 designating him to a state institution to facilitate concurrent
3

1 service of a state sentence imposed on Petitioner after he was
2 sentenced on the offenses that resulted in his federal prison
3 commitment.
A.

4
5

Legal Standards

As a “prudential matter,” federal prisoners are generally

6 required to exhaust available administrative remedies before
7 bringing a habeas petition pursuant to 28 U.S.C. § 2241.

Huang v.

8 Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004) (quoting Castro-Cortez
9 v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)); Martinez v. Roberts,
10 804 F.2d 570, 571 (9th Cir. 1986).

The exhaustion requirement

11 applicable to petitions brought pursuant to § 2241 is judicially
12 created and is not a statutory requirement; thus, a failure to
13 exhaust does not deprive a court of jurisdiction over the
14 controversy.

Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990),

15 overruled on other grounds, Reno v. Koray, 515 U.S. 50, 54-55
16 (1995).

If a petitioner has not properly exhausted his or her

17 claims, a district court in its discretion may either excuse the
18 faulty exhaustion and reach the merits, or require the petitioner to
19 exhaust his administrative remedies before proceeding in court.
20 Brown v. Rison, 895 F.2d at 535.
21

Exhaustion may be excused if the administrative remedy is

22 inadequate, ineffective, or if attempting to exhaust would be futile
23 or would cause irreparable injury.

Fraley v. United States Bureau

24 of Prisons, 1 F.3d 924, 925 (9th Cir. 1993); United Farm Workers of
25 America v. Arizona Agr. Emp. Rel. Bd., 669 F.2d 1249, 1253 (9th Cir.
26 1982).

Failure to exhaust administrative remedies may be excused

27 where an official policy of the BOP requires denial of the claim.
28 Ward v. Chavez, 678 F.3d 1042, 1045-46 (9th Cir. 2012).
4

Factors

1 weighing in favor of requiring exhaustion include whether 1) agency
2 expertise makes agency consideration necessary to generate a proper
3 record and reach a proper decision, 2) relaxation of the requirement
4 would encourage the deliberate bypass of the administrative scheme,
5 and 3) administrative review is likely to allow the agency to
6 correct its own mistakes and to preclude the need for judicial
7 review.

Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-81 (9th Cir.

8 2003) (citing Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir.
9 1990)).
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B.

Analysis

Respondent argues that Petitioner’s efforts to exhaust

12 administrative remedies were insufficient.

Petitioner’s appeal from

13 the regional director’s decision, which was received by the BOP’s
14 Central Office on July 19, 2012, was rejected due to Petitioner’s
15 failure to submit with his appeal his original request (BP-9) and
16 the warden’s response (BP-09).

(Pet., doc. 1, exs. D-E.)

17 Petitioner was given fifteen (15) days from the date of the
18 rejection notice in which to resubmit his matter in the proper form.
19 (Id. at ex. E.)

Petitioner received notice of the rejection on

20 October 4, 2012, but Petitioner’s resubmission was not received
21 until over twenty (20) days later on October 26, 2012.

22 E, F; pet. at 3.)

(Id. at exs.

The resubmission also failed to include a copy of

23 Petitioner’s BP-9 request or the BP-09 response from the warden.
24 (Id. at ex. F.)

On January 9, 2013, Petitioner received a response

25 from the Central Office informing him his BP-11 was being rejected
26 for his failure to provide a copy of his BP-9 and BP-09, for being
27 untimely, and for not providing a staff memo on BOP letterhead
28 explaining why the untimeliness was not Petitioner’s fault.
5

(Id.)

1 Petitioner argues he had thirty days in which to file his appeal.
The BP-11 submission to the General Counsel at the Central

2

3 Office must include a copy of the inmate’s BP-9 and BP-10 filings,
4 as well as the BOP’s responses to both.

28 C.F.R. 542.15(b)(1).

5 Although Petitioner claims the required documents were attached to
6 earlier levels of the appeal, the administrative record reflects
7 that the BOP found that Petitioner’s submission omitted some of the
8 required documents.
With respect to the pertinent time limitations, Petitioner

9

10 correctly contends that a thirty-day period is provided for filing
11 an initial appeal to the General Counsel.

28 C.F.R. § 542.15(a).

12 However, Petitioner’s initial filing was rejected with a statement
13 of reasons for the rejection.

Thus, Petitioner’s renewed appeal

14 functioned as a resubmission following a rejection.

The regulation

15 provides, “If the defect on which the rejection is based is
16 correctable, the notice shall inform the inmate of a reasonable time
17 extension within which to correct the defect and resubmit the
18 Request or Appeal.”

28 C.F.R. § 542.17(b).

Here, the BOP notified

19 Petitioner he had fifteen days to resubmit an appeal in the proper
20 form.

Petitioner did not attempt to seek an extension of time or

21 show he was unfairly prevented from timely filing a complete

22 resubmission in compliance with regulations.

Thus, Petitioner

1
23 failed to complete the administrative remedy process.

Respondent contends that because Petitioner’s appeal was

24

25 “rejected,” as distinct from “denied,” the BOP indicated that
26 Petitioner failed to follow the appropriate procedures.
27

1

See, 28

Time periods may be extended when the inmate demonstrates a valid reason for

28 delay that has prevented timely submission, such as extended transit, illness, or
institutional delays.

28 C.F.R. §§ 542.15(a), 542.14(b).

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1 C.F.R. § 542.17(a) (authorizing rejection and return of an appeal
2 that “does not meet any other requirement of this part”).

The

3 regulations provide that an inmate has not exhausted the
4 administrative remedy process until he has filed his complaint
5 at all three possible levels of review and has been denied at all
6 three levels: BP-9, BP-10, and BP-11.
7 through 542.17.

See, 28 C.F.R. §§ 542.10

Respondent contends that Petitioner’s procedural

8 default should bar this Court’s review of Petitioner’s claims.
9

To maintain the effective functioning of an administrative,

10 adjudicative procedure, proper exhaustion generally requires
11 compliance with an agency’s deadlines and other critical procedural
12 rules.

See, Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (concerning

13 exhaustion under the PLRA but analogizing it to exhaustion of state
14 court remedies in habeas corpus cases brought pursuant to § 2254).
15 A default with respect to the administrative remedy procedures
16 constitutes a failure to exhaust and warrants dismissal of a § 2241
17 petition.

Nigro v. Sullivan, 40 F.3d 990, 997-98 (9th Cir. 1994).

18 When a petitioner in a § 2241 proceeding fails to exhaust
19 administrative remedies, a district court should either dismiss the
20 petition without prejudice or stay the proceedings until the
21 petitioner has exhausted remedies, unless exhaustion is excused.

22 Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011).
23

Here, no basis for a stay appears.

Accordingly, Petitioner’s

24 failure to exhaust administrative remedies warrants dismissal of the
25 petition without prejudice.
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III.

Petitioner’s Request for Designation to a State Facility

27

Alternatively, because the BOP relied on its program statements

28 in denying Petitioner’s request for designation to a state facility
7

1 to permit concurrent service of a state court sentence (pet., doc.
2 1, exs. B, C), it may be concluded that requiring further exhaustion
3 of administrative remedies would be futile, and thus exhaustion
4 would be excused.
5

Cf. Ward v. Chavez, 678 F.3d at 1045-46.

Accordingly, the Court will consider Petitioner’s claim that he

6 was entitled to further consideration by the BOP of his request for
7 designation of a state facility for service of his federal and state
8 sentences.
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A.

Jurisdiction

Because the petition was filed after April 24, 1996, the

11 effective date of the Antiterrorism and Effective Death Penalty Act
12 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

13 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
14 1499 (9th Cir. 1997).
15

Petitioner argues that the BOP’s conduct with respect to the

16 execution of his sentence is contrary to federal law, including 18
17 U.S.C. § 3621.

This Court thus has subject matter jurisdiction over

18 the petition pursuant to 28 U.S.C. § 2241, which provides that
19 relief by way of a writ of habeas corpus extends to a person in
20 custody in violation of the Constitution of laws or treaties of the
21 United States.

28 U.S.C. ' 2241(c)(3).

Petitioner correctly brings

22 his challenge pursuant to § 2241 because he is challenging the
23 manner or conditions of his sentence’s execution.

Brown v. United

24 States, 610 F.2d 672, 677 (9th Cir. 1990).
25

Although there is no subject matter jurisdiction in this Court

26 to review individualized, discretionary determinations made by the
27 BOP pursuant to 18 U.S.C. ' 3621, judicial review remains available
28 for allegations that BOP action is contrary to established federal
8

1 law, violates the Constitution, or exceeds statutory authority.
2 Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2010).

This Court

3 retains jurisdiction to determine whether non-individualized BOP
4 action is contrary to its statutory authority.

Close v. Thomas, 653

5 F.3d 970, 973-74 (9th Cir. 2011), cert. den., 132 S.Ct. 1606 (2012).
6

When Petitioner filed the petition, he was an inmate of the

7 United States Penitentiary at Atwater (USPA), California, located
8 within the territorial boundaries of the Eastern District of
9 California.

(Doc. 1, 1.)

Petitioner has named as Respondent the

10 warden of USPA and thus has named a respondent with the power to
11 produce the Petitioner.

See, Rumsfeld v. Padilla, 542 U.S. 426, 435

12 (2004); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S.
13 484, 494–95 (1973); Brittingham v. United States, 982 F.2d 378, 379
14 (9th Cir. 1992).

The Court thus has jurisdiction over the person of

15 the Respondent pursuant to 28 U.S.C. §§ 2241(a) and 84(b).
16
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B.

Factual Summary

In July 1997, Petitioner was arrested by North Carolina

18 authorities on various state charges involving violent crimes
19 against the person.

(Decl. Bryan Erickson, doc. 27-1, ¶ 3, att. 1

20 at 14-15.)
21

On February 12, 1998, while still in North Carolina state

22 custody, Petitioner was “borrowed” pursuant to a federal writ of
23 habeas corpus ad prosequendum from the state of North Carolina.
24 (Id. at ¶ 4, att. 2.)

On January 6, 1999, Petitioner was sentenced

25 to twenty-six (26) years in the United States District Court for the
26 Western District of North Carolina, consisting of consecutive terms
27 on one count of conspiracy to interfere with commerce by threats or
28 violence in violation of 18 U.S.C. § 371 and two counts of
9

1 possession of a firearm in relation to a crime of violence in
2 violation of 18 U.S.C. § 924(c).

(Id. at ¶ 5, att. 3; doc. 30 at p.

3 2.)
4

On February 11, 1999, North Carolina authorities notified the

5 United States Marshals of the Western District of North Carolina
6 that all North Carolina state charges were dismissed.
7 was released to exclusive federal custody.
8

Petitioner

(Decl. at ¶ 6, att. 2.)

On April 28, 2000, Petitioner was temporarily released to the

9 custody of Virginia state authorities pursuant to the Interstate
10 Agreement on Detainers.

On September 22, 2000, Petitioner was

11 sentenced on two cases in state court in Stafford County, Virginia,
12 to a thirty-year term and a three-year term, for a total of thirty13 three (33) years, with twenty-three (23) years suspended, leaving
14 ten (10) total years of the Virginia sentence to be served.

The

15 Virginia sentencing court specified that the terms were to run
16 consecutively to any other sentence.
17

(Id. at ¶¶ 7-8, atts. 4-5.)

On January 18, 2001, the Petitioner was returned to the custody

18 of the BOP, and the Virginia Department of Corrections placed the
19 Virginia judgment as a detainer.
20

(Id. at ¶ 9, atts. 4-5.)

The BOP computed Petitioner’s twenty-six year sentence based on

21 a 312-month term of imprisonment commencing on January 6, 1999, the

22 date the federal sentence was imposed, with prior custody credit
23 from July 31, 1997, the date of defendant’s arrest by North Carolina
24 authorities, through January 5, 1999, the day before imposition of
25 his federal sentence, for a total of 524 days.

(Id. at ¶ 10, att.

26 6.)
27

The Virginia detainer remains in place, and Petitioner has not

28 yet commenced serving his Virginia sentence.
10

(Id. at ¶ 9, att. 6.)

1
2

C.

The BOP’s Position

The BOP considered Petitioner’s administrative appeal and

3 determined that after state charges were dropped, Petitioner was in
4 primary federal custody, and had been properly designated to a
5 federal facility until the end of his term pursuant to 18 U.S.C.
6 § 3621(a), which provides that a person sentenced and committed to
7 BOP custody is committed until the expiration of the term.

(Doc. 1,

8 12.)
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D.

Analysis

Petitioner contends that the BOP’s failure to consider his

11 request for a nunc pro tunc designation is contrary to federal law,
12 including 18 U.S.C. § 3621 and BOP Program Statement 5160.05.
13 Respondent contends that the BOP properly considered Petitioner’s
14 claim and exercised its discretion to deny Petitioner’s request for
15 a nunc pro tunc designation based on the primacy of federal
16 jurisdiction and the absence of a pre-existing state sentence.
17

Title 18 U.S.C. § 3621(b) states that the BOP “shall designate

18 the place of the prisoner's imprisonment,” and “may designate” any
19 correctional facility meeting minimal standards, even if it is not
20 maintained by the federal government, that “the Bureau determines to
21 be appropriate and suitable,” considering 1) the resources of the

22 facility contemplated, 2) the nature and circumstances of the
23 offense, 3) the history and characteristics of the prisoner, 4) any
24 statement by the court that imposed the sentence a) concerning the
25 purposes for which the sentence to imprisonment was determined to be
26 warranted, or b) recommending a type of penal or correctional
27 facility as appropriate, and 5) any pertinent policy statement
28 issued by the Sentencing Commission pursuant to section 994(a)(2) of
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1 title 28.
2

18 U.S.C. § 3621(b).

The BOP may designate a state facility as appropriate for the

3 service of a “concurrent” federal sentence when it complies with the
4 intent of the federal sentencing court or comports with the goals of
5 the judicial system.
6 Cir. 2002).

Taylor v. Sawyer, 284 F.3d 1143, 1149 (9th

However, the BOP has broad discretion to refuse to make

7 a nunc pro tunc designation of a state prison even if it is contrary
8 to a state sentencing court's order.
9 1144, 1151 (9th Cir. 2010).

Reynolds v. Thomas, 603 F.3d

The Ninth Circuit Court of Appeals

10 reaffirmed the validity of BOP Program Statement 5160.05 in Reynolds
11 v. Thomas, 603 F.3d 1144, 1150 (9th Cir. 2010), as follows:
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On its face, § 3621(b) gives the BOP only the
administrative responsibility to identify the facility in
which a federal prisoner will serve out the sentence
imposed by the district court. The BOP has interpreted
this statute, however, as authorizing it to issue a nunc
pro tunc order designating a state prison as the facility
for service of a federal sentence “when it is consistent
with the intent of the federal sentencing court or with
the goals of the criminal justice system.” BOP Program
Statement 5160.05 (January 16, 2003). Program Statement
5160.05 explains, “[w]hen a federal judge orders or
recommends a federal sentence run concurrently with a
state sentence already imposed the Bureau implements such
order or recommendation, ordinarily by designating the
state facility as the place to serve the federal
sentence.” The BOP will also consider “an inmate's request
for pre-sentence credit toward a federal sentence for time
spent in service of a state sentence as a request for a
nunc pro tunc designation.” The Program Statement requires
the BOP to consider the inmate's request, and sets forth
the procedure the BOP must follow in determining whether
to designate a state prison for (in effect) concurrent
service of a federal sentence. Such procedures require the
BOP to ask the federal sentencing court if it has any
objections to such designation.
We approved the BOP's approach under this Program
Statement in Taylor v. Sawyer, 284 F.3d at 1148-49.FN4 In
that case, we considered and rejected the argument that
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the Program Statement's grant of authority to the BOP to
issue a nunc pro tunc designation was inconsistent with
§ 3584 and thus invalid. Id. Instead, joining other
circuits that had considered the issue, we concluded that
“such a designation by the BOP is plainly and unmistakably
within the BOP's discretion.” Id. at 1149; see McCarthy v.
Doe, 146 F.3d 118, 123 (2d Cir.1998) (holding that the BOP
has the discretion to grant or deny a request for nunc pro
tunc relief); Barden v. Keohane, 921 F.2d 476, 478 (3d
Cir.1990) (same); see also Romandine v. United States, 206
F.3d 731, 738 (7th Cir.2000) (expressing agreement with
“McCarthy's bottom line” on this point). Finally, we
rejected the defendant's arguments that such a conclusion
was contrary to the doctrine of dual sovereignty,
principles of comity and federalism, and the Full Faith
and Credit Clause. Taylor, 284 F.3d at 1151-53.
FN4. The BOP replaced Program Statement 5160.04
(April 19, 2000) referenced in Taylor, 284 F.3d
at 1143, with the current Program Statement §
5160.05 in January 2003 in order to comply with
a federal “plain language” initiative. The two
program statements are identical in all material
respects.

15
16
17

Reynolds v. Thomas, 603 F.3d at 1150.
The nunc pro tunc designation procedure emanates in part from a

18 concern with conflicting sovereignties.

Generally, the sovereign

19 that first arrests an individual acquires priority of jurisdiction
20 for purposes of trial, sentencing, and incarceration.

United States

21 v. Warren, 610 F.2d 680, 684–85 (9th Cir. 1980) (citing Ponzi v.

22 Fessenden, 258 U.S. 254, 261-62 (1922)); Thomas v. Brewer, 923 F.2d
23 1361, 1365 (9th Cir. 1991).

The sovereign with priority of

24 jurisdiction may elect under the doctrine of comity to relinquish
25 jurisdiction to another sovereign.

United States v. Warren, 610

26 F.2d at 685.
27

Here, the state acquired primary jurisdiction by being the

28 first to arrest Petitioner in July 1997.
13

The fact that Petitioner

1 was “borrowed” from the state and brought before the federal court
2 in February 1998 via a writ of habeas corpus ad prosequendum
3 confirms that the state retained primary jurisdiction at that time
4 and when Petitioner was sentenced.
5 F.3d at 1152.

See, Reynolds v. Thomas, 603

However, authorities of the state of North Carolina

6 relinquished primary jurisdiction about a month after Petitioner was
7 sentenced in the federal matter.

Thus, when he was sentenced in

8 state court, the federal court had primary jurisdiction, and the
9 federal punishment was already in progress; the state sovereign
10 retained only a detainer upon the completion of the federal
11 sentence.
12

The cases relied on by Petitioner apply where the state court

13 not only has primary jurisdiction over the Petitioner, but also is
14 the first to impose a sentence on the Petitioner.

This case is not

15 analogous to Reynolds, 603 F.3d at 1156, where the BOP’s nunc pro
16 tunc order functions as a “solution to the problem posed when the
17 state has primary jurisdiction but the federal sentence is imposed
18 before the state sentence.”

In such a situation, the nunc pro tunc

19 order has the retroactive effect of making the state and federal
20 sentences run concurrently because it retroactively establishes that
21 the inmate began “serving” his federal sentence while still in

22 primary state custody.

Pursuant to 18 U.S.C. § 3585(a), “[a]

23 [federal] sentence to a term of imprisonment commences on the date
24 the defendant is received in custody awaiting transportation to, or
25 arrives voluntarily to commence service of sentence at, the official
26 detention facility at which the sentence is to be served.”
27 (Emphasis added.)

The nunc pro tunc designation renders the state

28 facility where the petitioner was previously held the “official
14

1 detention facility” for purposes of his federal sentence, which in
2 turn, pursuant to § 3585(a), starts the federal sentence at an
3 earlier date.
The pertinent statutes do not require such a remedy here.

4

5 There was no portion of Petitioner’s state sentence that was served
6 before Petitioner was sentenced on his federal charges and that
7 warranted an award of credit.
8 until a prisoner is sentenced.

A federal sentence cannot commence
Schleining v. Thomas, 642 F.3d 1242,

9 1244 (9th Cir. 2011), cert. den. 132 S.Ct. 2415 (2012).

Multiple

10 terms of state and federal imprisonment run consecutively absent a
11 court order that the sentences run concurrently.
2
12 § 3584(a).

18 U.S.C.

Here, there was no federal court order indicating that

13 Petitioner’s sentences should run concurrently.

Further, although

14 pursuant to § 3584(a), a court may order a term of imprisonment to
15 run concurrently for “a defendant who is already subject to an
16 undischarged term of imprisonment,” there was no such term existing
17 at the time Petitioner was sentenced in the federal case.
The BOP’s actions were, therefore, consistent with the plain

18

19 terms of § 3584.

Further, the BOP’s position does not result in

20 unfairness to the Petitioner.

See Reynolds, 603 F.3d at 1152-53.

21

22
2

23
24
25
26
27
28

Section 3584(a) provides as follows:
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, except that the terms may not
run consecutively for an attempt and for another offense that was the
sole objective of the attempt. 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.

15

In sum, Petitioner has not shown that the BOP’s consideration

1

2 of his request for a nunc pro tunc designation order was contrary to
3 established federal law, violated the Constitution, or exceeded
4 statutory authority.

Therefore, the petition for writ of habeas

5 corpus should be denied.
6

IV.

Disposition

7

Based on the foregoing, it is ORDERED that:

8

1) Respondent’s motion to dismiss or deny the first amended

9 petition for writ of habeas corpus is GRANTED;
2) The first amended petition for writ of habeas corpus is

10

11 DENIED; and
3) The Clerk is DIRECTED to enter judgment for Respondent.3

12
13
14

15 IT IS SO ORDERED.
16

Dated:

March 25, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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3

A certificate of appealability is not required to appeal the denial of a petition
under § 2241. Forde v. United States Parole Commission, 114 F.3d 878, 879 (9th
Cir. 1997). This is based on the plain language of § 2253(c)(1), which does not
require a certificate with respect to an order concerning federal custody because
the detention complained of does not arise out of process issued by a state court.
Id.

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