Evans v. Larkin

Filing 21

MEMORANDUM AND OPINION. For the reasons set forth herein, Evans's petition for a writ of habeas corpus is denied without prejudice. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/7/2014. (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-4706 (JFB)
_____________________

WILLIAM EVANS,
Petitioner,
VERSUS

ROLAND LARKIN, Superintendent of Eastern Correctional Facility,
Respondent.
___________________
MEMORANDUM AND ORDER
May 7, 2014
___________________

JOSEPH F. BIANCO, District Judge:
Pro se petitioner William Anthony
Evans (“Evans” or “petitioner”) petitions
this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner
currently is incarcerated in Eastern
Correctional Facility (“ECF”), a New York
State prison, for a conviction on state
charges, with an earliest release date of
March 6, 2015. This is Evans’s second
petition pursuant to § 2241. 1 On May 17,
2010, this Court denied the first petition on
ripeness grounds because Evans was not yet
in federal custody and, therefore, the Federal
1

Evans names Roland Larkin, the Warden of ECF, as
respondent. The United States of America (“the
Government”) has interposed an opposition because
Evans’s claim virtually is identical to that in the first
petition, it is unclear whether Larkin was served with
the petition, and Evans names no federal actor in the
suit. The Court concludes that the Government is the
proper respondent because Evans challenges the
duration of his sentence for a federal conviction, and
he has no avenue for relief through New York State.

Bureau of Prisons (“BOP”) had not made
any determination as to what, if any, credit
Evans was entitled to on his federal
sentence. Evans v. United States, No. 08CV-3830 (JFB), 2010 WL 2026433
(E.D.N.Y. May 17, 2010), aff’d, 419 F.
App’x 53 (2d Cir. 2011). In mid-2011,
Evans asked the BOP to grant him credit for
time served in state custody and for time
during which he was erroneously released
from state custody. Although Evans is still
in state custody, the BOP considered and
denied his request, in accordance with
Program Statement 5160.05 (“the Program
Statement”). Thus, the instant petition
relates to a decision regarding the
computation of credit for a federal sentence
that Evans has not yet begun to serve, but on
which the BOP has made an initial
determination. For the reasons set forth
below, the Court again concludes that
petitioner’s claim is not ripe for review
despite the BOP’s review and conclusion.
Petitioner also has not exhausted his
available administrative remedies.

I.

II.

BACKGROUND

STANDARD OF REVIEW

Petitioner brings the instant petition
pursuant to 28 U.S.C. § 2241. The Second
Circuit has explained that

The Court assumes the parties’
familiarity with the factual and procedural
history of this case. Briefly, on December 7,
1988, Evans pleaded guilty to robbery of an
employee of the United States Postal
Service, in violation of 18 U.S.C. § 2114.
After pleading guilty, Evans was returned to
state custody to answer state charges, but
upon his release from state custody on
September 29, 1989, Evans was not given
over to federal authorities for sentencing. On
March 8, 1990, Evans was arrested on state
charges and another federal detainer was
lodged against him. On November 25, 1991,
Judge Leonard Wexler of this District
sentenced petitioner on his postal robbery
conviction to a term of imprisonment of
forty months and a supervised release term
of five years, which was to run
consecutively with petitioner’s then-pending
state sentences. Petitioner was since
sentenced on the unrelated state charges and
is expected to remain in state custody until
March 6, 2015, “at the earliest.”

Section 2241 . . . is the proper means
to challenge the execution of a
sentence. In a § 2241 petition a
prisoner may seek relief from such
things as, for example, the
administration of his parole,
computation of his sentence by
parole officials, disciplinary actions
taken against him, the type of
detention, and prison conditions in
the facility where he is incarcerated.
Adams v. United States, 372 F.3d 132, 135
(2d Cir. 2004); see also Carmona v. U.S.
Bureau of Prisons, 243 F.3d 629, 632 (2d
Cir. 2001); Chambers v. United States, 106
F.3d 472, 474–75 (2d Cir. 1997). Although a
prisoner can challenge the determination of
credit on the federal sentence,
[t]he Attorney General, through the
BOP, possesses the sole authority to
make credit determinations pursuant to
18 U.S.C. § 3585(b); the district courts
do not have authority to order the BOP
to either grant or deny credit or to
disregard the BOP’s calculations.
Although prisoners may seek judicial
review of the BOP’s sentencing
determinations after exhausting their
administrative remedies, the district
court is without jurisdiction to
compute sentencing credit if a prisoner
does not challenge his sentence and
has not sought administrative review.

After the Second Circuit affirmed this
Court’s dismissal of Evans’s first petition,
Evans wrote to the BOP’s Designation and
Sentence Computation Center (“DSCC”) in
Texas, requesting credit towards his federal
sentence. (Letter to BOP, Petitioner’s
Appendix to Petition (“PA”) at 13.) The
BOP reviewed Evans’s request for a nunc
pro tunc or retroactive designation in
accordance with the factors in 18 U.S.C.
§ 3621(b), and it determined a retroactive
concurrent designation was inappropriate.
(BOP Denial, PA at 11–12.) According to
the BOP, it contacted the federal sentencing
court, which took no position on a
retroactive concurrent designation.

United States v. Whaley, 148 F.3d 205, 206–
07 (2d Cir. 1998) (citing United States v.
Wilson, 503 U.S. 329, 333, 335 (1992) and
United States v. Pineyro, 112 F.3d 43, 45
(2d Cir. 1997)); see also Pineyro, 112 F.3d
at 45 (“After a defendant is sentenced, it
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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.”). Therefore, it
appears that Evans’s case is still not ripe for
review for the reasons this Court stated in its
first decision:

falls to BOP, not the district judge, to
determine when a sentence is deemed to
‘commence’; whether a defendant should
receive credit for time spent in custody
before the sentence ‘commenced’; and
whether the defendant should be awarded
credit for ‘good time.’” (citations omitted));
see also DeVivo v. Mance, No. 08–CV–
673(DNH/RFT), 2009 WL 2882937, at *6
(N.D.N.Y. July 20, 2009) (“It is the United
States Attorney General, who in turn
delegated responsibility to the Bureau of
Prisons (BOP), and not the federal courts,
who are charged with the first opportunity to
determine whether [petitioner] is entitled to
the credit he alleges.” (citations omitted)).
Thus, in a § 2241 petition challenging the
computation of credit on a federal sentence,
a district court has the power only to review
a decision by the BOP, not to make credit
determinations in the first instance.

Numerous courts have declined to
review Section 2241 petitions in
similar
situations, i.e., where
a
petitioner raises issues of credit with
respect to future federal custody
prior to any credit determination by
the BOP. See, e.g., Crumedy v.
United States, No. 97–41039, 1999
WL 274481, at *1 (5th Cir. Apr. 16,
1999) (unpublished
opinion)
(affirming denial of habeas petition
as premature where BOP had not
made
crediting
determinations
regarding the future federal sentence
of a current state prisoner); Simms v.
United States, No. 08–13–HRW,
2009 WL 3061994, at *5 (E.D. Ky.
Sept. 21, 2009) (“The Court’s
Section 2241 habeas jurisdiction is
limited to challenges to the BOP’s
implementation or calculation of a
federal
prisoner’s
sentence.
However, the BOP cannot be said to
be implementing or executing a
prisoner’s sentence until that
prisoner is received into federal
custody to ‘commence’ his or her
federal sentence within the meaning
of 18 U.S.C. § 3585(a). Until that
time, the BOP has yet to make any
firm or binding determinations
regarding the circumstances of the
prisoner’s confinement.”); DeVivo,
2009 WL 2882937, at *6 (“Because
it is the BOP who decides what
credit a federal prisoner will receive,
and such computation is made at the
time an inmate arrives at his
designated federal facility, it has

Nunc pro tunc designation is a
retroactive designation, which the BOP may
grant in accordance with the discretion it is
given under § 3621(b). In the event the BOP
denies nunc pro tunc designation, “any
further court review of the Bureau’s action
will be limited to abuse of discretion.”
Barden v. Keohane, 921 F.2d 476, 478 (3d
Cir. 1990). “[S]uch a designation by the
BOP is plainly and unmistakably within the
BOP’s discretion and [the court] cannot
lightly second guess a deliberate and
informed determination by the agency
charged with administering federal prison
policy.” Taylor v. Sawyer, 284 F.3d 1143,
1149 (9th Cir. 2002) (citing McCarthy v.
Doe, 146 F.3d 118, 123 (2d Cir. 1998));
Barden, 921 F.2d at 478).
III.

DISCUSSION

Petitioner is not in federal custody and,
thus, his federal sentence has not yet
commenced. See 18 U.S.C. § 3585(a) (“A
sentence to a term of imprisonment

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sentence includes the authority to designate,
nunc pro tunc, the state prison where the
defendant had been serving a state sentence
as the place where the prisoner was serving
the federal sentence. 921 F.2d at 480–81.
“The practical effect of such a designation is
to grant the federal prisoner credit against
his federal sentence for all of the time spent
in state custody, in effect serving the two
sentences concurrently.” Simms, 2009 WL
3061994, at *5. Program Statement 5160.05
sets forth the factors BOP considers in
determining whether to make such a
designation. 2 See Program Statement,
http://moe.fd.org/Docs/BOP%20policy%20s
tmt%205160_005.pdf. As noted above,
Evans has unsuccessfully sought credit from
the BOP although he is still in state custody.
“[U]nder normal circumstances, the BOP
does not determine whether to give a
prisoner [Barden] credit until the prisoner is
actually taken into federal custody.” Berry,
2007 WL 4570315, at *5 n.4; see 28 C.F.R.
§
542.10(b)
(providing
that
the
administrative framework in 28 C.F.R.
§§ 542.10 et seq. “applies to all inmates in
institutes operated by the Bureau of
Prisons,” but not “to inmates confined in
other non-federal facilities”). Program
Statement 5160.05, however, contemplates
requests by inmates at state institutions.
Specifically, it states that a nunc pro tunc
designation request “will be considered
regardless of whether the inmate is
physically located in either a federal or state
institution.” Program Statement, at 6.

been held that a prisoner must first
pursue and exhaust available
administrative remedies, prior to
seeking collateral relief in district
court.” (collecting cases)); Ben v.
Mukasey, No. 08–CV–163–O, 2008
WL 5396300, at *2 (N.D. Tex. Dec.
18, 2008) (holding that habeas
petition was “premature” where
“[p]etitioner has not received any
notices from the Federal Bureau of
Prisons regarding the time credited
to his federal sentence and he
concedes that he is not currently in
federal
custody”); Berry
v.
Sullivan, Civ. No. 07–5965(JAP),
2007 WL 4570315, at *5–6 (D.N.J.
Dec. 26, 2007) (holding that
petitioner’s claim regarding “his
concerns about his future or, at most,
his conjecture about BOP’s potential
refusal to make [the requested]
designation” was unripe for review).
Thus, because petitioner is not yet in
federal custody and, therefore, the
BOP has not made any determination
as to what, if any, credit petitioner is
entitled to on his federal sentence,
petitioner’s Section
2241 habeas
petition is not ripe for review.
Evans, 2010 WL 2026433, at *4 (emphasis
added).
Petitioner, however, claims the issue is
ripe for review because the BOP has denied
the request for credit. The Court disagrees.

Although an inmate may challenge the
BOP’s denial of an inmate’s request as an
abuse of discretion through a writ of habeas
corpus under § 2241, even where the request
is made before the inmate is in federal

Recognizing the difficulties presented
where the state possesses primary custody
over a criminal defendant but does not
sentence the defendant until after a federal
sentence is imposed, the Third Circuit in
Barden v. Keohane held that the BOP’s
authority under 18 U.S.C. § 3621(b) to
designate the penal institution where a
federal prisoner will serve the federal

2

BOP Program Statements are internal agency
guidelines, and in many cases, the policies set forth
therein are “akin to an interpretive rule.” Reno v.
Koray, 515 U.S. 50, 61 (1995).

4

custody, the petition remains unripe for
review and cannot be entertained by a
federal court until the inmate is delivered
into federal custody and the BOP has made a
firm or binding determination regarding the
circumstances of the prisoner’s confinement.
Simms, 2009 WL 3061994, at *5. As the
court explained in Simms, a federal court’s
“Section 2241 habeas jurisdiction is limited
to challenges to the BOP’s implementation
or calculation of a federal prisoner’s
sentence,” but (1) “the BOP cannot be said
to be implementing or executing a prisoner’s
sentence until that prisoner is received into
federal custody to ‘commence’ his or her
federal sentence within the meaning of 18
U.S.C. § 3585(a)”; and (2) “[t]he warden of
the federal facility where the petitioner is
incarcerated [must] be named as the
respondent because he or she is the legal
custodian of the petitioner, and the only
individual with the legal authority to
effectuate any change ordered by the
reviewing court.” Id. (citing 28 U.S.C. §
2242; Rumsfeld v. Padilla, 542 U.S. 426,
435 (2004)). Indeed, 18 U.S.C. § 3585(b)
contemplates computation of the credit by
the Attorney General after the sentence has
commenced. Wilson, 503 U.S. at 335.
Therefore, this Court holds that Evans’s
§ 2241 petition still is not ripe for review
because he is not in federal custody, even
though the BOP has preliminarily denied
him credit for time served in state custody.

the initial filing and appellate process, an
inmate seeking credit for time served may
submit a request to the regional BOP office,
including the DSCC, and, if dissatisfied with
the response, may appeal within thirty days
to the General Counsel.3

Even if this were not so, the Court would
dismiss the petition for failure to exhaust
available administrative remedies. “A
petitioner seeking credit against a sentence
for time previously served under § 3538(b)
must exhaust the administrative remedies set
out in 28 C.F.R. § 542.10–.16 before filing a
petition under section 2241.” Fajardo v.
United States, No. CV-93-4149, 1994 WL
163198, at *2 (E.D.N.Y. Apr. 21, 1994)
(citations omitted). Pursuant to 28 C.F.R.
§§ 542.14(d) and 542.15(a), which set forth

[F]ulfilling the requirements of
Program Statement 5160 is not the
same as exhausting administrative
remedies. While technically not a
part of the Administrative Remedies
Program, the Court cannot ignore the
fact that administrative remedies

In Unger v. Walton, the court considered
whether an inmate properly exhausted his
administrative remedies where he requested
a nunc pro tunc designation while in state
custody and filed his petition for a writ of
habeas corpus while in federal custody. No.
12-cv-1180-DRH-DGW,
2013
WL
6182803, at *2–3 (S.D. Ill. Nov. 26, 2013).
The court reasoned that the BOP’s
Administrative Remedy Program did not
apply to the petitioner when he sent the
letter, according to 28 C.F.R. § 542.10(b),
and therefore the letter did not amount to a
“Request” under 28 C.F.R. § 542.14. Id. at
*3. The court further held that, even if it
were to accept the letter as a formal request,
the “petitioner failed to exhaust his
administrative remedies when he did not
appeal its denial to the General Counsel’s
Office.” Id. The court also rejected the
alternative argument that, if the letter was
outside the Program, the regulatory appeal
procedure would not apply and the initial
denial of his letter constituted full
exhaustion of his administrative remedies
because he fulfilled the requirements of the
Program Statement. Id. The court explained:

3

There are four levels of administrative review, from
informal requests through to appeals to the General
Counsel, but the first two levels are inapplicable here.
See 28 C.F.R. §§ 542.10–.18

5

were available to the petitioner. The
purpose of exhaustion, including the
appeal process, is to provide officials
the opportunity to reach final
determinations on relevant issues and
to catch any mistakes or correct any
errors without having to resort to
litigation. Petitioner failed to give the
BOP an opportunity to review its
decision, most logically by filing an
appeal to the General Counsel’s
Office.

IV.

CONCLUSION

For the foregoing reasons, Evans’s
petition for a writ of habeas corpus is denied
without prejudice. The Clerk of the Court
shall enter judgment accordingly and close
this case.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Id.
This Court agrees with the analysis in
Unger. Therefore, even if the BOP’s denial
of credit has obviated the statutory federal
custody requirement, Evans’s petition must
be dismissed because he has not exhausted
his administrative remedies by timely
appealing the denial to the General
Counsel’s Office.4

Dated: May 7, 2014
Central Islip, NY
***
Petitioner proceeds pro se. The Government
is represented by Loretta E. Lynch, United
States Attorney for the Eastern District of
New York, by Raymond A. Tierney,
Assistant United States Attorney, 610
Federal Plaza, Central Islip, NY 11722.

4

Petitioner does not argue that the exhaustion
requirement should be excused, and the Court sees no
reason to excuse the failure. “[E]xhaustion of
administrative remedies may not be required when
‘(1) available remedies provide no genuine
opportunity for adequate relief; (2) irreparable injury
may occur without immediate judicial relief; (3)
administrative appeal would be futile; and (4) in
certain instances a plaintiff has raised a substantial
constitutional question.’” Beharry v. Ashcroft, 329
F.3d 51, 62 (2d Cir. 2003) (quoting Able v. United
States, 88 F.3d 1280, 1288 (2d Cir. 1996)). There is
no reason to conclude that the available remedies
would provide no genuine opportunity for adequate
relief, or that irreparable injury may occur, especially
because petitioner has not yet been transferred to
federal custody and any determination by the BOP
would not affect the duration of his state sentence.
Evans’s petition also does not raise any substantial
constitutional question. To the extent petitioner could
argue that any appeal would be futile, the Court notes
that, even if it were likely that the appeal would be
denied, such a showing would not prove futility. See
Collins v. Zickefoose, No. 3:08 Civ. 747, 2008 WL
4980361, at *3 (D. Conn. Nov. 20, 2008) (“No doubt
denial is the likeliest outcome, but that is not
sufficient reason for waiving the requirement of

exhaustion. Lightning may strike; and even if it
doesn’t, in denying relief the [BOP] may give a
statement of its reasons that is helpful to the district
court in considering the merits of the claim.” (quoting
Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989)
(emphasis in original))). Moreover, the BOP’s denial
does not address the time when Evans was out of
custody, and therefore the Court could not review any
BOP determination on those grounds.

6