Evans v. Larkin

Filing 41

ORDER denying 24 Motion to Amend/Correct/Supplement. For the reasons set forth herein, Evans's motion for reconsideration is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/7/2014. cm to pet by Chambers via fcm on 08/07/14. (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
August 7, 2014
___________________

JOSEPH F. BIANCO, District Judge:
Pro se petitioner William Anthony
Evans (“Evans” or “petitioner”), who is
incarcerated in Eastern Correctional Facility,
a New York State facility, with an earliest
release date of March 6, 2015, petitions this
Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. 1 In mid-2011, Evans
requested a nunc pro tunc designation of the
state prison for service of his federal
1

This is Evans’s second petition pursuant to § 2241.
On May 17, 2010, this Court denied the first petition
on ripeness grounds, because Evans was not yet in
federal custody and the Federal 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. 08-CV-3830
(JFB), 2010 WL 2026433 (E.D.N.Y. May 17, 2010),
aff’d, 419 F. App’x 53 (2d Cir. 2011). The Second
Circuit affirmed, explaining that because the BOP
possesses the sole authority to make credit
determinations pursuant to 18 U.S.C. §3585(b), this
Court “may not render Evans’ credit determination in
the first instance; rather, it may only review a
decision by the BOP.” 419 F. App’x at 53.

sentence from the BOP, pursuant to 18
U.S.C. § 3621. Although Evans is in state
custody, the BOP considered and denied the
request, in accordance with Program
Statement
5160.05
(“the
Program
Statement”). Thus, the 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.
The Court denied the petition by
Memorandum and Order dated May 7, 2014,
Evans v. Larkin, No. 11-CV-4706, 2014 WL
1814122 (E.D.N.Y. May 7, 2014), reasoning
that petitioner’s claim remains unripe
despite the BOP’s initial determination.
Petitioner now moves for reconsideration
pursuant to Federal Rule of Civil Procedure
59(e). For the reasons set forth in detail
below, the Court denies the motion.

I.
A.

BACKGROUND

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 designation. According to a letter
attached to the instant motion—which was
not in the record when the Court issued its
May 7 Memorandum—BOP informed
petitioner that “[t]here is no administrative
appeal in this matter.” (December 1, 2011
Letter, Reconsideration Motion Ex. A.)
However, the government has clarified to
petitioner (and to the Court) that the reason
there is no appeal at this juncture is because
petitioner is not in federal custody, and that
he will be given an opportunity to fully
exhaust this issue through the administrative
appeal process once he is in federal custody.
(See, e.g., Opp’n to Motion for
Reconsideration, at 11 n.1. (“According to
Patrick Liotti, . . . BOP provides that upon
commencement of petitioner’s federal
sentence, Evans will be able to seek
administrative review of the BOP’s initial
decision to deny his request to have his
federal sentence be credited for time
previously served on his state sentence.”).)

Factual Background

On December 7, 1988, Evans pleaded
guilty in the Eastern District of New York 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 he erroneously was released
from state custody on September 29, 1989,
without again being turned over to federal
authorities for sentencing. On March 8,
1990, Evans was arrested on new state
charges, and a federal detainer was lodged
against him. On November 25, 1991, Judge
Leonard Wexler of this District sentenced
Evans 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 (if any) state sentences.
Petitioner was later sentenced on the new
state charges, and he will remain in state
custody until March 6, 2015, at the earliest.
After the Second Circuit affirmed this
Court’s dismissal of the first petition, Evans
wrote to the BOP’s Designation and
Sentence Computation Center (“DSCC”) in
Texas, requesting credit towards his federal
sentence. (June 20, 2011 Letter to BOP,
Petitioner’s Appendix to Petition (“PA”) at
13–14.) Specifically, after detailing the
“factual background” of his convictions and
incarceration, Evans requested a nunc pro
tunc designation of the state prison for
service of his federal sentence. The letter did
not specifically request credit for time
served with respect to the period between
Evans’s erroneous release from state
custody on September 29, 1989, and the date
of his federal sentencing on November 25,
1991, although Evans now seeks credit for
time served from September 29, 1989, until
the present. The BOP reviewed the request

B.

Procedural Background

Evans submitted the petition for a writ of
habeas corpus on September 26, 2011. The
Court denied the petition on May 7, 2014.
Petitioner moved for reconsideration on
May 21, 2014. The government timely filed
its opposition on July 18, 2014, and
petitioner replied on July 30, 2014.2
2

By letter dated July 23, 2014 (which was docketed
on July 30, 2014), petitioner complained that the
government had not served its opposition by July 18,
2014. (Docket No. 37.) On July 30, 2014, the Court
issued an order extending petitioner’s reply deadline
from August 1 to August 18. On August 1, 2014, the
Clerk docketed petitioner’s reply, which is dated July
28, 2014. According to the reply, petitioner received

2

II.
A.

STANDARDS OF REVIEW

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);
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
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.

28 U.S.C. § 2241 Petition

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

Nunc pro tunc designation is a
retroactive designation that the BOP may
grant in accordance with the discretion it is
given under § 3621(b). In the event the BOP
denies a 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)).

the opposition on July 25, 2014. Therefore, the matter
is fully submitted.

3

B.

Motion for Reconsideration

sentence has not yet commenced, rendering
his claim unripe for review; (2) the petition
is unripe for review notwithstanding the
BOP’s initial determination, because it will
not make a firm and binding determination
regarding the circumstances of the
prisoner’s confinement until he is delivered
into federal custody; and (3) petitioner has
failed to exhaust his administrative remedies
pursuant to 28 C.F.R. §§ 542.10 et seq.
Evans argues that the Court erred in
concluding that the petition was unripe,
because: (1) under Second Circuit
jurisprudence, a prisoner does not have to be
in federal custody in order to avail himself
or herself of 18 U.S.C. § 3621(b) relief
through a nunc pro tunc designation, see
Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72
(2d Cir. 2005); and (2) the BOP informed
him that no administrative appeal was
available. Petitioner, therefore, requests that
the Court reach the merits of the petition and
grant him full relief. As set forth below, the
Court concludes that reconsideration is
unwarranted.

Motions for reconsideration may be filed
pursuant to Federal Rules of Civil Procedure
59(e) or 60(b). The standard for granting a
motion for reconsideration pursuant to Rule
59(e) is “strict, and reconsideration will
generally be denied.” Herschaft v. N.Y.C.
Campaign Fin. Bd., 139 F. Supp. 2d 282,
283 (E.D.N.Y. 2001) (internal quotation
omitted). A motion for reconsideration is
appropriate when the moving party can
demonstrate that the court overlooked
“controlling decisions or factual matters that
were put before it on the underlying motion .
. . and which, had they been considered,
might have reasonably altered the result
before the court.” Id. at 284 (quotation
omitted). Alternatively, the movant must
demonstrate “the need to correct a clear
error or prevent manifest injustice.” Id.
Local Civil Rule 6.3 provides that a
party moving for reconsideration must “set[]
forth concisely the matters or controlling
decisions which [the party] believes the
court has overlooked.” “The standard for
granting [a motion for reconsideration] is
strict, and reconsideration will generally be
denied unless the moving party can point to
controlling decisions or data that the court
overlooked—matters, in other words, that
might reasonably be expected to alter the
conclusion reached by the court.” Shrader v.
CSX Transp., 70 F.3d 255, 257 (2d Cir.
1995); see also Medoy v. Warnaco Emps.
Long Term Disability Ins. Plan, 97 CV 6612
(SJ), 2006 WL 355137, at *1 (E.D.N.Y. Feb.
15, 2006) (“The standard . . . is strict in
order to dissuade repetitive arguments on
issues that have already been considered
fully by the Court.”).
III.

A.

Exhaustion of the Out-of-Custody
Time Served Claim

As a threshold matter, petitioner does
not challenge the Court’s conclusion that
“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.”
Evans, 2014 WL 1814122, at *5 n.4. As the
Court explained supra, in a 28 U.S.C.
§ 2241 petition challenging the computation
of credit on a federal sentence, a district
court only has the power to review a
decision by the BOP, not to make credit
determinations in the first instance. See, e.g.,
Whaley, 148 F.3d at 206–07. Here, although
the petition seeks credit for time served
since petitioner’s erroneous release from
state custody, Evans never requested such
credit from the BOP. (See June 20, 2011

DISCUSSION

In its Memorandum and Order, the Court
denied the petition because: (1) Evans is not
in federal custody and, thus, his federal

4

Letter to BOP (requesting nunc pro tunc
designation but not additional credit based
on erroneous release).) Thus, regardless of
whether the BOP actually would grant such
credit, this claim remains unripe for review
until the BOP has considered it.3 Therefore,
the Court could not grant the entirety of the
requested relief at this juncture.
B.

result that, if the BOP made such a
designation, the prisoner effectively would
serve his sentences concurrently. Id. at 75.
The BOP must give “full and fair
consideration” to the request for a nunc pro
tunc designation, subject to review for
“abuse of discretion.” Id. at 76; see Jennings
v. Schult, 377 F. App’x 97, 98 (2d Cir. 2010)
(detailing standard); Barden, 921 F.2d at
478 (“The answer [to whether the state
prison should be designated as a place of
federal confinement nunc pro tunc] will
depend on the Bureau’s practice in making
such designations, as well as its assessment
of Barden’s conduct in custody, the nature
of his crime and all the other factors that
govern penal authorities’ consideration of a
prisoner’s request for relief from the strict
enforcement of his sentence.”). “A petitioner
who seeks review of the Bureau of Prisons’
denial of his nunc pro tunc designation
request must first, however, exhaust his
administrative remedies.” Henriquez v.
United States, No. 12 Civ. 5590(AKH),
2012 WL 6739422, at *3 (S.D.N.Y. Dec. 27,
2012) (citing Setser v. United States, 132 S.
Ct. 1463, 1473 (2012); Abdul-Malik, 403
F.3d at 73). As this Court explained in the
May 7 Memorandum, pursuant to 28 C.F.R.
§§ 542.14(d) and 542.15(a), which set forth
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.4

Ripeness of the Nunc Pro Tunc
Designation Claim

As set forth below, the Court concludes
that a prisoner must fully exhaust his or her
administrative
remedies
(including
administrative appeals once in federal
custody) in order for a petition challenging
the denial of a nunc pro tunc designation to
be ripe. Abdul-Malik v. Hawk-Sawyer, 403
F.3d 72 (2d Cir. 2005), and McCarthy v.
Doe, 146 F.3d 118 (2d Cir. 1998), do not
compel a different conclusion.
Under 18 U.S.C. § 3584(a), 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. . . . Multiple
terms of imprisonment imposed at different
times run consecutively unless the court
orders that the terms are to run
concurrently.” The Second and Third
Circuits hold the latter provision
“inapplicable to instances in which the
federal sentence is imposed first.” AbdulMalik, 403 F.3d at 73 (citing McCarthy, 246
F.3d at 121–22; Barden v. Keohane, 921
F.2d 476, 478 (3d Cir. 1990)). In these
circuits, the BOP has the authority under 18
U.S.C. § 3621 to designate the state prison
as a place of federal confinement, with the

Here, the BOP informed petitioner that
there was no administrative appeal from the
initial determination. (See December 1, 2011
Letter.) Respondent and the BOP, however,
consistently have represented to this Court

3

The Court notes that petitioner’s arguments on the
merits in his petition and memoranda of law focus on
the time period between his erroneous release and the
date of his federal sentencing, not on whether the
BOP abused its discretion in denying him nunc pro
tunc designation.

4

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

that the administrative appeals process will
be available to petitioner upon his arrival in
federal custody. (See, e.g., Opp’n to Motion
for Reconsideration, at 11 n.1. (“According
to Patrick Liotti, . . . BOP provides that upon
commencement of petitioner’s federal
sentence, Evans will be able to seek
administrative review of the BOP’s initial
decision to deny his request to have his
federal sentence be credited for time
previously served on his state sentence.”).).

No. 12-cv-1180-DRH-DGW, 2013 WL
6182803 (S.D. Ill Nov. 26, 2013), is
expressly to the contrary. There, 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. Id. at *2–3. That 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.
§ 42.10(b), and therefore the letter did not
amount to a “Request” under 28 C.F.R.
§ 542.14. Id. at *3. It 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:

The fact that the administrative remedies
currently are unavailable to petitioner
supports the Court’s conclusion that his
claim is not ripe for review. Although some
courts, including the Second Circuit, have
implied that prisoners in state custody can
challenge the denial of a nunc pro tunc
designation, this Court is unaware of any
binding or persuasive authority that has
concluded that a § 2241 petition is ripe the
moment the BOP makes its initial
determination. 5 In fact, Unger v. Walton,
5

Abdul-Malik and McCarthy do not address
exhaustion of administrative remedies. Thus, it is
unclear whether the government raised the
exhaustion issue in these cases (or, if the government
did raise it, whether the petitioners in these cases had
satisfied all the exhaustion requirements, including
administrative appeals, while in state custody).
Similarly, in Henriquez, where the Court held that
“[a] prisoner can challenge the refusal to grant such a
designation by a habeas corpus petition before he
enters federal custody,” 2012 WL 6739422, at *3, the
court had no occasion to consider the availability of
the administrative remedies in the first instance.
Further, the Second Circuit recognized the need for
exhaustion in this case when, in affirming this
Court’s prior dismissal of the first petition as unripe,
it stated that this Court “may not render Evans’ credit
determination in the first instance; rather, it may only
review a decision by the BOP.” 419 F. App’x at 53.
This Court does not read the Second Circuit’s
decision to mean that petitioner’s claim is ripe if he
exhausts only the first level of review by the BOP,
but rather he must exhaust all levels of review
(including the administrative appeals process). The
fact that the administrative appeals process is
unavailable until petitioner enters federal custody

[F]ulfilling the requirements of
Program Statement 5160 is not the
same as exhausting administrative
does not eliminate the exhaustion requirement and
transform his claim into a ripe claim. The BOP has
the right to wait until an inmate arrives in federal
custody until it makes available, and completes, the
administrative appeals process. This Court is aware
of no decision by any federal court holding that a
petitioner’s claim for state custody credit is ripe
while she is still in state custody if the BOP refuses to
make its full exhaustion process available until she
reaches federal custody. To the contrary, courts
(including the Second Circuit here) repeatedly have
held that the BOP makes its final determination when
the prisoner arrives in federal custody, and the claim
is unripe until the BOP does so. Holding otherwise
would create divergent paths for exhausting a nunc
pro tunc designation request, depending on whether
the prisoner is in state or federal custody.

6

federal custody); United States v.
Westmoreland, 974 F.2d 736, 737 (6th Cir.
1992) (“There can be no such case or
controversy until the Attorney General
makes a determination [regarding sentence
credit] and [defendant] seeks judicial review
of the determination. . . . Although an
agency may waive the opportunity to change
its mind, it may not waive (and thereby
delegate to the district court) the
responsibility to make up its mind in the first
place. Until the Attorney General makes a
sentence credit determination under section
3585(b), the case is not ripe for review by
the District Court.”).6

remedies. While technically not a
part of the Administrative Remedies
Program, the Court cannot ignore the
fact that administrative remedies
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.

Accordingly,
the
motion
for
reconsideration is denied on this ground.

Id. This Court similarly concludes that the
administrative appeals process is part of the
exhaustion requirement and, if such process
is unavailable until a petitioner enters
federal custody, the petitioner still must
complete that process before seeking review
by this Court of the BOP decision.

C.

Merits of the Nunc Pro Tunc
Designation Claim

Assuming arguendo that the claim is
ripe and Evans has exhausted administrative
remedies, the Court concludes, in the
alternative, that the BOP did not abuse its
discretion in denying the request for a nunc
pro tunc designation.

In sum, the Court concludes that it did
not err in holding petitioner’s claims unripe
for review. Petitioner has not exhausted his
administrative remedies for his request for a
nunc pro tunc designation, and the record
before the Court indicates that no such
exhaustion can even occur and render the
claim ripe until petitioner is in federal
custody—when he is “received in custody
awaiting transportation to . . . the official
detention facility at which the sentence is to
be served.” 18 U.S.C. § 3585(a); see Dutton
v. U.S. Att’y Gen., 713 F. Supp. 2d 194, 205
(W.D.N.Y. 2010) (“Here, Dutton’s claim is
not ripe because the Bureau of Prisons has
not yet made a final determination as to state
custody credit and calculated his official
term.”); cf. United States v. Miller, 594 F.3d
1240, 1242 (10th Cir. 2010) (affirming
dismissal of § 2241 petition with prejudice
because, inter alia, BOP cannot designate a
place of confinement until the prisoner is in

As an initial matter, in his petition,
petitioner argues that he is entitled to a nunc
pro tunc designation because he was
erroneously released from custody before
his federal sentencing. (See Petition, at 8.)
As the Court noted supra, that issue has not
been presented to the BOP, and the Court
declines to address it in the first instance.
Turning to the nunc pro tunc
designation, in designating the place of
imprisonment, the BOP must consider (1)
the resources of the facility contemplated;
(2) the nature and circumstances of the
offense; (3) the history and characteristics of
6

The Court does not believe there is any reason to
excuse the exhaustion requirement under these
circumstances.

7

designation after BOP and petitioner
informed sentencing judge of circumstances
of case and he declined to recommend
concurrent designation).

the prisoner; and (4) any statement by the
sentencing court (a) concerning the purposes
for which the sentence was warranted or (b)
recommending a type of penal or
correctional facility. 18 U.S.C. § 3621(b).
Here, the BOP determined that the second,
third, and fourth factors were relevant, and,
in his petition and supporting memoranda,
Evans does not challenge the BOP’s
analysis. Having conducted its own review,
the Court concludes that the BOP did not
abuse its discretion in denying petitioner’s
request. For instance, the BOP contacted
Judge Wexler, who declined to recommend
that petitioner be permitted to serve his
federal sentence concurrently with his state
sentences. The BOP also considered that the
federal offense was robbery of a United
States Postal Service Employee; that the
state offenses were robbery in the first and
third degrees and attempted robbery in the
third degree; and that petitioner’s prior
history consisted of convictions for two
counts of robbery, and criminal mischief.
The BOP thus followed the procedures set
forth in 18 U.S.C. § 3621(b) and the
Program Statement in determining that a
retroactive concurrent designation was not
warranted in this case. This Court cannot
conclude that the BOP abused its discretion
in making this determination. See, e.g., Trice
v. Grondolsky, Civil No. 08-2968 (NLH),
2009 WL 3615038, at *3 (D.N.J. Oct. 28,
2009) (finding that BOP made deliberate
and informed determination in denying
request for nunc pro tunc designation where
it stated that denial was based on nature and
circumstances of petitioner’s offenses,
petitioner’s extensive criminal history and
numerous parole and probation violations,
and sentencing court declined to comment
when contacted); Peterson v. Marberry,
Civil Action No. 07-56 Erie, 2009 WL
55913, at *9 (W.D. Pa. Jan. 5, 2009)
(concluding that BOP did not abuse
discretion in denying retroactive concurrent

Accordingly, in the alternative, the Court
denies the petition for writ of habeas corpus
on this ground.
IV.

CONCLUSION

For the foregoing reasons, Evans’s
motion for reconsideration is denied.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 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.

8