United States District Court, E.D. New York
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, Central Islip, NY.
MEMORANDUM AND ORDER
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. 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 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.Appx. 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.
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."
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.
II. STANDARD OF REVIEW
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.
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 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.
Nunc pro tune 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 tune 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." ...