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Evans v. Larkin

United States District Court, E.D. New York

May 7, 2014

WILLIAM EVANS, Petitioner,
ROLAND LARKIN, Superintendent of Eastern Correctional Facility, Respondent.

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.


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 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.


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." 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).


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 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:

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 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-163-0, 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.

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 sentence includes the authority to designate, nunc pro tune, 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, 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 tune designation request "will be considered regardless of whether the inmate is physically located in either a federal or state institution." Program Statement, at 6.

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 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.

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 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]

In Unger v. Walton, the court considered whether an inmate properly exhausted his administrative remedies where he requested a nunc pro tune 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:

[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 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.


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]


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.


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