Case: 08-50435 Document: 00511197840 Page: 1 Date Filed: 08/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 9, 2010
No. 08-50435 Lyle W. Cayce
Clerk
JACKIE LEROY PIERCE
Petitioner - Appellant
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Texas
Before JOLLY and GARZA, Circuit Judges, and STARRETT, District Judge.*
PER CURIAM:
Jackie Leroy Pierce, federal prisoner # 49294-080, appeals the denial of his
petition pursuant to 28 U.S.C. § 2241, seeking a nunc pro tunc designation of a
state facility as the place in which he would serve his federal sentence.
I
Pierce was convicted in federal court of conspiracy to possess with intent
to distribute methamphetamine. While his state criminal proceeding for
possession of amphetamine was still pending, he was sentenced in federal court
on March 17, 2004, to 130 months of imprisonment. Two days later, he was
*
District Judge of the United States District Court for the Southern District of
Mississippi, sitting by designation.
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convicted in state court of possession of amphetamine and sentenced to ten years
of imprisonment. The state court sentence was to run concurrently to his federal
sentence, if so allowed by the federal authorities, but the judgment and
conviction in the federal criminal proceeding is silent as to whether the federal
sentence should be served concurrently or consecutively with any state sentence.
Pierce, now a federal prisoner, filed a petition pursuant to 28 U.S.C. § 2241
in December 2007 when he was a Texas state prisoner. Pierce sought an order
stating that his federal sentence was to be served concurrently with the state
sentence he was then serving. The Bureau of Prisons (BOP) sent a letter to the
sentencing court on February 1, 2008, explaining that Pierce had requested
credit towards his federal sentence for his time spent in state custody and
seeking the district court’s position as to whether a nunc pro tunc designation
might be appropriate in Pierce’s case.
In response to the BOP’s letter, the sentencing court, on March 7, 2008,
sua sponte amended the judgment and sentence in Pierce’s criminal proceeding
to indicate that his federal sentence was to run consecutively to his state
sentence. The district court referred to the amended judgment and denied
Pierce’s § 2241 petition as lacking merit. Pierce filed a motion for a certificate
of appealability (COA) that served as a timely notice of appeal.
II
Only the Attorney General, through the BOP, may compute a prisoner’s
credits. United States v. Wilson, 503 U.S. 329, 334–35 (1992). Where a federal
sentence was imposed before a state sentence, the BOP may indirectly award
credit for time served in state prison by designating nunc pro tunc the state
prison as the place in which the prisoner serves a portion of his federal sentence.
See Barden v. Keohane, 921 F.2d 476, 480 (3d Cir. 1990); Rodriguez v. Pitzer, 76
F. App’x 519, 520 (5th Cir. 2003) (unpublished) (citing Barden).
When Pierce filed this habeas petition, the BOP had not yet made a
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determination of whether to make a nunc pro tunc designation that would give
Pierce credit for his time served in state prison. The BOP retained discretion to
do so because Pierce’s original federal sentence did not preclude that sentence
from running concurrently to a later-imposed state sentence. By modifying the
judgment in the criminal case in response to the BOP’s inquiry, and denying
Pierce’s § 2241petition on the merits, the district court prevented the BOP from
making a determination that was left to the BOP’s discretion.1 See Wilson, 503
U.S. at 333 (holding that the BOP and not the district court calculates credits).
Other circuits have held that before the Attorney General has made a
determination of a prisoner’s credits, there is no case or controversy ripe for
review when the prisoner challenges his credits. See, e.g., United States v.
Westmoreland, 974 F.2d 736, 737 (6th Cir. 1992); Reed v. United States, 262 F.
App’x 114, 116 (10th Cir. 2008) (unpublished); United States v. Jeter, 161 F.3d
4, 1998 WL 482781, *2 (4th Cir. 1998) (unpublished table decision); see also
McCarty v. Dewalt, No. 5:08-CV-433-JMH, 2009 WL 235675, at *3 (E.D. Ky. Jan.
29, 2009) (“McCarty’s [§ 2241] request is not ripe for review by this Court until
the Attorney General, through the BOP, has made a final decision with respect
to his request [for a nunc pro tunc designation].”) (citations omitted). We agree
with those courts, and hold that a habeas petition requesting a nunc pro tunc
designation is not ripe until the BOP makes a final decision on the prisoner’s
1
For this reason, the district court did not have jurisdiction to modify Pierce’s
sentence in order to preclude his request for time credit; nor does it appear that there
was any other jurisdictional basis on which district court could modify the sentence.
See 18 U.S.C § 3582; United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997).
However, we cannot disturb that separate order here, on Pierce’s appeal of the denial
of his § 2241 petition, because such petitions may challenge only the BOP’s
administration of a sentence and not the sentence itself. Pack v. Yusuff, 218 F.3d
448, 452 (5th Cir. 2000). Our dismissal of Pierce’s appeal should not be read to
prevent Pierce from bringing a challenge to his amended sentence under § 2255;
because of the timing of the district court’s sua sponte modification to the sentence, he
has not yet had the opportunity to challenge it.
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nunc pro tunc request. The district court did not have jurisdiction to rule on the
merits of Pierce’s unripe habeas petition.
III
Accordingly, the district court’s denial of Pierce’s petition is VACATED
and REMANDED to the district court with instructions to dismiss the petition
for lack of jurisdiction.
VACATED and REMANDED.
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