14‐1688
Evans v. Larkin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States Courthouse, 40
Foley Square, in the City of New York, on the 2nd day of November, two
thousand fifteen.
PRESENT:
CHESTER J. STRAUB,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
WILLIAM ANTHONY EVANS,
Petitioner‐Appellant,
v. 14‐1688
ROLAND LARKIN, Superintendent of
Eastern Correctional Facility, RAYMOND
A. TIERNEY,
Respondents‐Appellees.
_____________________________________
FOR PETITIONER‐APPELLANT: William Anthony Evans, pro se, Napanoch,
NY.
FOR RESPONDENTS‐APPELLEES: Raymond A. Tierney, Assistant United
States Attorney (Susan Corkery, Assistant
United States Attorney, on the brief), for
Kelly T. Currie, Acting United States
Attorney for the Eastern District of New
York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Bianco, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant William Anthony Evans, proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2241 petition. He argues that the Bureau of
Prisons (“BOP”) abused its discretion in denying his request for nunc pro tunc
designation of his state correctional facility for service of his future federal
sentence pursuant to 18 U.S.C. § 3621. We assume the parties’ familiarity with
2
the underlying facts, the procedural history of the case, and the issues on appeal.1
“A writ of habeas corpus under § 2241 is available to a federal prisoner who
does not challenge the legality of his sentence, but challenges instead its execution
subsequent to his conviction.” Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632
(2d Cir. 2001). Section 2241 may be used to challenge the computation of a
sentence by prison officials. Adams v. United States, 372 F.3d 132, 135 (2d Cir.
2004); Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001).
A federal sentencing court has authority under 18 U.S.C. § 3584(a) to
impose a sentence that is consecutive to or concurrent with a yet‐to‐be‐imposed
state sentence. Setser v. United States, 132 S. Ct. 1463 (2012). Here, however, the
district court did not make such a determination: it only ordered that Evans serve
his federal sentence consecutive to any sentence he was already serving, not to his
future sentences for state robbery convictions in Queens and Nassau Counties.
We have held that when a federal sentence is imposed before a state
sentence, and the federal court is silent as to whether those sentences should be
1
We review the district court’s denial of a petition filed pursuant to 28 U.S.C.
§ 2241 de novo. Sash v. Zenk, 428 F.3d 132, 134 (2d Cir. 2005). We liberally
construe Evans’s pro se brief. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474–75 (2d Cir. 2006) (per curiam).
3
concurrent or consecutive, the presumption in § 3584(a) that those sentences must
run consecutively does not apply. McCarthy v. Doe, 146 F.3d 118, 121–23 (2d Cir.
1998).2 In such cases, the BOP may designate a prisoner’s state prison as a place
of federal confinement under 18 U.S.C. § 3621(b). Id.
We review the BOP’s determination whether to designate a state facility for
service of a federal sentence under § 3621(b) for an abuse of discretion. Id. at 123
n.4. “The decision . . . ‘is plainly and unmistakably within the BOP’s discretion
and we cannot lightly second guess a deliberate and informed determination by
the agency charged with administering federal prison policy.’” Abdul‐Malik v.
Hawk‐Sawyer, 403 F.3d 72, 76 (2d Cir. 2005) (quoting Taylor v. Sawyer, 284 F.3d
1143, 1149 (9th Cir. 2002)). The BOP must give “full and fair consideration” to a
prisoner’s request for such designation. Id. It considers the following:
(1) the resources of the facility contemplated; (2) the nature and
circumstances of the offense; (3) the history and characteristics of the
prisoner; (4) any statement by the court that imposed the sentence ‐ ‐
(A) concerning the purposes for which the sentence to imprisonment
2
The BOP in this case did not make the nunc pro tunc designation that would
have had the effect of ordering Evans’s federal sentence to run concurrently with
his later‐imposed state sentences. Moreover, the parties did not raise on appeal
whether Setser abrogated this Court’s holding in McCarthy v. Doe, 146 F.3d 118
(2d Cir. 1998), that the BOP may make nunc pro tunc designations in the
circumstances here. Accordingly, we need not reach this latter issue.
4
was determined to be warranted; or (B) recommending a type of
penal or correctional facility as appropriate; and (5) any pertinent
policy statement issued by the Sentencing Commission pursuant to
section 994(a)(2) of title 28.
18 U.S.C. § 3621(b).
The BOP did not abuse its discretion. Its decision reflects that it
considered the relevant factors, including “the nature and circumstances of the
offense”; “the history and characteristics of the prisoner”; and “any statement by
the court that imposed the sentence.” Id. The BOP thus reasonably relied on
factors such as that (1) Evans’s federal offense was for robbery of a U.S. Postal
Service employee in the first, second, and third degrees; (2) he had prior
convictions for robbery (two counts) and criminal mischief; and (3) his federal
judgment did not direct his sentences to run concurrently or consecutively to the
future state sentences. And, the federal sentencing court declined to take a
position on the issue. Accordingly, the BOP’s denial of a retroactive concurrent
designation was not an abuse of discretion.
5
We have considered all of Evans’s remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
6