NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1899
___________
ANTHONY B. JONES,
Appellant
v.
WARDEN MCKEAN FCI
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 1-13-cv-00233)
Magistrate Judge: Honorable Susan Paradise Baxter
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 24, 2017
Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges
(Opinion filed: November 7, 2017)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Anthony Jones, a federal prisoner proceeding pro se, appeals the District Court’s
denial of his 28 U.S.C. § 2241 petition and his subsequent motion for reconsideration.
Having carefully examined the record, we will affirm the District Court’s judgment.
I.
In his habeas corpus petition brought under § 2241, Jones challenged the
computation of his sentence by the Federal Bureau of Prisons (BOP). Jones contended
that he should have received eight-and-a-half years of credit on his 184-month federal
sentence for time that the BOP only allotted to unrelated state offenses.1 In essence,
Jones claims that the BOP erred in determining the date he was arrested on federal
charges. He contends that court documents reflect that he was arrested first on his federal
bank robbery case, and therefore should be credited with the time he subsequently spent
in state custody.
A brief chronology is necessary.2 Jones was arrested October 9, 2002, by the
police in Easton, Pennsylvania. At the time, there were two pending state warrants and a
pending federal warrant, which was for an August 29, 2002 bank robbery. When police
attempted to arrest Jones, he engaged in an additional criminal conduct that resulted in a
stand-off. During the incident, Jones was shot; he was eventually taken into custody and
transported to the hospital. The events of that day resulted in a state criminal case for
which Jones received a sentence of six-and-a-half to 19 years in prison.
1
We affirmed Jones’s sentence on direct appeal. United States v. Jones, 240 F. App’x
977 (3d Cir. 2007).
2
As we write primarily for the parties, we give only a short description of the facts.
2
After Jones’s October 9 arrest and while his various state cases were playing out,
the federal government first lodged a detainer against Jones and later issued several writs
of habeas corpus ad prosequendum in order to secure his presence in federal court and
adjudicate his federal case.3 After Jones was sentenced in his federal case, he was
returned to state custody, where he remained until March 21, 2011, when he was paroled
to the BOP. During subsequent administrative proceedings, the BOP determined that his
federal sentence commenced March 21, 2011.
In his habeas corpus petition, Jones claimed the BOP erred in determining the start
of his sentence and, alternatively, sought nunc pro tunc designation for the facility where
he served his state sentence. The District Court4 denied the petition, determining that
Jones was first arrested on state charges and that his state sentence started first. Jones
then filed a motion for reconsideration, relying, in part, on a state court order that
amended his arrest date from October 9, 2002, to October 15, 2002, for the case
involving Easton police.5 The District Court denied the reconsideration motion. It
determined that it did not have to decide which sovereign arrested Jones on October 9
because, as a matter of comity, the state and federal government had settled the matter
themselves. Alternatively, the District Court determined that even if Jones could
establish that the federal government initially had primary custody over him, federal
3
In addition to bank robbery, Jones was charged with brandishing a firearm during a
crime of violence.
4
The parties consented to having the case heard and decided by a Magistrate Judge.
5
See Doc. 19 at 4.
3
authorities relinquished priority to the state. Jones appeals. He has also filed a motion
seeking judicial notice of various facts.
II.
Jones correctly brought his sentence-computation challenge under 28 U.S.C.
§ 2241. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001); Barden v. Keohane,
921 F.2d 476, 478–79 (3d Cir. 1990). Appellate “[j]urisdiction is proper in this Court
under 28 U.S.C. §§ 1291 and 2253.”6 Vega v. United States, 493 F.3d 310, 313–14 (3d
Cir. 2007); United States v. Cepero, 224 F.3d 256, 264–65 (3d Cir. 2000) (en banc)
(certificate of appealability not required to appeal from denial of section 2241 petition).
6
Both the District Court and the appellee question whether Jones has standing to raise the
primary-custody question. Doc. 37 at 13-14; Br. for the Appellee 27. The Appellee cites
Bowman v. Wilson, 672 F.2d 1145 (3d Cir. 1982), in which we observed the “exercise of
jurisdiction over a prisoner who has violated the law of more than one sovereignty” and
the “priority of prosecution” to be “solely [] question[s] of comity between the
sovereignties which is not subject to attack by the prisoner.” Id. at 1153–54 (citations
omitted); accord United States v. Warren, 610 F.2d 680, 684 (9th Cir. 1980). As
“[s]tanding represents a jurisdictional requirement which remains open to review at all
stages of the litigation,” Nat’l Org. for Women v. Scheidler, 510 U.S. 249, 255 (1994),
we must therefore determine whether we have the jurisdiction to consider Jones’s
argument as he presents it (in contrast with its nunc pro tunc and sentence-calculation
consequences, over which we undoubtedly have jurisdiction).
While the question is close, we believe that we do have jurisdiction over Jones’s claim.
In Bowman, we confronted an “unusual” case in which two sovereigns attempted to
exercise jurisdictional authority over the petitioner and were in dispute over which had
primary authority. See Bowman, 672 F.2d at 1149. That is altogether different from the
situation at hand; here, there is no dispute between sovereigns nor any question over
primacy of prosecution. Jones does not allege that the sovereigns could not do what they
did, but rather that the way in which they treated his case led to the legal consequence of
early commencement of his federal sentence—in other words, he does not wish to
challenge the explicit exercise of intersovereign comity, but rather intends to raise an
issue about the results flowing therefrom.
4
In reviewing the denial of a § 2241 petition, we “exercise plenary review over the
District Court’s legal conclusions and apply a clearly erroneous standard to its findings of
fact.” See O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam).7 To be
clearly erroneous, a factual determination must “either (1) [be] completely devoid of
minimum evidentiary support displaying some hue of credibility, or (2) bear[] no rational
relationship to the supportive evidentiary data.” Behrend v. Comcast Corp., 655 F.3d
182, 189 (3d Cir. 2011). Our review is further informed by the “presumption of
regularity of the sentence, which the petitioner must overcome.” Espinoza v. Sabol, 558
F.3d 83, 89 n.7 (1st Cir. 2009). Habeas corpus “is not a neutral proceeding in which the
petitioner and the State stand on an equal footing. Rather, it is an asymmetrical
enterprise in which a prisoner seeks to overturn a presumptively valid judgment.”
Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) (citing Pinkney v. Keane,
920 F.2d 1090, 1094 (2d Cir. 1990)). We review the denial of a Rule 59(e) motion for
abuse of discretion. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 673 (3d Cir. 1999). We may affirm a District Court's judgment on any grounds
supported by the record. Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).
III.
Assuming without deciding that Jones’s argument about custody could serve to
7
Jones’s timely appeal of the District Court’s denial of his reconsideration motion brings
up for review the underlying order dismissing his habeas petition. See Long v. Atl. City
Police Dep’t, 670 F.3d 436, 446 n.20 (3d Cir.2012). Although the District Court
administratively closed the case before deciding the motion, the case was stayed and the
motion remained unresolved.
5
force early commencement of his federal sentence, we agree with the District Court that
the Commonwealth of Pennsylvania maintained custody of Jones throughout the relevant
proceedings. Jones insists that his October 9, 2002 arrest was for his federal case, but he
has not met his burden of providing a “preponderance of the evidence.” Skaftouros, 667
F.3d at 158. To the contrary, the record reflects that Jones was in state custody from the
time of his October 2002 arrest to his March 2011 parole.8 In this regard, we note that
the federal government lodged a detainer against Jones on October 11, 2002, and then
issued several writs of habeas corpus ad prosequendum in order to proceed on his federal
case. Shortly after the conclusion of that case, he was returned to state authorities, who,
in turn, returned him to federal custody upon parole. We further note that the state
awarded him credit for the time he was incarcerated between October 15, 2002, and
March 11, 2011. Although none is alone dispositive, these actions reflect what the
parties understood: that the state had primary custody over Jones.9 Similarly, we have
8
We nonetheless note that the BOP awarded Jones six days of precommencement credit
for the period of time from October 9, 2002, until October 14, 2002. We do not,
however, take this decision by the BOP to establish that Jones was in primary federal
custody. Rather, the Commonwealth of Pennsylvania simply did not credit him with this
time. See 18 U.S.C. § 3585(b)(2).
9
In its brief, Appellee argues for the first time that we should affirm the District Court’s
judgment on the basis that Jones was the subject of a lawful warrantless arrest for his
criminal conduct on October 9, rendering moot any technicalities about whether he was
originally apprehended based on a state warrant or a federal warrant. We find Appellee’s
argument persuasive as an alternative basis to affirm. The record clearly supports that
Jones’s conduct on October 9 provided law enforcement officials with an independent
basis to arrest Jones.
In his reply brief, Jones claims he was not arrested until October 15, 2002, for his
conduct on October 9. We do not find his argument convincing. In a separate motion
6
little trouble concluding that to the extent Jones was originally arrested on federal
charges, he was relinquished to state authorities.
In reviewing the BOP’s general calculation of sentence, we also detect no error.
The record suggests that each sovereign extensively credited Jones with time he spent in
pretrial custody. Moreover, 18 U.S.C. § 3585(b) prohibits double counting of sentence
credits. Blood v. Bledsoe, 648 F.3d 203, 209 (3d Cir. 2011) (per curiam).
With regard to the BOP’s nunc pro tunc designation, which we review for abuse of
discretion, see Barden, 921 F.2d at 483, we are in accord with the District Court. The
BOP followed the guidelines we established in Barden. Moreover, the federal sentencing
court’s judgment was silent on whether the federal sentence was to be consecutive or
concurrent, and the default presumption is consecutive sentences, see 18 U.S.C.
§ 3584(a).
IV.
In sum, as we determine that the District Court did not err—and that it did not
abuse its discretion in denying Jones’s post-judgment motion—we will affirm its
judgment.
seeking judicial notice, Jones uses various documents in an attempt to demonstrate that
his arrest on federal charges occurred October 9, 2002. We have reviewed the documents
Jones has submitted, and, as it appears they were part of the record below, have
considered them in rendering our opinion. To that extent, his motion is granted. To the
extent he seeks formal judicial notice of documents not subject to judicial notice, his
request is denied. See Fed. R. Evid. 201(b).
7