DLD-080 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-4023
___________
CARLOS ALAMO,
Appellant
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA;
DONNA ZICKEFOOSE
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-11-cv-01103)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 30, 2011
Before: AMBRO, JORDAN and VANASKIE, Circuit Judges
(Opinion filed: January 4, 2012)
_________________
OPINION
_________________
PER CURIAM
In May of 2006, federal inmate Carlos Alamo filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Alamo claimed to have been improperly refused
sentence credit and incorrectly denied a nunc pro tunc designation by the Bureau of
Prisons (BOP) in relation to overlapping state and federal convictions. See Petition,
D.N.J. Civ. No. 1:06-cv-02555 ECF No. 1. The District Court denied the petition,
holding 1) that the BOP “properly refused under [18 U.S.C.] § 3585 to credit Petitioner
with time during which Petitioner was in the primary custody of state authorities,” and 2)
that the BOP did not abuse its discretion in rejecting Alamo’s request for nunc pro tunc
designation. Alamo v. Samuel, No. 06-2555, 2007 U.S. Dist. LEXIS 27563, at *6, 11–12
(D.N.J. Apr. 12, 2007). Alamo did not appeal this outcome.
On November 18, 2010, Alamo filed a document styled as a 28 U.S.C. § 2255
motion in the United States District Court for the Southern District of New York.1 The
motion was converted by the New York Court into a § 2241 petition, and was transferred
to the District of New Jersey. In this new filing, Alamo again assailed the sentence-credit
and nunc pro tunc decisions, asserting that the BOP “failed to give credence to the state
court’s directive and intent that [his] State sentence(s)” should have been concurrent to
his federal sentence. He explicitly attacked the reasoning of one Fernando Messer, the
Regional Inmate Systems Administrator who had denied the nunc pro tunc request in
2005. Much of the language in the new petition mirrored language in the 2006 petition.
In another thorough opinion, the District Court denied relief. It summarized its
earlier dispositions of Alamo’s filings, which had included (in addition to the habeas
1
This was the District Court that imposed his original federal criminal sentence. See
Judgment, United States v. Alamo, S.D.N.Y. Crim. No. 1:99-cr-00478, ECF No. 84
(order entered Nov. 15, 2000).
2
petition discussed above) a mandamus petition and a motion for reconsideration,
concluding: “As the claims and arguments addressed by Alamo in this action are
substantially identical to the claims presented in [the] earlier petition . . . this Court
will . . . deny this petition on the same grounds” relied upon previously. Alamo v.
Holder, No. 11-1103, 2011 U.S. Dist. LEXIS 101991, at *9–10 (D.N.J. Sept. 9, 2011).
This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing the denial of a
28 U.S.C. § 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). We may affirm on any basis
finding support in the record. See Tunnell v. Wiley, 514 F.2d 971, 975 n.4 (3d Cir.
1975).
As 28 U.S.C. § 2244(a) makes clear, “[n]o circuit or district judge shall be
required to entertain an application for a writ of habeas corpus . . . if it appears that the
legality of such detention has been determined by a judge or court of the United States on
a prior application for a writ of habeas corpus.” We have held that § 2244(a) applies to
§ 2241 petitions. Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008) (per curiam).
Alamo’s 2006 petition, which was denied on the merits, raised the precise claims he now
makes anew. The District Court was therefore not required to consider this petition. See
Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997); see also Simon v. United
States, 359 F.3d 139, 143 n.7 (2d Cir. 2004).
3
Even if the District Court were required to engage in a full review of this new
petition, Alamo has failed to show that the Court erred in its disposition. The records of
this case and its 2006 predecessor, of which we take judicial notice, see United States ex
rel. Geisler v. Walters, 510 F.2d 887, 890 n.4 (3d Cir. 1975), reveal neither statutory error
nor abuse of discretion by the BOP, which in turn suggests a lack of error on the part of
the District Court.2
As this appeal presents no substantial question, we will summarily affirm the
District Court’s judgment. Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir. 2011) (per
curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
2
In particular, it appears that the BOP properly weighed the requisite nunc pro tunc
factors of 18 U.S.C. § 3621(b). See Barden v. Keohane, 921 F.2d 476, 483 (3d Cir.
1990). Moreover, the BOP did not err in calculating the commencement of sentence or
sentence credits pursuant to 18 U.S.C. § 3585, given the presumption of consecutive
terms of imprisonment contained in 18 U.S.C. § 3584(a).
4