ALD-082 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3856
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JIMMY HARRIS,
Appellant
v.
DONNA ZICKEFOOSE
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:11-cv-07472)
District Judge: Honorable Noel L. Hillman
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 10, 2013
Before: SLOVITER, VANASKIE and WEIS, Circuit Judges
(Opinion filed: January 22, 2013)
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OPINION
_________
PER CURIAM.
Jimmy Harris, a federal inmate currently incarcerated at FCI Fort Dix in Fort Dix,
New Jersey and proceeding pro se, appeals from an order of the United States District
Court for the District of New Jersey denying his habeas corpus petition pursuant to 28
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U.S.C. § 2241. There being no substantial question presented on appeal, we will grant
the Government’s motion for summary action and affirm the decision of the District
Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
I.
Because we write primarily for the parties, we need only recite the facts necessary
for our discussion. Harris was arrested by New Jersey state authorities on May 29, 2009.
On June 3, 2009, the United States Marshal Service for the District of New Jersey took
temporary custody of Harris through a writ of habeas corpus ad prosenquendum. On
September 28, 2009, the District Court accepted Harris’ guilty plea to a one-count
information charging him with conspiracy to commit fraud in connection with access
devices. On January 25, 2010, the Honorable Dennis Cavanaugh sentenced Harris to 58
months’ imprisonment, and Harris was returned to New Jersey state custody. On March
26, 2010, the Superior Court of New Jersey sentenced Harris to three years of
incarceration for possession of a controlled dangerous substance. On August 23, 2010,
New Jersey paroled Harris into federal custody.
After exhausting his administrative remedies, Harris filed his § 2241 petition on
December 19, 2011. In his petition, Harris asserts that the Bureau of Prisons (“BOP”)
erroneously failed to provide him with fifteen months of credit towards his federal
sentence for time spent in state custody from May 29, 2009 through August 23, 2010 and
abused its discretion by denying his request for a nunc pro tunc designation to his state
facility as the place of his federal incarceration during this time period. On September
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18, 2012, the District Court dismissed Harris’ petition. Harris timely filed this appeal,1
and the Government has filed a motion for summary affirmance.
II.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a),2 and “exercise
plenary review over the District Court’s legal conclusions and apply a clearly erroneous
standard to its findings of fact.” O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005)
(per curiam); see also United States v. Friedland, 83 F.3d 1532, 1542 (3d Cir. 1996). We
review the BOP’s denial of a nunc pro tunc designation for abuse of discretion, see
Barden v. Keohane, 921 F.2d 476, 483 (3d Cir. 1990), and may summarily affirm on any
basis supported by the record, Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per
curiam).
III.
We agree with the District Court regarding the BOP’s calculation of Harris’
sentence. As the record reflects, Harris’ time in state custody from May 29, 2009 through
August 23, 2010 was credited towards his state sentence, and therefore could not be
credited towards his federal sentence. See 18 U.S.C. § 3585(b) (“A defendant shall be
1
Harris filed a motion for reconsideration on September 25, 2012, four days after he
filed his notice of appeal, which the District Court denied on December 19, 2012.
Accordingly, Harris’ notice of appeal became effective as to the District Court’s
September 18, 2012 order as of that date. See Fed. R. App. P. 4(a)(4)(B)(i). However,
we lack jurisdiction over the District Court’s subsequent denial of Harris’ motion for
reconsideration, which Harris has not separately appealed. See Fed. R. App. P.
4(a)(4)(B)(ii).
2
A certificate of appealability is not required to appeal the denial of a § 2241 petition.
Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
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given credit toward the service of a term of imprisonment for any time he has spent in
official detention prior to the date the sentence commences . . . that has not been credited
against another sentence.”) (emphasis added).
Furthermore, a prisoner detained pursuant to a writ of habeas corpus ad
prosenquendum remains in the primary jurisdiction of the first jurisdiction—in Harris’
case, the state of New Jersey—“unless and until the first sovereign relinquishes
jurisdiction over the prisoner.” Rios v. Wiley, 201 F.3d 257, 274 (3d Cir. 2000); see also
Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002), superseded on other grounds by
U.S.S.G. § 5G1.3(c) cmt. n.3(E) (2003) (an ad prosenquendum writ does not serve to
transfer custody to federal authorities); BOP Program Statement 5880.28 § 3b (1999)
(emphasizing that ad prosenquendum writs do not effect a transfer to federal custody).
Here, New Jersey did not relinquish jurisdiction prior to Harris’ parole on his state
sentence. Accordingly, the BOP properly did not give Harris prior custody credit for the
fifteen-month period starting on May 29, 2009 and ending on August 23, 2010.
We also agree with the District Court that the BOP did not abuse its discretion in
denying Harris’ request for a nunc pro tunc designation. Under 18 U.S.C. § 3621, the
BOP has the authority to nunc pro tunc designate the place of confinement for a
prisoner’s federal sentence. Accordingly, the BOP can designate the state prison as the
official facility for service of Harris’ federal sentence, allowing his state and federal
sentences to run concurrently. Barden, 921 F.2d at 478-79. We have previously held that
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prisoners are entitled to have their requests for nunc pro tunc designation examined by
the BOP utilizing the factors listed in § 3621(b).
Here, the record reflects that the BOP did review Harris’s request under the five
factors stated in § 3621(b), and denied his request based upon the nature and
circumstances of the offense, Harris’ history and characteristics, and the silence of the
District Court on whether his sentence was to be concurrent. In conducting its analysis,
the BOP sent a letter to Judge Cavanaugh inquiring about his position on the issue of
concurrency; however, Judge Cavanaugh did not respond to the BOP’s inquiry.
Accordingly, the BOP’s interpretation of Judge Cavanaugh’s silence as a factor
counseling against concurrency was not unreasonable. Cf. 18 U.S.C. § 3584(a)
(“Multiple terms of imprisonment imposed at different times run concurrently unless the
court orders that the terms are to run concurrently.”). Furthermore, Harris’ argument that
the BOP should have granted the nunc pro tunc designation to fulfill the wishes of the
state court judge that his state sentence be concurrent to his federal sentence is meritless,
as “neither the federal courts nor the [BOP] are bound in any way by the state court’s
direction that the state and federal sentences run concurrently.” Barden, 921 F.2d at 478
n.4 (citing U.S. Const. art. VI, cl. 2). Accordingly, it appears that the BOP did not abuse
its discretion under § 3621(b) by denying Harris’ nunc pro tunc request.3
3
Indeed, in his § 2241 petition, Harris recognized that courts in this circuit are bound by
our precedent set forth in Barden. However, Harris asserted that current law is silent on
whether the BOP has broad discretion to deny a nunc pro tunc request when the state
court subsequently states that a state sentence is to be served concurrently with a federal
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IV.
There being no substantial question presented on appeal, we grant the
Government’s motion and will summarily affirm the District Court’s order. 3d Cir.
L.A.R 27.4; I.O.P. 10.6.
sentence, and he raised the issue to preserve it for review in the event the Supreme Court
granted certiorari to review our sister circuit’s decision in Reynolds v. Thomas, 603 F.3d
1144 (9th Cir. 2010). However, we note that the Supreme Court dismissed the petition
for a writ of certiorari in Reynolds on April 2, 2012.
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