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

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

. 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,

(2d Cir. 2001). Section 2241 may be used to challenge the computation of a

sentence by prison officials. Adams v. United States,

(2d Cir.

2004); Jiminian v. Nash,

(2d Cir. 2001).

A federal sentencing court has authority under

(a) to

impose a sentence that is consecutive to or concurrent with a yet‐to‐be‐imposed

state sentence. Setser v. United States,

(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

de novo. Sash v. Zenk,

(2d Cir. 2005). We liberally construe Evans’s pro se brief. Triestman v. Fed. Bureau of Prisons,

, 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,

, 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

(b).

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,

(2d Cir. 2005) (quoting Taylor v. Sawyer,

(9th Cir. 2002)). The BOP must give “full and fair consideration” to a

prisoner’s request for such designation.

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,

(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.

(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.”

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

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