### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10857 Summary Calendar

KERRY WAYNE WASHINGTON, Petitioner-Appellant

v. RODNEY W. CHANDLER, Respondent-Appellee

Appeal from the United States District Court f or the Northern District of Texas USDC No. 4:12-CV-279

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM: * Kerry Wayne Washington, federal prisoner # 33656-077 , appeals the dismissal of his 28 U.S.C. § 2241 petit i o n s e e king credit toward his federal sentences for o bstruction of commerce by r o bbery a nd u se of a f irearm d uring a crime of violence for time that he served in Texas prison for violating his state probation. Because W ashington is proceeding under § 2241, he i s not required to obtain a c ertificate of appealability to pursue his appeal. See Jeffers v. Chandler , U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May14, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10857 Document: 00512241204 Page: 1 Date Filed: 05/14/2013No. 12-10857

253 F.3d 827, 830 ( 5th Cir. 2001). In the § 2241 c ontext, we review the district court’s legal determinations d e n ovo and its factual findings for c lear error. Royal v. Tombone , 141 F.3d 596, 599 (5th Cir. 1998). The Attorney General, through the Bureau of Prisons (BOP), determines

w h a t credit, if a ny, is given to prisoners for time spent in custody prio r t o t h e commencement of their federal sentences. United States v. Wilson , 503 U .S. 329, 331-32, 3 34 (1992). “Where a f ederal sentence was imposed bef o r e a state sentence, the BOP may indirectly award credit f or t i me served in state prison by designating nunc p r o t u n c t h e state prison as the place in which t h e prisoner

serves a portion of h is federal sentence.” Pierce v . Holder , 6 14 F.3d 1 58, 160 (5th Cir. 2010). B ased on the record before us, including abundant evidence that the district court did not intend to i mpose Washington’s f ederal s entences to run concurrent to the Texas sentence at issue, the district court did n o t e r r b y dismissing Washington’s claim that the BOP improperly denied his request for a nunc pro tunc designation. See Royal , 141 F.3d at 599. Contrary to his arguments that he was under the primary jurisdiction of the United States during the period at issue, Washington was i n t h e p r imary custody of Texas following h is arrest by Texas state authorities. See Causey v. Civiletti , 621 F.2d 691, 693-94 (5th Cir. 1980); Zerbst v . McPike , 97 F.2d 2 53, 254 (5th C ir. 1938). When he w as transferred to t h e Northern District of Texas pursuant to wri t s o f habeas corpus ad p rosequendum, each transfer was “only

a ‘loan’ o f t he prisoner” such t hat Texas r e tained primary jurisdiction. Causey , 621 F.2d at 693 (citations omitted). Even if the Government c ould have chosen to exe r c i s e i t s jurisdiction over him at the t ime of his federal sentencing in August 2000, it chose not to do so; instead it returned him to Texas a nd issued

a detainer. See i d. at 6 9 3

- 9 4

. H e fails to show that the d istrict court erred by dismissing his § 2241 petition without h olding an evidentiary h earing. See Ellis v. Lynaugh , 873 F.2d 830, 840 (5th Cir. 1989). AFFIRMED.
2 Case: 12-10857 Document: 00512241204 Page: 2 Date Filed: 05/14/2013