IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30423

DARRYL EDWARD ROBERTSON, also known as Darryl Edward Robert, 

 Petitioner–Appellant,

v.

T. G. WERLICH, Warden, Federal Correctional Institution Pollock, 

 Respondent–Appellee.

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 1:15-CV-392

Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit 

Judges.

PER CURIAM:*

Darryl Edward Robertson, proceeding pro se, appeals the denial of his 

28 U.S.C. § 2241 habeas petition. In his petition, Robertson challenges the 

decision of the Bureau of Prisons (“BOP”) to deny him credit, through a nunc 

pro tunc order, toward his federal sentence for time served in state custody. 

We reverse and remand for further proceedings consistent with this opinion.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2016

Lyle W. Cayce

Clerk

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I. FACTUAL AND PROCEDURAL BACKGROUND

Both Robertson’s federal and state convictions relevant to this appeal 

arose out of the same criminal episode. In 1999, Robertson was arrested for 

breaking into a home and stealing several firearms. Following his arrest, 

Robertson pled guilty in the United States District Court for the Eastern 

District of Texas to being a felon in possession of a firearm under 18 U.S.C. 

§ 922(g)(1) for the firearms he stole during the burglary. He was sentenced to 

212 months’ imprisonment and three years of supervised release for this 

conviction. After his federal sentence was imposed, Robertson was remanded 

to state custody. In state court, Robertson pled guilty to burglary of a 

habitation and was sentenced to 25 years’ imprisonment. In 2012, Robertson 

was paroled and transferred to federal custody to begin serving his federal 

sentence. 

While serving his state sentence, Robertson requested a nunc pro tunc 

designation from the BOP, which would designate his state facility as the 

location of service for his federal sentence, effectively allowing his state and 

federal sentences to run concurrently. His request was denied in November 

2008.1 In 2012, Robertson again sought administrative relief from the BOP, 

which was also denied. In February 2013, Robertson filed a motion requesting 

that the district court “clerically amend or correct” the judgment in his case to 

indicate that his state and federal sentences should run concurrently. The 

court denied the motion, holding that Robertson had “not sustained his burden 

of proving the judgment contains a clerical error.”

 

1 In August 2008, Robertson filed a motion for a nunc pro tunc order in the United 

States District Court for the Eastern District of Texas, requesting that the court order his 

state and federal sentences to run concurrently. It does not appear that any action was taken 

on this motion.

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In February 2015, Robertson filed a § 2241 petition for writ of habeas 

corpus in the United States District Court for the Western District of 

Louisiana. A magistrate judge issued a report and recommendation advising 

that the petition be denied and dismissed with prejudice. The district court 

adopted the magistrate judge’s recommendation in its entirety. Robertson 

timely appealed. 

II. DISCUSSION

A § 2241 motion is the proper procedure for a prisoner to challenge the 

manner in which his or her sentence is executed. Jeffers v. Chandler, 253 F.3d 

827, 830 (5th Cir. 2001). It is also the proper procedure to obtain credit for time 

previously spent in custody. United States v. Garcia-Gutierrez, 835 F.2d 585, 

586 (5th Cir. 1988). In the appeal of a § 2241 motion, we review questions of 

law de novo and findings of fact for clear error. Free v. Miles, 333 F.3d 550, 552 

(5th Cir. 2003) (per curiam). 

Robertson acknowledges that “the Attorney General, through the BOP, 

has the responsibility for administering [his] sentence.” United States v. 

Wilson, 503 U.S. 329, 335 (1992). The BOP “determines what credit, if any, will 

be awarded to prisoners for time spent in custody prior to the commencement 

of their federal sentences.” Leal v. Tombone, 341 F.3d 427, 428 (5th Cir. 2003).

“Where a federal sentence was imposed before a state sentence, the BOP may 

indirectly award credit for time served in state prison by designating nunc pro 

tunc the state prison as the place in which the prisoner serves a portion of his 

federal sentence.” Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010) (per 

curiam). The BOP’s decision to deny such a request is reviewed for an abuse of 

discretion. See Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990).

The written judgment for Roberston’s federal conviction is silent as to 

whether his federal sentence was to be served concurrently with his state 

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sentence.2 Typically, when the record is silent or unclear as to whether the 

sentencing court intended for a federal sentence to run concurrently with a

state sentence, the BOP contacts the sentencing court to determine whether it 

objects to a concurrent sentence. See Hunter v. Tamez, 622 F.3d 427, 429 (5th 

Cir. 2010); BOP Program Statement 5160.05 at 6. Robertson’s sole argument

on appeal is that the BOP abused its discretion in failing to contact his

sentencing court to determine whether it objected to Robertson serving his 

state and federal sentences concurrently. 

Although we can affirm on any basis in the record, Hunter, 622 F.3d at 

430, we decline to do so at this time.3 The record relied on by the district court 

was sparse, and the Government never filed a response to Robertson’s habeas 

petition. On appeal, we requested a response from the Government, and the 

Court granted its request to supplement the record. The Government has 

supplemented the record with several relevant documents, including a letter 

that it alleges is the very one Robertson contends the BOP failed to send. But, 

the supplemental filing does not include any proof that the letter was actually 

sent to the sentencing court. In fact, the letter, which is dated August 28, 2008, 

is addressed to the Honorable Howell Cobb of the United States District Court 

 

2 No transcript is available for Robertson’s sentencing hearing.

3 In adopting the magistrate judge’s report and recommendation, the district court 

relied on a prior order denying Robertson’s Motion to Amend or Correct Judgment pursuant 

to Federal Rule of Criminal Procedure 36. It reasoned that “[a]lthough the BOP did not 

contact the sentencing court, that court’s position was made clear in its order denying 

Petitioner’s Motion to Amend or Correct Judgment.” But, we do not believe that the 

sentencing court’s ruling on Robertson’s motion clarifies whether it intended for Robertson’s 

sentences to run concurrently. As the sentencing court explained in its order denying the 

motion, Rule 36 allows a court to correct “clerical errors,” Fed. R. Crim P. 36, such as a 

discrepancy between an oral statement at a sentencing hearing and the written judgment, 

see, e.g, United States v. Spencer, 513 F.3d 490, 491–92 (5th Cir. 2008). Holding that 

Robertson had failed to meet his burden to demonstrate a clerical error existed is not a clear 

declaration of the court’s intent as to whether Robertson’s sentences should run concurrently. 

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for the Eastern District of Texas, who died in 2005. There is nothing in the 

record to indicate that the letter was received by any other judge in the United 

States District Court for Eastern District of Texas. Therefore, in light of this

addition to the record on appeal, we reverse and remand for the district court 

to evaluate the relevance of this letter in the first instance. See Theriot v. Par. 

Of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).

III. CONCLUSION

For the foregoing reasons, the district court’s denial of Robertson’s 

habeas petition is REVERSED and REMANDED for further proceedings

consistent with this opinion.

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