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09-1848-pr Jennings v. Schult



### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT



# SUM MARY ORDE R

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED
ON OR AFTER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OC AL R ULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDI X OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL

.



### 1 At a stated term of the United States Court of Appeals 

### 2 for the Second Circuit, held at the Daniel Patrick Moynihan 

### 3 United States Courthouse, 500 Pearl Street, in the City of 

### 4 New York, on the 17 day of May, two thousand ten. th 

### 5 6 PRESENT: DENNIS JACOBS, 

### 7 Chief Judge, 

### 8 RALPH K. WINTER, 

### 9 JOHN M. WALKER, JR., 

### 10 Circuit Judges. 

### 11 12 - - - - - - - - - - - - - - - - - - - -X Wayne Jennings, 

### 13 Petitioner-Appellant, 

### 14 15 16 -v.- 09-1848-pr 

### 17 18 Deborah Schult, Warden, 

### 19 Respondent-Appellee. 

### 20 - - - - - - - - - - - - - - - - - - - -X 

### 21 FOR APPELLANT: Wayne Jennings, pro se, Ray Brook, 

### 22 23 NY. 

### 24 25 FOR APPELLEE: Elizabeth S. Riker (Charles E. 

### 26 Roberts, of counsel), Assistant 

### 27 United States Attorneys, for Andrew 

### 28 T. Baxter, United States Attorney2 

### 1 for the Northern District of New 

### 2 York, Syracuse, NY. 

### 3 4 Appeal from a judgment of the United States District 

### 5 Court for the Northern District of New York (Singleton, J.).



### 6 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, 

### 7 AND DECREED that the judgment of the district court be 

### 8 AFFIRMED

.



### 9 Appellant appeals from the district court’s denial of 

### 10 his petition, filed pursuant to 28 U.S.C. § 2241, arguing 

### 11 that the Bureau of Prisons had abused its discretion in 

### 12 denying his request for nunc pro tunc designation of the 

### 13 state prison for service of his federal sentence pursuant to 

### 14 18 U.S.C. § 3621(b). We assume the parties’ familiarity with 

### 15 the facts, proceedings below, and specification of issues on 

### 16 appeal.



### 17 This Court reviews the district court’s denial of a 

### 18 petition filed pursuant to 28 U.S.C. § 2241 de novo, see 

### 19 Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996), and no 

### 20 certificate of appealability is necessary for such an 

### 21 appeal, see Drax v. Reno, 338 F.3d 98, 106 n.12 (2d Cir. 

### 22 2003). The Bureau of Prisons's decision regarding nunc pro 

### 23 tunc designation is reviewed for abuse of discretion. See 

### 24 McCarthy v. Doe, 146 F.3d 118, 123 n.4 (2d Cir. 1998). This 

### 25 Court may affirm on any basis supported by the record, 

### 26 including grounds not relied upon by the district court. 

### 27 See Ferran v. Town of Nassau, 471 F.3d 363, 365 (2d Cir. 

### 28 2006) (citing Shumway v. United Parcel Serv., Inc., 118 F.3d 

### 29 60, 63 (2d Cir. 1997)).



### 30 Pursuant to 18 U.S.C. § 3584(a):



### 31 If multiple terms of imprisonment are imposed on a 

### 32 defendant at the same time, or if a term of 

### 33 imprisonment is imposed on a defendant who is 

### 34 already subject to an undischarged term of 

### 35 imprisonment, the terms may run concurrently or 

### 36 consecutively. . . . Multiple terms of 

### 37 imprisonment imposed at the same time run 

### 38 concurrently unless the court orders or the 

### 39 statute mandates that the terms are to run 

### 40 consecutively. Multiple terms of imprisonment 

### 41 imposed at different times run consecutively3 

### 1 unless the court orders that the terms are to run 

### 2 concurrently.



### 3 If a defendant held in state custody is produced for federal 

### 4 sentencing pursuant to writ and sentenced, and the state 

### 5 court later imposes a sentence which it orders to run 

### 6 concurrently with the federal sentence, the defendant may 

### 7 request that the BOP designate, nunc pro tunc, the state 

### 8 facility as a federal prison, pursuant to 18 U.S.C. § 

### 9 3621(b). See Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 74 

### 10 (2d Cir. 2005); McCarthy v. Doe, 146 F.3d 118, 123 n.4 (2d 

### 11 Cir. 1998). However, the BOP lacks that authority when the 

### 12 federal sentencing court imposes sentence after the state 

### 13 and fails to note whether a sentence should be consecutive 

### 14 or concurrent. See Abdul-Malik, 403 F.3d at 74; McCarthy, 

### 15 146 F.3d 118 (discussing legislative history). Accordingly, 

### 16 because Appellant was subject to an undischarged state term 

### 17 of imprisonment at the time the federal court resentenced 

### 18 him, and because the federal court did not direct that its 

### 19 sentence should run concurrently, the statute required that 

### 20 the sentence run consecutively, and the Bureau of Prisons 

### 21 was without authority to direct otherwise. See 18 U.S.C. § 

### 22 3584(a); Abdul-Malik, 403 F.3d at 74. Accordingly, there 

### 23 was no abuse of discretion in denying Appellant's request 

### 24 for nunc pro tunc designation. See id.



### 25 We have considered Appellant's remaining arguments and 

### 26 conclude that they are either improperly raised in a 

### 27 petition pursuant to 28 U.S.C. § 2241 or without merit, or 

### 28 both. Accordingly, the judgment of the district court is 

### 29 AFFIRMED

.



### 30 31 32 FOR THE COURT: 

### 33 CATHERINE O’HAGAN WOLFE, CLERK 

### 34