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09-1848-pr

Jennings v. Schult

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 “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.

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13 Wayne Jennings, 

14 Petitioner-Appellant,

15

16 -v.- 09-1848-pr

17

18 Deborah Schult, Warden, 

19 Respondent-Appellee.

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21

22 FOR APPELLANT: Wayne Jennings, pro se, Ray Brook,

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 Attorney
2

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 consecutively
3

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

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