IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40216

Summary Calendar

CHRISTOPHER DARNELL LEWIS,

Petitioner - Appellant

v.

WARDEN FCC BEAUMONT,

Respondent - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:18-CV-285

Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

Christopher Darnell Lewis, federal prisoner # 11958-062 and appearing 

pro se, challenges the denial of his 28 U.S.C. § 2241 petition, in which he

requested, inter alia, the Bureau of Prisons (BOP) designate, nunc pro tunc,

state prison as his first place of confinement for his federal sentence of, inter 

alia, 180-months’ imprisonment for Hobbs Act robbery, in violation of 18 

U.S.C. § 1951. Lewis contends the district court committed reversible error in 

* 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

June 24, 2020

Lyle W. Cayce

Clerk

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failing: to rule independently on the merits of his petition; and to determine 

his federal sentence should have been served first because it was imposed first.

Lewis was arrested by state authorities on 29 February 2012 for failing 

to appear in two state-criminal matters. He was transferred to federal 

authorities on 19 March 2012, pursuant to a writ of habeas corpus ad 

prosequendum. After receiving his federal sentence on 23 April 2013, he was 

returned to state authorities; the federal judgment was filed as a detainer. 

Lewis then pleaded guilty in state court to second-degree burglary and 

was sentenced to, inter alia, 10-years’ imprisonment on 30 April 2013. The 

state court ordered the sentence to “run concurrently” with Lewis’ federal 

sentence. Lewis also received one-year sentences in three other state criminal 

proceedings. Those sentences were ordered to run concurrently with each 

other and with the 10-year sentence for second-degree burglary. 

Prior to his release from state custody in 2017, Lewis requested that his 

federal sentence be served concurrently with his state sentence, which would 

require that the BOP designate the state institution nunc pro tunc as the place 

for service of his federal sentence. Accordingly, the BOP contacted the 

sentencing federal court to determine its position on a retroactive designation. 

In its correspondence to the court, the BOP explained that, “[i]f, after 60 days, 

a response has not been received from the [c]ourt, the [BOP] will complete its 

review and make a decision regarding this case”. 

The sentencing court did not provide a response; therefore, after 

reviewing Lewis’ case and considering the relevant factors in 18 U.S.C. 

§ 3621(b) (listing factors for consideration in designating place of prisoner’s 

imprisonment), the BOP determined that a retroactive concurrent designation 

was not appropriate. The BOP informed Lewis of its decision on 31 December 

2015. 

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Lewis completed his state sentence on 24 February 2017 and was 

transferred to federal custody to begin serving his 180-month sentence. 

Thereafter, on 13 June 2018, Lewis filed a petition under 28 U.S.C. § 2241, 

challenging the BOP’s denial of his request for nunc pro tunc designation. In 

it, he contended he should receive credit toward his federal sentence for the 

time he spent in state custody, consistent with the state court’s judgment 

ordering that his state sentence for second-degree burglary “run concurrently” 

with his federal sentence. 

Challenges regarding “the extent to which [a] sentence has been 

executed”, as opposed to “the legality of [a] conviction or the validity of [a] 

federal prison term imposed”, are cognizable “under 28 U.S.C. § 2241”. United 

States v. Gabor, 905 F.2d 76, 77–78 (5th Cir. 1990) (citation omitted). “Under 

§ 2241, we review the district court’s findings of fact for clear error and 

conclusions of law de novo.” Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 

2003).

Upon Lewis’ filing his § 2241 petition, the matter was referred to a 

magistrate judge (MJ), who issued a report recommending the petition be 

denied. The MJ concluded the BOP had acted within its discretion in refusing 

Lewis’ request for nunc pro tunc designation, given: the state court’s order for 

concurrent sentencing was not binding on the BOP; the sentencing federal 

district court’s judgment did not specify whether Lewis’ federal sentence would 

run consecutively or concurrently with his state sentence for second-degree

burglary; and the federal sentencing court did not communicate to the BOP it 

intended Lewis’ federal sentence to run concurrently with his state sentence. 

After stating that no objections had been filed, the district court adopted 

the MJ’s report and denied Lewis’ § 2241 petition. This appeal followed. 

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“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) 

(emphasis added) (citations omitted). In making its determination, the BOP 

fulfills its obligation to consider petitioner’s request by submitting the request 

to the [federal] sentencing court, which may communicate any intent for the 

sentence to run either concurrently or consecutively to any state sentence 

imposed, and, thereafter, considering the relevant 18 U.S.C. § 3621(b)

statutory factors. See 18 U.S.C. § 3621(b); Hunter v. Tamez, 622 F.3d 427, 429 

& n.2 (5th Cir. 2010) (citations omitted); see also Rodriguez v. Pitzer, 76 F. 

App’x 519, 520 (5th Cir. 2003) (citations omitted). 

As discussed, when Lewis’ federal sentence was imposed in 2013, he was 

under primary jurisdiction of state authorities in Oklahoma. After pleading 

guilty to Hobbs Act robbery in federal court, Lewis was returned to state 

authorities. He then pleaded guilty in state court to second-degree burglary 

and was sentenced to 10-years’ imprisonment, which the state court ordered to 

“run concurrently” with Lewis’ federal sentence. Lewis then began serving his 

state sentence in state custody.

Prior to his release from state custody in 2017, Lewis requested that his 

federal sentence be served concurrently with his state sentence, which would 

require that the BOP designate the state institution nunc pro tunc as the place 

for service of his federal sentence. Although the BOP contacted the federal 

sentencing court to determine its position on a retroactive designation in 

Lewis’ case, the sentencing court did not respond. Thereafter, in reviewing 

Lewis’ case and considering the relevant 18 U.S.C. § 3621(b) factors, the BOP 

determined a retroactive, concurrent designation was not appropriate.

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Lewis first contends: the sentencing court’s “non-response” to the BOP’s 

inquiry is insufficient to support the BOP’s denial of his request for nunc pro 

tunc designation; and the district court, therefore, erred in relying on the

sentencing court’s “non-response” in denying his 18 U.S.C. § 2241 petition 

without “independently rul[ing] on the merits of the case”. This contention 

lacks merit.

As an initial matter, Lewis cites no authority requiring the district court 

to “independently rule on the merits of [his] case”. In any event, although the 

district court considered the sentencing court’s “non-response” to the BOP, it 

also undertook a full analysis of Lewis’ 18 U.S.C. § 2241 petition. 

In considering Lewis’ petition, the district court explained that “the time 

[Lewis] spent in custody from his arrest by state authorities until the date he 

was taken into federal custody [in 2017] was credited toward his state 

sentence[]”. The court determined he was, therefore, “not entitled to have the 

time credited toward his federal sentence” under 18 U.S.C. § 3585(b) (stating

“defendant shall be given credit toward the service of a term of imprisonment 

for any time he has spent in official detention prior to the date the sentence 

commences . . . that has not been credited against another sentence” (emphasis 

added)). Additionally, the court acknowledged 18 U.S.C. § 3584(a)’s 

presumption that “[m]ultiple terms of imprisonment imposed at different times 

run consecutively unless the federal court orders that the terms are to run 

concurrently”. Further, the court acknowledged that “[t]he decision . . .

whether to grant . . . a [retroactive] designation is within the discretion of the 

BOP”; and, as stated, the BOP considered Lewis’ request in the light of the 18 

U.S.C. § 3621(b) factors before exercising its discretion in denying it. 

Lewis also contends the district court failed to consider his assertion that

his federal sentence should have been served first because, when in 2012 he 

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was transferred from the state to federal authorities for conviction and 

imposition of his federal sentence in 2013, he had not yet been convicted on the 

state charge and was not serving a state sentence. Contrary to Lewis’ 

contention, the district court considered this claim but determined it was 

without merit given our court’s decision in Causey v. Civiletti, 621 F.2d 691, 

693–94 (5th Cir. 1980), where our court rejected the “first in time, first to serve” 

claim that Lewis now makes on appeal.

AFFIRMED.

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