* 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this opinion should not be published and is not precedent except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

October 14, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10987

Summary Calendar

 

DOUGLAS EDWIN PIERCE

Petitioner - Appellant

v.

L E FLEMING, Warden, Federal Medical Center Fort Worth

Respondent - Appellee

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:04-CV-357-A

--------------------

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

Douglas Edwin Pierce, federal prisoner # 03473-180, appeals

the district court’s denial of his 28 U.S.C. § 2241 petition, in

which he contended that the Bureau of Prisons (BOP) incorrectly

calculated his federal sentence.

Pierce contends that the district court erred when it

concluded that some of his claims were unexhausted. He also

argues that the district court erred when it determined that his

federal sentence was to run consecutively to a subsequently
No. 04-10987

-2-

imposed state sentence and that the district court erred when it

determined that the BOP properly credited his sentence for time

served.

Pierce argues that the BOP’s method of calculating his

sentence resulted in prejudice, because a state sentence for

various state offenses, imposed after his federal conviction, was

calculated in a manner that was inconsistent with the assumptions

set forth in the BOP’s calculation of his federal sentence. 

Pierce argues that, based on the BOP’s calculation of his

sentence, the state failed to credit him for the correct amount

of time and his release from state prison was delayed. The

record does not indicate that these issues were raised in the

administrative proceedings. Therefore, the district court did

not abuse its discretion when it determined that Pierce failed to

exhaust administrative remedies with respect to these issues. 

See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994).

Pierce argues that his federal sentence should have included

the time that he was held in federal prison pursuant to a writ of

habeas corpus ad prosequendum because his federal sentence should

have been treated by the BOP as a concurrent sentence. The

sentencing court had the discretion to order that a federal term

of imprisonment run either consecutively to or concurrently with

an anticipated, but not yet imposed, state sentence. United

States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991); 18 U.S.C.

§ 3584(a). The respondent submitted unrefuted evidence with its
No. 04-10987

-3-

summary judgment motion that indicated that the federal

sentencing court intended for the sentence to run consecutively

to his state sentence. The district court therefore did not

commit error when it concluded that the BOP properly treated

Pierce’s federal sentence as a sentence that was to run

consecutively to his state sentence.

Additionally, the fact that the state court ordered the

state sentence to run concurrently with the federal sentence does

not change the consecutive nature of the federal sentence. 

Federal authorities are not bound by sentencing orders from state

courts. See Leal v. Tombone, 341 F.3d 427, 429 n.13 (5th Cir.

2003). Finally, because the record indicates that the time that

Pierce spent in federal custody pursuant to a writ of habeas

corpus ad prosequendum was credited against his state sentence,

the BOP correctly applied 18 U.S.C. § 3585(b)(2) when it did not

include this time as a credit towards Pierce’s federal sentence. 

See Vignera v. Attorney General of the United States, 455 F.2d

637, 637-38 (5th Cir. 1972).

For the foregoing reasons, the judgment of the district

court is AFFIRMED.