Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Josephine Staton Tucker, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in Federal Custody" on September 17, 2012. Respondent filed an Answer on November 13, 2012. Petitioner filed a "Rebuttal to the Government's Response" on November 28, 2012.
BACKGROUND
The Petition challenges the refusal of the Bureau of Prisons ("BOP") to make "a nunc pro tunc' designation as of May 2008" (Petition at 6). An understanding of this challenge requires a brief review of some of Petitioner's experiences with state and federal courts and with state and federal prisons.
In early 2008, South Carolina state authorities caused Petitioner's state probation to be revoked, and Petitioner began serving a prison sentence for a South Carolina conviction (Exhibits A and N to Boudreaux Declaration appended to Answer). On the basis of a federal bank robbery charge, on May 2, 2008, a federal writ of habeas corpus ad prosequendum transferred Petitioner from state prison into temporary federal custody (Exhibit B to Boudreaux Declaration). On January 27, 2009, the United States District Court for the Southern District of Georgia sentenced Petitioner to a lengthy term of federal imprisonment for bank robbery (Exhibit C to Boudreaux Declaration). The federal sentencing court did not then indicate whether the federal sentence should run consecutively or concurrently with respect to any other sentence being served or to be served by Petitioner (id.). After federal sentencing, Petitioner was not sent immediately to federal prison, but rather was returned to state authorities on February 10, 2009 (Exhibit B to Boudreaux Declaration). Following the completion of Petitioner's South Carolina state sentence (and a subsequently served North Carolina state revocation sentence), Petitioner was received into the custody of federal authorities on January 25, 2011 for the service of his federal bank robbery sentence (Exhibits B, E, F and H to Boudreaux Declaration).
Where, as here, a federal sentence is silent with regard to whether the sentence will run concurrently or consecutively with another sentence, the BOP properly deems the sentence to run consecutively. See 18 U.S.C. § 3584(a) ("multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently"); accord Reynolds v. Thomas , 603 F.3d 1144, 1148 (9th Cir. 2010), cert. dism'd, 132 S.Ct. 1854 (2012). In certain circumstances, however, the BOP has caused a de facto concurrent running of a federal sentence by retroactively designating the state prison as the place of the prisoner's federal imprisonment. See 18 U.S.C. § 3621(b) (authorizing the BOP to designate the place of a federal prisoner's imprisonment, after considering specified factors); BOP Program Statement 5160.05 (Exhibit J to Boudreaux Declaration) (interpreting section 3621(b) as authorizing the BOP retroactively to designate a state prison as the place of imprisonment when "consistent with the intent of the federal sentencing court or the goals of the criminal justice system"); Reynolds v. Thomas , 603 F.3d at 1150 (explaining the Ninth Circuit's view of the BOP's authority in this regard).
In Setser v. United States , 132 S.Ct. 1463, 1466-73 (2012) ("Setser"), the Supreme Court held that a federal sentencing court has authority to order that the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed. Arguably, the Setser Court's opinion also limits the BOP's role in the sentence calculation process to the interpretation of the federal sentencing court's intent, otherwise precluding the BOP from making any discretionary determination of whether to cause the federal sentence to run concurrently through a retroactive prison designation under section 3621(b). See id.; Brown v. Zych, 2012 WL 5386339, at *5 (W.D. Va. Nov. 1, 2012) (after Setser, "the authority [of the BOP] to make a retroactive designation, and to effectively make two sentences run concurrently, does not exist independently of a federal court judgment that is properly interpreted as requiring some amount of concurrency"). Nevertheless, this Court assumes, arguendo, that something of the BOP's retroactive designation discretion under section 3621(b) survives the Setser decision. At a minimum, as the Setser Court acknowledged, the BOP "ultimately has to determine how long the District Court's sentence authorizes it to continue [the prisoner's] confinement." Id. at 1473. This determination may require the exercise of discretion in some circumstances, as when the intent of the federal sentencing court is particularly uncertain.
In the present case, the BOP considered Petitioner for a retroactive or "nunc pro tunc" designation under Program Statement 5160.05 (Exhibits M and P to Boudreaux Declaration). As part of this consideration, the BOP solicited the views of the federal sentencing court (Exhibit K to Boudreaux Declaration). The federal sentencing court responded, in pertinent part, "it is not recommended that [Petitioner] receive credit for the State time he served" (Exhibit L to Boudreaux Declaration). In addition to considering this recommendation of the federal sentencing court, the BOP considered the resources of the prison facility, the nature and circumstances of Petitioner's various offenses, and the history and characteristics of Petitioner (Exhibit M to Boudreaux Declaration; see also 18 U.S.C. § 3621(b) (listing factors to be considered in designating the place of the federal prisoner's imprisonment)). Upon such consideration, the BOP denied retroactive or nunc pro tunc designation of the place of Petitioner's incarceration ((id.); see also Exhibit P to Boudreaux Declaration). The present Petition challenges the legality of this denial.
Because Petitioner's federal sentencing judge died in 2010, the Chief Judge of the United States District Court for the Southern District of Georgia responded to the BOP's inquiry concerning Petitioner.
DISCUSSION
The Petition fails for at least two reasons. First, the Ninth Circuit has held that district courts may not review on habeas corpus any discretionary determination made by the BOP under 18 U.S.C. section 3621, (which would include a designation of a prisoner's place of incarceration). Second, even if this Court were at liberty to review the BOP's refusal to make a nunc pro tunc designation, Petitioner would not be entitled to habeas relief under the circumstances of the present case.
The Petition fails at the threshold because habeas review of the challenged BOP determination is unavailable in this circuit. See Reeb v. Thomas , 636 F.3d 1224, 1227 (9th Cir. 2011) ("Reeb"). In Reeb, the Ninth Circuit held that prisoners cannot "bring habeas petitions under 28 U.S.C. § 2241 to challenge the BOP's discretionary determinations made pursuant to 18 U.S.C. § 3621...." The Reeb Court observed that 18 U.S.C. section 3625 specifies that the judicial review provisions of the Administrative Procedure Act "do not apply to any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624." Id . The Reeb Court reasoned that section 3625 must therefore preclude all habeas petitions challenging such determinations, decisions or orders. Id . Following Reeb, district courts within the Ninth Circuit properly have declined to entertain a habeas petition challenging the refusal by the BOP to grant a nunc pro tunc designation of the place of imprisonment. See, e.g., Baskerville v. Babcock, 2012 WL 2562350, at *6-7 (E.D. Cal. June 29, 2012) ("Pursuant to Reeb, the BOP's substantive determination under § 3621 to deny a retroactive designation of petitioner's sentence is not subject to judicial review"); Butler v. Sanders, 2012 WL 893742, at *4-5 (C.D. Cal. Jan. 23, 2012) adopted, 2012 WL 893780 (C.D. Cal. March 8, 2012) (same). Accordingly, the present Petition must be denied and dismissed.
Dicta in Setser v. United States , 132 S.Ct. 1463, 1473 (2012) mentions in a slightly different context the possibility of a habeas corpus petition challenging the BOP's refusal to credit time served on a state sentence. This Court does not interpret the Setser dicta as having overruled Reeb, however. More broadly, as previously suggested, the Setser decision may well have disapproved the BOP's authority to grant the type of relief Petitioner seeks. See footnote 1, supra. However, this Court has assumed, arguendo, the survival of some such authority. See id.
Even if this Court were at liberty to entertain Petitioner's challenge to the BOP's decision, the result would be the same. The Court initially observes that Petitioner's request for a designation nunc pro tunc to May of 2008 could not be granted under any circumstance. By nunc pro tunc designation or otherwise, Petitioner's federal sentence could not commence any earlier than the date of Petitioner's federal sentencing, which was January 27, 2009. See Schleining v. Thomas , 642 F.3d 1242, 1247-48 (9th Cir. 2011), cert. denied, 132 S.Ct. 2415 (2012) (agreeing with the Second Circuit and the Fifth Circuit that "a federal sentence cannot be back dated' so as to commence before the district court imposed the federal sentence"); Calvert v. Thomas, 2012 WL 707073, at *5 (D. Or. March 5, 2012) ("Although § 3621(b) permits BOP to designate a state prison as the place where a prisoner serves a federal sentence, it does not permit the court or the BOP to order that a federal sentence commence before that sentence was imposed"); see generally 18 U.S.C. § 3585(a) (sentence commences "on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served"). Thus, Petitioner is not entitled to the requested designation nunc pro tunc to May of 2008, a date prior to Petitioner's federal sentencing.
Petitioner also is not entitled to a designation nunc pro tunc to Petitioner's January 27, 2009 federal sentencing. In declining such a designation in the present case, the BOP considered each of the relevant statutory factors. In particular, the BOP properly cited the nature of Petitioner's federal offense (bank robbery), Petitioner's criminal history, and, perhaps most significantly, the federal sentencing court's recommendation against a nunc pro tunc designation (Exhibits M and P to Boudreaux Declaration). In pre-Reeb decisions, the Ninth Circuit refused to overturn the BOP's denial of a nunc pro tunc designation whenever the BOP expressly considered the appropriate statutory factors. See, e.g., Reynolds v. Thomas , 603 F.3d at 1152-53 ("the BOP acted within its broad discretion under § 3621(b) and the Program Statement to grant or deny for nunc pro tunc relief after full and fair consideration"); Taylor v. Sawyer , 284 F.3d 1143, 1149 (9th Cir. 2002), cert. denied, 537 U.S. 1119 (2003) ("The BOP's choice here to exercise its discretion, in part by relying upon the intent of the sentencing court, is not inconsistent with 18 U.S.C. § 3584... [and] was neither arbitrary nor capricious"); cf. Galarza-Villanueva v. Rios, 2012 WL 1143631, at *7-8 (E.D. Cal. April 4, 2012) (despite Reeb, the habeas court reviewed the BOP's decision for abuse of discretion, finding that "[b]ecause the BOP properly considered the relevant factors... the BOP's decision to deny the nunc pro tunc designation was neither arbitrary nor capricious"); Als v. Stansberry, 2010 WL 723034, at *3 (E.D. Va. March 1, 2010), aff'd, 396 Fed.App'x 932 (4th Cir. 2010) ("So long as the BOP undertakes an individualized review of an inmate's case and makes a decision to deny a request for designation nunc pro tunc after analyzing the five relevant factors prescribed by § 3621, habeas corpus relief from its determination is unavailable"). The circumstances of the present case are legally indistinguishable from the circumstances of the decisions cited above. Therefore, even if this Court were at liberty to review the challenged decision of the BOP, habeas relief still would be denied.
Petitioner appears to argue that the Third Circuit decision in Barden v. Keohane , 921 F.2d 476 (3d Cir. 1990) ("Barden") requires a different result. Petitioner is mistaken. The Barden decision stands only for the proposition that the BOP must consider a prisoner's request for a nunc pro tunc designation. Barden , 921 F.2d at 478 ("We do not pass upon Barden's contention that he is entitled to a favorable exercise of the broad discretion the [BOP] has in acting on his request"). In the present case, the BOP did consider a nunc pro tunc designation, but exercised the BOP's discretion to decline such a designation. Therefore, even if the Barden decision were controlling in the Ninth Circuit, which it is not, the application of Barden would not change the result herein.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
The Court construes the present Petition as a challenge to the decision of the BOP, rather than as a challenge to the federal sentence imposed by the United States District Court for the Southern District of Georgia. To the extent Petitioner intends to challenge his sentence, (as distinguished from the BOP's calculation and enforcement of the sentence), Petitioner's remedy, if any, lies with a section 2255 motion directed to the sentencing court. See 28 U.S.C. § 2255 ("an application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention"); United States v. Drake , 49 F.3d 1438, 1440 (9th Cir. 1995); see also Porter v. Adams , 244 F.3d 1006, 1007 (9th Cir. 2001). It fails to appear that a remedy by section 2255 motion for any alleged errors in the federal court proceedings would be "inadequate or ineffective to test the legality" of Petitioner's detention. See United States v. Lurie , 207 F.3d 1075, 1077 (8th Cir. 2000) (the possibility that a section 2255 remedy, once available, now may be barred by the applicable statute of limitations does not render the section 2255 remedy "inadequate or ineffective"); Moore v. Reno , 185 F.3d 1054, 1055 (9th Cir. 1999), cert. denied, 528 U.S. 1178 (2000) (dismissal of a section 2255 motion as successive does not render the section 2255 remedy "inadequate or ineffective"); cf. Ivy v. Pontesso , 328 F.3d 1057, 1060 (9th Cir.), cert. denied, 540 U.S. 1051 (2003) ("[I]t is not enough that the petitioner is presently barred from raising his claim... by motion under § 2255. He must never have had the opportunity to raise it by motion").