Filed: Jan. 18, 2012
Latest Update: Jan. 18, 2012
Summary: ORDER LARRY R. HICKS, District Judge. Before the court is Defendant's pro se Motion to Court Judge for a Document Not to Oppose A; "Nunc Pro Tunc Designation by Case Court Judge" (#316) 1 filed December 19, 2011. The Government has filed its opposition (#317). A relevant history, which is being supplemented by the exhibits attached to this order, is that by letter dated October 21, 2011, the U.S. Department of Justice Federal Bureau of Prisons (hereinafter "BOP") invited the court's input up
Summary: ORDER LARRY R. HICKS, District Judge. Before the court is Defendant's pro se Motion to Court Judge for a Document Not to Oppose A; "Nunc Pro Tunc Designation by Case Court Judge" (#316) 1 filed December 19, 2011. The Government has filed its opposition (#317). A relevant history, which is being supplemented by the exhibits attached to this order, is that by letter dated October 21, 2011, the U.S. Department of Justice Federal Bureau of Prisons (hereinafter "BOP") invited the court's input upo..
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ORDER
LARRY R. HICKS, District Judge.
Before the court is Defendant's pro se Motion to Court Judge for a Document Not to Oppose A; "Nunc Pro Tunc Designation by Case Court Judge" (#316)1 filed December 19, 2011. The Government has filed its opposition (#317).
A relevant history, which is being supplemented by the exhibits attached to this order, is that by letter dated October 21, 2011, the U.S. Department of Justice Federal Bureau of Prisons (hereinafter "BOP") invited the court's input upon the pending decision by the Bureau of Prisons whether to grant a retroactive designation relative to Defendant's Federal prison time to the California State prison time which Defendant has been serving upon his conviction on an unrelated drug offense. The court responded to the BOP on November 7, 2011 (Exhibit A, attached). The court has most recently been notified by the BOP by letter dated December 27, 2011, that the BOP "has determined that a retroactive (concurrent) designation would not be in the best interest of justice in Mr. Dunlap's case." Exhibit B, attached.
It therefore appears that the very document being sought by Defendant's motion was sent independently to BOP during the pendency of the present motion. Significantly, the court did recommend that Mr. Dunlap be granted "a retroactive designation and receive the benefit of concurrent sentences" and that if he had "not been a model prisoner in the California system, that he receive less than full concurrent benefit." It is evident that the BOP weighed the court's recommendation, Mr. Dunlap's criminal history and Mr. Dunlap's California prison service record, and made the decision not to grant Dunlap the retroactive "nunc pro tunc" designation.
The court is further of the view that BOP has the exclusive authority to address a prisoner's request for nunc pro tunc designation and that it rests within the discretion of BOP to deny such a request. 18 U.S.C. § 3621 (b).
Good cause appearing, the Defendant's Motion (#316) is DENIED as moot.
The Clerk of the Court shall mail a copy of this order and attachments to Mr. Dunlap at his prison address in Beaumont, Texas.
IT IS SO ORDERED.
