Entry Dismissing Action and Directing Entry of Final Judgment

LARRY J. McKINNEY, District Judge.

I. Background

The pleadings and the expanded record in this action for habeas corpus relief establish the following:

1. George Taylor is confined in this District serving a sentence imposed by the United States District Court for the Western District of Kentucky. He seeks a writ of habeas corpus.

2. The pertinent circumstances associated with Taylor's federal custody include the following:

II. Discussion

The authority to calculate a federal prisoner's period of incarceration for a federal sentence imposed and to provide credit for time served is delegated to the Attorney General, who acts through the BOP. United States v. Wilson, 503 U.S. 329, 334-35 (1992). In calculating the sentence, the BOP determines (1) when the federal sentence commenced, and (2) whether there are any credits to which the prisoner may be entitled. See 18 U.S.C. § 3585. In other words, a federal prisoner can receive credit for certain time spent in official detention before his sentence begins, as long as that time has not been credited against any other sentence. Section 3585(b) makes clear that prior custody credit cannot be double counted. Wilson, 503 U.S. at 337 (a defendant cannot "receive a double credit for his detention time").

"Well-settled federal law presumes that when multiple terms of imprisonment are imposed at different times, they will run consecutively unless the district court specifically orders that they run concurrently." Free v. Miles, 333 F.3d 550, 553 (5th Cir. 2003) (emphasis in original) (citing 18 U.S.C. § 3584(a)), reh'g denied (Jul. 31, 2003). Pursuant to 28 U.S.C. § 3621(b), however, "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) (per curiam) (citing Barden v. Keohane, 921 F.2d 476, 480 (3d Cir. 1990)). When such a designation is made, the BOP essentially allows the state and federal sentences to run concurrently. Setser v. United States, 132 S.Ct. 1463, 1467-68 (2012). That designation was not made by the BOP in Taylor's case, although the BOP assessed the appropriateness of doing so and concluded that it was not warranted.

The BOP will only make such a designation "when it is consistent with the intent of the sentencing Federal court, or with the goals of the criminal justice system." BOP Program Statement 5160.05. The BOP's nunc pro tunc designation is "entitled to substantial deference," and can only be overturned for an abuse of discretion. Fegans v. United States, 506 F.3d 1101, 1105 (8th Cir. 2007). Indeed, "the decision whether to designate a [state] facility as a place of federal detention [pursuant to 18 U.S.C. § 3621(b)] `is plainly and unmistakably within the BOP's discretion and we cannot lightly second guess a deliberate and informed determination by the agency charged with administering federal prison policy.'" Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 76 (2d Cir. 2005) (citing Taylor v. Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002)).

Taylor has not shown that the BOP committed an abuse of discretion in deciding not to make a nunc pro tunc designation. The modified state sentence did not include a designation that it was to have been served concurrently with the federal sentence, though even if it had included such language the BOP would not be bound by it. Loewe v. Cross, 589 F. App'x 788, 789 (7th Cir. 2014) (citing cases). Accordingly, he is not entitled to relief here. United States v. Fortt, 608 F. App'x 88, 89-90 (3d Cir. 2015).

III. Conclusion

The statutory scheme dictates that the sentences run consecutively. No exception to this application of this scheme is applicable here. Therefore, the BOP has not erred in the computation of Taylor's federal sentence and his petition for writ of habeas corpus must be denied.

Judgment consistent with this Entry shall now issue.

IT IS SO ORDERED.