                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      February 21, 2006
                               TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                         Clerk of Court

 JOHN J. MCCARTHY,
             Petitioner-Appellant,                      No. 05-3232
 v.                                            (D.C. No. 04-CV-3131-RDR)
 (FNU) (LNU), Warden, USP                                (D. Kan.)
 Leavenworth,
             Respondent-Appellee.


                          ORDER AND JUDGMENT *


Before HENRY, McKAY, and EBEL, Circuit Judges.



      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      This is a pro se appeal under 28 U.S.C. § 2241. In January 1994, Mr.

McCarthy was sentenced in federal district court to a term of 235 months’

imprisonment for two counts of possession of a firearm. At that time, the


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
sentencing court was aware that Mr. McCarthy would also soon be sentenced in

state court and that the state court was likely to impose its sentence to run

concurrently with the federal sentence. The federal sentencing court, however,

did not indicate whether the federal sentence would run concurrently with the

state sentence. In April 1994, the state court sentenced Mr. McCarthy to 84

months’ imprisonment to run concurrently with the federal sentence.

Mr. McCarthy completed his state sentence and was transferred to federal custody

for the completion of his federal sentence.

      By his § 2241 petition, Mr. McCarthy seeks to force the Bureau of Prisons

(“BOP”) to credit the time that he served in state prison to the time he must serve

in federal prison–that his federal sentence should run concurrently with his state

sentence. In an earlier § 2241 petition, Mr. McCarthy sought to force the BOP to

credit him the state-served time. McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998).

The Second Circuit remanded the case to the district court and then the BOP to

determine whether Mr. McCarthy qualified to have the federal sentence run

concurrently with the state sentence. Id. at 123. The BOP denied

Mr. McCarthy’s request and determined that his federal sentence was to be served

consecutively with his state sentence. In this § 2241 action, Mr. McCarthy argues

that the BOP was required to credit him the state-served time or, in the

alternative, that the BOP abused its discretion in denying him the credit.


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      As the district court noted, when a prisoner is subject to both state and

federal sentences, both jurisdictions have considerable discretion in determining

where a prisoner will be confined, with the sovereign that first arrests generally

having primary jurisdiction. Here, Connecticut had primary custody over Mr.

McCarthy and credited time spent–prior to the commencement of his federal

sentence–to his state sentence. Because Mr. McCarthy has received state credit

for this time and the federal district court did not order the federal sentence to be

served concurrently with any state sentence, he does not deserve federal credit for

his time spent in state custody. See 18 U.S.C. § 3585(b) (allowing credit for time

spent in detention prior to the commencement of a federal sentence where that

time has not been credited on another sentence). Further, in light of Mr.

McCarthy’s criminal history and prior convictions, the Bureau of Prisons did not

abuse its discretion when it declined to designate a state institution for the service

of his federal sentence.

      In response to Mr. McCarthy’s motion for a ruling, the district court

entered a judgment dismissing Mr. McCarthy’s § 2241 habeas corpus petition on

May 27, 2005. We treat the district court’s order as a Rule 56 grant of summary

judgment and review it de novo. Stanko v. Maher, 419 F.3d 1107, 1111 (10th Cir.

2005). We have carefully reviewed Mr. McCarthy’s brief, the district court’s

order, and the record on appeal, and for substantially the same reasons set forth


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by the district court’s May 27, 2005, Order, we AFFIRM the district court’s

May 27, 2005, dismissal of Mr. McCarthy’s petition for 28 U.S.C. § 2241 habeas

corpus relief.

                                             Entered for the Court



                                             Monroe G. McKay
                                             Circuit Judge




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