14-3588
Cruz v. Walsh

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
11th day of December, two thousand fifteen.

PRESENT:    ROBERT A. KATZMANN,
                  Chief Judge,
            RALPH K. WINTER,
            JOHN M. WALKER, JR.,
                  Circuit Judges.
_____________________________________

Derrick Cruz, AKA David Cruz,

       Petitioner-Appellant,

                v.                                    No. 14-3588

James Walsh, Superintendent, et al, Eric Pfisterer,
U.S. Attorney, Bureau of Prisons,

      Respondents-Appellees.
_____________________________________

For Petitioner-Appellant:                             Derrick Cruz, pro se, Fort Dix, NJ.

For Respondents-Appellees:                            Benjamin H. Torrance, Jacob Lillywhite,
                                                      Ellen London, David S. Jones, Assistant
                                                      United States Attorneys, for Preet Bharara,
                                                      United States Attorney for the Southern
                                                      District of New York, New York, NY.
     Appeal from a judgment of the United States District Court for the Southern District of
New York (Stein, S.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Derrick Cruz, a federal prisoner proceeding pro se, appeals the district court’s

denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Cruz challenged the

Bureau of Prisons (BOP)’s denial of his request to designate, nunc pro tunc, the state correctional

facility where he was then serving a state sentence as the place of imprisonment for purposes of his

federal sentence so that his state and federal sentences could run concurrently. Cruz’s petition

also challenged the BOP’s determination that it could not give him credit toward his federal

sentence for time spent in official detention between July 17, 1995, and May 13, 1996, because

that time had already been credited to a prior state sentence. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

       “We review a district court’s denial of a petition for a writ of habeas corpus brought

pursuant to § 2241 de novo and review any factual findings for clear error.” Lugo v. Hudson, 785

F.3d 852, 854 (2d Cir. 2015) (per curiam).

       We conclude that the district court properly denied Cruz’s § 2241 petition. The court

correctly ruled that Cruz’s separation of powers and due process claims were foreclosed by our

precedent recognizing that, when a federal sentencing court is silent as to whether its sentence

should be served consecutively to or concurrently with an anticipated state sentence, the BOP is

authorized to make that determination. See Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 76 (2d

Cir. 2005); McCarthy v. Doe, 146 F.3d 118, 122-23 (2d Cir. 1998). The court also correctly ruled

that the BOP did not abuse its discretion in denying Cruz’s request for a nunc pro tunc designation

                                                 2
based on its determination that his federal sentence was not intended to be served concurrently

with his anticipated state sentence. After the BOP solicited the sentencing court’s position on

Cruz’s request for a nunc pro tunc designation, the court unequivocally stated that Cruz’s

sentences should be served consecutively, and it would “object to a favorable designation by the

Bureau of Prisons in this case.” R.A. 431.

       Cruz contends that his sentences should have been presumed to run concurrently, or else

that his federal sentence should have begun immediately when it was imposed, either because the

United States, and not the State of New York, had primary jurisdiction over him, or because his

sentence began when a federal detainer was lodged against him on the day of his return to state

custody. The district court properly deemed these assertions to be without merit. New York

gained primary jurisdiction over Cruz when he was arrested pursuant to a New York warrant,

retained that jurisdiction throughout his federal proceedings, and did not relinquish that

jurisdiction until he had completed his state sentences. See In re Liberatore, 574 F.2d 78, 89 (2d

Cir. 1978). Cruz’s continued detention following his federal sentencing was due to the fact that

he was awaiting trial in state court, and was therefore not solely the result of the federal detainer.

       Cruz’s argument that concurrency should be presumed is also without merit. As the

Magistrate Judge’s report and recommendation noted, insofar as any intent could be gleaned from

the sentencing court’s silence, “it [was] most likely that the court intended [Cruz’s] sentences to

run consecutively,” as the court was aware at sentencing that there were state charges pending

against Cruz, and, owing to the state’s primary jurisdiction, he would have to serve any state

sentence before starting his federal sentence.




                                                  3
       Finally, the district court did not clearly err in finding that the New York State Department

of Corrections and Community Supervision had already credited Cruz’s 1993 state sentence for

the period of detention between July 17, 1995, and May 13, 1996. Consequently, the court

correctly held that Cruz was not entitled to have his federal sentence credited for the same period.

See 18 U.S.C. § 3585(b).

       We have considered all of Cruz’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




                                                 4
