ALD-157                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 09-3884
                                       ___________

                        RASHFORD EMANUAL GALLOWAY,
                                            Appellant
                                    v.

                            WARDEN of F.C.I. FORT DIX
                       ____________________________________

                     On Appeal from the United States District Court
                            for the District of New Jersey
                             (D.C. Civ. No. 08-cv-05182)
                           District Judge: Noel L. Hillman
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

               Before: SLOVITER, AMBRO and SMITH, Circuit Judges

                              (Opinion filed: June 25, 2010)
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Appellant Rashford Galloway, a federal prisoner, seeks review of the District

Court’s order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

For the foregoing reasons, we will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i)

as lacking an arguable basis in fact or law.
       Galloway was arrested in Pennsylvania on February 7, 2002 and detained on state

drug charges. Soon thereafter he was indicted in United States District Court for the

Western District of Pennsylvania on unrelated federal drug charges. A federal detainer

was lodged against him on May 7, 2002. On May 23, 2002, a writ of habeas corpus ad

prosequendum was issued by federal authorities and Galloway was temporarily

transferred to federal custody to face the federal charges. He pleaded guilty on November

8, 2002, and, on April 4, 2003, Galloway was sentenced by the federal district judge in

the Western District of North Carolina to a term of imprisonment of 150 months. The

judge recommended to the Bureau of Prisons that Galloway participate in the Inmate

Financial Responsibility Program and a substance abuse treatment program. A state

sentence had yet to be imposed and thus the judge did not state a view on concurrency.

       Galloway was returned to state court where he pleaded guilty to the state drug

charges. On July 28, 2003, he was sentenced to a state term of imprisonment of 2-4

years, with full credit for the time spent in state custody since the date of his arrest. The

record is clear that the state judge intended for the state sentence to run concurrent with

the federal sentence.

       On September 28, 2005, Galloway was released to federal custody to begin serving

his federal sentence. Upon taking custody of Galloway, the Bureau of Prisons calculated

his federal sentence without a credit for any of the time he spent in state custody from the

date of his arrest through September 27, 2005 (the day before he was taken into federal



                                               2
custody). With credit for good conduct, Galloway’s projected release date is calculated to

be August 16, 2016.

       Prior to filing the instant habeas corpus action, Galloway sought a “Barden” credit

through the administrative process, see Barden v. Keohane, 921 F.2d 476, 483 (3d Cir.

1990) (through designating state prison as “place of confinement” Bureau of Prisons may

give credit against federal sentence for time spent in state custody). The BOP granted his

request to the extent it considered whether it should exercise discretion in his favor, but

denied it to the extent it determined that discretionary relief was not warranted,

notwithstanding the wishes of the state court. After the Warden denied Galloway’s

request for credit on his federal sentence for time spent in state custody, Galloway

appealed to the Regional Director.

       The Regional Director upheld the Warden’s decision, but, in keeping with Barden,

he construed Galloway’s request as one for nunc pro tunc designation and forwarded it to

the Designation and Sentence Computation Center for review. On November 7, 2007, the

BOP wrote to the federal district judge, and referencing 18 U.S.C. § 3621(b), stated: “It is

the preference of the Bureau of Prisons that the federal Sentencing Court be given an

opportunity to state its position with respect to a retroactive designation, which, while not

binding, can be helpful in our determination to grant or deny the request.” See Response

to Petition, Attachment 7, at 2. The federal judge did not respond to this letter.

       On February 5, 2008, Operations Manager Mark Race, after completing the



                                              3
Factors Under 18 USC 3621(b) Worksheet, recommended denying the Barden credit.

Under “Justification” the following was written: “Based on multiple terms of

imprisonment. Order was silent. Factor 3 - extensive drug history.” See Response to

Petition, Attachment 10. Galloway’s subsequent appeal to the Central Office was

unsuccessful. In denying his appeal, Administrator Harrell Watts stated: “In accordance

with Program Statement 5160.05, Designation of State Institution for Service of Federal

Sentence, a designation effecting concurrent service of state and federal sentences is

made only when it is consistent with the expressed intent of the federal court and the

goals of the criminal justice system. We reviewed your request with respect to the factors

delineated in 18 USC [sic] § 3621(b). Of particular note, was the federal court remaining

silent as to the manner in which your sentence was to be executed with the yet-to-be-

imposed state sentence,” and the fact that the court chose not to exercise its authority

under U.S.S.G. § 5G1.3. See Petition, Exhibit C.1

       This habeas corpus action, filed in United States District Court for the District of

New Jersey, followed. Initially, the District Court dismissed Galloway’s civil rights

claims without prejudice and his challenges to his convictions for lack of jurisdiction.

With respect to the computation of sentence issue, Galloway concluded his habeas corpus

petition with a statement that he was entitled to credit against his federal sentence from



   1
    Section 5G1.3(b) and (c) of the Guidelines permit a district court to achieve a
reasonable punishment under certain circumstances when a defendant is subject to an
undischarged term of imprisonment.

                                              4
the date the federal detainer was lodged against him – May 7, 2002 – through the day

before he was transferred to federal custody – September 27, 2005. See Petition, at 10.

         The BOP submitted a response to the petition, the administrative record, and the

Declaration of J. R. Johnson, explaining why it had not awarded Galloway the Barden

credit. Operations Manager Race’s completed Factors Under 18 USC 3621(b) Worksheet

was included among the attachments, along with Administrator Watts’ decision. The

BOP also noted that Galloway was not qualified for a double credit under either Willis v.

United States, 438 F.2d 923 (5th Cir. 1971), or Kayfez v. Gasele, 993 F. 2d 1288 (7th Cir.

1993), because his federal sentence was not concurrent with his state sentence. Galloway

replied to the BOP’s response, arguing that the wishes of the state court judge must be

honored by the BOP. Galloway did not specifically challenge the BOP’s weighing of the

factors under § 3621(b), and he also stated frankly that Kayfez had no bearing on his

case.2

         In an order entered on February 9, 2009, the District Court denied the habeas

corpus petition. The court reasoned that Galloway had not shown that the BOP abused its

discretion. The BOP properly conducted the required Barden and § 3621(b) analysis, and




   2
     Pursuant to Kayfez, the BOP will grant an amount of qualified double credit if the
following conditions are present: (1) the non-federal and federal sentences are concurrent;
(2) the raw effective full term (“EFT”) date of the non-federal term is later than the raw
EFT of the federal term; and (3) the non-federal raw EFT, after application of qualified
non-federal presentence time, is reduced to a date that is earlier than the federal raw EFT
date. See BOP Program Statement 5880.28.

                                              5
presumed that the state judge intended the sentences to be concurrent. Still, a favorable

exercise of discretion was determined not to be warranted in Galloway’s case and the

court found no grounds for disturbing that decision.

       Galloway then filed a motion for reconsideration, in which he sought to establish

as a matter of fact the state judge’s intention that the state sentence run concurrent to the

federal sentence. He also contended for the first time that the BOP had abused its

discretion, stating that he had only two sentences “that hardly qualify as multiple,”

Motion for Reconsideration, at 2. Moreover, the federal judge’s silence on the issue of

concurrency was not a proper factor for consideration, see id. at 3.

       In an order entered on September 9, 2009, the District Court reconsidered

Galloway’s arguments but again denied his habeas corpus petition. The court stated:

“Petitioner’s argument devolves into a contention that in this case Respondent’s exercise

of good-faith discretion must necessarily result in grant of credit (rather than in denial of

credit). Barden is not so broad. Barden does not hold that Respondent must give credit to

each inmate seeking such credit .... [W]e have been presented with no evidence that [the

BOP’s] discretion was exercised in an impermissible way.” Memorandum Opinion, at 3.

       Galloway appeals. Our Clerk granted him leave to appeal in forma pauperis and

advised him that his appeal was subject to summary dismissal under 28 U.S.C. §

1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6.

Galloway was invited to submit a written response, and he has done so. We have



                                              6
reviewed that response carefully. In it Galloway repeats his contentions that the BOP in

computing his sentence does not have the authority to frustrate the wishes of the state

judge, and the federal judge’s silence on the issue of concurrency has no relevance.

       We will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i) as lacking an

arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 325 (1989). See also

Denton v. Hernandez, 504 U.S. 25, 31 (1992). An appeal lacks an arguable basis in the

law when it turns on an indisputably meritless legal theory, Deutsch v. United States, 67

F.3d 1080, 1085 (3d Cir. 1995) (citing Neitzke, 490 U.S. at 327). We have jurisdiction

under 28 U.S.C. § 1291. Insofar as the BOP reviewed Galloway’s request for nunc pro

tunc credit, and considered the factors enumerated in § 3621(b), our review is limited to

whether the BOP abused its discretion, Barden, 921 F.2d at 478. The BOP abuses its

discretion when it renders a decision that is “arbitrary, capricious, ... or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). See also Gardner v. Grandolsky, 585 F.3d

786, 791 (3d Cir. 2009) (per curiam).

       The authority to calculate a federal prisoner’s period of incarceration for the

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). Section 3621(b) of Title 18 authorizes the BOP to designate the place of

confinement for purposes of serving federal sentences of imprisonment. See Barden, 921

F.2d 476. The BOP can thus effect concurrency of a federal sentence and state sentence



                                               7
through a nunc pro tunc designation. Had the BOP made this designation, Galloway’s

federal sentence likely would have begun to run on the date it was imposed, April 11,

2003, even though he was still in the custody of Pennsylvania.3 Concurrency would thus

have been achieved to a significant extent.

       Upon receipt of Galloway’s application for nunc pro tunc designation, the BOP

considered his request under 18 U.S.C. § 3621(b) and Barden, 921 F.2d 476. The BOP

sent a letter to the federal district judge, inquiring about his position on the issue of

concurrency, id. at 483 (“[T]he statute wisely requires the Bureau to solicit the views of

the sentencing judge whenever possible[.]”). The federal district judge did not respond to

the BOP’s inquiry. Because the federal judge could have, but did not, use that

opportunity to voice support for concurrency, the BOP interpreted the judge’s silence as a

“negative.” The BOP then reviewed, on February 25, 2008, Galloway’s request under the

five factors stated in § 3621(b), which are: “(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense; (3) the history and characteristics of the



   3
     The BOP likely would not have given Galloway credit against his federal sentence
for all of the time he spent in state custody even if it had made the nunc pro tunc
designation. A federal sentence commences when the defendant is received by the
Attorney General for service of his federal sentence. See 18 U.S.C. § 3585(a). As a
result, a federal sentence cannot begin to run earlier than on the date on which it is
imposed. See United States v. Labielle-Soto, 163 F.3d 93, 98 (2d Cir. 1998). We note
also that Galloway remained in the custody of Pennsylvania from the date of his arrest
until he was released into the custody of federal authorities. See generally Rios v. Wiley,
201 F.3d 257, 274 (3d Cir. 2000) (prisoner not entitled to credit against federal sentence
for time spent in federal detention pursuant to writ of habeas corpus ad prosequendum
“unless and until the first sovereign relinquishes jurisdiction over the prisoner”).

                                               8
prisoner; (4) any statement by the court that imposed the sentence – (A) concerning the

purposes for which the sentence to imprisonment was determined to be warranted; or (B)

recommending a type of penal or correctional facility as appropriate; and (5) any pertinent

policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of

title 28.” 18 U.S.C. § 3621(b) (2008).

       According to the Factors Under 18 USC 3621(b) Worksheet, the BOP justified its

decision not to exercise discretion in Galloway’s favor by referencing his multiple terms

of imprisonment, his extensive drug history, and the federal district judge’s silence on the

issue of concurrency. See Response to Petition, Attachment 10. The two drug

convictions were noted under § 3621(b) Factors 2 and 3. See id. Also under Factor 3 it

was noted that Galloway had a clean institutional conduct record. See id. Under Factor 4

it was noted that a Barden letter had been sent to the federal district judge but he had not

responded.

       In Barden, we explained that the “answer to [the] question [whether a petitioner is

entitled to a favorable exercise of the BOP’s discretion] will depend on the Bureau’s

practice in making such designations, as well as its assessment of Barden’s conduct in

custody, the nature of his crime and all the other factors that govern penal authorities’

consideration of a prisoner’s request for relief from the strict enforcement of his

sentence.” 921 F.2d at 478. We also noted that neither the federal courts nor the BOP are

bound in any way by a state court’s direction that the state and federal sentences run



                                              9
concurrently. See id. at 478 n.4 (citing U.S. Const. art. VI, cl. 2). See also Taylor v.

Sawyer, 284 F.3d 1143, 1150 (9th Cir. 2002) (concurrent sentences imposed by state

judges are merely recommendations to federal officials).

       We hold that the BOP’s choice here to exercise its discretion, in part by relying

upon the federal district judge’s silence on the issue of concurrency, was not arbitrary and

capricious. As a threshold matter, Galloway’s argument that his federal sentence must

run concurrent to his state sentences in deference to the wishes of the state court judge is

unavailing in light of the controlling language of 18 U.S.C. § 3584(a), which provides

that “[m]ultiple terms of imprisonment imposed at different times run consecutively

unless the court orders that the terms are to run concurrently.” Section 3584(a) presumes

consecutive sentences unless the court orders otherwise, and, here, the federal district

judge did not affirmatively voice support for concurrency.

       As to any contention that the BOP abused its discretion, Galloway has failed to

show that the BOP’s weighing of the § 3621(b)’s factors was arbitrary or capricious. The

BOP’s interpretation of the judge’s silence as a “negative” under Factor 4 was not

unreasonable. Cf. 18 U.S.C. § 3584(a), supra. The BOP’s consideration of the resources

of the federal system under Factor 1, and Galloway’s criminal drug history under Factors

2 and 3, was required by the statute, and, we might add, consistent with the federal district

judge’s express statement at sentencing that Galloway participate in a drug treatment

program. Galloway has two, close-in-time, and unrelated drug convictions in two



                                             10
different states. He was arrested in Warrington Township, Pennsylvania with 25 pounds

of marijuana in the trunk of his rental car, see Declaration of J. R. Johnson, at ¶ 4, and he

was convicted of conspiracy to possess with intent to distribute and distribution of

cocaine and cocaine base in North Carolina. Galloway did not contest that he has two

drug convictions; he simply sought to minimize that fact. But the test is not whether he,

or even the federal courts, would weigh the § 3621(b) factors differently. The test is

whether the BOP, in weighing the factors, acted arbitrarily, capriciously, or contrary to

the law, 5 U.S.C. § 706(2)(A); Gardner, 585 F.3d at 791, and we are not persuaded that it

did so in Galloway’s case.

       Attached to Galloway’s response in support of the appeal is a letter from the state

court judge in which he states that “it appears the BOP considered the sufficiency of the

Fort Dix resources, Petitioner’s multiple terms of imprisonment, his drug history, and the

lack of a reply from [the federal sentencing judge]. It is difficult to comprehend among

those factors what warranted the determination that Mr. Galloway’s State sentence,

against our clear direction, should not run concurrent with the Federal sentence imposed.”

See Motion in Support of Appeal, Exhibit 1. Even if we agreed with the state judge that

the BOP’s decision not to award Galloway the Barden credit was “difficult to

comprehend,” the fact remains that the BOP reviewed Galloway’s request for nunc pro

tunc credit and considered the factors enumerated in § 3621(b). Our review is thus

limited to whether the BOP abused its discretion. Barden, 921 F.2d at 478. In view of, as



                                             11
the judge notes, the sufficiency of the resources at FCI-Fort Dix and Galloway’s criminal

drug history, we cannot say that the BOP abused its discretion in Galloway’s case. Cf.

McLean v. Crabtree, 173 F.3d 1176, 1182 (9th Cir. 1999) (discussing BOP’s authority to

design and administer various treatment programs).

       Last, on appeal to the National Inmate Appeals, Administrator Watts upheld the

denial of the Barden credit. Referencing 18 U.S.C. § 3584 and BOP Program Statement

5160.05, which expresses a policy that a designation effecting concurrent service is made

only when it is consistent with the expressed intent of the federal court and the goals of

the criminal justice system, see generally Taylor, 284 F.3d at 1149 (policy statement’s

focus on federal sentencing court’s intent is within BOP’s discretion), Watts placed

particular emphasis in his written decision on the federal judge’s having remained silent

on the issue of concurrency. But it does not appear to us that Watts relied exclusively on

the federal judge’s lack of express support for concurrency, because he specifically stated

that “[w]e reviewed your request with respect to the factors delineated in 18 USC §

3621(b).” See Petition, Exhibit C. Moreover, the Operations Manager’s Factors Under

18 USC 3621(b) Worksheet indicates that Factors 1, 2 and 3 played a significant role in

the BOP’s decision; only Factor 5 was specifically noted not to be applicable. In short,

the administrative record considered as a whole in Galloway’s case supports the

conclusion that the BOP did not abdicate its statutory responsibility to bring its

independent judgment to bear on the Barden issue by relying too heavily on the federal



                                             12
judge’s silence on the issue of concurrency.

       To summarize, Galloway did not assert, let alone show, that other prisoners

similarly situated to him have received the Barden credit, which assertion might have

supported an argument that the BOP acted arbitrarily. He did not assert that the BOP had

changed its practices. See Barden, 921 F.2d at 428. In his petition for writ of habeas

corpus and reply to the BOP’s response, Galloway relied exclusively on his contention

that the BOP must give effect to the state judge’s concurrency order. This is a meritless

legal theory. Neitzke, 490 U.S. at 325; Deutsch, 67 F.3d at 1085. We expressly noted in

Barden that the BOP is not bound in any way by a state court’s direction that the state and

federal sentences run concurrently. 921 F.2d at 478 n.4 (citing U.S. Const. art. VI, cl. 2).

See also Taylor, 284 F.3d at 1150 (“[C]oncurrent sentences imposed by state judges are

nothing more than recommendations to federal officials.”) (quoting Del Guzzi v. United

States, 980 F.2d 1269, 1272-73 (9th Cir. 1992) (Norris, J., concurring)).

       For the foregoing reasons, we will dismiss the appeal under 28 U.S.C. §

1915(e)(2)(B)(i) as lacking an arguable basis in fact or law.

_______________________________________

AMBRO, Circuit Judge, dissenting




       Because I do not believe Galloway’s appeal “is frivolous or malicious,” 28 U.S.C.

§ 1915(e)(2)(B)(i), I respectfully dissent.



                                               13
       We held in Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991), that the Bureau of

Prisons can, in its discretion, designate a state prison as a place of federal confinement

nunc pro tunc. Id. at 483. Relevant factors include “the Bureau’s practice in making

such designations,” “its assessment of [the prisoner’s] conduct” and “actions” while in

custody, “the nature of [the] crime,” “the intent of the state judge,” and “any other broadly

relevant characteristics or circumstances.” Id. at 478, 483.

       As my colleagues recognize, the state judge in sentencing Galloway intended its

sentence to run concurrently with the federal sentence; indeed, the state judge went so far

as to write a letter to the BOP to this effect. While the state court’s recommendation does

not bind the BOP, it is a “relevant characteristic[]” under Barden. Id. at 483. Yet the

BOP did not once mention the state court’s intent in its adjudication of Galloway’s claim.

Instead, it relied almost exclusively on the silence of Judge Voorhees, the federal

sentencing judge, to deny Galloway’s request, despite our instruction in Barden that the

federal sentencing court’s decision “is not controlling under the statute.” Id.

       When the BOP focused on the federal sentencing court’s silence to the exclusion

of the state sentencing court’s expressed intent, it may have abused its discretion, and

Galloway may have been denied his right to “‘fair treatment’ on his application.” Id.

Thus, Galloway’s argument is not based on an “indisputably meritless legal theory,” Maj.

Op. at 7, but instead is solidly grounded in our case law. I would allow his appeal to go

forward.



                                             14
