                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DANIEL ANGEL RODRIGUEZ,                 No. 14-16399
        Petitioner-Appellant,
                                       D.C. No.
             v.                   1:13-cv-01750-SMS

PAUL COPENHAVER,
       Respondent-Appellee.              OPINION


      Appeal from the United States District Court
         for the Eastern District of California
     Sandra M. Snyder, Magistrate Judge, Presiding

          Argued and Submitted April 7, 2016
                 Pasadena, California

                   Filed May 25, 2016

 Before: A. Wallace Tashima, Barry G. Silverman, and
            Susan P. Graber, Circuit Judges.

              Opinion by Judge Silverman
Partial Concurrence and Partial Dissent by Judge Tashima
2                 RODRIGUEZ V. COPENHAVER

                           SUMMARY*


                          Habeas Corpus

    The panel reversed the district court’s dismissal of a
federal prisoner’s 28 U.S.C. § 2241 habeas corpus petition
challenging the Bureau of Prisons’ denial of a discretionary
nunc pro tunc designation of a state prison for service of his
sentence pursuant to 18 U.S.C. § 3621(b), and remanded.

    The panel held that because the district court had
jurisdiction to consider Rodriguez’s claims that the BOP
violated the Constitution, exceeded its statutory authority, or
acted contrary to established federal law, the district court
erred by dismissing the petition for lack of jurisdiction.

    The panel held that the BOP acted contrary to 18 U.S.C.
§ 3621(b)(4) and due process, when it relied on a letter from
a judge who was not the sentencing judge, and who had been
formally recused from the case due to an actual conflict –
namely, his connection to the victim of the crime. The panel
reversed and remanded for the district court to grant the
habeas petition with directions to the BOP to promptly
reconsider the prisoner’s request for a nunc pro tunc
designation, without considering the letter from the recused
judge.

   Judge Tashima concurred in part and dissented in part.
He agreed that the BOP committed legal error under
§ 3621(b)(4) in treating and relying on the letter of a judge

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                RODRIGUEZ V. COPENHAVER                     3

who was not the sentencing judge, but he dissented from the
majority’s discussion of and “holding” that the BOP violated
the prisoner’s due process rights and statutory rights under
the recusal statutes.


                        COUNSEL

Stephen R. Sady (argued), Chief Deputy Federal Public
Defender, and Elizabeth G. Daily, Research & Writing
Attorney, Portland, Oregon, for Petitioner-Appellant.

Audrey B. Hemesath (argued), Assistant United States
Attorney, Camil A. Skipper, Appellate Chief, and Benjamin
B. Wagner, United States Attorney, Sacramento, California,
for Respondent-Appellee.


                         OPINION

SILVERMAN, Circuit Judge:

    Federal prisoner Daniel Rodriguez appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas petition
challenging the Bureau of Prisons’ denial of a discretionary
nunc pro tunc designation of a state prison for service of his
federal sentence pursuant to 18 U.S.C. § 3621(b).

    We hold that the district court erred by dismissing the
petition for lack of jurisdiction. The district court had
jurisdiction to consider Rodriguez’s claims that the Bureau of
Prisons violated the Constitution, exceeded its statutory
authority, or acted contrary to established federal law. See
Close v. Thomas, 653 F.3d 970, 973–74 (9th Cir. 2011).
4               RODRIGUEZ V. COPENHAVER

     We also hold that the Bureau of Prisons acted contrary to
18 U.S.C. § 3621(b)(4), which directs the Bureau of Prisons,
when designating a prisoner to a facility in which to serve his
sentence, to consider “any statement by the court that
imposed the sentence.” (emphasis added). It is undisputed
that the Bureau of Prisons relied on a letter from a judge who
not only was not the sentencing judge, but who had been
formally recused from the case due to an actual conflict –
namely, his connection to the victim of the crime. In relying
on that letter, the Bureau of Prisons acted contrary to 18
U.S.C. § 3621(b)(4) and due process. We reverse and remand
for the district court to grant the petition for habeas corpus
with directions to the Bureau of Prisons to promptly
reconsider Rodriguez’s request for a nunc pro tunc
designation, without considering the letter from the recused
judge.

                               I

                         Background

    On July 24, 1994, Rodriguez was arrested on state
charges in Miami, Florida. He was on parole for a previous
state conviction at the time of his arrest. A month later, while
Rodriguez was in state custody, he appeared in the United
States District Court for the Southern District of Florida,
where he was charged with various firearm charges, and
assault on a federal judge stemming from a home invasion
robbery. Acting Chief District Judge Edward B. Davis
previously had recused all of the district judges in the
Southern District of Florida from Rodriguez’s case because
the alleged victim of the home robbery was a fellow judge of
the district court in the Southern District of Florida.
                  RODRIGUEZ V. COPENHAVER                            5

    Because all of the Southern District of Florida judges had
been recused, the Chief Judge of the Eleventh Circuit
appointed United States District Judge Robert Propst, from
the Northern District of Alabama, to sit by designation and
preside over Rodriguez’s case in the Southern District of
Florida. The jury acquitted Rodriguez of assault, but found
him guilty of the firearm charges. Judge Propst then
dismissed the firearm conviction related to the assault charge,
leaving two convictions for felon in possession of a firearm.

     On April 10, 1995, Judge Propst sentenced Rodriguez to
a prison term of 272 months. At that time, Rodriguez was
still in state custody while awaiting disposition of his state
cases. The federal sentence was silent about whether it
should run concurrently with or consecutively to the yet-to-
be-imposed sentences for the new pending state charges and
parole revocation. About three years after Rodriguez
finished serving his state sentences, the Bureau of Prisons
took custody of Rodriguez. That occurred on July 16, 1998.

    Rodriguez requested that the Bureau of Prisons
retroactively designate the Florida prison system for service
of his federal sentence nunc pro tunc to September 1, 1994.
In other words, he sought, in effect, to get credit toward his
federal sentence for the time he spent in state custody before
being transferred to the Bureau of Prisons on July 16, 1998.
A nunc pro tunc designation would shorten Rodriguez’s
federal sentence by approximately three years.1




 1
   Rodriguez’s federal sentence has been credited with some state time.
The nunc pro tunc designation would, in effect, provide credit from
September 1, 1994, to October 2, 1997.
6               RODRIGUEZ V. COPENHAVER

    Pursuant to the Bureau of Prisons’ Program Statement and
18 U.S.C. § 3621(b)(4), Eric Wohltjen, Acting Chief of the
Bureau’s Designation and Sentence Computation Center, sent
a letter to Judge Propst, but he mailed it to the Southern
District of Florida, instead of to Alabama. The letter solicited
Judge Propst’s position on whether the retroactive
designation should be granted. On March 18, 2010, Chief
Judge Federico A. Moreno of the Southern District of Florida,
not Judge Propst the sentencing judge, replied to the Bureau
of Prisons as follows:

       Dear Mr. Wohltjen,

           I am in receipt of a copy of your letter to
       Judge Robert Propst, from the Northern
       District of Alabama, who presided over the
       above-styled case here in Miami. As a review
       of the file will reveal, a judge in our Court,
       Shelby Highsmith, was the victim in the case
       for which visiting Judge Propst sentenced Mr.
       Rodriguez to 272 months. Mr. Rodriguez was
       also sentenced in state court to a 20 year term
       for multiple counts of armed robbery and
       kidnapping.

           To now grant retroactive credit to Mr.
       Rodriguez for the time served in state custody
       would drastically reduce the sentence that
       visiting Judge Propst properly imposed. As
       the Chief Judge of the Southern District of
       Florida where Judge Highsmith honorably
       served until his recent retirement, I strongly
       oppose the defendant’s request for the Bureau
       of Prisons to give him credit for the time he
               RODRIGUEZ V. COPENHAVER                     7

       served in state prison on an unrelated violent
       crime.

           Unfortunately, Federal Judges have been
       the recipients of many threats in today’s
       society. When a threat results in an actual
       attack, the offenders should be severely
       sanctioned. To now allow Mr. Rodriguez to
       be released on January 8, 2015 rather than
       October 19, 2018 is not only dangerous to the
       public but an insult to the victim in the federal
       case, Judge Shelby Highsmith, let alone the
       victims of the armed robbery in the state case.
       I hope that you deny his request for
       retroactive credit.

The Bureau of Prisons denied the nunc pro tunc designation
request, writing to Rodriguez that

       we considered the nature of your instant
       offense conduct, the reasons for which you
       were in the custody of the State of Florida, the
       nature and repetitiveness of your criminal
       history, and your institutional adjustment. We
       also contacted the court regarding your
       request. In response, the court emphatically
       objected to your federal sentence commencing
       the day it was imposed as doing so would be
       a great insult to the victim of your federal
       crime which, a federal judge, and the victims
       of the armed robbery for which you were
       sentenced in state court. Accordingly, we
       determined a retroactive designation would be
8               RODRIGUEZ V. COPENHAVER

       inconsistent with the goals of the criminal
       justice system.

    Rodriguez then filed his 28 U.S.C. § 2241 habeas petition
in the Eastern District of California, the district in which he
was then incarcerated, alleging, first, that the Bureau of
Prisons violated the law and Constitution by considering the
recused judge’s letter; and second, that Chief Judge Moreno,
the recused judge, violated the recusal statute and recusal
order by responding to the Bureau of Prisons in his official
capacity. The district court dismissed the habeas petition,
holding that it lacked jurisdiction to review an individual
discretionary denial of a nunc pro tunc designation by the
Bureau of Prisons because 18 U.S.C. § 3625 specifically
exempts § 3621 decisions from the judicial review provisions
of the Administrative Procedure Act. Rodriguez appealed.

                              II

            Jurisdiction and standards of review

    We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo both subject matter jurisdiction and the merits
of the habeas claim. Close, 653 F.3d at 973; Reeb v. Thomas,
636 F.3d 1224, 1225 (9th Cir. 2011).

                              III

                 District court’s jurisdiction

    The district court erred when it dismissed the petition for
lack of jurisdiction. Although a district court has no
jurisdiction over discretionary designation decisions, it does
have jurisdiction to decide whether the Bureau of Prisons
                 RODRIGUEZ V. COPENHAVER                         9

acted contrary to established federal law, violated the
Constitution, or exceeded its statutory authority when it acted
pursuant to 18 U.S.C. § 3621. Close, 653 F.3d at 973–74.
Rodriguez alleged in the district court that the Bureau of
Prisons’s consideration of the recused judge’s letter violated
the law and Constitution. Therefore, the district court erred
when it dismissed the petition for lack of jurisdiction. Id.
Because the facts are undisputed, we address Rodriguez’s
wholly legal claim.

                                IV

       Bureau of Prisons’ consideration of the recused
                       judge’s letter

    Rodriguez argues      that the Bureau of Prisons acted
contrary to 18 U.S.C.    § 3621(b)(4) when it considered an
official letter from a   judge who was both recused from
Rodriguez’s case and     was not the sentencing judge. We
agree.

    The Bureau of Prisons’ authority to nunc pro tunc
designate a state prison for service of a federal sentence
derives from its authority to designate the facility where a
federal defendant serves his sentence. 18 U.S.C. § 3621(b);
Reynolds v. Thomas, 603 F.3d 1144, 1150 (9th Cir. 2010),
abrogated on other grounds by Setser v. United States, 132
S. Ct. 1463 (2012). Section 3621(b) gives the Bureau of
Prisons discretion to designate the facility, but lists the factors
that the Bureau of Prisons must consider when it exercises
discretion. The statute directs the Bureau of Prisons to
consider “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
10              RODRIGUEZ V. COPENHAVER

(B) recommending a type of penal or correctional facility as
appropriate.” 18 U.S.C. § 3621(b)(4) (emphasis added). This
is a direction to the Bureau of Prisons to consider statements
made by the sentencing judge to determine the judge’s intent
and reasoning for the particular sentence imposed on the
particular defendant. See Rodriguez v. Smith, 541 F.3d 1180,
1189 (9th Cir. 2008) (characterizing factors considered under
§ 3621(b) to include the “sentencing judge’s statement”);
Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 248 (3d
Cir. 2005) (“Congress expressed an intent that the [Bureau of
Prisons] take into account the sentencing judge’s
recommendation.”); see also Federal Bureau of Prisons
Program Statement No. 5160.06, at 6 (Jan. 16, 2003) (setting
forth procedures to follow “[w]hen the original sentencing
judge is no longer available and the assigned judge offers no
opinion”).

    Thus, there is no doubt that the Bureau of Prisons doubly
erred in considering Chief Judge Moreno’s letter: First, he
was not the judge who imposed the sentence as 18 U.S.C.
§ 3621(b)(4) contemplates; and second, he had been recused
from the case and should not have participated in it in any
way.

    The Due Process Clause of the Fourteenth Amendment
requires recusal of a judge who “has a direct, personal,
substantial pecuniary interest in reaching a conclusion against
[a defendant] in his case.” Tumey v. Ohio, 273 U.S. 510, 523
(1927). “[T]o perform its high function in the best way,
justice must satisfy the appearance of justice.” Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 865 n.12
                RODRIGUEZ V. COPENHAVER                     11

(1988) (emphasis added) (internal quotation marks omitted);
see also Concrete Pipe & Prods. of Cal., Inc. v. Constr.
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 617 (1993)
(“That officers acting in a judicial or quasi-judicial capacity
are disqualified by their interest in the controversy to be
decided is, of course, the general rule.” (quoting Tumey, 273
U.S. at 522)).

     In this case, Chief Judge Moreno, a colleague of an
alleged victim of Rodriguez’s crimes, strongly recommended
“severe[] sanction[s]” and the denial of the nunc pro tunc
designation to avoid “insult” to his colleague. To make
matters worse, the chief judge presented his recommendation
under the guise of a neutral adjudicator by sending his letter
in place of the sentencing judge’s recommendation. The
Bureau of Prisons adopted the recused judge’s
recommendation and denied Rodriguez’s application. Such
actions do not satisfy the appearance of justice. Nor do they
afford Rodriguez his due process right to neutral adjudication.
Thus, as a matter of both statute and due process, the Bureau
of Prisons should not have considered Chief Judge Moreno’s
letter. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876,
883–84 (2009); Mayberry v. Pennsylvania, 400 U.S. 455, 466
(1971). Furthermore, there is no way that this error can be
deemed harmless in as much as the Bureau specifically cited
and relied on the Moreno letter in denying Rodriguez’s
application.

    We reverse and remand for the district court to grant the
writ and to direct the Bureau of Prisons to reconsider, within
12                RODRIGUEZ V. COPENHAVER

30 days, Rodriguez’s application for nunc pro tunc
designation, and to do so without regard to Chief Judge
Moreno’s letter.2

      REVERSED AND REMANDED.



TASHIMA, Circuit Judge, concurring in part and dissenting
in part:

    In designating the place of a federal prisoner’s
confinement, the Bureau of Prisons (“BOP”) is required to
consider “any statement by the court that imposed the
sentence[.]” 18 U.S.C. § 3621(b)(4). This requirement
applies to retroactive, or nunc pro tunc, designations.
Although one possible construction of the term “the court that
imposed the sentence” is that it refers to the court as a whole,
here the Southern District of Florida, I fully agree with the
majority’s interpretation that “[t]his is a direction to the
Bureau of Prisons to consider statements made by the
sentencing judge to determine the judge’s intent and
reasoning for the particular sentence imposed on the
particular defendant.” Maj. Op. at 10. Because Chief Judge
Moreno was not the sentencing judge, I agree that the BOP




  2
     Because we grant relief on this issue, we decline to consider the
alternative arguments raised by Rodriguez. We also decline to consider
the arguments waived in the district court.
                   RODRIGUEZ V. COPENHAVER                              13

committed legal error under § 3621(b)(4) in treating and
relying on his letter as the views of the sentencing judge.1

    This should end the matter and I would not further opine
on whether the Chief Judge’s letter was a violation of the
recusal statutes or of due process, as does the majority. The
recusal statutes apply only to in-court “proceedings.” See
28 U.S.C. § 144 (limiting application to “any proceeding in
a district court”); id. § 455(a) (requiring judge to “disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned”).          Indubitably, the BOP’s
designation of a prisoner’s place of confinement is not a court
“proceeding.”2 More importantly, the letter-writing judge is
not the decision-making authority. Thus, at best, it is highly
questionable whether the recusal statutes apply to § 3621
determinations by the BOP.

   As for the asserted “due process” violation caused by the
BOP’s reliance on the Chief Judge’s letter, the cases the
majority cites are inapposite. All of the cases cited by the
majority, see Maj. Op. at 10–11, Tumey v. Ohio, 273 U.S.
510, 523 (1927); Liljeberg v. Health Serv. Acquisition Corp.,
486 U.S. 847, 865 n.12 (1988), Concrete Pipe & Prod. Of


 1
     It is important to note that § 3621 is not an all encompassing statute.
It does not prohibit the BOP from considering materials from other
sources, nor does it exhaustively list what the BOP may not consider. For
example, there is nothing in the statute that expressly prohibits the BOP
from considering a letter from the victim, or from the inmate’s parent or
spouse. Because the issue is not before us, we need not decide whether
the BOP was free to consider the Chief Judge’s letter, as long as it made
clear that it was not being considered as the views of the sentencing judge.
  2
    In fact, in the usual case, the BOP’s designation decision is not
subject to judicial review under the APA. See 18 U.S.C. § 3125.
14                RODRIGUEZ V. COPENHAVER

Cal., Inc. v. Constr. Laborers Pension Tr. For S. Cal., 508
U.S. 602, 617 (1993); Caperton v. A.T. Massey Coal Co.,
556 U.S. 868, 876 (2009); and Mayberry v. Pennsylvania,
400 U.S. 455, 466 (1971), concerned in-court proceedings
and decisions made by judges in those proceedings, not a
judge acting as a witness by sending a letter responding to the
inquiry of an independent agency.

    Moreover, it is entirely unnecessary to decide either the
due process issue or the reach of the recusal statutes because
the case can be completely disposed of on the statutory
violation ground. Finally, because, as the majority holds,
only the sentencing judge can respond to the BOP’s § 3621
request, it is highly unlikely that a potential due process
violation will arise again. Once the BOP’s solicitation and
consideration of § 3621 letters is limited to sentencing judges,
by definition a judge who has been recused from the
sentencing proceeding cannot be the sentencing judge. The
problem should not recur. Thus, the majority’s “decision” of
these issues is not only dicta in the old fashioned sense, it is
also unnecessary in the practical sense.3

    I thus concur in all of the majority opinion, except for its
discussion of and “holding” that the BOP violated
Rodriguez’s due process rights and statutory rights under the
recusal statutes, from which I respectfully dissent.




 3
    I emphasize that the dicta is “unnecessary” because of our Circuit’s
unique – and unfortunate – view of dicta. See Barapind v. Enomoto, 400
F.3d 744, 750–51 (9th Cir. 2005) (en banc).
