                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 25 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SEBASTIAN LEIGH ECCLESTON,                       No. 13-56065

               Petitioner - Appellant,           D.C. No. 2:12-cv-03999-JSL

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

               Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                     J. Spencer Letts, District Judge, Presiding

                          Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Federal prisoner Sebastian Leigh Eccleston appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2241 habeas petition. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s denial of

a section 2241 habeas petition, see Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cir. 2010), abrogated on other grounds by Setser v. United States, 132 S. Ct. 1463,

1473 (2012), and we affirm.

      Eccleston contends that his federal sentence should be credited with the time

he spent in state custody from October 29, 1996, to July 8, 2006. We disagree.

The record does not support Eccleston’s claims that the federal court intended to

run his federal sentence concurrently to his state sentence or that he was in federal

custody at any time prior to January 28, 2011. See 18 U.S.C. § 3585(a); Taylor v.

Reno, 164 F.3d 440, 445 (9th Cir. 1998). The state court’s indication that the

sentences were to run concurrently is not binding on the Bureau of Prisons

(“BOP”), see Reynolds, 603 F.3d at 1149, and nothing in Setser suggests

otherwise. Moreover, Eccleston is not entitled to custody credits prior to July 9,

2006, because the record reflects that the state credited that time toward his state

sentence. See 18 U.S.C. § 3585(b); Allen v. Crabtree, 153 F.3d 1030, 1033 (9th

Cir. 1998) (section 3585(b) disallows double crediting for time served).

      Eccleston’s challenges to the BOP’s denial of his request for nunc pro tunc

designation under 18 U.S.C. § 3621(b) and Program Statement 5160.05 are also

unavailing. When Eccleston requested nunc pro tunc designation, the BOP, in

compliance with its Program Statement, solicited the view of the federal sentencing

court. Based on that court’s expressed preference that the sentences run


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consecutively, the BOP properly denied Eccleston’s request for nunc pro tunc

designation. See Taylor v. Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002) (“Given

the express intent of the federal sentencing judge [not to run the sentences

concurrently], the BOP was obligated by the terms of its policy statement to

decline the requested designation.”), abrogated on other grounds by Setser, 132 S.

Ct. at 1473. Contrary to Eccelston’s suggestion, this conclusion is consistent with

Setser, which recognized the authority of the federal court to order its sentence to

run concurrently or consecutively to a state sentence. See Setser, 132 S. Ct. at

1468.

        We decline to consider Eccleston’s remaining arguments, as well as

appellee’s contentions that this court should not entertain the merits of Eccleston’s

claims, because these challenges were raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). We deny

appellee’s request for judicial notice. All other pending motions are denied.

        AFFIRMED.




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