     Case: 19-40216       Document: 00515463993         Page: 1     Date Filed: 06/24/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit


                                     No. 19-40216
                                                                                   FILED
                                                                               June 24, 2020
                                   Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
CHRISTOPHER DARNELL LEWIS,

                                                  Petitioner - Appellant

v.

WARDEN FCC BEAUMONT,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:18-CV-285


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Christopher Darnell Lewis, federal prisoner # 11958-062 and appearing
pro se, challenges the denial of his 28 U.S.C. § 2241 petition, in which he
requested, inter alia, the Bureau of Prisons (BOP) designate, nunc pro tunc,
state prison as his first place of confinement for his federal sentence of, inter
alia, 180-months’ imprisonment for Hobbs Act robbery, in violation of 18
U.S.C. § 1951. Lewis contends the district court committed reversible error in


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 19-40216      Document: 00515463993     Page: 2   Date Filed: 06/24/2020


                                  No. 19-40216

failing: to rule independently on the merits of his petition; and to determine
his federal sentence should have been served first because it was imposed first.
        Lewis was arrested by state authorities on 29 February 2012 for failing
to appear in two state-criminal matters.         He was transferred to federal
authorities on 19 March 2012, pursuant to a writ of habeas corpus ad
prosequendum. After receiving his federal sentence on 23 April 2013, he was
returned to state authorities; the federal judgment was filed as a detainer.
        Lewis then pleaded guilty in state court to second-degree burglary and
was sentenced to, inter alia, 10-years’ imprisonment on 30 April 2013. The
state court ordered the sentence to “run concurrently” with Lewis’ federal
sentence. Lewis also received one-year sentences in three other state criminal
proceedings. Those sentences were ordered to run concurrently with each
other and with the 10-year sentence for second-degree burglary.
        Prior to his release from state custody in 2017, Lewis requested that his
federal sentence be served concurrently with his state sentence, which would
require that the BOP designate the state institution nunc pro tunc as the place
for service of his federal sentence.        Accordingly, the BOP contacted the
sentencing federal court to determine its position on a retroactive designation.
In its correspondence to the court, the BOP explained that, “[i]f, after 60 days,
a response has not been received from the [c]ourt, the [BOP] will complete its
review and make a decision regarding this case”.
        The sentencing court did not provide a response; therefore, after
reviewing Lewis’ case and considering the relevant factors in 18 U.S.C.
§ 3621(b) (listing factors for consideration in designating place of prisoner’s
imprisonment), the BOP determined that a retroactive concurrent designation
was not appropriate. The BOP informed Lewis of its decision on 31 December
2015.



                                        2
    Case: 19-40216    Document: 00515463993     Page: 3   Date Filed: 06/24/2020


                                 No. 19-40216

      Lewis completed his state sentence on 24 February 2017 and was
transferred to federal custody to begin serving his 180-month sentence.
Thereafter, on 13 June 2018, Lewis filed a petition under 28 U.S.C. § 2241,
challenging the BOP’s denial of his request for nunc pro tunc designation. In
it, he contended he should receive credit toward his federal sentence for the
time he spent in state custody, consistent with the state court’s judgment
ordering that his state sentence for second-degree burglary “run concurrently”
with his federal sentence.
      Challenges regarding “the extent to which [a] sentence has been
executed”, as opposed to “the legality of [a] conviction or the validity of [a]
federal prison term imposed”, are cognizable “under 28 U.S.C. § 2241”. United
States v. Gabor, 905 F.2d 76, 77–78 (5th Cir. 1990) (citation omitted). “Under
§ 2241, we review the district court’s findings of fact for clear error and
conclusions of law de novo.” Christopher v. Miles, 342 F.3d 378, 381 (5th Cir.
2003).
      Upon Lewis’ filing his § 2241 petition, the matter was referred to a
magistrate judge (MJ), who issued a report recommending the petition be
denied. The MJ concluded the BOP had acted within its discretion in refusing
Lewis’ request for nunc pro tunc designation, given: the state court’s order for
concurrent sentencing was not binding on the BOP; the sentencing federal
district court’s judgment did not specify whether Lewis’ federal sentence would
run consecutively or concurrently with his state sentence for second-degree
burglary; and the federal sentencing court did not communicate to the BOP it
intended Lewis’ federal sentence to run concurrently with his state sentence.
      After stating that no objections had been filed, the district court adopted
the MJ’s report and denied Lewis’ § 2241 petition. This appeal followed.




                                       3
    Case: 19-40216     Document: 00515463993      Page: 4   Date Filed: 06/24/2020


                                   No. 19-40216

      “Where a federal sentence was imposed before a state sentence, the BOP
may indirectly award credit for time served in state prison by designating nunc
pro tunc the state prison as the place in which the prisoner serves a portion of
his federal sentence.” Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010)
(emphasis added) (citations omitted). In making its determination, the BOP
fulfills its obligation to consider petitioner’s request by submitting the request
to the [federal] sentencing court, which may communicate any intent for the
sentence to run either concurrently or consecutively to any state sentence
imposed, and, thereafter, considering the relevant 18 U.S.C. § 3621(b)
statutory factors. See 18 U.S.C. § 3621(b); Hunter v. Tamez, 622 F.3d 427, 429
& n.2 (5th Cir. 2010) (citations omitted); see also Rodriguez v. Pitzer, 76 F.
App’x 519, 520 (5th Cir. 2003) (citations omitted).
      As discussed, when Lewis’ federal sentence was imposed in 2013, he was
under primary jurisdiction of state authorities in Oklahoma. After pleading
guilty to Hobbs Act robbery in federal court, Lewis was returned to state
authorities. He then pleaded guilty in state court to second-degree burglary
and was sentenced to 10-years’ imprisonment, which the state court ordered to
“run concurrently” with Lewis’ federal sentence. Lewis then began serving his
state sentence in state custody.
      Prior to his release from state custody in 2017, Lewis requested that his
federal sentence be served concurrently with his state sentence, which would
require that the BOP designate the state institution nunc pro tunc as the place
for service of his federal sentence. Although the BOP contacted the federal
sentencing court to determine its position on a retroactive designation in
Lewis’ case, the sentencing court did not respond. Thereafter, in reviewing
Lewis’ case and considering the relevant 18 U.S.C. § 3621(b) factors, the BOP
determined a retroactive, concurrent designation was not appropriate.



                                        4
    Case: 19-40216     Document: 00515463993     Page: 5   Date Filed: 06/24/2020


                                  No. 19-40216

      Lewis first contends: the sentencing court’s “non-response” to the BOP’s
inquiry is insufficient to support the BOP’s denial of his request for nunc pro
tunc designation; and the district court, therefore, erred in relying on the
sentencing court’s “non-response” in denying his 18 U.S.C. § 2241 petition
without “independently rul[ing] on the merits of the case”. This contention
lacks merit.
      As an initial matter, Lewis cites no authority requiring the district court
to “independently rule on the merits of [his] case”. In any event, although the
district court considered the sentencing court’s “non-response” to the BOP, it
also undertook a full analysis of Lewis’ 18 U.S.C. § 2241 petition.
      In considering Lewis’ petition, the district court explained that “the time
[Lewis] spent in custody from his arrest by state authorities until the date he
was taken into federal custody [in 2017] was credited toward his state
sentence[] ”. The court determined he was, therefore, “not entitled to have the
time credited toward his federal sentence” under 18 U.S.C. § 3585(b) (stating
“defendant shall be given credit toward the service of a term of imprisonment
for any time he has spent in official detention prior to the date the sentence
commences . . . that has not been credited against another sentence” (emphasis
added)).    Additionally, the court acknowledged 18 U.S.C. § 3584(a)’s
presumption that “[m]ultiple terms of imprisonment imposed at different times
run consecutively unless the federal court orders that the terms are to run
concurrently”.   Further, the court acknowledged that “[t]he decision . . .
whether to grant . . . a [retroactive] designation is within the discretion of the
BOP”; and, as stated, the BOP considered Lewis’ request in the light of the 18
U.S.C. § 3621(b) factors before exercising its discretion in denying it.
      Lewis also contends the district court failed to consider his assertion that
his federal sentence should have been served first because, when in 2012 he



                                        5
    Case: 19-40216     Document: 00515463993      Page: 6    Date Filed: 06/24/2020


                                  No. 19-40216

was transferred from the state to federal authorities for conviction and
imposition of his federal sentence in 2013, he had not yet been convicted on the
state charge and was not serving a state sentence.            Contrary to Lewis’
contention, the district court considered this claim but determined it was
without merit given our court’s decision in Causey v. Civiletti, 621 F.2d 691,
693–94 (5th Cir. 1980), where our court rejected the “first in time, first to serve”
claim that Lewis now makes on appeal.
      AFFIRMED.




                                         6
