DLD-251                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-1525
                                       ___________

                             SEBASTIAN L. ECCLESTON,
                                                Appellant

                                             v.

                            UNITED STATES OF AMERICA

                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 09-cv-02654)
                        District Judge: Honorable Joel A. Pisano
                      ____________________________________

         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
                                     July 22, 2010
            Before: FUENTES, JORDAN AND HARDIMAN, Circuit Judges

                                 (filed: August 9, 2010 )
                                         _________

                                        OPINION
                                        _________

PER CURIAM

       Appellant Sebastian Leigh Eccleston appeals from the order of the United States

District Court for the District of New Jersey denying his petition for a writ of habeas

corpus under 28 U.S.C. § 2241. We will summarily affirm.
       Because the parties are familiar with the background, we will not present it at

length. Eccleston is a State of New Mexico inmate who is currently serving his state

sentence at the New Jersey State Prison. In 1996, he pleaded guilty to New Mexico

charges of murder and conspiracy, and to federal charges in the District of New Mexico

for separate offenses of carjacking, using and carrying a firearm during and in relation to

a crime of violence, and other related charges. He was detained primarily in state custody

and was temporarily transferred on writ to and from federal custody for his federal

proceedings. Eccleston was sentenced for the state and federal convictions on the same

day. He appeared first in federal court and was sentenced to a 417-month prison term.

He later appeared in state court and was sentenced to life imprisonment plus a

consecutive nine-year term. The state court judgment indicated that the state sentence

was to run concurrently with the federal sentence. Eccleston began serving his state

sentence that same day, October 29, 1996, and he is eligible for parole in the year 2026.

His federal sentence is scheduled to begin upon his release from his state sentence.

       In June 2008, Eccleston submitted a request to the federal Bureau of Prisons

(“BOP”), seeking to have the non-federal institution in which he is serving his state

sentence designated nunc pro tunc as the place for serving his federal sentence; the effect

of that retroactive designation would be that he would be serving his federal sentence




                                             2
concurrently with his state sentence.1 By letter dated February 18, 2009, the BOP

Designation and Sentence Computation Center denied Eccleston’s request. The BOP

noted that, although 18 U.S.C. § 3585(b) prohibits prior custody credit for time served on

a state sentence, Eccleston’s case was evaluated for a nunc pro tunc designation under

Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). After applying the relevant factors in

18 U.S.C. § 3621(b),2 the BOP concluded that a nunc pro tunc designation is not

consistent with the goals of the criminal justice system.

       Eccleston then filed the section 2241 habeas petition in this matter, seeking the

nunc pro tunc designation of the state prison of his current incarceration as his place of

federal confinement. The government filed an answer to the habeas petition, along with

exhibits concerning Eccleston’s case and the declaration of Kinda Flagg, Management

Analyst at the BOP Designation and Sentence Computation Center. Eccleston filed a

reply to the government’s answer. On February 3, 2010, the District Court denied the

habeas corpus petition. The court reasoned that the BOP properly conducted the analysis

under Barden and the factors of section 3621(b), and concluded that Eccleston had not



       1
         Eccleston also requested sentence credit for pretrial confinement, but he did not
seek relief on that issue in his section 2241 petition. The District Court noted this in
footnote 3 of its February 3, 2010 Opinion and dismissed any such claim without
prejudice in its accompanying order.
       2
        Section 3621(b) authorizes the BOP to designate the place of confinement for
purposes of serving federal sentences of imprisonment. See Barden, 921 F.2d at 482.
The BOP can thus effect concurrency of a federal sentence and state sentence through a
nunc pro tunc designation.

                                              3
shown that the BOP abused its discretion in denying Eccleston’s request for a nunc pro

tunc designation.

       Eccleston appeals. This Court granted him leave to appeal in forma pauperis and

advised him that his appeal would be considered for possible 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. Eccleston has submitted a written response in support of his appeal. He has

also filed a motion for appointment of counsel.

       We have jurisdiction under 28 U.S.C. § 1291. To the extent that the issues raised

by the appeal are legal in nature, we exercise plenary review. See Barden, 921 F.2d at

479. However, insofar as the BOP reviewed Eccleston’s request for a nunc pro tunc

designation and considered the section 3621(b) factors, our review is limited to whether

the BOP abused its exercise of its broad discretion in reviewing such requests. See id.

921 F.2d at 478.

       In Barden, we held that the BOP has the statutory authority to make the nunc pro

tunc designation, but we emphasized that the BOP has wide discretion in determining

whether to designate the state prison as the place of federal confinement. See id. at 483.

We did not hold that the petitioner in Barden was entitled to a favorable exercise of the

BOP’s discretion, and we explained that the determination would depend on the BOP’s

practice in making such designations and its assessment of all the factors that govern the

issue. See id. at 478. We also noted that neither the federal courts nor the BOP are bound



                                             4
in any way by the state court’s instruction that the state and federal sentences were to run

concurrently. See id. n.4 (citing U.S. Const. art. VI, cl. 2.).

       Upon review of the record, we agree with the District Court that Eccleston has not

made the showing required for the writ to issue. The BOP reviewed Eccleston’s request

under the relevant factors stated in section 3621(b) and relied on section 3621(b)(2), the

nature of Eccleston’s federal crimes (carjacking and related crimes); section 3621(b)(3),

Eccleston’s history and characteristics (the state convictions for murder and conspiracy

for which he is currently incarcerated, as well as additional convictions for unlawful

taking of a motor vehicle, aiding and abetting a carjacking, aggravated battery, assault,

and other state crimes); and section 3621(b)(4), relevant statements by the sentencing

court. Concerning statutory factor (4), the BOP noted that the federal judgment and

commitment order was silent regarding the relationship of the federal and state sentences,

so the BOP contacted the sentencing judge. See Barden, 921 F.2d at 483 (noting that the

statute wisely requires the BOP to solicit the views of the sentencing judge whenever

possible). The sentencing judge responded in a letter dated January 6, 2009, indicating

that it was his intent at the time of sentencing that Eccleston’s federal sentence be served

consecutively to his state sentence, and that he opposed a retroactive designation of the

federal sentence. It appears from the record that the BOP duly considered Eccleston’s

request, weighed the factors, and properly exercised its discretion under section 3621(b).




                                               5
       In his argument in support of his appeal, Eccleston appears to focus on factor (4),

the sentencing judge’s later-stated position regarding consecutive service of the sentence,

where there was no such statement at sentencing. As Eccleston emphasizes in his

argument, he was sentenced in federal court before he was sentenced in state court. His

argument, as we understand it, is that the federal sentencing judge could not have ordered

his federal sentence to run consecutively to his state sentence because his state sentence

did not yet exist at the time of his federal sentencing, and the BOP’s denial of his nunc

pro tunc request based on factor (4) was an abuse of discretion. We are unpersuaded by

this argument. The BOP’s denial did not rely exclusively on factor (4). Indeed, the BOP

stated that a nunc pro tunc designation in Eccleston’s case “is not consistent with the

goals of the criminal justice system due to the Court’s intent, nature of your state

conviction, and repetitive criminal conduct.” (Response to Section 2241 Petition,

Attachment 9 to Declaration of Kinda Flagg.) Eccleston does not contest the BOP’s

evaluation of the other relevant factors relating to his federal offenses and his state

criminal history, as was set forth in the BOP’s decision letter. The test is not whether a

reviewing court would weigh the factors differently. The writ may issue only where an

error is fundamental and carries a serious potential for a miscarriage of justice. See

Barden, 921 F.2d at 479. Here, the BOP did not consider factors outside of the statute,

and we can not say that a serious potential for a miscarriage of justice is implicated in the

exercise of the BOP’s exercise of its discretion in this case. We discern no abuse of



                                              6
discretion here.

       Because no substantial question is presented by this appeal, Third Circuit LAR

27.4 and I.O.P. 10.6, we will summarily affirm the order of the District Court denying

Eccleston’s section 2241 petition. Eccleston’s motion for appointment of counsel is

denied.




                                            7
