     09-1848-pr
     Jennings v. Schult


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                JOHN M. WALKER, JR.,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Wayne Jennings,
14                Petitioner-Appellant,
15
16                    -v.-                                               09-1848-pr
17
18       Deborah Schult, Warden,
19                Respondent-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                  Wayne Jennings, pro se, Ray Brook,
23                                       NY.
24
25       FOR APPELLEE:                   Elizabeth S. Riker (Charles E.
26                                       Roberts, of counsel), Assistant
27                                       United States Attorneys, for Andrew
28                                       T. Baxter, United States Attorney

                                                  1
1                           for the Northern District of New
2                           York, Syracuse, NY.
3
4         Appeal from a judgment of the United States District
5    Court for the Northern District of New York (Singleton, J.).

6         UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
7    AND DECREED that the judgment of the district court be
8    AFFIRMED.

 9        Appellant appeals from the district court’s denial of
10   his petition, filed pursuant to 28 U.S.C. § 2241, arguing
11   that the Bureau of Prisons had abused its discretion in
12   denying his request for nunc pro tunc designation of the
13   state prison for service of his federal sentence pursuant to
14   18 U.S.C. § 3621(b). We assume the parties’ familiarity with
15   the facts, proceedings below, and specification of issues on
16   appeal.

17        This Court reviews the district court’s denial of a
18   petition filed pursuant to 28 U.S.C. § 2241 de novo, see
19   Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996), and no
20   certificate of appealability is necessary for such an
21   appeal, see Drax v. Reno, 338 F.3d 98, 106 n.12 (2d Cir.
22   2003). The Bureau of Prisons's decision regarding nunc pro
23   tunc designation is reviewed for abuse of discretion. See
24   McCarthy v. Doe, 146 F.3d 118, 123 n.4 (2d Cir. 1998). This
25   Court may affirm on any basis supported by the record,
26   including grounds not relied upon by the district court.
27   See Ferran v. Town of Nassau, 471 F.3d 363, 365 (2d Cir.
28   2006) (citing Shumway v. United Parcel Serv., Inc., 118 F.3d
29   60, 63 (2d Cir. 1997)).

30       Pursuant to 18 U.S.C. § 3584(a):

31            If multiple terms of imprisonment are imposed on a
32            defendant at the same time, or if a term of
33            imprisonment is imposed on a defendant who is
34            already subject to an undischarged term of
35            imprisonment, the terms may run concurrently or
36            consecutively. . . . Multiple terms of
37            imprisonment imposed at the same time run
38            concurrently unless the court orders or the
39            statute mandates that the terms are to run
40            consecutively. Multiple terms of imprisonment
41            imposed at different times run consecutively


                                       2
1             unless the court orders that the terms are to run
2             concurrently.

 3   If a defendant held in state custody is produced for federal
 4   sentencing pursuant to writ and sentenced, and the state
 5   court later imposes a sentence which it orders to run
 6   concurrently with the federal sentence, the defendant may
 7   request that the BOP designate, nunc pro tunc, the state
 8   facility as a federal prison, pursuant to 18 U.S.C. §
 9   3621(b). See Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 74
10   (2d Cir. 2005); McCarthy v. Doe, 146 F.3d 118, 123 n.4 (2d
11   Cir. 1998). However, the BOP lacks that authority when the
12   federal sentencing court imposes sentence after the state
13   and fails to note whether a sentence should be consecutive
14   or concurrent. See Abdul-Malik, 403 F.3d at 74; McCarthy,
15   146 F.3d 118 (discussing legislative history). Accordingly,
16   because Appellant was subject to an undischarged state term
17   of imprisonment at the time the federal court resentenced
18   him, and because the federal court did not direct that its
19   sentence should run concurrently, the statute required that
20   the sentence run consecutively, and the Bureau of Prisons
21   was without authority to direct otherwise. See 18 U.S.C. §
22   3584(a); Abdul-Malik, 403 F.3d at 74. Accordingly, there
23   was no abuse of discretion in denying Appellant's request
24   for nunc pro tunc designation. See id.

25        We have considered Appellant's remaining arguments and
26   conclude that they are either improperly raised in a
27   petition pursuant to 28 U.S.C. § 2241 or without merit, or
28   both. Accordingly, the judgment of the district court is
29   AFFIRMED.

30
31
32                              FOR THE COURT:
33                              CATHERINE O’HAGAN WOLFE, CLERK
34




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