                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         September 4, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
ANTHONY FINERSON,

      Petitioner - Appellant,

v.                                                         No. 18-3079
                                                  (D.C. No. 5:18-CV-03017-JWL)
BUREAU OF PRISONS,                                           (D. Kan.)

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.
                   _________________________________

      Anthony Finerson, a state prisoner proceeding pro se,1 challenges the district

court’s denial of his 28 U.S.C. § 2241 petition. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
       We construe a pro se appellant’s complaint liberally. Gaines v. Stenseng, 292
F.3d 1222, 1224 (10th Cir. 2002). But we won’t serve as his advocate. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
                                   BACKGROUND

      On November 20, 2013, a grand jury in the United States District Court for the

Eastern District of Missouri charged Finerson with two counts of defrauding the

United States Department of Agriculture’s Supplemental Nutrition Assistance

Program (SNAP) and one count of conspiracy to defraud SNAP.

      On November 25, 2013, a Missouri state court sentenced Finerson to ten years

of imprisonment after he was found guilty of two counts of both second-degree

statutory rape and enticement of a child. Finerson was remanded to state custody.

      On December 13, 2013, the Eastern District of Missouri issued a writ of

habeas corpus ad prosequendum to bring Finerson before it “for an initial appearance

and at other times and dates.” R. at 14. Upon completion of those proceedings, the

United States Marshals were to return Finerson to the Missouri Department of

Corrections’ custody. Two days later, the United States Marshals collected Finerson

and placed him in federal custody.

      On February 12, 2014, still in federal custody, Finerson pleaded guilty in the

Eastern District of Missouri to one count of defrauding SNAP and one count of

conspiracy to defraud SNAP. That same day, the United States Marshals returned

Finerson to the Missouri Department of Corrections’ custody.

      On May 13, 2014, the United States Marshals transferred Finerson back into

federal custody for federal sentencing. Three days later, the Eastern District of

Missouri sentenced Finerson to 24 months of imprisonment to “run consecutive to the

sentence the defendant is currently serving for the State of Missouri.” Id. at 85. And

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on May 21, 2014, the United States Marshals returned him to state custody. A

Missouri state court later sentenced him to four years of imprisonment for four

counts of failing to register as a sex offender. For these convictions, and those

referenced above, Finerson remains confined in the Western Missouri Correctional

Center.

      That fall, Finerson requested credit be granted against his federal sentence

from May 16, 2014 to the present. The Federal Bureau of Prisons (BOP) denied his

request, notifying him that his “case is on hold” with the Eastern District of Missouri

until his “release from State custody,” because the federal district court “ordered

[his] federal sentence to run consecutive to [his] state sentence.” Id. at 40.

          On October 16, 2017, Finerson filed his § 2241 petition in the United States

District Court for the District of Western Missouri, and the petition was later

transferred to the District of Kansas. In the petition, Finerson alleged that the federal

BOP violated his Fifth and Fourteenth Amendment rights to a nunc pro tunc

designation. He also alleged that the federal BOP had denied him “equal protection to

prison time credit.” Id. at 7. In sum, he argued that his federal sentence should have

begun to run on May 16, 2014 because the Missouri Department of Corrections

waived its primary jurisdiction over him by releasing him to federal authorities

without a valid ad prosequendum writ.

      On April 10, 2018, the Kansas federal district court denied Finerson’s petition.

As to Finerson’s nunc pro tunc designation, the Kansas federal district court

concluded that the Eastern District of Missouri had intended that Finerson’s state and

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federal sentences run consecutively. So the Kansas federal district court agreed with

the federal BOP’s refusal to designate Finerson nunc pro tunc. Because Finerson

hadn’t been placed in federal custody to commence serving his federal sentence, the

Kansas federal district court also concluded that Finerson’s transfer to federal

custody hadn’t commenced his federal sentence. And the court noted that the

December 3, 2013 ad prosequendum writ authorized Finerson’s transfer to federal

custody “for an initial appearance and at other times and dates.” Id. at 14, 123

(emphasis added).

      Finerson now appeals.

                                    DISCUSSION

      When reviewing a district court’s denial of habeas corpus under 28 U.S.C.

§ 2241, we review de novo the court’s legal conclusions and we “accept its factual

findings unless clearly erroneous.” Leatherwood v. Allbaugh, 861 F.3d 1034, 1042

(10th Cir. 2017) (quoting al-Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir. 2013)).

      Here, Finerson raises two issues: (1) that he is entitled to a nunc pro tunc

designation; and (2) that his federal sentence commenced on May 16, 2014. We

address each issue in turn.

      (a) Nunc Pro Tunc

      Here, the Eastern District of Missouri explicitly ordered that Finerson serve his

federal sentence consecutive to his state sentence. The federal BOP’s agency

guidelines don’t permit it to designate a prisoner nunc pro tunc “where the federal

court has ordered that the federal sentence run consecutive to the earlier state

                                           4
sentence.” United States v. Miller, 594 F.3d 1240, 1242–43 (10th Cir. 2010) (citing

B.O.P.P.S. 5160.05, ¶ 7(b)-(c), and ¶ 9(b)(4)(c)). Permitting a nunc pro tunc

designation for Finerson “would void the district court’s valid sentence, and

undermine the court’s statutory authority under 18 U.S.C. § 3584(a).” Id. at 1242. So

the district court correctly denied Finerson’s petition because he doesn’t qualify for a

nunc pro tunc designation.

       (b) Commencement of federal sentence

       Finerson argues that his federal sentence commenced May 16, 2014, when the

Eastern District of Missouri sentenced him. He contends that because there was no

operative ad prosequendum writ granting the federal BOP temporary custody of him

when he was federally sentenced, the Missouri Department of Corrections waived its

primary jurisdiction over him, and he was exclusively in federal custody at his

federal sentencing.

       Under 18 U.S.C. § 3585(a), “[a] sentence to a term of imprisonment

commences on the date the defendant is received in custody awaiting transportation

to, . . . the official detention facility at which the sentence is to be served.” “A federal

sentence does not commence until a prisoner is actually received into federal custody

for that purpose.” Binford v. United States, 436 F.3d 1252, 1255 (10th Cir. 2006). To

determine whether the federal BOP has received a prisoner for the purpose of

commencing his federal sentence, we consider (1) whether officials transferred the

prisoner between sovereigns under the authority of a document showing the transfer

was supposed to be temporary, and (2) whether the subsequent conduct of the two

                                             5
sovereigns evidenced intent that the transfer be permanent. See Stroble v. Terrell, 200

F. App’x 811, 814–15 (10th Cir. 2006).

      Here, Finerson is correct that no second ad prosequendum writ issued

authorizing his transfer for federal sentencing. But the December 3, 2013 writ

explicitly signaled the federal BOP’s intent to transfer Finerson to federal custody

temporarily as needed. And both the federal BOP and the Missouri Department of

Corrections’ conduct after Finerson’s federal sentencing corresponds with this intent.

On May 21, 2014, the federal BOP returned Finerson to state custody. That signals

the federal BOP’s intent that Finerson continue to serve his state sentence, not that

Finerson’s federal sentence had commenced. So Finerson’s federal sentence didn’t

commence May 16, 2014.

                                      CONCLUSION

      We affirm the district court.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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