                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2009

Bryon Taylor v. Ronnie Holt
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1192




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-1192
                                      ___________

                                   BRYON TAYLOR,
                                                        Appellant,
                                            v.

                                 RONNIE HOLT
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 06-cv-00436)
                     District Judge: Honorable Richard P. Conaboy
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 2, 2009
             Before: SLOVITER, AMBRO, STAPLETON, Circuit Judges

                             Opinion filed: February 3, 2009
                                     ___________

                                       OPINION
                                      ___________


PER CURIAM

       Appellant Bryon Taylor appeals from an order of the District Court dismissing his

petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Finding no error,

we will affirm. Because the parties are familiar with the relevant facts and the procedural

background, we will not discuss them in detail.
       Taylor was arrested on May 15, 2003, and sentenced on June 20, 2003 in

Mahoning County, Ohio to a term of imprisonment of 10 months for trafficking in

marijuana. The state trial judge indicated that the term should run concurrent to a federal

sentence yet to be imposed. On June 23, 2003, the United States Marshals

Service assumed custody of Taylor via a writ of habeas corpus ad prosequendum.1 On

February 10, 2004, Taylor was sentenced to a term of imprisonment of 46 months in

United States District Court for the Northern District of Ohio, at D.C. Crim. No. 4:03-

CR-0227, for a violation of 19 U.S.C. § 922(g)(1) (felon in possession of firearm). On

April 27, 2005, Taylor was sentenced to a term of imprisonment of 151 months in the

same federal district court, at D.C. Crim. No. 4:03-CR-422, for a violation of 21 U.S.C. §

846 (conspiracy to distribute and possess with intent to distribute cocaine base), the term

to run concurrent with the first federal sentence. The federal sentencing judge said

nothing about how either of the federal sentences should run relative to the state sentence.

       The Bureau of Prisons effected concurrency of the first federal sentence and state

sentence to the extent possible through a nunc pro tunc designation pursuant to our

decision in Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). Because of this designation,

Taylor’s first federal sentence began to run on the date it was imposed, February 10,



   1
     Ohio did not relinquish jurisdiction of Taylor at this time. See generally Rios v.
Wiley, 201 F.3d 257, 274 (3d Cir. 2000) (prisoner not entitled to credit against federal
sentence for time spent in federal detention pursuant to writ of habeas corpus ad
prosequendum “unless and until the first sovereign relinquishes jurisdiction over the
prisoner”).

                                             2
2004, even though Taylor was still in the custody of the Ohio Department of Corrections.

The concurrency of the state and first federal sentence was imperfect due to the fact that

the state sentence ran for a period of time before the federal sentence was imposed.2 The

BOP also calculated the concurrent “overlap” of the two federal sentences, and

determined that the total federal sentence was 165 months and 17 days. The concurrency

was imperfect due to the fact that the first federal sentence ran for a period of time before

the second federal sentence was imposed.3

       Taylor, an inmate at the Schuylkill Federal Correctional Institution in Minersville,

Pennsylvania, filed a pro se habeas corpus action pursuant to 28 U.S.C. § 2241 in United

States District Court for the Middle District of Pennsylvania, alleging that the BOP

improperly denied him credit against his state sentence and improperly calculated his

federal sentences. Taylor contended that his second federal sentence of 151 months

imprisonment began to run on the date he was arrested on the state charges, May 15,

2003. Following the submission of a response to the petition by the BOP, the District



   2
    Taylor began to serve his state sentence on June 20, 2003. We note that it expired
before the second federal sentence was imposed.
   3
     The overlap was determined by computing each sentence independently from the
date of imposition. The first sentence was imposed on February 10, 2004, and the full
term date of this 46-month sentence ended on December 9, 2007. The second federal
sentence began on April 27, 2005 and the full term date of this 151 month sentence ended
on November 26, 2017. Subtracting the full term date of the first sentence (December 9,
2007) from the full term date of the second sentence (November 26, 2017), yielded the
remaining period of 165 months and 17 days. If there had been no concurrency at all, the
total federal sentence would have been 197 months.

                                              3
Court denied the habeas corpus petition on the merits. Addressing the issue of the state

sentence first, the District Court concluded that the BOP gave effect to the wishes of the

state judge to the extent permitted by federal law. A federal sentence commences when

the defendant is received by the Attorney General for service of his federal sentence. See

18 U.S.C. § 3585(a). See also United States v. Pungitore, 910 F.2d 1084, 1118-19 (3d

Cir. 1990). As a result, a federal sentence cannot begin to run earlier than on the date on

which it is imposed. See United States v. Labielle-Soto, 163 F.3d 93, 98 (2d Cir. 1998).

       Section 3621(b) of Title 18 authorizes the BOP to designate the place of

confinement for purposes of serving federal sentences of imprisonment. See Barden, 921

F.2d 476. The federal district judge did not specify whether the 46-month term of

imprisonment imposed on February 10, 2004 should run concurrent or consecutive to

Taylor’s state term. The BOP, through a nunc pro tunc designation, saw to it that Taylor

would begin receiving credit towards the service of his first federal sentence while still in

state custody, but Barden does not authorize the BOP to award credit for time spent in

state custody prior to the imposition of a federal sentence. Cf. Shelvy v. Whitfield, 718

F.2d 441, 444 (D.C. Cir. 1983) (concurrent sentence commences on date of imposition,

not on date of commencement of prior sentence or some earlier date). The BOP may not

give credit for time spent in state custody prior to sentencing in a federal case because 18

U.S.C. § 3585(b) prohibits this double credit. United States v. Wilson, 503 U.S. 329, 337

(1992). The District Court further concluded that the concurrency of the two federal



                                              4
sentences was properly calculated. A federal sentence already being served will not run

in a fully concurrent manner with a later imposed federal sentence. See Shelvy, 718 F.2d

at 444 (citing United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980)).

       In sum, the District Court concluded that (1) the BOP’s nunc pro tunc designation

permitted Taylor to concurrently serve his state and initial federal sentence to the extent

possible; (2) the federal sentences were properly calculated as commencing on the date

each was imposed; (3) the BOP correctly computed the total federal sentence; and (4)

Taylor received credit against either his state or federal sentence for all time spent

incarcerated. Taylor was not entitled to any time credit against his federal sentences for

the time spent in prison prior to February 10, 2004. That time was properly credited to

his state sentence only. Moreover, he received the benefit of the federal sentencing

judge’s determination that his federal sentences should run concurrently to the extent

permitted by law. Taylor appeals.

       We will affirm. We have jurisdiction under 28 U.S.C. § 1291. The issues

essentially are legal in nature, and we thus exercise plenary review. Barden, 921 F.2d at

479. The authority to calculate a federal prisoner’s period of incarceration for the

sentence imposed and to provide credit for time served is delegated to the Attorney

General, who acts through the BOP. Wilson, 503 U.S. at 334-35. We may correct an

error by the BOP through a writ of habeas corpus where that error is fundamental and

carries a serious potential for a miscarriage of justice. Barden, 921 F.2d at 479. We have



                                              5
carefully reviewed the record and fully agree with the District Court that the BOP could

not commence Taylor’s first federal sentence prior to February 10, 2004. By designating

the Ohio Department of Corrections as the place for Taylor’s federal sentence to be

served initially, the BOP gave effect to the state judge’s decision that Taylor should serve

his state and federal sentence concurrently. Moreover, the federal sentences were

properly calculated as commencing on the date each was imposed and the BOP properly

calculated the overlap concurrency of the federal sentences. Finally, Taylor was not

entitled to any time credit against his federal sentences for the time spent in prison prior

to February 10, 2004.

       Taylor does not seriously contend otherwise in his brief on appeal. Instead, he

argues for the first time that he is entitled to an adjustment from the federal sentencing

court in accordance with the federal sentencing guidelines. Taylor contends that the

federal judge in his second criminal case considered the conduct he committed in his state

case in arriving at the 151-month term of imprisonment. Therefore, he is entitled to an

adjustment under U.S.S.G. § 5G1.3 so that he is not punished twice for the same conduct.

See generally Witte v. United States, 515 U.S. 389, 405-06 (1995) (finding no double

jeopardy violation and noting that § 5G1.3 provides adequate safeguards to protect

against having length of second sentence multiplied by duplicative consideration of same

criminal conduct).




                                              6
       We will not reach this argument, and express no view on it, insofar as the District

Court lacked jurisdiction over it, and Taylor does not argue that we have original

jurisdiction to consider it. A challenge to a sentence imposed by the sentencing court

must be made under 28 U.S.C. § 2255. The District Court in this case lacked jurisdiction

to consider this guidelines challenge. Under the explicit terms of 28 U.S.C. § 2255,

unless a section 2255 motion would be “inadequate or ineffective,” a habeas corpus

petition cannot be entertained by a court. See also Application of Galante, 473 F.2d

1164, 1165 (3d Cir. 1971). Section 2255 is not “inadequate or ineffective” merely

because Taylor may not be able to meet AEDPA’s stringent gatekeeping requirements for

a second or successive section 2255 motion.

       For the foregoing reasons, we will affirm the order of the District Court denying

Taylor’s habeas corpus petition.




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