ALD-054 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-2472 ___________
DEXTER PICKETT, Appellant
v.
WARDEN MCKEAN FCI ____________________________________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 1:16-cv-00023) Magistrate Judge: Honorable Susan Paradise Baxter ____________________________________
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 November 21, 2017 Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges
(Opinion filed: March 2, 2018) _________
OPINION* _________
PER CURIAM
Dexter Pickett, a federal inmate, appeals pro se from the order of United States
District Court for the Western District of Pennsylvania denying his petition for writ of
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. habeas corpus filed pursuant to 28 U.S.C. § 2241. Pickett challenged the Bureau of
Prison’s (“BOP”) calculation of his sentence. For the reasons set forth below, we will
summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.
10.6.
On March 15, 2011, Pickett was arrested and charged in the New York Supreme
Court in Westchester County with criminal possession of a weapon in the second degree.
About four months later, Pickett was indicted in the United States District Court for the
Southern District of New York. On January 4, 2013, Pickett pleaded guilty to
conspiracy to distribute and possession with intent to distribute a controlled substance
and possession of a firearm in connection with a drug trafficking offense, 18 U.S.C. §§
846, 924(c)(1), in the Southern District of New York. That same day, Pickett was
sentenced to an aggregate sentence of 120 months of incarceration followed by four years
of supervised release. On January 17, 2013, Pickett was sentenced in state court to three
and a half years of incarceration. The state court directed that Pickett’s sentence run
concurrently with his federal sentence. From March 15, 2011, to March 6, 2014, Pickett
was incarcerated in New York state facilities and subject to New York’s primary
jurisdiction, but was transferred to federal custody pursuant to several writs of habeas
corpus ad prosequendum for his federal criminal proceedings.
On March 6, 2014, Pickett was paroled on his state sentence and was released to
the BOP pursuant to a detainer. Pickett requested that he receive credit for the time he
was incarcerated in the state institution. The BOP denied Pickett’s request. After 2 exhausting his administrative remedies, Pickett filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241 in the Western District of Pennsylvania, where he was
incarcerated. The parties consented to proceeding before a Magistrate Judge and the
matter was fully briefed. The Magistrate Judge denied Pickett’s petition. Pickett timely
appeals.
The District Court had jurisdiction over Pickett’s habeas petition pursuant to 28
U.S.C. § 2241. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242 (3d Cir. 2005).
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s denial of
his habeas petition de novo. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.
2007).
The Attorney General, who acts through the BOP, has the authority to calculate a
federal sentence and provide credit for time served. United States v. Wilson, 503 U.S.
329, 334-35 (1992). In calculating a sentence, the BOP first determines when the
sentence commenced and then determines whether the prisoner is entitled to any credits
toward that sentence. See 18 U.S.C. § 3585. The Magistrate Judge correctly upheld the
BOP’s determination that Pickett’s federal sentence was to run consecutively to his state
sentence. Because the sentencing court did not order the federal sentence to run
concurrently with Pickett’s yet to be imposed state sentence, the BOP was required to
treat his federal sentence as running consecutively to his state sentence. See 18 U.S.C. §
3584(a) (“Multiple terms of imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run concurrently.”); see also Elwell v. Fisher, 3 716 F.3d 477, 484 (8th Cir. 2013) (noting that § 3584(a) requires state and federal
sentences imposed at different times to run consecutively, unless the court orders the
terms to run concurrently).
The BOP was also correct in not awarding credit for time served by Pickett while
on loan to federal authorities pursuant to a writ of habeas corpus ad prosequendum. The
production of a defendant pursuant to a writ of habeas corpus ad prosequendum does not
affect the jurisdiction of the sovereign with primary custody over a defendant. Rios v.
Wiley, 201 F.3d 257, 274 (3d Cir. 2000) (“a prisoner detained pursuant to a writ of
habeas corpus ad prosequendum remains in the primary custody of the first jurisdiction
unless and until the first sovereign relinquishes jurisdiction over the prisoner.”); see also
Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978) (“When an accused is
transferred pursuant to a writ of habeas corpus ad prosequendum he is considered to be
‘on loan’ to the federal authorities so that the sending state’s jurisdiction over the accused
continues uninterruptedly.”). New York had primary custody over Pickett and he has
failed to show that New York relinquished custody of him during the time when he was
on loan to federal authorities.
We also agree with the BOP’s denial of credit toward Pickett’s federal sentence
for the time he served in state custody before he was paroled to federal custody. Section
3585(b) prohibits the BOP from crediting a federal sentence with time that has already
been credited toward another sentence. See Wilson, 503 U.S. at 337 (“Congress made
clear [in § 3585(b)] that a defendant could not receive a double credit for his detention 4 time.”). Because Pickett received credit toward his state sentence for his time spent in
custody from March 15, 2011, to March 6, 2014, he was not entitled to credit from the
BOP for that time.
Finally, the BOP did not abuse its discretion in denying Pickett’s request for nunc
pro tunc designation. The BOP has the authority to retroactively designate the place of
confinement for a prisoner’s federal sentence. 18 U.S.C.
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ALD-054 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-2472 ___________
DEXTER PICKETT, Appellant
v.
WARDEN MCKEAN FCI ____________________________________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 1:16-cv-00023) Magistrate Judge: Honorable Susan Paradise Baxter ____________________________________
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 November 21, 2017 Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges
(Opinion filed: March 2, 2018) _________
OPINION* _________
PER CURIAM
Dexter Pickett, a federal inmate, appeals pro se from the order of United States
District Court for the Western District of Pennsylvania denying his petition for writ of
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. habeas corpus filed pursuant to 28 U.S.C. § 2241. Pickett challenged the Bureau of
Prison’s (“BOP”) calculation of his sentence. For the reasons set forth below, we will
summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.
10.6.
On March 15, 2011, Pickett was arrested and charged in the New York Supreme
Court in Westchester County with criminal possession of a weapon in the second degree.
About four months later, Pickett was indicted in the United States District Court for the
Southern District of New York. On January 4, 2013, Pickett pleaded guilty to
conspiracy to distribute and possession with intent to distribute a controlled substance
and possession of a firearm in connection with a drug trafficking offense, 18 U.S.C. §§
846, 924(c)(1), in the Southern District of New York. That same day, Pickett was
sentenced to an aggregate sentence of 120 months of incarceration followed by four years
of supervised release. On January 17, 2013, Pickett was sentenced in state court to three
and a half years of incarceration. The state court directed that Pickett’s sentence run
concurrently with his federal sentence. From March 15, 2011, to March 6, 2014, Pickett
was incarcerated in New York state facilities and subject to New York’s primary
jurisdiction, but was transferred to federal custody pursuant to several writs of habeas
corpus ad prosequendum for his federal criminal proceedings.
On March 6, 2014, Pickett was paroled on his state sentence and was released to
the BOP pursuant to a detainer. Pickett requested that he receive credit for the time he
was incarcerated in the state institution. The BOP denied Pickett’s request. After 2 exhausting his administrative remedies, Pickett filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241 in the Western District of Pennsylvania, where he was
incarcerated. The parties consented to proceeding before a Magistrate Judge and the
matter was fully briefed. The Magistrate Judge denied Pickett’s petition. Pickett timely
appeals.
The District Court had jurisdiction over Pickett’s habeas petition pursuant to 28
U.S.C. § 2241. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242 (3d Cir. 2005).
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s denial of
his habeas petition de novo. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.
2007).
The Attorney General, who acts through the BOP, has the authority to calculate a
federal sentence and provide credit for time served. United States v. Wilson, 503 U.S.
329, 334-35 (1992). In calculating a sentence, the BOP first determines when the
sentence commenced and then determines whether the prisoner is entitled to any credits
toward that sentence. See 18 U.S.C. § 3585. The Magistrate Judge correctly upheld the
BOP’s determination that Pickett’s federal sentence was to run consecutively to his state
sentence. Because the sentencing court did not order the federal sentence to run
concurrently with Pickett’s yet to be imposed state sentence, the BOP was required to
treat his federal sentence as running consecutively to his state sentence. See 18 U.S.C. §
3584(a) (“Multiple terms of imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run concurrently.”); see also Elwell v. Fisher, 3 716 F.3d 477, 484 (8th Cir. 2013) (noting that § 3584(a) requires state and federal
sentences imposed at different times to run consecutively, unless the court orders the
terms to run concurrently).
The BOP was also correct in not awarding credit for time served by Pickett while
on loan to federal authorities pursuant to a writ of habeas corpus ad prosequendum. The
production of a defendant pursuant to a writ of habeas corpus ad prosequendum does not
affect the jurisdiction of the sovereign with primary custody over a defendant. Rios v.
Wiley, 201 F.3d 257, 274 (3d Cir. 2000) (“a prisoner detained pursuant to a writ of
habeas corpus ad prosequendum remains in the primary custody of the first jurisdiction
unless and until the first sovereign relinquishes jurisdiction over the prisoner.”); see also
Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978) (“When an accused is
transferred pursuant to a writ of habeas corpus ad prosequendum he is considered to be
‘on loan’ to the federal authorities so that the sending state’s jurisdiction over the accused
continues uninterruptedly.”). New York had primary custody over Pickett and he has
failed to show that New York relinquished custody of him during the time when he was
on loan to federal authorities.
We also agree with the BOP’s denial of credit toward Pickett’s federal sentence
for the time he served in state custody before he was paroled to federal custody. Section
3585(b) prohibits the BOP from crediting a federal sentence with time that has already
been credited toward another sentence. See Wilson, 503 U.S. at 337 (“Congress made
clear [in § 3585(b)] that a defendant could not receive a double credit for his detention 4 time.”). Because Pickett received credit toward his state sentence for his time spent in
custody from March 15, 2011, to March 6, 2014, he was not entitled to credit from the
BOP for that time.
Finally, the BOP did not abuse its discretion in denying Pickett’s request for nunc
pro tunc designation. The BOP has the authority to retroactively designate the place of
confinement for a prisoner’s federal sentence. 18 U.S.C. § 3621(b). The BOP may
designate a state prison as the place of confinement and it has wide authority in making
such a designation. Setser v. United States, 566 U.S. 231, 235 (2012); Barden v.
Keohane, 921 F.2d 476, 483 (3d Cir. 1990). As discussed by the Magistrate Judge, the
BOP reviewed Pickett’s request under the factors stated in § 3621(b). Specifically, the
BOP contacted the federal court for input and considered the sentencing judge’s deferral
to the discretion of the BOP. The BOP also considered Pickett’s criminal history, which
included convictions for attempted endangering the welfare of a child and possession of
stolen property in addition to disciplinary infractions. The BOP did not abuse its
discretion in concluding that Pickett’s criminal history, coupled with the sentencing
judge’s silence, counseled against granting concurrency. The BOP also considered the
state court’s intention to have Pickett’s sentences run concurrently and the fact that
Pickett’s state and federal charges were related. However, as “neither the federal courts
nor the [BOP] are bound in any way by the state court’s direction that the state and
federal sentences run concurrently[,]” Barden, 921 F.2d at 478 n.4, we cannot conclude
that the BOP abused its discretion in declining to implement the state court’s design. The 5 BOP appropriately considered the relevant factors and its decision was not an abuse of
discretion.
For these reasons, we will affirm the judgment of the District Court.