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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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
2 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
3 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.
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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
2 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
3 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