Kerry Washington v. Rodney Chandler ( 2013 )

Case: 12-10857 Document: 00512241204 Page: 1 Date Filed: 05/14/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2013
No. 12-10857
Summary Calendar Lyle W. Cayce
Clerk
KERRY WAYNE WASHINGTON,
Petitioner-Appellant
v.
RODNEY W. CHANDLER,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CV-279
Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Kerry Wayne Washington, federal prisoner # 33656-077, appeals the
dismissal of his 28 U.S.C. § 2241 petition seeking credit toward his federal
sentences for obstruction of commerce by robbery and use of a firearm during a
crime of violence for time that he served in Texas prison for violating his state
probation.
Because Washington is proceeding under § 2241, he is not required to
obtain a certificate of appealability to pursue his appeal. See Jeffers v. Chandler,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-10857 Document: 00512241204 Page: 2 Date Filed: 05/14/2013
No. 12-10857
253 F.3d 827, 830 (5th Cir. 2001). In the § 2241 context, we review the district
court’s legal determinations de novo and its factual findings for clear error.
Royal v. Tombone, 141 F.3d 596, 599 (5th Cir. 1998).
The Attorney General, through the Bureau of Prisons (BOP), determines
what credit, if any, is given to prisoners for time spent in custody prior to the
commencement of their federal sentences. United States v. Wilson, 503 U.S. 329,
331-32, 334 (1992). “Where a federal sentence was imposed before a state
sentence, the BOP may indirectly award credit for time served in state prison by
designating nunc pro tunc the state prison as the place in which the prisoner
serves a portion of his federal sentence.” Pierce v. Holder, 614 F.3d 158, 160 (5th
Cir. 2010). Based on the record before us, including abundant evidence that the
district court did not intend to impose Washington’s federal sentences to run
concurrent to the Texas sentence at issue, the district court did not err by
dismissing Washington’s claim that the BOP improperly denied his request for
a nunc pro tunc designation. See Royal, 141 F.3d at 599.
Contrary to his arguments that he was under the primary jurisdiction of
the United States during the period at issue, Washington was in the primary
custody of Texas following his arrest by Texas state authorities. See Causey v.
Civiletti, 621 F.2d 691, 693-94 (5th Cir. 1980); Zerbst v. McPike, 97 F.2d 253, 254
(5th Cir. 1938). When he was transferred to the Northern District of Texas
pursuant to writs of habeas corpus ad prosequendum, each transfer was “only
a ‘loan’ of the prisoner” such that Texas retained primary jurisdiction. Causey,
621 F.2d at 693 (citations omitted). Even if the Government could have chosen
to exercise its jurisdiction over him at the time of his federal sentencing in
August 2000, it chose not to do so; instead it returned him to Texas and issued
a detainer. See id. at 693-94. He fails to show that the district court erred by
dismissing his § 2241 petition without holding an evidentiary hearing. See Ellis
v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989).
AFFIRMED.
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